in the Court of Appeals 27 February 2019.
by defendant from judgments entered 14 February 2018 by Judge
Lori I. Hamilton in Rowan County Nos. 16 CRS 52465, -67, -69
Attorney General Joshua H. Stein, by Assistant Attorney
General Joseph L. Hyde, for the State.
McCullers Reece for defendant.
Lynn Johnson ("defendant") appeals from judgments
entered on various drug related offenses. For the following
reasons, we vacate the judgments and remand for resentencing.
an undercover narcotics operation conducted by the Rowan
County Sheriff's Department, officers purchased what they
believed to be narcotics from defendant during controlled
buys on 7, 12, and 28 April 2016 and on 11 May 2016.
Following the exchange on 11 May 2016, officers initiated a
traffic stop and pulled defendant over, searched the
occupants of the vehicle, recovered what was believed to be
additional narcotics from defendant, and arrested defendant.
On 12 September 2016, a Rowan County Grand Jury returned
indictments charging defendant with two counts of possession
with intent to sell or distribute ("PWISD") heroin,
two counts of selling heroin, two counts of trafficking in
heroin by possession, two counts of trafficking in heroin by
transport, two counts of trafficking in heroin by selling,
one count of PWISD a schedule II controlled substance
(methylphenidate hydrochloride), one count of PWISD cocaine,
and one count of PWISD a schedule IV controlled substance
case was tried in Rowan County Superior Court before the
Honorable Lori I. Hamilton beginning on 13 February 2018. On
14 February 2018, the jury returned verdicts finding
defendant guilty on one count of PWISD heroin, two counts of
selling heroin, one count of trafficking in heroin more than
4 grams but less than 14 grams by possession, one count of
trafficking in heroin more than 4 grams but less than 14
grams by transportation, one count of trafficking in heroin
more than 4 grams but less than 14 grams by selling, and one
count of PWISD a schedule II controlled substance
(methylphenidate hydrochloride). The trial court dismissed
the other indicted offenses either because of an error in the
indictment or because the lab results showed no controlled
substances were discovered during testing of the substances
believed to be controlled substances.
return of the jury verdicts, the trial court consolidated
some offenses and entered four judgments as follows: the
trial court (1) consolidated the convictions for PWISD heroin
with the two counts of selling heroin and sentenced defendant
at the top of the presumptive range to a term of 14 to 26
months; (2) sentenced defendant for trafficking in heroin by
possession to a consecutive mandatory term of 70 to 93
months; (3) consolidated the convictions for trafficking in
heroin by transport and trafficking in heroin by selling and
sentenced defendant to a second consecutive mandatory term of
70 to 93 months; and (4) sentenced defendant for PWISD
schedule II controlled substance (methylphenidate
hydrochloride) at the top of the presumptive range to a
concurrent term of 8 to 19 months. Defendant filed notice of
appeal on 26 February 2018.
appeal, defendant raises issue with his sentencing and does
not otherwise challenge the validity of his convictions.
Thus, we review only the sentencing.
specified above, the trial court sentenced defendant at the
top of the presumptive range to concurrent terms for the
non-trafficking offenses, and consolidated two of the three
trafficking offenses and sentenced defendant to two
consecutive terms for the trafficking offenses, the length of
which is mandated in N.C. Gen. Stat. § 90-95(h)(4), to
begin upon completion of the non-trafficking sentences.
Defendant acknowledges that the trial court has great
discretion in imposing sentences, both in terms of length and
how multiple sentences are structured, and does not assert
the sentences imposed in this case are in and of themselves
improper. However, defendant argues "[t]he error arose
not from any specific term chosen by the trial court, but by
the court's clear indication that she chose
[defendant's] sentence based on her improper
consideration of matters unrelated to his charges."
Specifically, defendant contends "[t]he trial court
improperly considered her personal knowledge of unrelated
charges arising from a heroin-related death in her home
community when sentencing defendant."
well established that "[a] sentence within the statutory
limit will be presumed regular and valid." State v.
Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977).
However, our Supreme Court long ago recognized that
"such a presumption is not conclusive. If the record
discloses that the court considered irrelevant and improper
matter in determining the severity of the sentence, the
presumption of regularity is overcome, and the sentence is in
violation of defendant's rights." Id.
"The extent to which a trial court imposed a sentence
based upon an improper consideration is a question of law
subject to de novo review." State v.
Pinkerton, 205 N.C.App. 490, 494, 697 S.E.2d 1, 4
(2010), rev'd on other grounds, 365 N.C. 6, 708
S.E.2d 72 (2011).
Gen. Stat. § 15A-1340.12 provides that "[t]he
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 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." N.C. Gen. Stat. §
15A-1340.12 (2017). To that end, "[t]his Court has held
that in determining the sentence to be imposed, the trial
judge may consider such matters as the age, character,
education, environment, habits, mentality, propensities and
record of the defendant." State v. Morris, 60
N.C.App. 750, 754-55, 300 S.E.2d 46, 49 (1983). The trial
judge may also take into account the seriousness of a
particular offense when exercising its discretion to decide
the minimum term to impose within the presumptive range.
State v. Oaks, 219 N.C.App. 490, 497-98, 724 S.E.2d
132, 137-38 (2012).
other hand, our Courts have held it is improper during
sentencing for a trial judge to consider a defendant's
refusal to accept a plea offer, Boone, 293 N.C. at
712, 239 S.E.2d at 465, the financial status of a defendant,
State v. Massenburg, 234 N.C.App. 609, 615, 759
S.E.2d 703, 707-708 (2014), the religious beliefs of either a
defendant or the judge, State v. Earls, 234 N.C.App.
186, 194, 758 S.E.2d 654, 659, disc. review denied,
367 N.C. 791, 766 S.E.2d 643 (2014), and conduct not included
in the indictment, State v. Swinney, 271 N.C. 130,
133, 155 S.E.2d 545, 548 (1967).
present case, defendant contends it is clear from the trial
judge's remarks during sentencing that the trial judge
improperly considered her personal knowledge of matters not
included in the record when sentencing him. Those remarks
appear in the transcript of the sentencing hearing as
Okay. Even more importantly to me, at least one of the people
that was mentioned during the debriefing interview was a
person that I happened to know was charged with a homicide in
providing heroin to a person in Davie County who died.
I'm concerned that those of you who are dealing in heroin
in my community are causing the deaths of people in my
So it is not just, "Oh, well, you know, I was just maybe
dealing a little drugs." It is actually a link in the
chain that is leading to the deaths of tens of thousands of
people in our ...