State v. Locklear

Justice EXUM

concurring.

I recognize that part of conventional judicial wisdom is the notion that trial judges ought to have the broadest possible discretion in sentencing a convicted criminal defendant and that this notion is presently embodied in our case law and statutes on the subject. See, e.g., State v. Pope, 257 N.C. 326, 126 S.E. 2d 126 (1962), relied on by the majority; see also, generally, General Statutes, Chapter 14. I do not agree with the majority, however, that this is a “proper” notion, and I would not sustain the result here on the basis of it.

Practically unbridled sentencing discretion in the hands of judges has resulted in grossly unequal treatment by judges of defendants convicted of the same crime. See M. Frankel, Criminal Sentences, Law Without Order (Hill and Wang, 1972); L. Orland and H. Tyler, Justice in Sentencing (Foundation Press 1974); Struggle For Justice, (a report on Crime and Punishment in America Prepared for the American Friends Service Committee, Hill and Wang, 1971); J. Exum, “Criminal Sentencing — A New Approach,” 27 Bar Notes 111 (Spring 1976). The time has come for the legislature to change our present approach to criminal sentencing. I do not suggest that all judicial discretion in this process be eliminated. By appropriate legislation, however, it should be greatly narrowed and more carefully channeled.1

Even under the present approach to criminal sentencing, the crucial question in this case is not whether the trial judge improperly relied on inadmissible hearsay, but whether, as the Court of Appeals put it, the sentencing hearing was “fair and just [and provided the defendant] with full opportunity to controvert hearsay and other representations in aggravation of punishment.” The Court of Appeals concluded defendant was not accorded such an opportunity. I disagree. The adverse information, although admittedly hearsay and obviously considered by the trial judge,2 *220was brought out in open court in the presence of defendant and his counsel. Defendant had the opportunity to refute it by testifying himself, offering other witnesses or, if necessary, asking for a recess or continuance to enable him to develop an appropriate refutation. He did none of these but stood mute on the question. He did not, therefore, take advantage of the opportunities he had at the hearing. His failures in this regard do not render the hearing itself unfair or unjust. The sentence imposed, while far longer and harsher than is normally imposed under such circumstances, must, under our present sentencing procedures, be allowed to stand.

. One approach to accomplishing this was suggested in my Bar Notes article last cited in the text.

. To say that he did not consider it on this record is simply, as any trial judge knows, to shut one’s eyes to the realities of the sentencing process as it is now conducted.