An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                             NO. COA13-1286
                     NORTH CAROLINA COURT OF APPEALS

                            Filed: 5 August 2014


STATE OF NORTH CAROLINA

      v.                                    Guilford County
                                            Nos. 12 CRS 24422, 76539–40
DWAYNE DEMONT HAIZLIP



      Appeal by Defendant from Judgments entered 23 May 2013 by

Judge David L. Hall in Guilford County Superior Court. Heard in

the Court of Appeals 23 April 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      James D. Concepción, for the State.

      The Law Office of Bruce T. Cunningham, Jr., by Bruce T.
      Cunningham, Jr., for Defendant.


      STEPHENS, Judge.


                     Procedural History and Evidence

      On 2 July 2012, the Guilford County Grand Jury returned

indictments charging Defendant Dwayne Demont Haizlip with two

counts of trafficking in cocaine, one count of possession of

cocaine with intent to sell or deliver, and having attained the

status of an habitual felon. On 11 March 2013, Defendant moved
                                        -2-
to suppress evidence that had been seized on 2 May 2012. The

trial court verbally denied that motion during the 11 March 2013

criminal session of the Superior Court of Guilford County, Judge

Ronald E. Spivey presiding, and entered its written order on 15

March 2013.

    Defendant’s trial was originally set to begin on 12 March

2013 before Judge Spivey. Before the trial could begin, however,

Defendant’s privately retained attorney informed the court that

“the professional relationship between myself and my client has

completely deteriorated” and requested to withdraw from further

representation      of     Defendant.       Speaking   on      his    own   behalf,

Defendant stated that he no longer wished to be represented by

his attorney because the attorney was “very ineffective.” The

court   expressed    reluctance        to   continue   the     case   because    the

trial was scheduled to begin that day and requested that the

parties   take    some     time   to   work   things    out.    The    court    also

suggested that Defendant change into civilian clothes instead of

wearing jail clothes. Defendant refused to accept the clothes

offered by the court or to continue with his attorney as counsel

and sought to discharge the attorney.

    After        lengthy     discussion,       the     trial     court      granted

Defendant’s motion to discharge his lawyer and continued the
                                   -3-
case until 20 May 2013 so that Defendant would have time to

procure new counsel. As a result, Defendant signed a waiver of

his right to assigned counsel, indicating that he would hire

another attorney. At the conclusion of the hearing, the court

advised Defendant that he should

           work on this as quickly as you can so that
           the matter can be tried May the 20th. In
           your review in court, we’ll see that the
           [c]ourt has bent over backwards to let you
           state your reasons for the record. That the
           [c]ourt’s concerned about the communication
           that’s been stated by your attorney, and
           I’ve given you this opportunity[,] and I’m
           sure it’s at great inconvenience to the
           State and its officers, but I’m going to
           give you this 60 days to go out and hire
           . . . another lawyer and see what you can do
           with your case.

Defendant’s former attorney also indicated his willingness to

help Defendant with the process of procuring new counsel. The

trial    court   filed   its   order     the   following   day,   granting

Defendant’s motion to hire a new attorney and expressly noting

that “Defendant [had been informed] he would have to proceed as

[p]ro-[s]e if he failed to hire new counsel by the next court

date.”

    Three weeks later, on 1 April 2013, the Guilford County

Grand Jury returned superseding indictments charging Defendant

with the same offenses as those listed above, but including the
                                    -4-
alias “Dwayne Dumont Haizlip” in the box for “Defendant.” The

following   day    Defendant    appeared    before   Judge    A.   Robinson

Hassell to informally review his attempts to secure counsel.

Defendant stated: “I’m working on it, it’s going great. I should

have   counsel    soon.”   In   response,   the   court   reiterated   that

Defendant should move quickly “because [the trial is] going to

happen next time . . . .” The court also explained that “given

[Defendant’s] declaration last time and the waiver that [he]

signed that was accepted by the [c]ourt, [he was] going to be

held to that.”

       Defendant failed to procure new counsel by 20 May 2013.

Appearing before Judge David L. Hall, Defendant objected to the

trial going forward “on the grounds that it violate[d] his Sixth

Amendment right to counsel.” Defendant also asserted that he did

not wish to represent himself and that he did                not have the

education or training to do so. Indicating that he was “not

inclined to overrule the orders of [Judges] Ronald E. Spivey and

. . . A. Robinson Hassell,” Judge Hall found that Defendant had

given up his right to counsel by failing to retain counsel by

his trial date. Accordingly, the court ordered that the trial

would go forward despite Defendant’s objections. As a result,

Defendant represented himself.
                                               -5-
       The State’s evidence at trial tended to show the following:

On 2 May 2012, Detective Steve Hollers of the Greensboro Police

Department       obtained            “information          about        a        person[,       later

identified       as    Defendant,]           who     was    to     be       in    possession       of

. . . narcotics” in the area of Old Chapman Street near Murray

Hill Road in Greensboro, North Carolina. Detective Hollers and

twelve to fifteen other officers responded to the area in an

attempt to find Defendant. When they arrived they were briefed

that “[Defendant] was reported to be coming into [the] area of

Murray    Hill        [Road]    headed        to   his     sister’s          house       . . .    to

retrieve a quantity of cocaine . . . .” They were told that

Defendant would be driving a white Nissan Versa.

       While waiting on Old Chapman Street, at the perimeter of

the    area,   Detective        Hollers       observed       Defendant’s            vehicle       and

alerted the other officers. Defendant turned off Old Chapman

Street onto Murray Hill                 Road, a dead-end street, toward                           his

sister’s house. Detective Hollers and some of the other officers

took     position       at     the     top    of     Murray      Hill        Road,       near    the

intersection          with   Old      Chapman      Street,         while         other    officers

observed the house.

       Approximately           fifteen        to     twenty        minutes          later,       the

observing officers informed Detective Hollers that Defendant had
                                          -6-
left his sister’s house. After leaving the residence, Defendant

began driving on Murray Hill Road back toward the intersection

with Old Chapman Street. When Defendant’s car crested Murray

Hill    Road   and    came      into   Detective     Hollers’s    view,      Detective

Hollers activated his blue lights, and Defendant stopped his

car. Moments later, Defendant “pull[ed] the steering wheel of

his vehicle hard to his left and . . . attempted to accelerate

around [Detective Hollers and the other officers]. [Defendant]

drove off Murray Hill Road . . . into a private resident’s . . .

front yard.” Another officer then used his vehicle to pin and

immobilize Defendant’s car. Just before Defendant was arrested,

he threw an object from his car. A black plastic bag filled with

white    powder      was   recovered     from    the    area   where        the   object

landed. At trial, the State’s forensic scientist testified that

the    substance     in    the     recovered    black   plastic       bag    contained

“cocaine hydrochloride . . . with a net weight of 41.62 grams.”

       Defendant offered no evidence at trial. At the close of all

the evidence, Defendant moved to dismiss the charges against

him. The trial court denied that motion, and the jury found

Defendant      guilty      of    trafficking    in   cocaine     by   the     unlawful

transportation of more than twenty-eight grams but less than 200

grams    of    cocaine,         trafficking     in   cocaine     by   the     unlawful
                                   -7-
possession of more than twenty-eight grams but less than 200

grams of cocaine, and possession of cocaine.

    The following day, 23 May 2013, the trial court stated that

it would “give [Defendant] a [‘]line objection[’]1 to the entire

proceeding.” Afterward, the jury determined that Defendant had

attained the status of an habitual felon. At sentencing, the

trial court stated that it would “take into consideration that

[Defendant has] a support group in the community.” The court

later sentenced Defendant as a Class C felon to concurrent terms

in the presumptive range of 144 months to 185 months for the

trafficking   convictions.   The   court   arrested   judgment   on   the

possession conviction. Defendant gave notice of appeal in open

court.

                             Discussion

    On appeal, Defendant contends that: (1) “the trial court

prejudicially erred by forcing [him] to proceed pro se when [he]

did not voluntarily and understandingly waive his constitutional



1
  We are unaware of a “line objection” that works to preserve an
entire proceeding for appellate review. This appears to be a
reference to the practice of objecting to a specified line of
questioning during trial, which is only “sufficient to preserve
the entire line of questioning for appellate review . . . .”
State v. Graham, 186 N.C. App. 182, 189, 650 S.E.2d 639, 645
(2007) (emphasis added), disc. review denied, 362 N.C. 477, 666
S.E.2d 745 (2008).
                                              -8-
right to counsel”; (2) “the enhancement [of his sentence from

class    G     to     class    C]     under    the       Habitual       Felon      Act   for    a

trafficking           offense       resulted        in     a      sentence         which       is

unauthorized, illegally imposed[,] and otherwise invalid as a

matter of law”; and (3) “the trial court’s failure to weigh the

mitigating factor of [having] a support group in the community

against the lack of any aggravating factors renders the sentence

illegally imposed or invalid as a matter of law.” We disagree.

       I.      Right to Counsel

       Defendant        first       argues    that       the    trial     court     erred      by

failing to conduct an inquiry on 21 May 2013, in the moments

leading up to trial, after it became apparent that no counsel

was    prepared       to   represent     Defendant.            According      to    Defendant,

“the trial court is required to make [a] thorough inquiry under

N.C.    Gen.    Stat.      §    15A-1242”     before       allowing       a     defendant      to

proceed      without       counsel      to    ensure       that     the       defendant     has

knowingly       and    voluntarily       assumed         the     risk     associated       with

proceeding pro se. Defendant argues that, because he “did not

voluntarily and knowingly waive his right to counsel[,]” the

trial court prejudicially erred by allowing him to proceed pro

se. Because we conclude that Defendant forfeited, rather than

waived, his right to counsel, we overrule this argument.
                               -9-
    “In all criminal prosecutions, the accused shall enjoy the

right . . . to have the assistance of counsel for his defense.”

U.S. Const. amend. VI; see also N.C. Const. art. I, § 23 (“In all

criminal prosecutions, every person charged with crime has the

right . . . to have counsel for defense . . . .”). Nonetheless,

a defendant can proceed in a criminal trial without counsel by

voluntarily waiving his right to counsel or by forfeiting his

right to counsel through abusing that right. See State v. Wray,

206 N.C. App. 354, 357-58, 698 S.E.2d 137, 140 (2010). Whether a

defendant waives or forfeits his right to counsel is dependent

upon his actions:

           Unlike waiver, which requires a knowing and
           intentional relinquishment of a known right,
           forfeiture results in the loss of a right
           regardless of the defendant’s knowledge
           thereof and irrespective of whether the
           defendant intended to relinquish the right.
           A defendant who misbehaves in the courtroom
           may forfeit his constitutional right to be
           present at trial, and a defendant who is
           abusive toward his attorney may forfeit his
           right to counsel.

State v. Montgomery, 138 N.C. App. 521, 524-25, 530 S.E.2d 66,

69 (2000) (citations, internal quotation marks, brackets, and

ellipses   omitted).   Moreover,   a   defendant   can   “lose   his

constitutional right to be represented by counsel of his choice

when he perverts that right to a weapon for the purpose of
                                        -10-
obstructing and delaying his trial.” Id. at 524, 530 S.E.2d at

69. Therefore, when a defendant exploits his right to counsel by

acting abusively toward his attorney or using the right in an

effort to obstruct and delay trial proceedings, he forfeits,

rather than waives, the right. State v. Leyshon, 211 N.C. App.

511, 517-18, 710 S.E.2d 282, 288 (2011) (“A forfeiture [of the

right     to   counsel]    results      when      the    [S]tate’s       interest    in

maintaining     an     orderly    trial      schedule      and     the    defendant’s

negligence,      indifference,         or    possibly         purposeful     delaying

tactic, combine to justify a forfeiture of [the] defendant’s

right to counsel.”). “Any willful actions on the part of the

defendant      that    result     in   the     absence        of   defense    counsel

constitutes a forfeiture of the right to counsel.” Id. at 518,

710 S.E.2d at 288 (citation omitted). “The standard of review

for alleged violations of constitutional rights is de novo.”

State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444

(2009),    disc.      review    denied,     363   N.C.    857,     694    S.E.2d    766

(2010).

    Because        forfeiture     of   the     right     to    counsel     may   occur

regardless of whether a defendant intended to relinquish that

right, an inquiry under section 15A-1242 is not always required

when a defendant proceeds pro se. See State v. Boyd, 200 N.C.
                                         -11-
App. 97, 102, 682 S.E.2d 463, 467 (2009), disc. review denied,

__ N.C. __, 691 S.E.2d 414 (2010). As a general rule, a section

15A-1242 inquiry requires the trial court to determine whether a

pro    se    defendant        was    advised    of    his    right    to   counsel,

understands      the     consequences          of    proceeding      pro   se,     and

comprehends the gravity of the charges against him. N.C. Gen.

Stat. § 15A-1242 (2013).              When a section 15A-1242 inquiry is

necessary, “[t]he [trial] record must affirmatively show that

the    inquiry   [under       section   15A-1242]      was   made    and   that    the

defendant, by his answers, was literate, competent, understood

the consequences of his waiver, and voluntarily exercised his

own free will.” State v. Callahan, 83 N.C. App. 323, 324, 350

S.E.2d 128, 129 (1986), disc. review denied, 319 N.C. 225, 353

S.E.2d 409 (1987). “[T]he attempt to change counsel when the

case was called for trial, which would have resulted in the

disruption and obstruction of orderly procedure in the court,

must    be   charged     to    the    defendant,”      however.      See   State    v.

Montgomery, 33 N.C. App. 693, 697, 236 S.E.2d 390, 392, disc.

review denied, 293 N.C. 256, 257 S.E.2d 258 (1977).

       In Boyd, we held that the defendant forfeited his right to

counsel when he “delayed the trial court proceedings by refusing

to cooperate with either of his appointed attorneys . . . .” 200
                                            -12-
N.C. App at 103, 682 S.E.2d at 467. The defendant’s counsel

stated   that     the     defendant         was    “totally     uncooperative”    and

“repeatedly told [his counsel] that [his] case was not going to

be tried.” Id. (internal quotation marks and ellipsis omitted).

Because the defendant forfeited, rather than waived, his right

to counsel in that case, we held that the trial court did not

err when it failed to conduct a section 15A-1242 inquiry. Id. at

101-03, 682 S.E.2d at 466-67; see also State v. Quick, 179 N.C.

App. 647, 648–50, 634 S.E.2d 915, 917 (2006) (holding that the

defendant’s failure to retain counsel for roughly eight months

constituted obstruction and delay of proceedings, resulting in

forfeiture of his right to counsel); Montgomery, 138 N.C. App.

at 525, 530 S.E.2d at 69 (holding that the defendant’s failure

to   retain     counsel    for       more     than    fifteen    months   warranted

forfeiture and absolved the trial court of its duty to conduct

an inquiry under section 15A-1242 when the defendant was “twice

appointed     counsel     as    an   indigent;        twice   . . .   released    his

appointed     counsel     and   retained          private   counsel   . . . [;]   was

disruptive in the courtroom on two occasions, resulting in the

trial being delayed . . . [; and] refused to cooperate with [one

attorney and assaulted the attorney], resulting in an additional

month’s delay at trial”).
                                         -13-
       Here,    Defendant       exhibited        a    pattern      of     refusing    to

cooperate with his attorney. On 16 October 2012, Defendant was

asked in court if he would accept a plea agreement. In response,

Defendant stated that he had not seen the plea agreement and his

lawyer had not described it to him. When the plea was read for a

second time and Defendant was again asked if he understood and

accepted the plea deal, Defendant remained silent. On 12 March

2013, the day the trial was first set to begin, Defendant became

uncooperative     with    his     privately      retained       attorney      after   the

court denied a motion to suppress. According to the attorney,

Defendant responded to counsel’s attempts to communicate with

statements like, “I don’t want you to represent me.” Defendant

alleged his attorney was ineffective, sought a continuance to

hire    new    counsel,     and    relinquished         his     right   to    appointed

counsel. The trial court granted Defendant’s motion to discharge

his attorney and set a follow-up hearing a few weeks later to

ensure   that    Defendant        was   making       progress    toward      hiring   new

counsel.      Defendant’s      former    attorney       also     indicated     that   he

would “be happy to contact [the new attorney], give [that person

the] entire file[,] and speak with [that person] with regard to

. . .    the    case.”    At      the   2   April       2013    follow-up      hearing,

Defendant indicated that he was “working on” procuring counsel,
                                              -14-
it was “going great,” and he “should have new counsel soon.”

Despite      these      representations         and    persistent       efforts      by     the

court   to       ensure    fair    treatment,         Defendant    failed      to    procure

counsel by the date of his trial, approximately two months after

his initial trial date.

    At       a    minimum,        these   actions       constitute          negligence       or

indifference on the part of Defendant in failing to obtain an

attorney. At the most, they constitute a purposeful delaying

tactic meant to frustrate the trial of his case. In any event,

they are sufficient to constitute a forfeiture of Defendant’s

right to counsel. See Boyd, 200 N.C. App. at 101–02, 682 S.E.2d

at 467; see also Quick, 179 N.C. App. at 648–50, 634 S.E.2d at

917–18; Montgomery, 138 N.C. App. at 524–25, 530 S.E.2d at 69.

Therefore,        Defendant       was   not    entitled       to   a   section      15A-1242

inquiry, and the trial court did not err by failing to conduct

one. Defendant’s first argument is overruled.

    II.       The Habitual Felon Act

    Second,            Defendant    argues     that     the   trial     court       erred    by

enhancing        his    sentence    under      section     14-7.6      of    the    Habitual

Felon Act (“the Act”). He contends that N.C. Gen. Stat. § 90-

95(h)(3),         which     criminalizes        the      trafficking         of     cocaine,
                                            -15-
includes    a     mandatory     sentence       that      may   not   be   enhanced.          We

disagree.

       Section     90-95(h)(3)        provides      in    pertinent       part    that       an

individual found guilty of trafficking in “28 grams or more, but

less than 200 grams . . . shall be punished as a Class G felon

and shall be sentenced to a minimum term of 35 months and a

maximum    term     of   51    months       . . . .”      N.C.    Gen.    Stat.        §    90-

95(h)(3)(a)       (2013)      (emphasis      added).       Before     2011,      the       Act,

codified     in    section      14-7.6      of     the    North      Carolina      General

Statutes, provided the following additional direction:

            When an habitual felon as defined in this
            Article commits any felony under the laws of
            the State of North Carolina, the felon must,
            upon conviction or plea of guilty under
            indictment as provided in this Article
            (except where the felon has been sentenced
            as a Class A, B1, or B2 felon) be sentenced
            as a Class C felon. . . .

2011 N.C. Sess. Laws 192, sec. 3.(d) (emphasis added).

       Interpreting those provisions, we held in State v. Eaton

that    while      sentences     under       drug      trafficking        statutes          are

mandatory,      sentences      under     the     Act     are   “arguably       even        more

mandatory.” 210 N.C. App. 142, 151, 707 S.E.2d 642, 648, disc.

review denied, 365 N.C. 202, 710 S.E.2d 25 (2011). There the

defendant was charged with trafficking in opium in violation of

section     90-95(h)(4).        Id.    at    144,      707     S.E.2d     at     644.       The
                                       -16-
defendant argued that because section 90-95(h)(4)(a) “prescribes

a   mandatory    sentence    for    [drug]    trafficking        convictions,        the

status    of     habitual    felon     cannot      be    used     to    increase       a

defendant’s punishment for a drug trafficking offense.” Id. at

149, 707 S.E.2d at 647. The Eaton court disagreed, reasoning

that section 14-7.6 contained an “explicit directive[,]” which

validated      the    enhancement      of    defendant’s        drug    trafficking

sentence. Id. at 150-151, 707 S.E.2d at 648. In addition, the

Court observed that section 14-7.6 “contains specific exceptions

applicable      to   defendants    convicted       of   Class    A,    B1[,]    or    B2

felonies, making it completely clear that the General Assembly

expressly      considered    the     issue    of   which    offenses      would       be

exempted from the enhanced sentencing provision of this statute

and which would not.” Id. at 151, 707 S.E.2d at 648. Lastly,

this Court noted that “the consistent use of mandatory language

through the sentencing statutes”              made it clear that            the Act

would    serve    little    purpose    if    interpreted        according      to    the

defendant’s argument. See id. Therefore, we concluded in Eaton

that the explicit directive in the Act, the lack of inclusion of

drug trafficking in a list of excepted felonies, and the adverse

implication of a contrary ruling meant the Act could be used to

enhance a drug trafficking conviction despite the language of
                              -17-
section 90-95. Id. at 151–52, 707 S.E.2d at 648. That rationale

remains applicable today.

    Defendant argues that recent and applicable revisions to

section 14-7.6, which change the requirements for enhancing a

conviction and make the decision to charge an eligible defendant

as an habitual felon discretionary, render our holding in Eaton

outdated and incorrect. Because the revised Habitual Felon Act

only grants the prosecutor the discretion to charge an eligible

defendant as an habitual felon and leaves untouched the portion

of the Act that stipulates a convicted habitual felon must be

sentenced as such, we disagree.

    The current version of the Act reads as follows:

         When an habitual felon as defined in this
         Article commits any felony under the laws of
         the State of North Carolina, the felon must,
         upon conviction or plea of guilty under
         indictment as provided in this Article
         (except where the felon has been sentenced
         as a Class A, B1, or B2 felon) be sentenced
         at a felony class level that is four classes
         higher than the principal felony for which
         the person was convicted; but under no
         circumstances shall an habitual felon be
         sentenced at a level higher than a Class C
         felony. . . .

N.C. Gen. Stat. § 14-7.6 (2013) (emphasis added). The Act also

states that the prosecutor’s decision to charge a qualifying

defendant as an habitual felon is discretionary. N.C. Gen. Stat.
                                              -18-
§   14-7.3      (2013)        (“The     district         attorney,     in    his    or     her

discretion, may charge a person as an habitual felon pursuant to

this Article.”).

       We review alleged sentencing errors de novo. See State v.

Reynolds, 161 N.C. App 144, 149, 587 S.E.2d 456, 460 (2003).

This    Court     may      determine         whether      a   “sentence      imposed       was

unauthorized         at    the        time    imposed,        exceeded       the    maximum

authorized      by    law,      was     illegally        imposed,      or   is     otherwise

invalid as a matter of law” regardless of whether the defendant

objected to the sentence at sentencing. N.C. Gen. Stat. § 15A-

1446(d)(18) (2013).

       Contrary       to       Defendant’s           assertions,        Eaton        remains

controlling. Section 14-7.6 still states that an habitual felon

“must” be sentenced at a higher level. See N.C. Gen. Stat. § 14-

7.6. The amendments to the Act, applicable here, only change

whether a prosecutor must charge an eligible defendant as an

habitual     felon      and    the     extent       to   which   an    habitual      felon’s

sentence     must     be      enhanced,       not    whether     the    sentence      of    an

habitual felon          may be enhanced.             In this case,          Defendant      was

convicted of trafficking, a Class G felony. Defendant also had

three prior felony convictions and was found guilty of having

attained habitual felon status. Therefore, Defendant’s sentence
                                -19-
was enhanced to a Class C felony, four levels higher than Class

G. This enhancement is permitted by section 14-7.6 and Eaton.

Accordingly,   the   trial   court’s   enhancement   of   Defendant’s

sentence was proper.

    III. Mitigating Circumstances

    Defendant’s final argument is that the trial court erred by

failing to make a written finding and weigh the existence of a

support system in the community as a mitigating factor during

sentencing.2 According to Defendant, the trial court’s statement

at trial that it would “take into consideration that [Defendant

has] a support group in the community” required the court to

“make a written finding of a statutory mitigating factor” and

formally consider this factor at sentencing. Defendant argues

that the trial court’s “failure to find that a mitigating factor




2
  Although Defendant did not specifically object to the failure
to mitigate his sentence, we note that “[a] defendant properly
preserves the issue of a sentencing error on appeal despite his
failure to object during the sentencing hearing.” State v. Paul,
__ N.C. App. __, __, 752 S.E.2d 252, 253 (2013) (citation
omitted); see also N.C. Gen. Stat. § 15A-1446(d) (“Errors based
upon any of the following grounds, which are asserted to have
occurred, may be the subject of appellate review even though no
objection, exception[,] or motion has been made in the trial
division. . . . The sentence imposed was unauthorized at the
time imposed, exceeded the maximum authorized by law, was
illegally imposed, or is otherwise invalid as a matter of
law.”).
                                      -20-
existed, after stating on the record that it existed, resulted

in an unlawful sentence. . . .” We disagree.

      To support his argument Defendant cites State v. Lopez, 363

N.C. 535, 618 S.E.2d 271 (2009), for the proposition that once a

court finds the existence of a mitigating factor, it must weigh

that factor against any aggravating factors to “decide[] whether

to impose[] an aggravated, presumptive, or mitigated sentence.”

This argument is misplaced. The issue in this case is whether

the     trial    court’s     statement      that     it      “[would]         take      into

consideration       that    [Defendant      has]    a     support        group     in    the

community” demands that the court make and take into account a

written finding of a statutory mitigating factor. In Lopez, our

Supreme    Court    considered    “the   extent         to   which       a   party      in   a

criminal     case   may     address   the    jury       as   to     [a]       defendant’s

potential sentence.” See Lopez, 363 N.C. at 535, 681 S.E.2d at

271. Lopez does not address whether an oral statement by a trial

court considering the existence of mitigating circumstances must

be addressed at sentencing. See id. We conclude it does not.

      When      resolving    discrepancies         between        oral       and   written

findings, “the better course is to err on the side of caution

and resolve in the defendant’s favor the discrepancy between the

trial    court’s    statement    in   open     court,        as    revealed        by    the
                                      -21-
transcript, and the sentencing form.” State v. Morston, 336 N.C.

381, 410, 445 S.E.2d 1, 17 (1994). In Morston, our Supreme Court

was tasked with resolving a discrepancy between an oral finding

and a sentencing sheet. Id. at 409–10, 445 S.E.2d at 17. At

trial,   the    court    orally    stated:    “[T]he   court   will   find   as

aggravating factors, aggravating factor No. 4b, that the offense

was committed to hinder the lawful exercise of a governmental

function or the enforcement of the law . . . .” Id. at 409, 445

S.E.2d at 17 (brackets omitted; emphasis in original). On the

defendant’s sentencing sheet, however, the court also found that

“the offense was committed to disrupt the lawful exercise of a

governmental function or the enforcement of laws.” Id. (brackets

omitted; emphasis added). Our Supreme Court decided that the

conflict between “hindering” and “disrupting” should be decided

in the defendant’s favor and vacated the sentence. Id. at 410,

445 S.E.2d at 18.

      Here, unlike in Morston, there is no discrepancy between

the   trial    court’s   oral     statement   and   Defendant’s   sentencing

form. The trial court did not state that it was finding the

existence of a mitigating factor in one circumstance and fail to

do so in another. The trial court merely stated that it would

consider the existence of Defendant’s support system. Moreover,
                                  -22-
none of Defendant’s cited authority holds that a trial court’s

oral   statement   suggesting   the   existence   of   a   support   system

constitutes a formal finding of a mitigating factor, and we

cannot find any such authority. Because the trial court’s oral

statement does not constitute a formal finding, we hold that the

court did not err when it sentenced Defendant in the presumptive

range. Defendant’s argument is overruled.

       NO ERROR.

       Judges GEER and ERVIN concur.

       Report per Rule 30(e).
