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State v. Johnson

Court of Appeals of North Carolina

April 16, 2019

STATE OF NORTH CAROLINA
v.
DARREN LYNN JOHNSON

          Heard in the Court of Appeals 27 February 2019.

          Appeal by defendant from judgments entered 14 February 2018 by Judge Lori I. Hamilton in Rowan County Nos. 16 CRS 52465, -67, -69 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, for the State.

          Mary McCullers Reece for defendant.

          ARROWOOD, JUDGE.

         Darren Lynn Johnson ("defendant") appeals from judgments entered on various drug related offenses. For the following reasons, we vacate the judgments and remand for resentencing.

         I. Background

         During 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 (alprazolam).

         Defendant's 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.

         Upon 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.[1]

         II. Discussion

         On appeal, defendant raises issue with his sentencing and does not otherwise challenge the validity of his convictions. Thus, we review only the sentencing.

         As 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."

         It is 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).

          N.C. 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).

         On the 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).

         In the 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 follows:

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 community.
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 ...

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