{ "id": 8354470, "name": "STATE OF NORTH CAROLINA v. DAVID EDWIN DIERDORF", "name_abbreviation": "State v. Dierdorf", "decision_date": "2005-10-18", "docket_number": "No. COA04-1685", "first_page": "753", "last_page": "755", "citations": [ { "type": "official", "cite": "173 N.C. App. 753" } ], "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": "616 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633665 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "918" }, { "page": "919" }, { "page": "919" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0914-01" ] }, { "cite": "615 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633238 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "265" }, { "page": "265" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0256-01" ] }, { "cite": "406 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "855", "parenthetical": "holding that the defendant's failure to object to the State's summation of the evidence equated to a stipulation to the evidence" } ], "opinion_index": 0 }, { "cite": "329 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554860 ], "year": 1991, "pin_cites": [ { "page": "685", "parenthetical": "holding that the defendant's failure to object to the State's summation of the evidence equated to a stipulation to the evidence" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0683-01" ] }, { "cite": "359 N.C. 824", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798415 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "829" }, { "page": "830-31" }, { "page": "831" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0824-01" ] }, { "cite": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "year": 2005, "pin_cites": [ { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0425-01" ] } ], "analysis": { "cardinality": 293, "char_count": 4720, "ocr_confidence": 0.764, "pagerank": { "raw": 2.0749924238754402e-07, "percentile": 0.7582801159449837 }, "sha256": "11d311e8cedb10c6eb3b5c785b7478f5a281edc8ad0f527491359cb3f2fe7068", "simhash": "1:816f9628777d8165", "word_count": 772 }, "last_updated": "2023-07-14T20:45:28.578783+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and STEELMAN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID EDWIN DIERDORF" ], "opinions": [ { "text": "HUNTER, Judge.\nDavid Edwin Dierdorf (\u201cdefendant\u201d) appeals from his convictions of two counts of indecent liberties with a child and one count of second degree sex offense entered upon defendant\u2019s pleas of guilty. Defendant argues the trial court erred in sentencing him in the aggravated range. We affirm the judgment of the trial court.\nAt his plea hearing, defendant orally stipulated that he would \u201cbe sentenced in the aggravated range for each conviction totaling three convictions.\u201d Defendant\u2019s written plea agreement states that \u201c[u]pon the defendant\u2019s guilty pleas the defendant stipulates that he shall be sentenced in the aggravated range for each conviction (total of 3 convictions)[.]\u201d At sentencing, the trial court found as an aggravating factor that defendant \u201ctook advantage of a position of trust or confidence to commit the offense.\u201d Defendant did not object.\nDefendant contends the trial court violated his due process rights by sentencing him in the aggravated range, as the aggravating factor used by the trial court was not alleged in the indictment, and the factor was not presented and proven to a jury beyond a reasonable doubt. We do not agree.\nAlthough findings of fact made by the trial court may not be used to increase the penalty for a crime beyond the statutory maximum, the trial court \u201cmay still sentence a defendant in the aggravated range based upon the defendant\u2019s admission to an aggravating factor enumerated in N.C.G.S. \u00a7 15A-1340.16(d).\u201d State v. Allen, 359 N.C. 425, 439, 615 S.E.2d 256, 265 (2005). Moreover, sentencing factors that might lead to a sentencing enhancement do not have to be alleged in the indictment. Id. at 438, 615 S.E.2d at 265. Thus, the issue is whether defendant here stipulated to the existence of the aggravating factor.\nDuring a plea hearing, \u201ca defendant need not make an affirmative statement to stipulate to his or her prior record level or to the State\u2019s summation of the facts, particularly if defense counsel had an opportunity to object to the stipulation in question but failed to do so.\u201d State v. Alexander, 359 N.C. 824, 829, 616 S.E.2d 914, 918 (2005); see also State v. Mullican, 329 N.C. 683, 685, 406 S.E.2d 854, 855 (1991) (holding that the defendant\u2019s failure to object to the State\u2019s summation of the evidence equated to a stipulation to the evidence).\nIn the present case, defendant specifically agreed to be sentenced in the aggravated range. A plea arrangement or bargain is \u201c[a] negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usu[ally] a more lenient sentence or a dismissal of the other charges.\u201d Black\u2019s Law Dictionary 1190 (8th ed. 2004); Alexander, 359 N.C. at 830-31, 616 S.E.2d at 919. \u201cThe economically sound and expeditious practice of plea bargaining should be encouraged, with both sides receiving the benefit of that bargain.\u201d Alexander, 359 N.C. at 831, 616 S.E.2d at 919. Moreover, defendant did not object to the State\u2019s summation of the facts, nor to the trial court\u2019s finding of an aggravating factor. Because defendant agreed to be sentenced in the aggravated range and did not object to the trial court\u2019s finding of an aggravating factor, we conclude that defendant stipulated to the existence of the aggravating factor.\nAs defendant stipulated to the aggravating factor used by the trial court in the imposition of an aggravated sentence, we hold the trial court did not err in entering an aggravated sentence. We therefore affirm the judgments of the trial court.\nAffirmed.\nJudges TYSON and STEELMAN concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General John G. Barnwell, for the State.", "Hall & Hall Attorneys at Law, RC., by Douglas L. Hall, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID EDWIN DIERDORF\nNo. COA04-1685\n(Filed 18 October 2005)\nSentencing\u2014 aggravating factor \u2014 failure to present to jury\u2014 stipulation\nThe trial court did not err in a double indecent liberties with a child and second-degree sex offense case by entering an aggravated sentence after defendant\u2019s pleas of guilty even though the factor was not alleged in the indictment or presented and proven to a jury beyond a reasonable doubt, because defendant stipulated to the aggravating factor that defendant took advantage of. a position of trust or confidence when he agreed to be sentenced in the aggravated range and did not object to the trial court\u2019s finding of the aggravating factor.\nAppeal by defendant from judgments entered 10 July 2002 by Judge Claude S. Sitton in Burke County Superior Court. Heard in the Court of Appeals 24 August 2005.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General John G. Barnwell, for the State.\nHall & Hall Attorneys at Law, RC., by Douglas L. Hall, for defendant-appellant." }, "file_name": "0753-01", "first_page_order": 783, "last_page_order": 785 }