No. COA 04-1239 TWENTY-FIRST DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA)

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)From Forsyth County

)No. 03 CRS 53858

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RONALD EUGENE THOMAS,)

Defendant-Appellant)

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DEFENDANT-APPELLANT’S BRIEF

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QUESTIONS PRESENTED

DID THE TRIAL COURT COMMIT ERROR BY FAILING TO FIND OR WEIGH ANY MITIGATING FACTORS, AS THE STATE STIPULATED TO ONE MITIGATING FACTOR AND THE COURT FAILED TO FIND ANY FACTORS IN MITIGATION?

IIDID THE TRIAL COURT COMMIT ERROR BY SENTENCING

DEFENDANT AS A CLASS E FELON WHEN DEFENDANT WAS NOT INDICTED FOR ASSAULT ON A LAW ENFORCEMENT OFFICIAL WITH A FIREARM, N.C. GEN. STAT. §14-34.5, BUT FOR ASSAULT ON A LAW ENFORCEMENT OFFICIAL WITH A DEADLY WEAPON, N.C. GEN. STAT. §14-34.2, WHICH IS A CLASS F FELONY?

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III. DID THE TRIAL COURT COMMIT ERROR BY SENTENCING

DEFENDANT AS A CLASS E FELON WHEN THERE WAS NO EVIDENCE TO SUPPORT A CLASS E FELONY SENTENCE AND ALL THE EVIDENCE SUPPORTED ONLY A CLASS F SENTENCE?

STATEMENT OF THE CASE

This is an appeal by Defendant from a judgment of the Honorable Henry E. Frye, Jr. Defendant was indicted on two counts of assault with a deadly weapon on a government official and one count of hit and run. Pursuant to a negotiated plea he tendered a plea of guilty and a judgment of active imprisonment was entered on August 6, 2003. His pro se petition for writ of certiorari to the Court of Appeals was partially allowed January 13, 2004, with notice of appeal deemed given as of date he was found indigent and counsel appointed, which occurred per order of the Honorable A. Moses Massey, Superior Court Judge Presiding, on July 9, 2004. Thereafter the record on appeal was filed in the North Carolina Court of Appeals and the printed record was mailed October 12, 2004.

GROUNDS FOR APPELLATE REVIEW

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Pursuant to the requirement of Appellate Rule 28 (b)(4) that an appellant set forth in his brief a statement of grounds for appellate review, Defendant shows the Court that this is a criminal case in which he pled guilty, and that he was sentenced to a term of imprisonment that is for a duration not authorized by N.C. Gen. Stat. §15A1340.17 or N.C. Gen. Stat. §15A1340.23 for the defendant's class of offense and prior record or conviction level and therefore he may appeal of right in accordance with the provisions of N.C. Gen. Stat. §15A-1444(a2)(3).

To the extent that Defendant may not be entitled to challenge the trial court’s failure to make any findings in mitigation, as the sentence was in the presumptive range, Defendant requests this Court treat this appeal as a petition for writ of certiorari on that issue in accordance with the provisions of N.C. Gen. Stat. §15A-1444(a1).

SUMMARY OF THE EVIDENCE

Defendant was indicted for assaulting two officers with a car. The indictment read that he assaulted Officer C.J. Twigger with a 1986 Plymouth Horizon (count 1) and that he attempted to assault and strike Officer W. M. Herrin with the same vehicle (count 1). Count 1 alleged that the Horizon was a deadly weapon. Both counts were captioned “assault with a deadly weapon on a government official.”

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The officers, Herrin and Twigger, were working security at Wal-Mart when an employee came to them and told them that some one, a man named Thompson, had stolen items from the store (T. p. 6). The officers followed Thompson who got into a car driven by Defendant Thomas (T. p. 6). The officers approached the car and demanded that Thomas stop but he cranked the car up and accelerated rapidly and hit another car (T. p. 6). The officers again demanded that he stop but he got the car in gear again and drove rapidly toward them (T. p. 7). Officer Twigger had to run out of the way (T. p. 7). Defendant drove away, obeying the speed limit, with the officers in pursuit (T. p. 7). He and Thompson jumped out in town but were both arrested almost immediately (T. p. 7).

The State and defense counsel agreed to a plea that stipulated to one mitigating factor (the plea agreement did not say which one) and that the State would not pursue habitual felon punishment (T. p. 7, R. p. 7). The charges were consolidated and the State indicated it would not oppose a sentence in the presumptive range (R. p. 7).

Through his counsel Defendant acknowledged that he done something very stupid (T. p. 8). Defendant stated he apologized to the officers at the scene and that he took off out of fear and did not know what to do (T. p. 10). He was already serving a 15 to 18 month sentence for a probation violation (T. p. 8).

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Judge Frye sentenced Thomas as a Class E, Level VI felon to 47 months minimum, 66 months maximum (T. p. 11, R. pp. 11, 14). He consolidated the charges and did not run them consecutive with the time Defendant was already serving (T. p. 11, R. p. 14).

ARGUMENT

I. THE TRIAL COURT ERRED BY FAILING TO FIND OR WEIGH ANY MITIGATING FACTORS, AS THE STATE STIPULATED TO ONE MITIGATING FACTOR AND THE COURT FAILED TO FIND ANY FACTORS IN MITIGATION.

Assignment of Error No. 1 (R. p. 26)

Assignment of Error No. 2 (R. p. 26)

The State stipulated to the existence of one mitigating factor and that it would not oppose a sentence in the presumptive range. Which mitigating factor was agreed upon was not placed on the record, but the court did not make any finding of mitigating factors and therefore did not weigh them.

It is well established that “Where facts are stipulated, they are deemed established as fully as if determined by the verdict of a jury." Blair v. Fairchilds, 25 N.C. App. 416, 419, 213 S.E.2d 428, 43031, cert. denied, 287 N.C. 464, 215 S.E.2d 622 (1975). Stipulation to a particular fact has the effect of eliminating the necessity of submitting that issue of fact to the factfinder. Blackmon v. Bumgardner, 135 N.C. App. 125, 519 S.E.2d 335 (1999). The existence of a mitigating factor was therefore clearly established by uncontradicted evidence.

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On the facts before the court it was clear that Defendant, by apologizing to officers at the scene and then again in court, and by pleading guilty, accepted responsibility for his criminal conduct. That factor was established beyond any mistake.

When the evidence in support of a factor in mitigation is uncontradicted, substantial and manifestly credible, then the court errs in failing to find the mitigating factor. State v. Blackwelder, 309 N.C. 410, 306 S.E.2d 783 (1983). Here such evidence was presented in support of the factor. The trial court apparently ignored it altogether. While the State agreed it would not oppose a sentence in the presumptive range, Defendant did not stipulate to a sentence above the mitigated range and the court did not even consider a sentence in the mitigated range. Even where the trial court clearly considers that the aggravating factors outweigh the mitigating factors, it is error not to consider evidence in mitigation if it exists. State v. Corley, 75 N.C. App. 245, 330 S.E. 2d 819 (1985) (single aggravating factor outweighed eleven mitigators; remanded for failure to consider additional mitigating factor).

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Here the trial court could, as it did, make no findings in aggravation or mitigation and impose a sentence in the presumptive range. However, with the existence of am mitigating factor on the record, it had a duty to at least consider the factor and the weight, if any, to be given it. On this record it is clear that the court did not do so. The statute, §15A1340.16(b), is clear that if mitigating factors are present (which they are in this case by the stipulation) and outweigh any aggravating factors that are present (which they must since no aggravating factors were found), the court “may impose a sentence that is permitted by the mitigated range.” Counsel is aware that in State v. Streeter, 146 N.C. App. 594, 553 S.E.2d 240 (2001) the Court of Appeals specifically held that the decision to depart from the presumptive range is within the trial court's discretion, and the need for findings is only triggered when the judge moves outside the presumptive range. However, on this record it cannot be determined that the trial judge even considered the mitigating factors, let alone weighed them in order to be able to exercise his discretion to depart or not depart from the presumptive range. Therefore this was error entitling Defendant to a new sentencing hearing.

IITHE TRIAL COURT COMMITTED ERROR BY SENTENCING

Assignment of Error No. 3 (R. p. 26)

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III. THE TRIAL COURT COMMITTED ERROR BY SENTENCING

DEFENDANT AS A CLASS E FELON WHEN THERE WAS NO EVIDENCE TO SUPPORT A CLASS E FELONY SENTENCE AND ALL THE EVIDENCE SUPPORTED ONLY A CLASS F SENTENCE.

Assignment of Error No. 4 (R. p. 26)

The indictment alleged assault on officers Twigger and Herrin with a Plymouth Horizon. All the evidence at the sentencing hearing was that the assault was committed by driving the car toward the officers. Therefore the only deadly weapon at issue was a car. There was no evidence that a firearm was used.

The two statutes governing assaults with deadly weapons on officers are N.C. Gen. Stat. §14-34.5 and N.C. Gen. Stat. §14-34.2.

N.C. Gen. Stat. §14-34.5 is entitled § 1434.5. “Assault with a firearm on a law enforcement, probation, or parole officer...” (emphasis added) and reads in pertinent part[1]

(a) Any person who commits an assault with a firearm upon a law enforcement officer, probation officer, or parole officer while the officer is in the performance of his or her duties is guilty of a Class E felony.

Assaulting the officers with a firearm would have been a Class E felony. N.C. Gen. Stat. §14-34.2 is entitled “Assault with a firearm or other deadly weapon upon governmental officers...” (emphasis added) and reads in pertinent part:

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Unless a person's conduct is covered under some other provision of law providing greater punishment, any person who commits an assault with a firearm or any other deadly weapon upon an officer or employee of the State or of any political subdivision of the State, ... in the performance of his duties shall be guilty of a Class F felony.[2]

A car must be “any other deadly weapon.” While the District Attorney has direction in a case where a firearm is used to charge under either statute, where there is no firearm the indictment and the sentence must be under N.C. Gen. Stat. §14-34.2. While the indictment was technically incorrect in that it referenced N.C. Gen. Stat. §14-34.5, the judgment correctly reflected, consistent with all the evidence, conviction under N.C. Gen. Stat. §14-34.2. Notwithstanding Judge Frye sentenced Thomas a Class E, Level VI felon when the most he could have sentenced him as was as a Class F, Level VI felon. Therefore his sentence of 47 to 66 months was not “authorized by N.C. Gen. Stat. §15A1340.17... for [his] class of offense and prior record or conviction level.” N.C. Gen. Stat. §15A-1444(a2)(3).

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The presumptive range for Class F, Level VI conviction is 31 to 39 months minimum, with a corresponding range of maximum sentences of 38 to 47 months.[3] Therefore the sentence was erroneously rendered as 47 to 66 months and the maximum possible sentence Thomas could have received under the agreement was 39 to 47 months. He is entitled to have a new sentencing hearing or at a minimum to have the sentence corrected.

Defendant filed a pro se petition for writ of certiorari and then a pro se petition for a writ of mandamus (R. pp. 18, 19). The office of the District Attorney, notwithstanding the obvious error, has never responded in any meaningful way and has not responded to this appeal prior to this time to call the case to correct the error. Defendant has made a good faith effort to get the error corrected in the trial division and met with no response and accordingly this appeal is properly taken and is the proper avenue to obtain redress.

CONCLUSION

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Therefore Defendant-Appellant Ronald Thomas respectfully urges this Court to vacate his sentence and to remand the case for resentencing in accordance with the arguments set forth in this brief, or in the alternative to order that the judgment of commitment be corrected so that he is properly sentenced as a Class F instead of a Class E felon.

This the day of , 2004.

Daniel F. Read

Attorney at Law

State Bar No. 11172

112 Swift Ave., 2nd Floor

Durham, North Carolina 27705-4800

919-286-5935 (FAX 919-286-4303)

Email:

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CERTIFICATION AS TO WORD COUNT

In accordance with the provisions of Rule of Appellate Procedure 28, counsel for Defendant-Appellant hereby certifies that this is the principal brief of Defendant-Appellant and that this brief contains no more than 8,750 words (including footnotes and citations), as verified by counsel’s word processing program. Actual number of words is 2,261 as counted by WordPerfect.

This the day of , 2004.

Daniel F. Read

CERTIFICATE OF SERVICE

I certify that I have this day served a copy of the foregoing document, namely: Brief, upon all parties to this action by depositing a copy of the same in the United States mail, first-class postage prepaid, addressed to them at their address of record, namely:

The Hon. Roy Cooper

Attorney General of North Carolina

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

Mr. Ronald Eugene Thomas

Inmate No. 0405165

Caswell Correctional Institution

Box 217, Country Home Rd.

Yanceyville, North Carolina 27379

LEGAL MAIL–CONFIDENTIAL

This the day of , 2004.

Daniel F. Read

[1]Paragraph (b) of the statute deals with assaults on employees of detention facilities.

[2]The deleted portions merely list other types of officers.

[3]No aggravating factor was alleged in the indictment so the sentence must either be in the presumptive or mitigated range. Blakely v. Washington, U.S. , 159 L. Ed. 2d 403 (2004), followedState v. Allen, N.C. App. , S.E.2d (COA03-1369) (September 7, 2004).