Heard in the Court of Appeals February 4, 2015
Columbus County. Nos. 12 CRS 673-74.
Roy Cooper, Attorney General, by Peter Regulski, Assistant Attorney General, for the State.
Staples Hughes, Appellate Defender, and David W. Andrews, Assistant Appellate Defender, for defendant-appellant.
STEELMAN, Judge. Judges DIETZ and INMAN concur.
Appeal by defendant from judgment entered 25 March
2014 by Judge Gregory Bell in Columbus County Superior Court.
Where the trial court failed to follow the statutory mandate to make findings on the absence or presence of any mitigating factors before sentencing a minor convicted of first degree murder not based upon the theory of felony murder, that sentence is vacated and this case is remanded for resentencing.
I. Factual and Procedural Background
In April 2012, Marquice Antone (defendant) was 16 years old and a ninth grade student at East Columbus High School in Columbus County. On 12 April 2012, defendant, with Kenneth Williams and Terrance Hazel, went to the home of defendant's uncle, Keith Gachett, in Hallsboro, to steal guns, jewelry, and pills. When defendant, Williams, and Hazel arrived at the home, defendant and Williams entered, while Hazel remained in the car. Gachett and his wife were both initially present, but Gachett's wife subsequently left. Defendant persuaded Gachett to let him shoot some of Gachett's guns. After spending some time with Gachett, defendant, Williams, and Hazel left, and planned to return and break into the house the following day.
On 13 April 2012, defendant, Williams, and Hazel returned to Gachett's house. Gachett answered the door and admitted them. Defendant pulled out a revolver and accidentally fired it. Gachett insisted that defendant, Williams, and Hazel leave. Williams testified that as they were leaving he heard a second shot. He then saw that defendant was holding the revolver and that Gachett was on the floor. In a police interview, defendant stated that he was outside when Gachett was shot, and that when he went back inside, Hazel was holding the gun.
Defendant, Williams, and Hazel took three rifles and two handguns from the house; Hazel also took a pink bag containing pills and jewelry. They later abandoned the handguns and two of the rifles.
Defendant was charged with robbery with a dangerous weapon and first degree murder. On 24 March 2014, a jury found defendant guilty of both offenses. The jury found defendant guilty of first degree murder based upon both felony murder and malice, premeditation and deliberation. Based upon the theory of malice, premeditation and deliberation, the trial court was required to decide whether defendant was to be sentenced to life imprisonment without parole, or life imprisonment with parole pursuant to Part 2A of Article 81B of Chapter 15A of the North Carolina General Statutes. The trial court entered an order ...