No. COA09-728JUDICIAL DISTRICT SIXTEEN-A
1
No. COA09-728JUDICIAL DISTRICT SIXTEEN-A
NORTH CAROLINA COURT OF APPEALS
*******************************
STATE OF NORTH CAROLINA)
)From Hoke County
v.)Nos. 05CRS51614-15
)
RONNIE LAMAR DANIELS,)
Defendant)
*********************************
DEFENDANT-APPELLANT’S BRIEF
*********************************
1
INDEX
PAGE
TABLE OF CASES AND AUTHORITIES ...... iii
QUESTIONS PRESENTED ...... 1
STATEMENT OF THE CASE ...... 1
STATEMENT OF JURISDICTION ...... 2
STATEMENT OF THE FACTS ...... 3
ARGUMENT:
I.THE COURT VIOLATED N.C. GEN. STAT. § 15A-1335 (2008) WHEN IT IMPOSED A SENTENCE OF 370 TO 453 MONTHS ON REMAND AFTER APPEAL WHEN MR. DANIELS’S ORIGINAL SENTENCE BEFORE HIS APPEAL HAD BEEN 307 TO 378 MONTHS. 5
A.Standard of Review ...... 5
B.Discussion ...... 6
II.THE COURT ABUSED ITS DISCRETION BY IMPOSING A SENTENCE AT THE TOP OF THE PRESUMPTIVE RANGE IN CASE NO. 05CRS51615 (SECOND DEGREE RAPE) AFTER HAVING FOUND ONE MITIGATING FACTOR AND NO AGGRAVATING FACTORS. 8
A.Standard of Review ...... 8
B.Discussion ...... 9
CONCLUSION ...... 11
CERTIFICATE OF SERVICE ...... 13
TABLE OF CASES AND AUTHORITIES
CASES
PAGE
Brown v. Flowe,
349 N.C. 520, 507 S.E.2d 894 (1998)...... 5
Bruning & Federle Mfg. Co. v. Mills,
185 N.C. App. 153, 647 S.E.2d 672 (2007)...... 5
State v. Bivens,
155 N.C. App. 645, 573 S.E.2d 259 (2002)...... 8
State v. Daniels,
189 N.C.App. 705, 659 S.E.2d 22 (2008)...... 3, 6
State v. Garcia,
358 N.C. 382, 597 S.E.2d 724 (2004)...... 5
State v. Hemby,
333 N.C. 331, 426 S.E.2d 77 (1993)...... 7
State v. Nixon,
119 N.C.App. 571, 459 S.E.2d 49 (1995)...... 7
State v. Oliver,
155 N.C. App. 209, 573 S.E.2d 257 (2002)...... 7
State v. Wagner,
356 N.C. 599, 572 S.E.2d 777 (2002)...... 6
State v. Willis,
92 N.C.App. 494, 374 S.E.2d 613 (1988),
disc. review denied,
324 N.C. 341, 378 S.E.2d 808 (1989)...... 9, 11
STATUTES
N.C. Gen. Stat. § 7A-27(b) (2008)...... 2
N.C. Gen. Stat. § 15A-1335 (2008)...... 1, 5, 6, 7, 11
N.C. Gen. Stat. § 15A-1340.16(a) (2008)...... 8
N.C. Gen. Stat. § 15A-1340.16(c) (2008)...... 9
N.C. Gen. Stat. § 15A-1340.16(c) and (e) (2008)...... 10
N.C. Gen. Stat. § 15A-1340.16(e)(3),
(14), (15), (17), (18), and (19) (2008)...... 4
N.C. Gen. Stat. § 15A-1340.16(e)(14) (2008)...... 2, 4
N.C. Gen. Stat. § 15A-1340.17(c) (2008)...... 3
N.C. Gen. Stat. § 15A-1444(a) (2008)...... 2
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No. COA09-728JUDICIAL DISTRICT SIXTEEN-A
NORTH CAROLINA COURT OF APPEALS
*******************************
STATE OF NORTH CAROLINA)
)From Hoke County
v.)Nos. 05CRS51614-15
)
RONNIE LAMAR DANIELS,)
Defendant)
*********************************
DEFENDANT-APPELLANT’S BRIEF
*********************************
QUESTIONS PRESENTED
I.DID THE COURT VIOLATE N.C. GEN. STAT. § 15A-1335 (2008) WHEN IT IMPOSED A SENTENCE OF 370 TO 453 MONTHS ON REMAND AFTER APPEAL WHEN MR. DANIELS’S ORIGINAL SENTENCE BEFORE HIS APPEAL HAD BEEN 307 TO 378 MONTHS?
II.DID THE COURT ABUSE ITS DISCRETION BY IMPOSING A SENTENCE AT THE TOP OF THE PRESUMPTIVE RANGE IN CASE NO. 05CRS51615 (SECOND DEGREE RAPE) AFTER HAVING FOUND ONE MITIGATING FACTOR AND NO AGGRAVATING FACTORS?
STATEMENT OF THE CASE
The action of State of North Carolina v. Ronnie Lamar Daniels, Hoke County Files Nos. 05CRS51615-15, alleging first degree rape and first degree kidnapping, came on for jury trial in the General Court of Justice, Superior Court Division, County of Hoke, at the 12 Marcy 2007 Criminal Session, the Honorable Steve A. Balog, judge presiding. Upon jury verdicts of guilty of first degree rape and first degree kidnapping, the court entered judgment, sentencing the Defendant to a term of 307 to 378 months imprisonment on the first degree rape conviction and a consecutive sentence of 133 to 169 months imprisonment on the first degree kidnapping conviction. The Defendant took an appeal to the North Carolina Court of Appeals, COA07-1202, and the Court of Appeals held no error as to the trial, and remanded for new sentencing.
The case came on for resentencing in the General Court of Justice, Superior Court Division, County of Hoke, at the 8 December 2008 Criminal Session, the Honorable Richard T. Brown, judge presiding. After hearing on 9 and 11 December 2008, the court found mitigating factor N.C. Gen. Stat. § 15A-1340.16(e)(14) (2008) and no aggravating factors in both cases. The court then sentenced the Defendant to a term of 370 to 453 months on the first degree rape conviction, arrested judgment on the first degree kidnapping verdict, and imposed a consecutive sentence of 46 to 65 months on a conviction for second degree kidnapping. The Defendant gave timely notice of appeal in open court. The record on appeal was filed on 3 June 2009, docketed on 15 June 2009, and mailed from the clerk’s office on 17 June 2009.
STATEMENT OF JURISDICTION
This Court has jurisdiction pursuant to N.C. Gen. Stat. §§ 7A-27(b)and 15A-1444(a) (2008).
STATEMENT OF THE FACTS
The trial court first sentenced Mr. Daniels to a term of imprisonment of 307 to 378 months on the Class B1 felony, first degree rape, and a consecutive term of imprisonment of 133 to 169 months on the Class C felony, first degree kidnapping conviction. (R. pp. 12, 14) For a person like Mr. Daniels, with a prior record level IV, those sentences were at the bottom of the presumptive ranges. See N.C. Gen. Stat. § 15A-1340.17(c) (2008).
Mr. Daniels gained relief on appeal, namely: remand for resentencing at which proceeding, this Court instructed,
. . . the trial court may 1) arrest judgment on the first-degree kidnapping conviction and resentence defendant for second-degree kidnapping, or 2) arrest judgment on the first-degree rape conviction and resentence defendant on the first degree kidnapping conviction. (R. p. 22; State v. Daniels, 189 N.C.App. 705, 710, 659 S.E.2d 22, 25 (2008).)
At resentencing, the State urged the court to arrest judgment on the first degree kidnapping conviction and to sentence Mr. Daniels for first degree rape and second degree kidnapping and “to sentence in the spirit of Judge Balog who was the trial judge in this matter.” (Dec. 2008 T. p. 4) When arguing for terms of months certain, the State asked the court to sentence Mr. Daniels at the top of the presumptive ranges for each offense, yielding a term of 384 to 470 months on the Class B1 felony, first degree rape, and 46 to 65 months on the Class E felony, second degree kidnapping. (Dec. 2008 T. p. 7) In the State’s view, that sentencing “would be less than what he was sentenced to originally, but the State would argue would still be in the spirit of Judge Balot’s sentencing in this matter.” (Dec. 2008 T. p. 8)
Defense counsel asked the court to arrest judgment on the first degree rape conviction and to sentence Mr. Daniels for second degree rape and first degree kidnapping, both Class C felonies, and to sentence him at the bottom of the mitigated range for both felonies for terms of 80 to 105 months to run concurrently. (Dec. 2008 T. p. 29) Defense counsel also presented evidence from which the court was invited to find mitigating six (6) factors: honorable discharge from the U.S. armed services; suffering from a mental condition insufficient to constitute a defense, but which significantly reduced his culpability; positive employment history; acceptance of responsibility; support of his family; and a support system in the community. N.C. Gen. Stat. § 15A-1340.16(e)(3), (14), (15), (17), (18), and (19) (2008). (Dec. 2008 T. pp. 17-29)
After considering the proffers and arguments of counsel, the court found one of the proffered mitigating factors: Mr. Daniels had been honorably discharged from the U.S. armed services, N.C. Gen. Stat. § 15A-1340.16(e)(14) (2008). (Dec. 2008 T. p. 41; R. pp. 35, 37, 72, 74) The State did not offer, nor did the court find, any aggravating factors. But the court did not find that the finding of one mitigating factor and no aggravating factors justified sentencing outside the presumptive range. (Dec. T. p. 41; R. pp. 72, 74) It then sentenced Mr. Daniels to consecutive terms of imprisonment at the top of the presumptive ranges for both felonies: 370 to 453 months and 46 to 65 months. (Dec. T. p. 42; R. pp. 38, 41) Mr. Daniels gave notice of appeal in open court (Dec. 2008 T. p. 42) and now seeks relief from this Court.
ARGUMENT I
THE COURT VIOLATED N.C. GEN. STAT. § 15A-1335 (2008) WHEN IT IMPOSED A SENTENCE OF 370 TO 453 MONTHS ON REMAND AFTER APPEAL WHEN MR. DANIELS’S ORIGINAL SENTENCE BEFORE HIS APPEAL HAD BEEN 307 TO 378 MONTHS.
ASSIGNMENTS OF ERROR NO. 1 (Dec. T. p. 42; R. pp. 12, 16-32, 38)
A.Standard of Review
“[W]hen a trial court acts contrary to a statutory mandate . . . the right to appeal the court’s action is preserved.” State v. Garcia, 358 N.C. 382, 406, 597 S.E.2d 724, 743 (2004). In questions of statutory interpretation, de novo review is appropriate. See Brown v. Flowe, 349 N.C. 520, 523, 507 S.E.2d 894, 896 (1998) (“A question of statutory interpretation is ultimately a question of law for the courts.”); Bruning & Federle Mfg. Co. v. Mills, 185 N.C. App. 153, 156, 647 S.E.2d 672, 674 (2007) (where appeal presents question of statutoryinterpretation, full review appropriate and review de novo).
B.Discussion
This question is straightforward. Except in certain limited circumstances that are not relevant to Mr. Daniels’s case, the law of North Carolina prohibits sentencing a defendant on remand after appeal to a sentence that is any more severe than the defendant’s original sentence. Thus, the General Assembly has declared,
When a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence less the portion of the prior sentence previously served. N.C. Gen. Stat. § 15A-1335 (2008); see State v. Wagner, 356 N.C. 599, 602, 572 S.E.2d 777, 779 (2002) (“Pursuant to this statute a defendant whose sentence has been successfully challenged cannot receive a more severe sentence for the same offense or conduct on remand.”).
Mr. Daniels’s original sentence in Case No. 05CRS51614 for first degree rape was set aside on this Court’s direct review. Daniels, 189 N.C.App. at710, 659 S.E.2d at 25; R. p. 22. That original sentence was 307 to 378 months. (R. p. 12) On resentencing, the court imposed a sentence of 370 to 453 months in Case No. 05CRS51614 for first degree rape. (R. p. 38) Three hundred seventy to 453 months is “more severe than” the previous sentence of 307 to 378 months, less the portion he had already served. Therefore, the court’s sentence in Case No. 05CRS51614 is illegal, and Mr. Daniels is entitled to relief.
Nor can the State defend Mr. Daniels’s sentence in Case No. 05CRS51614 by arguing that his aggregate term of imprisonment after resentencing is 430 to 535 months, which is less than the original aggregate term of 540 to 547 months. (See Dec. 2008 T. pp. 7-8) (prosecutor arguing that “[t]his would be less than what he was sentenced to originally”) That argument is contrary to settled law, for this Court has already held that N.C. Gen. Stat. § 15A-1335 (2008) “applies to offenses charged and convictions thereon, not to an aggregate term of years.” State v. Nixon, 119 N.C.App. 571, 573, 459 S.E.2d 49, 50 (1995) (relying on State v. Hemby, 333 N.C. 331, 337, 426 S.E.2d 77, 80 (1993), quoted in State v. Oliver, 155 N.C. App. 209, 211, 573 S.E.2d 257, 258 (2002).
In sum, the court’s sentence on Mr. Daniels in Case No. 05CRS is illegal. He is entitled to have that sentence vacated and remanded for entry of a sentence that is not more severe than his original sentence, less the portion that he shall have served at the time of his new sentencing following this appeal.
ARGUMENT II
THE COURT ABUSED ITS DISCRETION BY IMPOSING A SENTENCE AT THE TOP OF THE PRESUMPTIVE RANGE IN CASE NO. 05CRS51615 (SECOND DEGREE RAPE) AFTER HAVING FOUND ONE MITIGATING FACTOR AND NO AGGRAVATING FACTORS.
ASSIGNMENT OF ERROR NO. 4 (Dec. 2008 T. p. 42; May 2009 T. pp. 2, 7, 10; R. pp. 36-37, 41, 73-74)
A.Standard of Review
A sentencing court is required to “consider evidence of aggravating or mitigating factors . . ., but the decision to depart from the presumptive range is in the discretion of the court.” N.C. Gen. Stat. § 15A-1340.16(a) (2008); see State v. Bivens, 155 N.C. App. 645, 648, 573 S.E.2d 259, 262 (2002) (“Since subsection(b) provides that if a judge finds that mitigating factors are present and outweigh any aggravating factors, he has the discretion to impose a sentence in the mitigated range, he ipso facto, likewise may in his discretion decline to do so and sentence in the presumptive range.”). A fortiori, this Court shall review the court’s decision to sentence Mr. Daniels at the top of the presumptive range in Case No. 05CRS51615, even though it found one mitigating factor and no aggravating factors, as it reviews any sentencing decision, for an “abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.” State v. Willis, 92 N.C.App. 494, 498, 374 S.E.2d 613, 616 (1988), disc. review denied, 324 N.C. 341, 378 S.E.2d 808 (1989).
B.Discussion
When originally sentenced, the court found no mitigating factors and no aggravating factors in Case No. 05CRS51615. Accordingly, the court originally sentenced Mr. Daniels in that case to a term of 133 to 169 months. That sentence was imposed for the Class C felony of first degree kidnapping. (See R. p. 14) Mr. Daniels was a prior record level IV. (R. p. 14) Therefore, consultation with the sentencing chart set out at N.C. Gen. Stat. § 15A-1340.16(c) (2008) shows that his original sentence in Case No. 05CRS51615 of 133 to 169 months was at the bottom of the presumptive range.
At his resentencing, however, the court found one mitigating factor and no aggravating factors in the same case (R. p. 37), and the court exercised its discretion in determining that the case did not warrant departing from the presumptive range. It then sentenced him to a term of 46 to 65 months in Case No. 05CRS51615. And yet, consultation with the sentencing chart set out at N.C. Gen. Stat. § 15A-1340.16(c) (2008) shows that the new sentence was at the top of the presumptive range.
It is telling that the court made the same leap from the bottom of the presumptive range to the top of the presumptive range in Case No. 05CRS51614, but in that case the unexplained leap from bottom to top yielded an illegal sentence. Moreover, it bears noting that the two sentencing leaps from bottoms to the tops of the presumptive ranges were exactly what the State had asked for, and the State’s repeated sentencing goal was to obtain an aggregate sentence “in the spirit of Judge Balog’s” original sentencing decisions. (See Dec. T. pp. 4, 8) In short, what the State wanted -- and the trial court provided -- was a sentence as close as it could get to the sentencing outcome that this Court had ruled it could not get: namely, a sentence that punished Mr. Daniels for both first degree rape and first degree kidnapping.
In the case of the first degree rape conviction in Case No. 05CRS51614, that sentencing goal led the court to impose an illegal sentence. In the case of the second degree rape conviction in Case No. 05CRS51615, Mr. Daniels respectfully contends that the State’s sentencing goal led the court to abuse its discretion; specifically, the court succumbed to “circumstances which manifest inherent unfairness and injustice” and“conduct which offends the public sense of fair play.” Willis, 92 N.C.App. at 498, 374 S.E.2d at 616. Had the court sentenced Case no. 05CRS51614 at the bottom of the presumptive range, as Judge Balog had done in the original sentencing, Mr. Daniels’s sentence would have been 37 to 54 months, see N.C. Gen. Stat. § 15A-1340.16(c) and (e) (2008), instead of the 46 to 65 months that he actually received on resentencing. He was, therefore, harmed by the abuse of discretion and is entitled to relief: vacating of his sentence in Case No. 05CRS51615 and remand for resentencing.
CONCLUSION
On the basis of the preceding facts, authorities, and argument, the Defendant requests relief. First, because the court imposed an illegal sentence, in violation of N.C. Gen. Stat. § 15A-1335 (2008) in Case No. 05CRS51614, Mr. Daniels is entitled to a new sentencing in that case. And second, because, in resentencing him in Case No. 05CRS51615, the court abused its discretion by leaping from the bottom of the presumptive range, which is where he was originally sentenced without the court having found any mitigating factors, to the top of the presumptive range, which is where he was resentenced when the court found one mitigating factor and no aggravating factors, Mr. Daniels is also entitled to a new sentencing in that Case No. 05CRS51615 as well.
Respectfully submitted, this the 10th day of July, 2009.
CHESHIRE, PARKER, SCHNEIDER, BRYAN & VITALE
/s/ John Keating Wiles
John Keating Wiles
N.C. State Bar # 22379
133 Fayetteville Street Mall
P. O. Box 1029
Raleigh, NC 27602
(919) 833-3114 (TEL)
(919) 832-0739 (FAX)
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing Defendant-Appellant’s Brief has been duly served on counsel for the State by U.S. Mail to the following:
Kathleen N. Bolton
Assistant Attorney General
N.C. Department of Justice
Appellate Section
P. O. Box 629
Raleigh, NC 27602
(919) 716-6500
ATTORNEY FOR THE STATE
This the 10th day of July, 2009.
/s/ John Keating Wiles
John Keating Wiles
CHESHIRE, PARKER, SCHNEIDER, BRYAN & VITALE
133 Fayetteville Street Mall
P. O. Box 1029
Raleigh, North Carolina 27602
(919) 833-3114
ATTORNEY FOR DEFENDANT