An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Appellate Procedure.



                                  NO. COA14-64
                         NORTH CAROLINA COURT OF APPEALS

                                    Filed: 1 July 2014


STATE OF NORTH CAROLINA

       v.                                           Cumberland County
                                                    No. 01 CRS 53303
JERRY McNEILL



       Appeal     by   Defendant          from   judgments     entered    26    September

2013    by    Judge     James       F.    Ammons,     Jr.,    in    Cumberland    County

Superior Court.         Heard in the Court of Appeals 19 May 2014.


       Attorney General Roy Cooper, by Assistant Attorney General
       Joseph L. Hyde, for the State.

       Bruce T. Cunningham, Jr., for Defendant.


       Dillon, Judge.


                                         I. Background

       On    24   January     2002,        a     Cumberland    County    jury    entered

verdicts convicting Defendant Jerry McNeill of attempted robbery

with a dangerous weapon, first degree burglary, assault with a

deadly      weapon     inflicting         serious     injury,      and   conspiracy   to

commit      robbery    with     a    dangerous       weapon.        Defendant    pleaded

guilty to attaining habitual felon status and was sentenced to
                                            -2-
three consecutive terms of 116 to 149 months imprisonment.                                On

appeal,     this    Court     affirmed            Defendant’s     convictions,           but

remanded for resentencing based on an error made by the trial

court in determining Defendant’s prior record level.                               State v.

McNeill, 158 N.C. App. 96, 580 S.E.2d 27 (2003).                        On remand, the

court    imposed    three   consecutive            sentences    and    one        concurrent

sentence of 100 to 129 months imprisonment.                           These sentences

were upheld by this Court in State v. McNeill, No. COA04-1092

(Mar. 1, 2005) (unpublished).

      Defendant     subsequently           filed     a   motion       for     appropriate

relief    (MAR),    seeking      a   new     resentencing       based       upon     alleged

ineffective        assistance         of     counsel         during         his      initial

resentencing.         The     MAR     asserted        that     defense       counsel      at

Defendant’s resentencing failed to introduce and argue certain

mitigating      factors       that         could     have      potentially           reduced

Defendant’s     sentences.           Defendant’s         MAR    request       for    a   new

resentencing was granted by order entered 23 September 2013, and

the matter came on for hearing in Cumberland County Superior

Court on 26 September 2013.                Following the resentencing hearing,

the     court   entered     an       order    vacating         Defendant’s         previous

sentences, but imposing the same three consecutive sentences of
                                    -3-
100 to 129 months imprisonment.             From this order, Defendant

appeals.

                               II. Analysis



                   A. Defendant’s Burglary Conviction

      Defendant’s first two arguments on appeal pertain to the

merits of his first degree burglary conviction.                 As indicated

above, this Court has already affirmed Defendant’s convictions,

including his conviction for first degree burglary.                 McNeill,

158 N.C. App. 96, 580 S.E.2d 27.           Defendant had the opportunity

to raise these contentions in his first appeal to this Court and

is   now    procedurally   barred   from   asserting    them.      State   v.

Speaks, 95 N.C. 689, 691 (1886) (“As the defense now sought to

be set up could as well have been made available when the first

appeal was taken, it has passed into the domain of res judicata,

and cannot now be pressed into service.”);             State v. Melton, 15

N.C. App. 198, 200, 189 S.E.2d 757, 758 (1972).                  Defendant’s

arguments on this issue are, accordingly, dismissed.

                   B. Defendant’s Mitigating Evidence

      Defendant next contends that “the sentencing judge failed

to   find    the   existence   of    mitigating     factors     which   were

uncontroverted and manifestly credible.”          We disagree.
                                       -4-
       N.C. Gen. Stat. § 15A-1340.16 provides, in pertinent part,

that   “[t]he    court    shall   consider        evidence   of   aggravating     or

mitigating      factors    present     in     the     offense     that    make    an

aggravated or mitigated sentence appropriate, but the decision

to depart from the presumptive range is in the discretion of the

court.”     N.C. Gen. Stat. § 15A-1340.16(a) (2013).                   Our Supreme

Court has offered the following additional guidance:

            Except for Class A felonies and other
            offenses for which a particular punishment
            is set by statute, the range of sentences
            that the trial court may impose becomes
            known only after a series of findings and
            calculations. After a jury returns its
            verdict or verdicts, it must then determine
            whether any submitted aggravating factors
            exist, thereby permitting a defendant’s
            sentence to be enhanced. In addition, the
            court independently determines whether any
            submitted mitigating factors also exist and,
            if so, whether the factors in aggravation
            outweigh the factors in mitigation, or the
            factors in mitigation outweigh the factors
            in aggravation, or the factors are in
            equilibrium.   After   weighing   aggravating
            factors found by the jury and mitigating
            factors found by the court, the court
            decides whether to impose an aggravated,
            presumptive, or mitigated sentence.

State v. Lopez, 363 N.C. 535, 539, 681 S.E.2d 271, 274 (2009)

(internal    citations     omitted).         “A    trial   court’s     weighing   of

mitigating      and   aggravating    factors       will    not   be   disturbed   on

appeal absent a showing that there was an abuse of discretion.”
                                              -5-
State v. Rogers, 157 N.C. App. 127, 129, 577 S.E.2d 666, 668

(2003).

       Here,    Defendant       introduced          testimony         from    a     number   of

family and friends at his resentencing hearing, in the hope that

this   testimony       would    persuade         the     court    to    “find       mitigating

factors    of    a     support        system        in    the     community,          positive

employment and support of his children.”                          The court ultimately

determined, however, that “nothing . . . ha[d] been presented to

the Court in way of mitigation that would justify a mitigated

sentence” and sentenced Defendant within the presumptive range.

Defendant contends that the court, in violation of Lopez, “took

the position that [the court] could make a decision,                                    before

considering      the     existence          of      mitigating         circumstances,        to

sentence in the presumptive range.”                         (Emphasis in original).

Defendant predicates this contention on an inquiry made by the

court at the resentencing hearing concerning whether the court

was permitted, within its discretion, to “simply find a sentence

within    the   presumption           range      and     make    no    findings[.]”          We

disagree with Defendant’s interpretation of the court’s inquiry

and analytical process in reaching its decision.                                   Contrary to

Defendant’s interpretation, the transcript reveals the court’s

indication      that    it     had,    in     fact,      considered          the    mitigating
                                            -6-
evidence,       but    that     it    was    acting       within      its    discretion,

notwithstanding that evidence, to sentence Defendant within the

presumptive range.            The court was not required to make findings

with respect to the mitigating evidence in sentencing Defendant

within the presumptive range, State v. Garnett, 209 N.C. App.

537, 550, 706 S.E.2d 280, 288, disc. review denied, 365 N.C.

200, 710 S.E.2d 31 (2011); State v. Dorton, 182 N.C. App. 34,

43, 641 S.E.2d 357, 363 (2007), and we otherwise discern no

violation of Lopez or the relevant sentencing provision, N.C.

Gen.    Stat.    §     15A-1340.16,         in    the    court’s      resentencing       of

Defendant.      Accordingly, this contention is overruled.

                      C. Ineffective Assistance of Counsel

       Defendant       finally       contends      that,       to     the    extent     his

arguments    have      not    been    preserved         for   appellate      review,    “he

received ineffective assistance of counsel . . . at both trial

and    appellate       levels.”        Defendant         cites      only    generally    to

Strickland v. Washington, 466 U.S. 668 (1984), and makes no

attempt to explain how he was prejudiced in this respect.                               We,

therefore, deem the issue abandoned.                    N.C.R. App. P. 28(b)(6).

                                     III. Conclusion

       In light of the foregoing, we affirm the trial court’s 26

September 2013 judgments.
                          -7-
AFFIRMED.

Chief Judge MARTIN and Judge STEELMAN concur.

Report per Rule 30(e).
