{
  "id": 8520512,
  "name": "STATE OF NORTH CAROLINA v. SCOTT J. GRAHAM",
  "name_abbreviation": "State v. Graham",
  "decision_date": "1983-03-15",
  "docket_number": "No. 821SC619",
  "first_page": "271",
  "last_page": "275",
  "citations": [
    {
      "type": "official",
      "cite": "61 N.C. App. 271"
    }
  ],
  "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": "300 S.E. 2d 29",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1983,
      "opinion_index": 0
    },
    {
      "cite": "60 N.C. App. 679",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8523490
      ],
      "year": 1983,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/60/0679-01"
      ]
    },
    {
      "cite": "298 S.E. 2d 63",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1982,
      "opinion_index": 0
    },
    {
      "cite": "59 N.C. App. 704",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8527256
      ],
      "year": 1982,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/59/0704-01"
      ]
    },
    {
      "cite": "295 S.E. 2d 482",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1982,
      "opinion_index": 0
    },
    {
      "cite": "306 N.C. 745",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8574240,
        8574275,
        8574212,
        8574223,
        8574259
      ],
      "year": 1982,
      "opinion_index": 0,
      "case_paths": [
        "/nc/306/0745-03",
        "/nc/306/0745-05",
        "/nc/306/0745-01",
        "/nc/306/0745-02",
        "/nc/306/0745-04"
      ]
    },
    {
      "cite": "293 S.E. 2d 658",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1982,
      "opinion_index": 0
    },
    {
      "cite": "58 N.C. App. 330",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8524882
      ],
      "year": 1982,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/58/0330-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 424,
    "char_count": 8227,
    "ocr_confidence": 0.787,
    "pagerank": {
      "raw": 3.492870434172545e-07,
      "percentile": 0.8823497045580649
    },
    "sha256": "7bc00c4201a338f67e556b78e746162688496050b75abeb04aa8965361ba9b54",
    "simhash": "1:eb2ac1ef6609f946",
    "word_count": 1324
  },
  "last_updated": "2023-07-14T21:13:54.976609+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judge Braswell concurs.",
      "Chief Judge VAUGHN dissents."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. SCOTT J. GRAHAM"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nIn his brief, defendant contends that the trial judge erred in failing to find as a factor in mitigation that defendant voluntarily acknowledged wrongdoing in connection with the offenses to a law enforcement officer at an early stage of the criminal process.\nDeputy Eck testified that he interviewed defendant twice while investigating the crimes and that defendant denied being involved with any wrongdoing. Thereafter, defendant was arrested and, while being transported to the patrol station, defendant admitted to the officer that he broke into all four homes and stole items from them and volunteered to return stolen property that had not yet been recovered. With defendant\u2019s aid, some of the stolen property was recovered.\nG.S. 15A-1340.4(a) provides that the trial judge must consider each of the enumerated aggravating and mitigating factors. See also, State v. Davis, 58 N.C. App. 330, 293 S.E. 2d 658, disc. rev. denied, 306 N.C. 745, 295 S.E. 2d 482 (1982). G.S. 15A-1340.4(a)(2)l. provides that one of the mitigating factors that must be considered is whether \u201c[p]rior to arrest or at an early stage of the criminal process, the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer.\u201d (Emphasis added.) This part of the statute makes it clear that a criminal defendant has two opportunities to mitigate the sentence that he might be given on a guilty plea or verdict: first, prior to arrest; second, at an early stage of the criminal process. While the evidence in the present case showed that prior to arrest defendant denied involvement with the crimes, the uncon-troverted evidence for the State also clearly showed that immediately after his arrest defendant voluntarily acknowledged wrongdoing in each of the cases involved. Thus, the fact that prior to his arrest a defendant denied wrongdoing does not take away the requirement that the trial judge must consider also whether the defendant voluntarily acknowledged wrongdoing \u201cat an early stage of the criminal process.\u201d It is implicit in the statute that, for purposes of G.S. 15A-1340.4(a)(2)l., the legislature contemplated that \u201cthe criminal process\u201d involves formal legal proceedings and not merely investigation of crimes by law enforcement officers. For purposes of the statute, \u201cthe criminal process\u201d is not commenced until the defendant either is arrested, is served with criminal process, waives indictment or is both indicted and has actual notice of the fact of his indictment. We find support for this conclusion in G.S. 15A-701, et seq., the Speedy Trial Act, and G.S. 15A-932 which allows pending proceedings to be dismissed with leave when the defendant fails to appear and cannot be readily found.\nWhere, as in the present case, the State\u2019s own unequivocal evidence clearly establishes the existence of a factor in mitigation which the legislature has included among those which must be considered, it is error for the trial judge to fail to find that factor. We are careful to note that our decision in this case must be distinguished from State v. Davis, supra, where this Court held that it was not error to fail to find mitigating factors where the existence of those factors may not have been established by a preponderance of the evidence. In the present case, there being no evidence to the contrary, the mitigating factor was clearly established and we can only conclude that the trial judge either misconstrued the words \u201ccriminal process\u201d or that he altogether failed to consider the mitigating factor. While the weighing of the aggravating and mitigating factors is to be left solely to the sound discretion of the trial judge, State v. Davis, supra, the balancing process cannot be properly completed if the trial judge fails to consider a factor listed in G.S. 15A-1340(a) which has been established by the evidence.\nDefendant also contends that the trial court improperly considered defendant\u2019s prior convictions as a factor in aggravation. See G.S. 15A-1340.4(a)(l)o.\nDeputy Sheriff Eck was allowed, over defendant\u2019s objection, to testify as to what he had learned about defendant\u2019s record of prior convictions. The record makes it clear that Eck was not referring to or using court records, but was basing his testimony on information he had received from others.\nG.S. 15A-1340.4(e), in pertinent part, provides that \u201cA prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction.\u201d Defendant contends that the methods referred to in the statute are the exclusive means by which prior convictions may be shown at a sentencing hearing. We reject this contention. Formal rules of evidence do not apply at sentencing hearings. G.S. 15A-1334(b). The means of proof set out in G.S. 15A-1340.4(e) are permissive, not mandatory or exclusive. See State v. Massey, 59 N.C. App. 704, 298 S.E. 2d 63 (1982) and State v. Thompson, 60 N.C. App. 679, 300 S.E. 2d 29 (1983). We hold that it was not improper for the trial court to hear and consider the evidence given by Deputy Eck. Defendant, of course, was entitled to rebut such testimony, and we note that the record indicates defendant\u2019s counsel did in fact attempt to clarify defendant\u2019s record after Deputy Eck\u2019s testimony was allowed.\nFor the reasons stated, defendant\u2019s sentences are vacated and these cases are remanded for proper sentencing.\nVacated and remanded.\nJudge Braswell concurs.\nChief Judge VAUGHN dissents.",
        "type": "majority",
        "author": "WELLS, Judge."
      },
      {
        "text": "Chief Judge VAUGHN\ndissenting.\nIn my view, the \u201ccriminal process\u201d in this case began when the officers proceeded to investigate this defendant\u2019s criminal activities. It was for the judge to determine the extent of defendant\u2019s cooperation and whether it came at such a time as to compel him to find any cooperation by defendant as a mitigating factor.",
        "type": "dissent",
        "author": "Chief Judge VAUGHN"
      }
    ],
    "attorneys": [
      "Attorney General Rufus L. Edmisten, by Associate Attorney K. Michele Allison, for the State.",
      "Appellate Defender Adam Stein, by Assistant Appellate Defender James H. Gold, for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. SCOTT J. GRAHAM\nNo. 821SC619\n(Filed 15 March 1983)\n1. Criminal Law \u00a7 138\u2014 mitigating factor \u2014 acknowledgment of wrongdoing at early stage of process\nThe trial court erred in failing to find as a mitigating factor that defendant voluntarily acknowledged wrongdoing in connection with the offenses to a law enforcement officer at an early stage of the criminal process where the un-controverted evidence showed that, while defendant denied involvement in the crimes prior to his arrest, he voluntarily acknowledged wrongdoing in each of the cases while he was being transported to the patrol station immediately after his arrest. G.S. 15A-1340.4(a)(2)l.\n2. Criminal Law \u00a7 138\u2014 sentencing hearing \u2014 prior convictions \u2014 evidence other than stipulation or court records\nPrior convictions could be proved at a sentencing hearing by methods other than a stipulation or court records, and the trial court properly considered defendant\u2019s prior convictions as an aggravating factor upon the basis of a deputy\u2019s testimony as to what he had learned about defendant\u2019s prior convictions from others. G.S. 15A-1340.4(a)(l)o.\nChief Judge Vaughn dissenting.\nAPPEAL by defendant from Winberry, Judge. Judgment entered 25 January 1982 in DARE County Superior Court. Heard in the Court of Appeals 10 January 1983.\nDefendant pled guilty to four counts of felonious breaking or entering of beach cottages. At the sentencing hearing, the State presented the testimony of the arresting officer, Deputy Sheriff Eck. Eck testified as to the circumstances of defendant\u2019s arrest and defendant\u2019s prior criminal record. Stating that he had considered all the statutory factors in aggravation and mitigation, the trial judge found as an aggravating factor that defendant had prior convictions punishable by more than 60 days confinement. He made no findings of factors in mitigation. Upon finding that the factors in aggravation outweighed the factors in mitigation, the trial judge sentenced defendant to four five-year terms, to be served consecutively. The presumptive sentence for felonious breaking or entering is three years. The maximum is ten years. Defendant appealed.\nAttorney General Rufus L. Edmisten, by Associate Attorney K. Michele Allison, for the State.\nAppellate Defender Adam Stein, by Assistant Appellate Defender James H. Gold, for defendant."
  },
  "file_name": "0271-01",
  "first_page_order": 303,
  "last_page_order": 307
}