{ "id": 8372825, "name": "STATE OF NORTH CAROLINA v. ABRAHAM BERNARD McFADDEN", "name_abbreviation": "State v. McFadden", "decision_date": "2007-01-02", "docket_number": "No. COA06-519", "first_page": "131", "last_page": "136", "citations": [ { "type": "official", "cite": "181 N.C. App. 131" } ], "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": "624 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634819 ], "year": 2006, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/se2d/624/0329-01" ] }, { "cite": "122 S.E.2d 355", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "356", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "255 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571320 ], "year": 1961, "pin_cites": [ { "page": "572", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/255/0571-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-87.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "580 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "389", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 235", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186851 ], "year": 2003, "pin_cites": [ { "page": "238", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0235-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-87", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "400 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "416", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "328 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542427 ], "year": 1991, "pin_cites": [ { "page": "181", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0175-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "166 L. Ed. 2d 281", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2006, "opinion_index": 0 }, { "cite": "360 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3792897 ], "year": 2006, "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0231-01" ] }, { "cite": "583 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "670", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 312", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8955754 ], "year": 2003, "pin_cites": [ { "page": "324", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0312-01" ] }, { "cite": "588 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "897", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 265", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956792 ], "year": 2003, "pin_cites": [ { "page": "271", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0265-01" ] }, { "cite": "239 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "465" } ], "opinion_index": 0 }, { "cite": "293 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567044 ], "year": 1977, "pin_cites": [ { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0702-01" ] } ], "analysis": { "cardinality": 541, "char_count": 10709, "ocr_confidence": 0.743, "pagerank": { "raw": 1.3413078441442377e-07, "percentile": 0.6313331394996388 }, "sha256": "8f1f4ddc8f5af5e4a3aaf426377a2e20772a520e7b152c8f010a4bb8f21b152e", "simhash": "1:a3786aae563e1de7", "word_count": 1769 }, "last_updated": "2023-07-14T22:19:54.793724+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ABRAHAM BERNARD McFADDEN" ], "opinions": [ { "text": "HUNTER, Judge.\nAbraham Bernard McFadden (\u201cdefendant\u201d) appeals from a judgment entered 30 November 2005 consistent with a jury verdict finding him guilty of robbery with a dangerous weapon and habitual felon status. After careful review, we find no error in defendant\u2019s judgment \u2022and conviction.\nThe State\u2019s evidence tended to show that defendant entered the 4 Brothers BP convenience store on 22 March 2005. Defendant removed two twenty-four packs of beer from the cooler and attempted to walk out of the store without paying for the merchandise. One of the clerks on duty, Becky Starling (\u201cStarling\u201d), attempted to grab the back of defendant\u2019s coat. Defendant turned around and swung a knife at Starling.\nDefendant was found guilty of robbery with a dangerous weapon and habitual felon status and was sentenced to 145 to 183 months. Defendant appeals from this judgment and conviction.\nI.\nIn his first assignment of error, defendant contends that the trial court did not impartially sentence defendant. We disagree.\nA sentence within the statutory limit will be presumed regular and valid. However, such a presumption is not conclusive. If the record discloses that the court considered irrelevant and improper matter in determining the severity of the sentence, the presumption of regularity is overcome, and the sentence is in violation of defendant\u2019s rights.\nState v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977). \u201cA defendant has the right to plead not guilty, and \u2018he should not and cannot be punished for exercising that right.\u2019 \u201d State v. Gantt, 161 N.C. App. 265, 271, 588 S.E.2d 893, 897 (2003) (citation omitted).\n\u201cWhere it can reasonably be inferred from the language of the trial judge that the sentence was imposed at least in part because defendant did not agree to a plea offer by the state and insisted on a trial by jury, defendant\u2019s constitutional right to trial by jury has been abridged, and a new sentencing hearing must result.\u201d\nState v. Poag, 159 N.C. App. 312, 324, 583 S.E.2d 661, 670 (2003) (citation omitted). Poag held that statement of the terms of the plea bargain, standing alone, failed to show that the trial court\u2019s imposition of a harsher sentence following a jury trial was punishment for rejection of the plea offer. Id. Poag particularly noted that the trial court did not indicate at sentencing that it was imposing such a sentence as a result of the defendant\u2019s rejection of the plea. Id.\nDefendant contends his sentence was due in part to defendant\u2019s decision to ask for a jury trial. Prior to the habitual felon phase of the trial, a short discussion occurred confirming defendant\u2019s rejection of a guilty plea as to habitual felon status.\n[Prosecution]: It is my understanding that [defense counsel] has spoken to [defendant] and would relate to the Court what the State had extended in terms of not proceeding with the habitual felon and the Court was going to sentence at the bottom of the presumptive.\nThe Court: To 117 months.\n[Prosecution]: Yes, and he has rejected that so we will proceed with further instructions to the jury.\nNo further comments were made by the trial court regarding defendant\u2019s sentencing, and after the jury completed its deliberation as to the robbery with a dangerous weapon charge, the trial proceeded to the habitual felon phase. Defendant was ultimately sentenced within the presumptive range to 145 to 183 months.\nDefendant contends that the trial court\u2019s confirmation that it planned to sentence at the bottom of the presumptive range, in the context of the discussion of the plea agreement offered to defendant, shows prejudice on the part of the trial court in sentencing defendant more harshly because he elected to proceed with a jury trial. However, as in Poag, the trial court\u2019s brief comment regarding the sentencing range in terms of the plea bargain fails to show that the later imposition of a greater sentence in the presumptive range was a result of defendant\u2019s refusal to take the plea bargain. Similar to Poag, here the trial judge made no additional comments at sentencing suggesting that it was imposing such a sentence as a result of defendant\u2019s rejection of the plea.\nDefendant further contends that the trial court violated the Due Process Clause by announcing defendant\u2019s prospective sentence before hearing from defense counsel during the sentencing hearing. Following the prosecution\u2019s statements regarding aggravating factors, the trial court asked defendant\u2019s counsel if she would like to be heard. After defense counsel indicated that she would, the trial court responded as follows:\nThe Court: First of all, let me tell you how I am inclined to sentence him. I am inclined to sentence him to 145 months and that may just limit what you\u2019d like to say.\n[Defense Counsel]: Your Honor, with that, since you\u2019re not going to sentence him at the high end of the presumptive, Your Honor, I would just ask that you sentence him to something reasonable. I\u2019m satisfied with 145 months.\nThe trial court then asked defendant if he would like to say anything, and allowed defendant ample time to make a lengthy statement to the court.\nDefendant cites no authority for the assertion that the trial court\u2019s comment violated due process, merely contending that \u201cany lawyer would know\u201d that speaking further in such a situation would irritate the judge. \u201cAssignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as. abandoned.\u201d N.C.R. App. P. 28(b)(6). This argument is therefore taken as abandoned and dismissed. See State v. McNeill, 360 N.C. 231, 241, 624 S.E.2d 329, 336, cert. denied, -U.S.-, 166 L. Ed. 2d 281 (2006).\nAs defendant fails to show that the trial court did not impartially sentence defendant in the presumptive range, this assignment of error is overruled.\nII.\nDefendant next contends the trial court committed plain error in sentencing defendant as a Class D felony as an habitual felon, rather than as a Class G felony as an habitual felon. We disagree.\nWe first clarify that defendant\u2019s actual contention is that he should have been convicted of aggravated common law robbery, a Class G felony, rather than armed robbery, a Class D felony, on the grounds that the two offenses have identical elements. Defendant further contends that, as the two offenses are fungible, under the United States Supreme Court\u2019s holding in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), regarding the use of aggravating factors, defendant must be sentenced to the offense with the least possible sentence. We find no merit to this argument.\nThe elements of the offense of robbery with a dangerous weapon are: \u201c \u2018(1) the unlawful taking or an attempt to take personal property from the person or in the presence of another (2) by use or threatened use of a firearm or other dangerous weapon (3) whereby the life of a person is endangered or threatened.\u2019 \u201d State v. Small, 328 N.C. 175, 181, 400 S.E.2d 413, 416 (1991) (citation omitted); see also N.C. Gen. Stat. \u00a7 14-87(a) (2005).\nCommon law robbery is \u201cestablished where the State shows a \u2018felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear.\u2019 \u201d State v. Wilson, 158 N.C. App. 235, 238, 580 S.E.2d 386, 389 (2003) (citation omitted); see also N.C. Gen. Stat. \u00a7 14-87.1 (2005). The aggravating factor which defendant contends, if applied, would have made the crimes identical is found in N.C. Gen. Stat. \u00a7 15A-1340.16(d)(10) (2005), that \u201c[t]he defendant was armed with or used a deadly weapon at the time of the crime.\u201d\nA review of the elements clearly shows that the two offenses, even with the inclusion of the aggravating factor, are not fungible, as the crime of robbery with a dangerous weapon contains an additional element: That the life of a person is endangered or threatened by the use of the dangerous weapon. State v. Stewart, 255 N.C. 571, 572, 122 S.E.2d 355, 356 (1961) (emphasis added) (citation omitted) (holding that the crime of robbery with a dangerous weapon \u201c \u2018super-adds to the minimum essentials of common-law robbery the additional requirement that the robbery must be committed \u201cwith the use or threatened use of. . . firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened\" \u2019 \u201d). As the two crimes are not identical, as defendant alleges, we find this assignment of error to be without merit. We further note that a review of the record shows that as defendant was convicted of habitual felon status, the trial court properly sentenced defendant as a Class C habitual felon, rather than as a Class D felon.\nAs defendant fails to show the trial court erred in sentencing defendant in the presumptive range as an habitual felon, we affirm the judgment and conviction.\nAffirmed.\nJudges MCCULLOUGH and ELMORE concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General David J. Adinolfi II, for the State.", "Bruce T. Cunningham, Jr. for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ABRAHAM BERNARD McFADDEN\nNo. COA06-519\n(Filed 2 January 2007)\n1. Sentencing\u2014 greater sentence after plea bargain rejected-^judge\u2019s comment \u2014 no suggestion of causation\nThe trial judge did not err in the sentence imposed where he had commented that the sentence pursuant to a plea bargain would be 117 months, and he ultimately sentenced defendant to 145 to 183 months after defendant rejected the plea bargain. The trial judge made no comments at sentencing to suggest that he was imposing the sentence as a result of defendant\u2019s rejection of the plea.\n2. Appeal and Error\u2014 preservation of issues \u2014 authority not cited \u2014 abandoment of assignment of error\nAn argument on appeal was taken as abandoned where defendant cited no authority for his assertion that the trial court had violated due process by announcing the sentence he was inclined to give before defense counsel spoke.\n3. Robbery\u2014 sentencing \u2014 aggravated common law robbery\u2014 armed robbery \u2014 not identical offenses\nAggravated common law robbery and armed robbery do not have identical elements, even when the aggravating factor of use of a deadly weapon is included. There was no plain error in the sentencing classification given to defendant where he contended that he should have been convicted of aggravated common law robbery rather than armed robbery because common law robbery has the lesser sentence. Moreover, defendant was correctly sentenced as an habitual felon.\nAppeal by defendant from judgment entered 30 November 2005 by Judge L. Todd Burke in Forsyth County Superior Court. Heard in the Court of Appeals 6 December 2006.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General David J. Adinolfi II, for the State.\nBruce T. Cunningham, Jr. for defendant-appellant." }, "file_name": "0131-01", "first_page_order": 163, "last_page_order": 168 }