STATE of North Carolina
v.
Oscar Reginald HINNANT.
No. 827SC1174.
Court of Appeals of North Carolina.
November 15, 1983.*733 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Wilson Hayman, Raleigh, for the State.
Evans & Rountree by Don Evans, Rocky Mount, for defendant.
WELLS, Judge.
Defendant challenges the trial court's application of the Fair Sentencing Act to the facts of his case. Specifically, he first contends that his sentence undermines the policy of the Act because he received double the presumptive prison term on the basis of a single weak aggravating factor: prior convictions of (1) shoplifting and (2) breaking and entering and larceny.
This court and our supreme court have previously considered the public policy aspects of the Fair Sentencing Act raised by the defendant in this case. In State v. Davis, 58 N.C.App. 330, 293 S.E.2d 658, cert. denied, 306 N.C. 745, 295 S.E.2d 482 (1982), we made it clear that under the act, trial judges continue to have great discretion with respect to balancing factors found in aggravation against factors found in mitigation, and that their balancing process, if correctly carried out, will not be disturbed on appeal. In State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983), our supreme court approved those principles we laid down in Davis. We must, therefore, reject defendant's argument that we may review the trial court's sentence on the grounds that one "weak" factor in aggravation should not be allowed to support a sentence which is double that of the presumptive sentence.
While rejecting defendant's argument, we are constrained, however, to recognize defendant's lament that this case significantly illustrates the fact that the evil of disparity in sentencing has not been eliminated by the act. There is no question that within the parameters of Davis and Ahearn, a single factor in aggravation, properly found, may support a sentence ranging from fifteen years (the presumptive sentence) to life imprisonment (the maximum sentence) for second degree murder, regardless of how many factors in mitigation are found.
Neither can we find necessary fault with defendant's argument that if the fundamental goals of the act are to be obtained, deviation from presumptive sentences should be the exception, not the rule, and that this case may illustrate the fears of the Knox Commission[2] that "if trial judges ... *734 disregard legislatively prescribed guidelines for sentencing, then the system would quickly revert to the unjust results of the present discretionary system." Whatever the merits of such argument may be, we, are nevertheless convinced that as the act is now written, the results reached by us in Davisand blessed by our supreme court in Ahearnare sound. The act did not eliminate the existing "discretionary system"; it only established certain guidelines for trial judges, which if correctly observed, still leaves an open door for disparity of sentences. When it comes to sentencing, the trial judges still sit in the driver's seat. While, when appropriate, we can apply the letter of the law, the spirit of the law reposes in the hands of the trial judges who must apply it. In sentencing review, we look not for errors in judgment, but only for errors of law.
Defendant also argues that the trial court did commit an error of law by not finding two factors in mitigation: first, that defendant was coerced into shooting the victim, and second, that defendant was suffering from a mental condition (alcoholism and drunkenness) which, while insufficient to constitute a defense, did significantly reduce defendant's culpability.
Initially, defendant argues that his evidence on both factors was "uncontradicted" and was therefore of a quality sufficient to require a finding in mitigation. We cannot agree. The defendant has the burden of establishing such factors by a preponderance of the evidence, G.S. § 15A-1340.4(a), and the trial court must weigh defendant's evidence regardless of whether it is uncontradicted. The test laid down by our supreme court in State v. Jones, supra, is as follows:
When evidence in support of a particular mitigating or aggravating factor is uncontradicted, substantial, and there is no reason to doubt its credibility, to permit the sentencing judge simply to ignore it would eviscerate the Fair Sentencing Act.
While defendant's testimony that he was "coerced" into shooting the victim may be uncontradicted, its credibility is certainly open to question because of the subjective nature of such evidence and because of the defendant's interest in mitigating his own sentence. The same may be said for defendant's testimony that he was intoxicated at the time. Defendant's statement to the arresting officers indicates that he was able to recall in very substantial detail the events leading up to and following the shooting. Such evidence tends to show that defendant was not in such a state of intoxication as would have deprived him of his reason or of his ability to understand the dangerous aspects of his conduct; thus the credibility of such evidence was open to question.
For the reasons stated, the sentence imposed by the trial court is
Affirmed.
ARNOLD and EAGLES, JJ., concur.
NOTES
[2] The Commission on Correctional Programs, informally known as the Knox Commission, was created by a legislative act in 1974. The Commission's sentencing study, "Final Report of the Legislative Commission on Correctional Programs," was presented to the North Carolina General Assembly in February, 1977. Copies of the report are available at the North Carolina Legislative Library, Legislative Building, Jones Street, Raleigh, N.C.