STATE of North Carolina
v.
David MEDLIN.
No. 8220SC1151.
Court of Appeals of North Carolina.
May 17, 1983.*484 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Nonnie F. Midgette, Raleigh, for the State.
Harry B. Crow, Jr., Monroe, for defendant.
*485 WELLS, Judge.
Defendant having been given a sentence in excess of the presumptive term, his appeal is as a matter of right. G.S. 15A-1444(a1). On such an appeal, the only question before the appellate court is whether the sentence is supported by the evidence presented at trial and the sentencing hearing. Id. The factors found must be supported by a preponderance of the evidence. G.S. 15A-1340.4(a).
The trial judge found two factors in aggravation: (1) "that the offense was especially heinous, atrocious, or cruel in that it was done without provocation while the victim was on the ground; that the victim was shot five times; and that defendant fled the scene without rendering assistance to her;" and, (2) "that the victim suffered very severe physical disability from this crime." As a mitigating factor, the trial judge found that defendant had no prior criminal record of convictions of offenses punishable by more than 60 days imprisonment.
We first consider whether the trial court correctly found that the offense was especially heinous, atrocious or cruel. To begin our discussion and analysis, we recognize that any assault with a deadly weapon with intent to kill inflicting serious injury falls within that classification of offenses which are mala in se; thus, such an assault has inherent characteristics of depravity of mind. Heinous, atrocious and cruel are terms, words, or expressions which are significantly synonymous, all reflecting the underlying characteristic of depravity. It must, therefore, be assumed that in setting the presumptive sentence, the General Assembly understood the depraved nature of such an assault; and that in allowing evidence of these inherent characteristics of the offense to be used as a factor in aggravation in sentencing, the legislative intent was that the question be narrowed to whether assault was especially heinous, atrocious or cruel; and further, that the use of the word "especially" was not merely tautological. Our Supreme Court has articulated these principles, in a capital homicide case, State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979), as follows:
While we recognize that every murder is, at least arguably, heinous, atrocious, and cruel, we do not believe that this subsection is intended to apply to every homicide. By using the word "especially" the legislature indicated that there must be evidence that the brutality involved in the murder in question must exceed that normally present in any killing before the jury would be instructed upon this subsection. (Cites omitted.)
See also State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (1979); State v. Hamlette, 302 N.C. 490, 276 S.E.2d 338 (1981); State v. Pinch, 306 N.C. 1, 292 S.E.2d 203 (1982); and State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).
While we are loath to reach such result, we are persuaded that the evidence in this case did not reflect the requirement of "excessive brutality," beyond that normally present in any assault with a deadly weapon with intent to kill inflicting serious injury, and that the trial court erred in finding this factor in aggravation.
We now consider whether the trial judge properly found as an additional factor in aggravation "that the victim suffered very severe physical disability."
Factors in aggravation other than the statutorily enumerated factors, if proven by a preponderance of the evidence and reasonably related to the purposes of sentencing, may be considered by the sentencing judge. Facts that are both transactionally related to the offense and reasonably related to the purposes of sentencing, if not facts used to establish elements of an offense the defendant has plead guilty to or been convicted of, must be considered by the sentencing judge. State v. Melton, 307 N.C. 370, 298 S.E.2d 673 (1983).
G.S. 15A-1340.3 provides that
The primary purposes of sentencing a person convicted of a crime are to impose a punishment commensurate with the injury the offense has caused, taking into account factors that may diminish or increase *486 the offender's culpability; to protect the public by restraining offenders; to assist the offender toward rehabilitation and restoration to the community as a lawful citizen; and to provide a general deterrent to criminal behavior.
Our Supreme Court in State v. Ahearn, supra, and State v. Chatman, 308 N.C. 169, 301 S.E.2d 71 (1983) has put significant limitations on what factors trial judges may find and use to enhance a criminal defendant's sentence. Writing for the Court in Ahearn, Justice Meyer stated that
The Fair Sentencing Act is an attempt to strike a balance between the inflexibility of a presumptive sentence which insures that punishment is commensurate with the crime, without regard to the nature of the offender; and the flexibility of permitting punishment to be adapted, when appropriate, to the particular offender. Presumptive sentences established for every felony provide certainty.
In Chatman, the Court relied on the foregoing portion of Ahearn. The defendant in Chatman had been given a sentence in excess of the presumptive term upon his conviction for first degree burglary. The trial judge found statutorily enumerated factors in aggravation and also made "additional written findings of factors in aggravation" including
c. The defendant is a dangerous sex offender whose history makes it necessary to segregate him for an extended term from the public for its safety and protection.
d. The sentence pronounced by the court is necessary to deter others from committing the same crime.
e. A lesser sentence than that pronounced by the court will unduly depreciate the seriousness of the defendants [sic] crime.
The Court held that the finding that the defendant is a dangerous sex offender was reasonably related to a legitimate purpose of sentencing, i.e., protecting the public, and that a defendant's dangerousness to others may be considered as an aggravating factor, citing State v. Ahearn. With regard to factors d. and e. found by the trial judge, the Supreme Court held that they were erroneously found, stating:
Judge Albright erred in finding as factors in aggravation that the sentence was necessary to deter others, and that a lesser sentence would unduly depreciate the seriousness of the crime. These two factors fall within the exclusive realm of the legislature and were presumably considered in determining the presumptive sentence for this offense. While both factors serve as legitimate purposes for imposing an active sentence, neither may form the basis for increasing or decreasing a presumptive term because neither relates to the character or conduct of the offender. See State v. Ahearn, N.C., 300 S.E.2d 689 (1983).
State v. Chatman, supra (emphasis in original).
We believe that the question raised by the trial court's use of the factor in aggravation "that the victim suffered very severe physical disability" in the present case presents a question analogous to that addressed by the Supreme Court in Chatman. Like the "necessary to deter" and "seriousness of the crime" factors found in Chatman, the "resulting disability to the victim" factor in the present case does not relate to the character or conduct of the defendant.
To further illustrate and support our impression of the legislative intent at issue here, we invite attention to the provisions of G.S. 14-318.4:
§ 14-318.4. Child abuse a felony.
(a) Any parent of a child less than 16 years of age, or any other person providing care to or supervision of the child who intentionally inflicts any serious physical injury which results in: (1) Permanent disfigurement, or
(2) Bone fracture, or
(3) Substantial impairment of physical health, or
(4) Substantial impairment of the function of any organ, limb, or appendage of such child, *487 is guilty of a Class I felony.
. . . . .
The presumptive sentence for a Class I felony is two years. The General Assembly, in classifying the offense described in G.S. 14-318.4, required consideration of the nature and results of the injury inflicted. In classifying the offense with which defendant in this case was charged, the General Assembly chose not to require consideration of the injury inflicted beyond the requirement that such injury be "serious." We, therefore, must assume the trial judge in this case was without authority to consider evidence as to the nature of and results of the injuries to Ms. Nivens as a factor in aggravation.
For the reasons stated, the sentence imposed in this case must be vacated and the case must be remanded for re-sentencing.
Vacated and remanded.
BECTON, J., concurs.
EAGLES, J., concurs separately.
EAGLES, Judge, concurring:
I concur but would limit treatment of the second aggravating factor to a statement that it was inappropriate because the "very severe physical disability" was proven by evidence necessary to prove an element of the charged offense, assault with a deadly weapon with intent to kill inflicting serious injury.