{
  "id": 8527160,
  "name": "STATE OF NORTH CAROLINA v. DAVID EDWARD HARRIS, JR.",
  "name_abbreviation": "State v. Harris",
  "decision_date": "1984-04-17",
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  "casebody": {
    "judges": [
      "Judges Arnold and Braswell concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. DAVID EDWARD HARRIS, JR."
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nThe state opposes defendant\u2019s appeal on the grounds that criminal defendants may not appeal from sentences imposed pursuant to a plea agreement approved and accepted by the trial court. We disagree. Defendant\u2019s plea agreement provided only that his convictions would be consolidated for sentencing, and did not deal with the question of length of punishment. Therefore, defendant is free to contend on appeal that the trial court erred in finding certain factors in aggravation of his sentence. State v. Jones, 66 N.C. App. 274, 311 S.E. 2d 351 (1984). Compare State v. Simmons, 64 N.C. App. 727, 308 S.E. 2d 95 (1983), where defendant\u2019s plea bargain provided he could be sentenced up to ten years in jail, the sentence imposed was within this limit, and no appeal was permitted.\nWe turn now to the merits of defendant\u2019s appeal. Where a defendant is convicted of more than one crime, but only one sentencing hearing is held, the trial judge should list aggravating and mitigating factors separately, as they relate to each crime. State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983). This rule applies both to the situation in which the crimes are consolidated for judgment, and where they are not. Id. Because the trial court in the case at bar failed to treat each offense separately and make findings tailored to the individual offense, the case must be remanded for resentencing. State v. Farrow, 66 N.C. App. 147, 310 S.E. 2d 418 (1984).\nWe deem it appropriate to note several additional errors committed by the trial court during the sentencing hearing.\nIn aggravating factor number one, the court found that the offense was committed for pecuniary gain, as provided under the former version of N.C. Gen. Stat. \u00a7 15A-1340.4(a)(l)(c) (1981 Cum. Supp.). It is clear, however, that a finding of this factor must be supported by evidence that defendant was hired to commit the crime. State v. Abdullah, 309 N.C. 63, 306 S.E. 2d 100 (1983). The mere fact that defendant profited in some way from his crime is insufficient. See also amended version of G.S. \u00a7 15A-1340.4(a)(l)(c), effective 1 October 1983, substituting the term \u201cwas hired or paid\u201d for the term \u201cfor hire or pecuniary gain.\u201d\nIn factor number six, the trial court held that a lesser sentence would unduly depreciate the seriousness of the crime. This non-statutory factor was rejected as unrelated to the purposes of sentencing by our supreme court in State v. Chatman, 308 N.C. 169, 301 S.E. 2d 71 (1983). Therefore, it was error for the trial court to use this factor.\nNext, we note that the trial court also erred as to factor number seven. \u201cFundamental fairness requires that once the trial judge accepted the plea bargain . . . the court was required to consolidate the cases for sentencing under one judgment and not treat the offenses separately. . . . [T]he court could not, in violation of the terms of the accepted negotiated plea, have imposed a separate sentence in each case to run concurrently or consecutively.\u201d State v. Jones, supra. It was error for the court to find as a factor in aggravation that it could have entered concurrent or consecutive jail terms. Id.\nWe turn next to factor number eight, \u201cdefendant\u2019s obvious continued determination in breaking the criminal law,\u201d and factor number five, \u201cdefendant\u2019s criminal history makes it necessary to separate him from the general public for its safety.\u201d It is clear that both of these factors in aggravation are based only upon evidence of defendant\u2019s prior criminal record, the same evidence used in finding factor number four. It is beyond question that a trial court may not use the same evidence to support more than one aggravating factor, see, e.g., State v. Higson, 310 N.C. 418, 312 S.E. 2d 437 (1984), and therefore the trial court erroneously found factors number eight and five.\nRemanded for resentencing.\nJudges Arnold and Braswell concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Rufus L. Edmisten, by Assistant Attorney General Steven F. Bryant, for the State.",
      "James B. Archbell for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DAVID EDWARD HARRIS, JR.\nNo. 8314SC1032\n(Filed 17 April 1984)\n1. Criminal Law \u00a7\u00a7 23, 146.5\u2014 plea bargain agreement \u2014 appeal of sentence\nDefendant could appeal from a sentence imposed pursuant to a plea bargain where the plea bargain provided only that defendant\u2019s convictions would be consolidated for sentencing and did not deal with the question of length of punishment.\n2. Criminal Law \u00a7 138\u2014 conviction of two crimes \u2014 separate findings as to aggravating and mitigating factors\nWhere a defendant is convicted of more than one crime but only one sentencing hearing is held, the trial judge should list aggravating and mitigating factors separately as they relate to each crime whether or not the crimes are consolidated for judgment.\n3. Criminal Law \u00a7 138\u2014 pecuniary gain aggravating factor \u2014 necessity for hiring\nThe trial court erred in finding as an aggravating factor that the offense was committed for pecuniary gain where there was no evidence that defendant was hired to commit the offense. G.S. 15A-1340.4(a)(l)(c).\n4. Criminal Law \u00a7 138\u2014 aggravating factor \u2014 lesser sentence would depreciate seriousness of crime\nThe trial court erred in finding as an aggravating factor that a lesser sentence would unduly depreciate the seriousness of the crime since such factor is unrelated to the purposes of sentencing.\n5. Criminal Law 8 138\u2014 plea bargain \u2014 aggravating factor \u2014 concurrent or consecutive jail terms\nWhere two crimes were consolidated for judgment pursuant to a plea bargain, the trial court erred in finding as an aggravating factor that it could have entered concurrent or consecutive jail terms.\n6. Criminal Law \u00a7 138\u2014 aggravating factors \u2014 determination in breaking criminal law and criminal history \u2014 use of same evidence\nThe trial court erred in finding as aggravating factors that defendant has an obvious continued determination in breaking the criminal law and that defendant\u2019s criminal history makes it necessary to separate him from the general public for its safety, since both of these factors were based upon the same evidence of defendant\u2019s prior criminal record.\nAPPEAL by defendant from Brannon, Judge. Judgment entered 3 February 1982 in DURHAM County Superior Court. Heard in the Court of Appeals 15 March 1984.\nDefendant entered into a plea agreement with the state, whereby he pleaded guilty to common law robbery and attempting to obtain property by false pretense. In return, the state consolidated the two crimes for sentencing, and dismissed another charge pending against defendant. Following a sentencing hearing, the trial court found that the following eight aggravating factors had been proven by a preponderance of the evidence: (1) the offense was committed for pecuniary gain, (2) one of the victims was physically infirm, (3) the offense was committed while defendant was on pre-trial release on another felony charge, (4) defendant has a prior conviction for an offense punishable by a jail term of more than sixty days, (5) defendant\u2019s criminal history makes it necessary to separate him from the general public for its safety, (6) a lesser sentence would unduly depreciate the seriousness of defendant\u2019s crimes, (7) the defendant was convicted of crimes for which consecutive sentences could have been imposed, but for which concurrent sentences are being imposed and (8) defendant\u2019s obvious continued determination in breaking the criminal law. The trial court held further that no mitigating factors had been shown and that the aggravating factors outweighed the factors in mitigation. Defendant was sentenced to ten years in prison. From imposition of the sentence in excess of the presumptive term, defendant appealed.\nAttorney General Rufus L. Edmisten, by Assistant Attorney General Steven F. Bryant, for the State.\nJames B. Archbell for defendant."
  },
  "file_name": "0725-01",
  "first_page_order": 757,
  "last_page_order": 760
}