Opinion
No. COA10-804
Filed 5 April 2011 This case not for publication
Appeal by defendant from judgments entered 12 April 2010 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 23 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant.
Mecklenburg County Nos. 06 CRS 213297-98.
After a review of the record pursuant to a brief and supplemental brief filed with this Court in compliance with Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), we find no error prejudicial or otherwise in the trial court's sentencing hearing. Therefore, we affirm.
Defendant Lorenzo Payton was indicted on two counts of robbery with a dangerous weapon, two counts of second-degree kidnapping, and one count of first degree burglary. A jury found defendant guilty on all counts on 14 February 2008. On 15 February 2008, the trial court consolidated defendant's convictions and entered judgments sentencing defendant to three consecutive terms of 77 to 102 months imprisonment. The judgments were entered as follows: first-degree burglary and robbery with a dangerous weapon in 06 CRS 213297; robbery with a dangerous weapon and kidnapping in 06 CRS 213298 and 213300; and second-degree kidnapping in 06 CRS 213299. Defendant appealed, and in State v. Payton, 198 N.C. App. 320, 679 S.E.2d 502 (2009) (hereinafter Payton I), this Court affirmed defendant's convictions for burglary and armed robbery (2 counts) but vacated defendant's convictions for second-degree kidnapping. The case was then remanded to the trial court for resentencing. Id.
On 1 March 2010, the trial court held a hearing on defendant's resentencing. At the conclusion of the hearing, the trial court again entered three judgments and sentenced defendant to three consecutive terms of 77 to 102 months imprisonment for each of his convictions for first-degree burglary and armed robbery. Defendant gave notice of appeal in open court.
On appeal, counsel appointed to represent defendant states she has been "unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal." Counsel requests that this Court conduct a full examination of the entire record on appeal to determine whether prejudical error has been made in defendant's case pursuant to Anders, 386 U.S. 738, 18 L. Ed. 2d 493, and Kinch, 314 N.C. 99, 331 S.E.2d 665.
In accordance with the holdings of Anders and Kinch, counsel wrote a letter to defendant dated 12 August 2010. In the letter, counsel advised defendant of her opinion that she could not identify any meritorious issue on appeal and that she would be asking this Court to conduct an independent review of the record. Counsel further informed defendant that he had a right to submit to this Court any written arguments he believed to have merit. Counsel supplied defendant with a copy of her brief to this Court filed on defendant's behalf and a copy of the record on appeal which contains a complete copy of the transcript of defendant's resentencing hearing.
In her brief to this Court, defendant's counsel has directed this Court's attention to four possible issues: (I) whether the trial court abused its discretion by imposing the same sentences on remand as defendant originally received; (II) whether the trial court violated N.C. Gen. Stat. § 15A-1335 because the new sentences are the same as his original sentence, even though two of his convictions were vacated; (III) whether the trial court erred in not resentencing defendant on his conviction for first-degree burglary; and (IV) whether defendant received ineffective assistance of counsel when his counsel at the resentencing hearing informed the trial court that defendant's conviction for burglary was not before the court and that the only purpose of the hearing was to resentence defendant on his two convictions for robbery. Defendant has also filed written arguments with this Court, arguing: (V) the trial court erred at the resentencing hearing when it failed to inquire if he desired to testify on his own behalf; (VI) his convictions for armed robbery must be dismissed or reduced to common law robbery; (VII) his convictions must be vacated because the State failed to meet its burden of showing he was the perpetrator of the crimes; and (VIII) the trial court erred at resentencing because it failed to make findings on mitigating factors.
I II
Defendant's counsel first directs us to consider whether the trial court abused its discretion or violated N.C. Gen. Stat. § 15A-1335 by imposing the same sentences on remand as defendant originally received.
Under North Carolina General Statutes, section 15A-1335,
[w]hen a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence less the portion of the prior sentence previously served.
N.C. Gen. Stat. § 15A-1335 (2009). "[W]hile that statute 'prohibits trial courts from imposing stiffer sentences upon remand than originally imposed, nothing prohibits the trial court from changing the way in which it consolidated convictions during a sentencing hearing prior to remand.'" State v. Moffitt, 185 N.C. App. 308, 312, 648 S.E.2d 272, 274 (2007) (quoting State v. Ransom, 80 N.C. App. 711, 713, 343 S.E.2d 232, 234, cert. denied, 317 N.C. 712, 347 S.E.2d 450 (1986)).
In the instant case, defendant's convictions for second-degree kidnapping were vacated pursuant to an order of this Court and the matter remanded for resentencing. On remand, the sentencing court resentenced defendant on the convictions for robbery with a dangerous weapon, under file number 06 CRS 213297, offense 51, and robbery with dangerous weapon, under file number 06 CRS 213298. Defendant's original sentence, attributable to his conviction for first-degree burglary, under file number 06 CRS 213297, offense 52, remained undisturbed; however, the consolidation of judgments between defendant's conviction for first-degree burglary and robbery with a dangerous weapon under 06 CRS 213297 was changed. Robbery with a dangerous weapon is a Class D felony; defendant, with a prior felony record level of 2, was resentenced on those convictions within the presumptive range to 77 to 102 months, so that all three convictions would be served consecutively, giving credit for the time defendant already served. As each sentence imposed upon resentencing was no more severe than the original sentence imposed for the pertinent conviction, we hold that the sentencing court did not violate N.C.G.S. § 15A-1335 nor abuse its discretion by imposing the same sentences for each individual conviction. See Moffitt, 185 N.C. App. 308, 648 S.E.2d 272; compare State v. Hemby, 333 N.C. 331, 426 S.E.2d 77 (1993) (holding that when three out of eight indictments were vacated and defendant was resentenced on the remaining five, the sentencing court violated N.C. Gen. Stat. § 15A-1340.4(a) when it increased the sentence imposed for one conviction beyond the sentence originally imposed for that conviction).
III
Next, we are directed to consider whether the trial court erred in not resentencing defendant on his conviction for first-degree burglary.
In Payton I, this Court vacated defendant's convictions for two counts of second-degree kidnapping and remanded the matter for resentencing. "For all intents and purposes the resentencing hearing is de novo as to the appropriate sentence." State v. Mitchell, 67 N.C. App. 549, 551, 313 S.E.2d 201, 202 (1984). Originally, a conviction for second-degree kidnapping was consolidated with a conviction for robbery with a dangerous weapon. On remand, the sentencing court resentenced defendant on the convictions for robbery with a dangerous weapon but left undisturbed his conviction for first-degree burglary. We hold the trial court did not err in not resentencing defendant on his conviction for first-degree burglary.
IV
Next, we consider whether defendant received ineffective assistance of counsel when his counsel at the resentencing hearing informed the trial court that defendant's conviction for burglary was not before the court and that the only purpose of the hearing was to resentence defendant on his two convictions for robbery with a dangerous weapon.
"To prevail on an ineffective assistance of counsel claim, a defendant must show that (1) defense counsel's 'performance was deficient,' and (2) 'the deficient performance prejudiced the defense.'" State v. Wilkerson, 363 N.C. 382, 413, 683 S.E.2d 174, 193 (2009) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984); accord State v. Braswell, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985)). Even presuming that defense counsel's statement informing the sentencing court that defendant's conviction for first-degree burglary was undisturbed as a result of Payton I, defendant cannot establish prejudice, as his sentence following resentencing was the same as the original.
V
Next, we consider whether the sentencing court erred at the resentencing hearing by failing to inquire if defendant desired to testify on his own behalf. However, as long as defendant's counsel speaks for him, the sentencing court is not required to specifically address defendant and allow him an opportunity to make a statement. See State v. Martin, 53 N.C. App. 297, 280 S.E.2d 775 (1981).
VI VII
Next, defendant contends that his convictions for robbery with a dangerous weapon must be dismissed or reduced to common law robbery and that the State failed to meet its burden of proof that defendant committed the crimes.
We note that the substance of these contentions deals with the sufficiency of the evidence presented at defendant's trial rather than an appeal regarding defendant's sentencing hearing conducted after a remand from an initial appeal of defendant's convictions. Therefore, these issues are not appropriately before this Court.
VIII
Last, defendant contends that the sentencing court erred by failing to make findings of fact on mitigating factors. We note that defendant was sentenced within the presumptive range for each of his convictions. "Contrary to defendant's assertion, however, the trial court need make 'findings of the aggravating and mitigating factors present in the offense only if, in its discretion, it departs from the presumptive range of sentences. . . .'" State v. Dorton, 182 N.C. App. 34, 43, 641 S.E.2d 357, 363 (2007) (quoting N.C. Gen. Stat. § 15A-1340.16(c) (2005)).
We hold defendant's counsel has fully complied with the holdings in Anders and Kinch. Accordingly, we have reviewed the possible issues identified by defendant's counsel and argued by defendant. Further, we have fully examined the record and transcript to determine whether any issues of arguable merit exist. We find no possible prejudicial error in defendant's resentencing hearing or judgments.
Affirm.
Judges ELMORE and GEER concur.
Report per Rule 30(e).