{ "id": 11919806, "name": "STATE OF NORTH CAROLINA v. JESSE DWIGHT MIXION, Defendant", "name_abbreviation": "State v. Mixion", "decision_date": "1995-04-18", "docket_number": "No. 9421SC587", "first_page": "559", "last_page": "564", "citations": [ { "type": "official", "cite": "118 N.C. App. 559" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "355 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "491" } ], "opinion_index": 0 }, { "cite": "319 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738669 ], "year": 1987, "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0444-01" ] }, { "cite": "335 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "350" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 433", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523182 ], "year": 1985, "pin_cites": [ { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0433-01" ] }, { "cite": "444 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "435" }, { "page": "434" } ], "opinion_index": 0 }, { "cite": "336 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2534961 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0412-01" ] }, { "cite": "306 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "309 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762487 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0214-01" ] }, { "cite": "320 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "690" }, { "page": "690" } ], "opinion_index": 0 }, { "cite": "312 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4754130 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "73" }, { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0070-01" ] }, { "cite": "433 S.E.2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529857, 2528988, 2532432, 2528433, 2532220 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0437-04", "/nc/334/0437-03", "/nc/334/0437-01", "/nc/334/0437-02", "/nc/334/0437-05" ] }, { "cite": "429 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "110 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525080 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/110/0138-01" ] } ], "analysis": { "cardinality": 455, "char_count": 10344, "ocr_confidence": 0.725, "pagerank": { "raw": 1.1565204574775136e-07, "percentile": 0.58305831729958 }, "sha256": "23adfad9eab2083a97c876e38e674c88a5dca79eafd0bcbeee5be4fe98f38c03", "simhash": "1:432a226af6bfe445", "word_count": 1667 }, "last_updated": "2023-07-14T20:04:31.897721+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHN and MARTIN, MARK D. concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JESSE DWIGHT MIXION, Defendant" ], "opinions": [ { "text": "JOHNSON, Judge.\nDefendant Jesse Dwight Mixion was found guilty of second degree murder and assault with a deadly weapon with intent to kill inflicting serious injury on 5 April 1991. Judge W. Steven Allen, Sr. found aggravating and mitigating factors in both cases, entered judgments and commitments, and sentenced defendant to forty years imprisonment for the murder conviction and twelve more consecutive years imprisonment for the assault conviction, for a total of fifty-two years imprisonment. Defendant appealed to our Court. Our Court affirmed defendant\u2019s conviction but remanded the case for new sentencing hearings. State v. Mixion, 110 N.C. App. 138, 429 S.E.2d 363, disc. review denied, 334 N.C. 437, 433 S.E.2d 183 (1993).\nThe cases came on together for resentencing, again before Judge Allen. On 9 December 1993, Judge Allen found aggravating and mitigating sentencing factors in both cases, entered judgments and commitments, and sentenced defendant to forty years imprisonment for the murder conviction and twelve more consecutive years imprisonment for the assault conviction, for a total of fifty-two years imprisonment. Defendant has again appealed to our Court.\nDefendant presents several arguments to support his contention that he should receive a new sentencing hearing. Defendant first argues that the trial court erroneously failed to find as a mitigating factor that the victims were more than sixteen years old and voluntary participants in defendant\u2019s conduct. We initially note that defendant did not ask the trial judge to find this mitigating factor at the sentencing rehearing; defendant now argues that the trial court should have found this mitigating factor ex mero mo tu.\nIn State v. Gardner, 312 N.C. 70, 73, 320 S.E.2d 688, 690 (1984), our Supreme Court stated, \u201c[w]e wish to make it abundantly clear that the duty of the trial judge to find a mitigating factor that has not been submitted by defendant arises only when the evidence offered at the sentencing hearing supports the existence of a mitigating factor specifically listed in N.C. Gen. Stat. \u00a7 15A-1340.4(a)(2) and when the defendant meets the burden of proof established.in State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983).\u201d The defendant\u2019s position\nis analogous to that of a party with the burden of persuasion seeking a directed verdict. He is asking the court to conclude that \u201cthe evidence so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn,\u201d and that the credibility of the evidence \u201cis manifest as a matter of law.\u201d\nGardner, 312 N.C. at 72, 320 S.E.2d at 690 (quoting State. v. Jones, 309 N.C. at 220, 306 S.E.2d at 455) (citations omitted).\nAfter a review of the record, we find that the evidence did not so clearly establish \u201cthe fact in issue\u201d so \u201cthat no reasonable [inference] to the contrary can be drawn.\u201d The trial court did not err in failing to find as a mitigating factor that the victims were more than sixteen years old and voluntary participants in defendant\u2019s conduct.\nDefendant next argues that the trial court erroneously found the aggravating factor of prior convictions. Defendant states that the question presented here is \u201cwhether, at a resentencing [hearing] under the Fair Sentencing Act, a judge may aggravate a sentence under G.S. 15A-1340.4(a)(l)o with a conviction that was entered after [his conviction and] first sentencing [on 5 April 1991,] but before [his] resentencing [on 9 December 1993].\u201d The chronology of events in the instant matter is as follows:\n5 July 1990: date of murder and assault offenses\n15 March 1991: date of drug offenses\n5 April 1991: date of conviction and sentencing of murder and assault offenses\n23 September 1991: date of conviction and sentencing of drug offenses\n9 December 1993: date of resentencing of murder and assault offenses\nDefendant cites State v. Coffey, 336 N.C. 412, 444 S.E.2d 431 (1994) for his contention that his drug convictions which occurred subsequent to the murder and assault convictions cannot serve as a prior conviction to enhance his sentence on the murder and assault convictions. Defendant\u2019s reliance upon Coffey is misplaced. In Coffey, the Court was faced with the meaning of the phrase \u201chistory of prior criminal activity\u201d which was not clearly defined by statute or case law. The Coffey Court held that \u201c \u2018history of prior criminal activity\u2019 as used in N.C.G.S. \u00a7 15A-2000(f)(l) refers to criminal activity occurring before the murder.\u201d Coffey, 336 N.C. at 418, 444 S.E.2d at 435. Otherwise, the Court noted, \u201c[i]f this language were to refer to defendant\u2019s criminal activity up to the time of sentencing, the word \u2018prior\u2019 would have no meaning since at the time of sentencing the defendant\u2019s criminal activity prior to sentencing is identical to his \u2018history of criminal activity.\u2019 \u201d Id. at 418, 444 S.E.2d at 434.\nHere, we are not faced with a lack of clarity requiring interpretation of the phrase \u201cprior conviction\u201d as it is defined in North Carolina General Statutes \u00a7 15A-1340.2(4) (1988) and referenced in North Carolina General Statutes \u00a7 15A-1340.4(a)(l)(o) (1988). North Carolina General Statutes \u00a7 15A-1340.2(4) defines prior conviction as follows:\n[The following definitions apply in this Article.]\n(4) Prior Conviction. \u2014 A person has received a prior conviction when he has been adjudged guilty of or has entered a plea of guilty or no contest to a criminal charge, and judgment has been entered thereon, and the time for appeal has expired, or the conviction has been finally upheld on direct appeal.\nThe definition clearly states that the point in time a conviction is to be considered a prior conviction is (1) after the time for appeal has expired, or (2) the conviction has been finally upheld on direct appeal. The record is devoid of any evidence that shows or suggests that at the 9 December 1993 resentencing date, defendant\u2019s drug convictions were not final.\nBased on a plain reading of the statute, we find that at the time of resentencing, defendant had a prior conviction. (Our holding is buttressed by the newly enacted North Carolina General Statutes \u00a7 15A-1340.11(7) (Cum. Supp. 1994), applicable to offenses occurring on or after 1 October 1994, which states \u201c[a] person has a prior conviction when, on the date a criminal judgment is entered, the person being sentenced has been previously convicted of a crime. . . .\u201d The statute goes on to explain how an appeal of the conviction affects whether it is a prior conviction.)\nThe State quotes State v. McCullers, 77 N.C. App. 433, 436, 335 S.E.2d 348, 350 (1985), where our Court said, \u201c[w]e believe that a fair reading of [North Carolina General Statutes \u00a7 15A-1340.4(a)(l)(o)] defines \u2018prior conviction\u2019 as one that is obtained before the defendant is sentenced for another offense.\u201d We point out, however, that pursuant to North Carolina General Statutes \u00a7 15A-1340.2(4), the time for appeal for that prior conviction must have expired, or the prior conviction must have been finally upheld on direct appeal.\nTherefore, based on North Carolina General Statutes \u00a7 15A-1340.2(4), we find in the instant case that the trial court properly found defendant\u2019s prior conviction as an aggravating factor at the resentencing.\nDefendant\u2019s final argument is that the trial court erroneously concluded that the aggravating factor outweighed the mitigating factors and erroneously imposed a fifty-two year sentence. We reject this argument. See State v. Parker, 319 N.C. 444, 448, 355 S.E.2d 489, 491 (1987) where the Court stated, \u201c [i]t is well established that one aggravating factor may outweigh several mitigating factors.\u201d The trial court did not abuse its discretion in the instant case by finding that the aggravating factor outweighed the mitigating factors.\nNo error.\nJudges JOHN and MARTIN, MARK D. concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General John G. Barnwell, for the State.", "Appellate Defender Malcolm, Ray Hunter, Jr., by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JESSE DWIGHT MIXION, Defendant\nNo. 9421SC587\n(Filed 18 April 1995)\n1. Criminal Law \u00a7 1236 (NCI4th) \u2014 second-degree murder and assault \u2014 sentencing\u2014mitigating factors \u2014 victims more than 16 years old and voluntary participants\nThere was no error in resentencing defendant for second-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury where the court failed to find ex mero motu as a mitigating factor that the victims were more than sixteen years old and voluntary participants in defendant\u2019s conduct. Defendant did not ask the trial judge to find this mitigating factor at the sentencing rehearing and the evidence did not so clearly establish the fact in issue that no reasonable inference to the contrary can be drawn.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n2. Criminal Law \u00a7 1185 (NCI4th)\u2014 second-degree murder and assault \u2014 aggravating factors \u2014 prior conviction \u2014 additional conviction between first sentencing and resentencing following appeal\nThe trial court did not err in resentencing defendant for second-degree murder and assault with a deadly weapon inflicting serious injury by finding the aggravating factor of prior convictions based upon drug convictions which occurred subsequently to the murder and assault convictions but before the resentencing for the murder and assault convictions. The record is devoid of any evidence that shows or suggests that defendant\u2019s drug convictions were not final at the resentencing date and, based on a plain reading of N.C.G.S. \u00a7 15A-1340.2(4), defendant had a prior conviction at the time of resentencing.\nAm Jur 2d, Criminal Law \u00a7\u00a7 551-556.\n3. Criminal Law \u00a7 1081 (NCI4th)\u2014 second-degree murder and assault \u2014 resentencing\u2014aggravating factor outnumbered but not outweighed by mitigating factors\nThere was no abuse of discretion in a resentencing hearing for second-degree murder and assault with a deadly weapon inflicting serious injury where the court found that the aggravating factor outweighed the mitigating factors and imposed a fifty-two year sentence.\nAm Jur 2d, Criminal Law \u00a7\u00a7 580-587.\nAppeal by defendant from judgment entered 9 December 1993 by Judge W. Steven Allen, Sr. in Forsyth County Superior Court. Heard in the Court of Appeals 28 February 1995.\nAttorney General Michael F. Easley, by Assistant Attorney General John G. Barnwell, for the State.\nAppellate Defender Malcolm, Ray Hunter, Jr., by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant." }, "file_name": "0559-01", "first_page_order": 591, "last_page_order": 596 }