{ "id": 8527656, "name": "STATE OF NORTH CAROLINA v. MICHAEL EUGENE WILLIAMS", "name_abbreviation": "State v. Williams", "decision_date": "1989-02-07", "docket_number": "No. 886SC301", "first_page": "752", "last_page": "754", "citations": [ { "type": "official", "cite": "92 N.C. App. 752" } ], "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": "364 S.E. 2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569057, 2570019, 2572295, 2569672, 2570462 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0477-03", "/nc/321/0477-05", "/nc/321/0477-02", "/nc/321/0477-01", "/nc/321/0477-04" ] }, { "cite": "359 S.E. 2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "87 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357808 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/87/0024-01" ] }, { "cite": "342 S.E. 2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "80 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525065 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/80/0547-01" ] }, { "cite": "340 S.E. 2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 24", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695666 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0024-01" ] } ], "analysis": { "cardinality": 332, "char_count": 5240, "ocr_confidence": 0.811, "pagerank": { "raw": 2.638924180866346e-07, "percentile": 0.8229501024963232 }, "sha256": "09d0048fe1e05d3574e77bdf043fa1743f71be18682b87b765c184f3cf1d3051", "simhash": "1:f1624b2b3e8bf926", "word_count": 833 }, "last_updated": "2023-07-14T21:55:11.858082+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BECTON and JOHNSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL EUGENE WILLIAMS" ], "opinions": [ { "text": "WELLS, Judge.\nDefendant first assigns error to the trial court\u2019s finding that he had a prior conviction, arguing that the prosecutor\u2019s oral representations were insufficient to prove this. The standard of proof required in order to find factors in aggravation or mitigation is preponderance of the evidence. N.C. Gen. Stat. \u00a7 15A-1340.4(a) (1988). A prosecutor\u2019s mere unsworn assertion that an aggravating factor exists is insufficient proof for the trial court to find it. State v. Swimm, 316 N.C. 24, 340 S.E. 2d 65 (1986); State v. Frazier, 80 N.C. App. 547, 342 S.E. 2d 534 (1986); see also State v. Mack, 87 N.C. App. 24, 359 S.E. 2d 485 (1987), disc. rev. denied, 321 N.C. 477, 364 S.E. 2d 663 (1988).\nThe State asserts that the prosecutor did not simply recite the prior convictions from memory, but read them at the sentencing hearing directly from the original court files. In a supplement to the record filed in this appeal, the district attorney has filed an affidavit stating that when he presented defendant\u2019s record of prior convictions, he was reading from the official records of the Clerk of Court of Northampton County and that the original records were present and available in the courtroom. He neither offered those records into evidence nor sought the defendant\u2019s stipulation as to what those records would show. See N.C. Gen. Stat. \u00a7 15A-1340.4(e).\nDefendant\u2019s failure to object to the prosecutor\u2019s statement at the sentencing hearing, furthermore, was not fatal; error based on the insufficiency of evidence as a matter of law can be reviewed absent an objection. N.C. Gen. Stat. \u00a7 15A-1446(d)(5) (1988); see also State v. Mack, supra.\nWhile we recognize that upon resentencing, it is probable that this factor in aggravation will be properly established and considered, we must apply the law consistently and conclude that we are required to provide defendant with a new sentencing hearing. The trial court erred in finding the existence of the prior conviction based solely on the prosecutor\u2019s unsworn statement.\nFor the reasons stated, we vacate the sentence and remand for a new sentencing hearing.\nBecause of our disposition of this issue we do not consider defendant\u2019s other assignment of error.\nSentence vacated and remanded for resentencing.\nJudges BECTON and JOHNSON concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Associate Attorney General Robert J. Blum, for the State.", "Charles J. Vaughan for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL EUGENE WILLIAMS\nNo. 886SC301\n(Filed 7 February 1989)\nCriminal Law \u00a7 138.28\u2014 aggravating factor of prior conviction \u2014 finding based only on prosecutor\u2019s statement \u2014 finding improper\nThe trial court erred in finding as an aggravating factor that defendant had a prior conviction for a criminal offense punishable by more than sixty days\u2019 confinement where the finding was based entirely on the prosecutor\u2019s oral representation as to defendant\u2019s record, and it was immaterial whether the prosecutor was reading from the official records of the Clerk of Court of Northampton County and whether the original records were present and available in the courtroom, since defendant neither offered those records into evidence nor sought defendant\u2019s stipulation as to what those records would show; furthermore, defendant\u2019s failure to object to the prosecutor\u2019s statement at the sentencing hearing was not fatal, since error based on the insufficiency of evidence as a matter of law can be reviewed absent an objection. N.C.G.S. \u00a7 15A-1446(d)(5) (1988).\nAPPEAL by defendant from Phillips, Herbert O., Ill, Judge. Judgment entered 29 June 1987 in NORTHAMPTON County Superior Court. Heard in the Court of Appeals 9 January 1989.\nDefendant pled guilty to robbery with a dangerous weapon and no contest to assault with a deadly weapon with intent to kill inflicting serious injury. The evidence tended to show that defendant entered a small country store in Galatia, North Carolina and struck its seventy-two-year-old operator, Mr. Blythe, across the face with a tire iron. Medical evidence indicated that the man was struck five times. Defendant took approximately $180 from the cash register and fled. Blythe\u2019s wife saw him run out to his vehicle, drop the money as he ran, and drive away. Defendant later turned himself in to authorities in Hobgood, North Carolina and eventually made a statement admitting his guilt.\nDuring the sentencing proceedings the prosecutor stated that defendant had two prior convictions for offenses punishable by more than sixty days\u2019 imprisonment. Based solely on this oral representation the trial court found as an aggravating factor that defendant had a prior conviction for a criminal offense punishable by more than sixty days\u2019 confinement. The trial court also found that the factor in aggravation outweighed those in mitigation: namely, that defendant had voluntarily acknowledged wrongdoing and surrendered himself to law enforcement authorities. Defendant was sentenced to a term of twenty years on the charge of robbery with a dangerous weapon, a term in excess of the presumptive sentence. Defendant was sentenced to the presumptive six-year term for assault with a deadly weapon with intent to kill inflicting serious injury.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Robert J. Blum, for the State.\nCharles J. Vaughan for defendant-appellant." }, "file_name": "0752-01", "first_page_order": 782, "last_page_order": 784 }