Uncontroverted Mitigating Factors

linkedin
Share on Google+
Share on Reddit
Share on Tumblr
Download PDF

Suppose a defendant convicted of a felony has a slam dunk mitigating factor. Let’s say, for example, that he has been honorably discharged from the military, which is a statutory factor under G.S. 15A-1340.16(e). Before the defendant can present evidence of the factor (probably a DD-214) to the court, the judge stops him, saying, “No need for that—I’m going to sentence in the presumptive range.” Is that okay?

No. Under Structured Sentencing, the court is required in every case to consider evidence of aggravating and mitigating factors that are presented. G.S. 15A-1340.16(a) (“The court shall consider evidence of aggravating or mitigating factors present in the offense . . . .”). It is plain error for the trial court to sentence the defendant without allowing defense counsel an opportunity to present evidence of mitigating factors. State v. Knott, 164 N.C. App. 212 (2004). The court must at least let the defendant get evidence of any mitigating factors out on the table. To head off any claim that proffered evidence was ignored, a careful judge may wish to note on the record that he or she has considered the evidence of any proposed mitigating factor. But there is no statutory obligation to do that. See State v. Hagans, 177 N.C. App. 17, 31 (2006) (“The fact the [sic] trial court, without comment, imposed consecutive presumptive sentences does not mean the trial court failed to consider the mitigating factors presented.”).

There is language in State v. Chavis, 141 N.C. App. 553 (2000), saying that a judge is “not required to take into account any evidence offered in mitigation” when he or she imposes a presumptive sentence. Taken out of context, that language could lead practitioners astray. In Chavis, the court of appeals was responding to the defendant’s argument that he was entitled not merely to consideration of the mitigation evidence, but also to an actual mitigated-range sentence. The appellate court was correct in the sense that an uncontroverted mitigating factor does not command a particular sentencing outcome. In light of G.S. 15A-1360.16(a) and Knott, however, I think it is clear that mitigation evidence must be “taken into account” in the sense that it may not be ignored.

But consideration of the factors does not necessarily lead to a requirement for written findings. Written findings are required only if the court, in its discretion, chooses to depart from the presumptive range. G.S. 15A-1340.16(c). If the court chooses a sentence from the presumptive range, no findings are required—even when there is uncontroverted evidence of a mitigating factor. State v. Garnett, 209 N.C. App. 537 (2011). Many cases state this rule. See, e.g., Hagans, 177 N.C. App. at 31 (“Defendant’s notion that the court is obligated to formally find or act on proposed mitigating factors when a presumptive sentence is entered has been repeatedly rejected.”).

If, however, the defendant is sentenced in the aggravated range, the court must make written findings of the aggravating and mitigating factors present in the offense. G.S. 15A-1340.16(c). In addition to whatever aggravating factors were found (and there must have been at least one if the court chose a sentence from the aggravated range), case law indicates that the judge must find any mitigating factors supported by uncontroverted and manifestly credible evidence. In State v. Wilkes, __ N.C. App. __, 736 S.E.2d 582 (2013), for example, the trial court erred when it gave an aggravated-range sentence but failed to find the proposed mitigating factor that the defendant had a positive employment history. The defendant had introduced military records showing various commendations and awards, and there was no reason to doubt their credibility. See also State v. Hilbert, 145 N.C. App. 440 (2001) (noting that the trial judge committed prejudicial error when he gave an aggravated-range sentence after refusing to find that the defendant had successfully completed a treatment program subsequent to arrest and prior to trial [mitigating factor 16]; the defendant had submitted a certificate showing he had completed a 21-day program).

None of this is to say that a defendant is automatically entitled to a finding of any mitigating factor he or she submits. The court is only required to find a mitigating factor when “the evidence so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn and that the credibility of the evidence is manifest as a matter of law.” State v. Hughes, 136 N.C. App. 92 (1999) (holding that none of the defendant’s three proposed mitigating factors was supported by manifestly credible evidence). Additionally, a mitigating factor is obviously not uncontroverted if the State contests it. See Wilkes, 736 S.E.2d at 588 (“[T]he State put on evidence that contradicted Defendant’s evidence on good character/reputation in the community, so there was no requirement that the trial court find that factor.”).

What the trial judge does with the factors he or she finds is entirely a matter of discretion. A single aggravating factor can outweigh multiple mitigating factors. State v. Vaughters, __ N.C. App. __, 725 S.E.2d 17 (2012) (holding that the trial judge did not abuse his discretion when he found that one aggravating factor outweighed 19 mitigating factors). And even if the judge makes written findings of mitigating factors and further finds that they outweigh the aggravating factors, a presumptive sentence is still proper. State v. Bivens, 155 N.C. App. 645 (2002). If the presented factors have been properly considered, a presumptive-range sentence is never wrong.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.