An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA14-37
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 10 CRS 233832
CHEOKEE THORPE
On writ of certiorari to review judgment entered 19 January
2011 by Judge H. William Constangy in Mecklenburg County
Superior Court. Heard in the Court of Appeals 30 June 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Joseph L. Hyde, for the State.
Anna S. Lucas for defendant-appellant.
BRYANT, Judge.
Pursuant to N.C. Gen. Stat. § 15A-1340.16, the decision
whether to sentence a defendant in the presumptive or mitigated
range is within the discretion of the trial court.
On 19 January 2011, pursuant to a plea agreement, defendant
pled guilty to robbery with a dangerous weapon and conspiracy to
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commit robbery with a dangerous weapon. The charges were
consolidated for judgment and defendant was sentenced to 64 to
86 months imprisonment.
On 3 July 2013, defendant filed a pro se petition for writ
of certiorari in this Court seeking review of the judgment
entered upon his guilty plea. By order entered 16 July 2013,
this Court allowed defendant’s petition for writ of certiorari,
limiting review to “those issues designated in N.C. Gen. Stat. §
15A-1444(a2) (2011) as reviewable in an appeal from a judgment
entered upon a guilty plea.”
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On 28 March 2014, the State filed a motion to dismiss
defendant’s appeal, contending defendant lacks a right to appeal
this issue and that the issue is beyond the scope of review
allowed by this Court in its order. In our discretion we deny
the State’s motion to dismiss defendant’s appeal and address the
merits of defendant’s argument.
___________________________
In his sole argument on appeal, defendant contends his case
should be remanded to the trial court for a new sentencing
hearing because it appears from the record that the trial court
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intended to sentence him in the mitigated range rather than in
the presumptive range. We disagree.
“The court may deviate from the presumptive range of
minimum sentences of imprisonment specified for a class of
offense and prior record level if it finds, pursuant to G.S.
15A-1340.16, that aggravating or mitigating circumstances
support such a deviation.” N.C. Gen. Stat. § 15A-1340.13(e)
(2013). “The court shall consider evidence of aggravating or
mitigating factors present in the offense that make an
aggravated or mitigated sentence appropriate, but the decision
to depart from the presumptive range is in the discretion of the
court.” Id. § 15A-1340.16(a) (2013).
If aggravating factors are present and the
court determines they are sufficient to
outweigh any mitigating factors that are
present, it may impose a sentence that is
permitted by the aggravated range described
in G.S. 15A-1340.17(c)(4). If the court
finds that mitigating factors are present
and are sufficient to outweigh any
aggravating factors that are present, it may
impose a sentence that is permitted by the
mitigated range described in G.S. 15A-
1340.17(c)(3).
Id. § 15A-1340.16(b) (2013) (emphasis added).
Here, the trial court found that mitigating factors existed
and that they outweighed the aggravating factors, but sentenced
defendant in the presumptive range. Defendant argues that since
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the trial court made these findings and failed to check the box
on the judgment that states the court makes no written findings
of fact because the prison term is in the presumptive range, the
case should be remanded for a new sentencing hearing. We are
not persuaded. This Court has held that “[s]ince subsection(b)
[sic] [of N.C.G.S. 15A-1340.16] provides that if a judge finds
that mitigating factors are present and outweigh any aggravating
factors, he has the discretion to impose a sentence in the
mitigated range, he ipso facto, likewise may in his discretion
decline to do so and sentence in the presumptive range.” State
v. Bivens, 155 N.C. App. 645, 648, 573 S.E.2d 259, 262 (2002).
As such, it was within the trial court’s discretion to sentence
defendant in the presumptive, rather than mitigated, range.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
Judges STROUD and HUNTER, Robert N., Jr., concur.
Report per Rule 30(e).