              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-266

                              Filed: 20 February 2018

Mecklenburg County, No. 15 CRS 244226

STATE OF NORTH CAROLINA

             v.

TIMOTHY FREDERICK LEONARD, Defendant.


      Appeal by Defendant from judgment entered 23 September 2016 by Judge

William R. Bell in Mecklenburg County Superior Court. Heard in the Court of

Appeals 6 September 2017.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Daniel
      P. O’Brien, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine
      Jane Allen, for defendant-appellant.

      MURPHY, Judge.


      Timothy Frederick Leonard (“Defendant”) was convicted of voluntary

manslaughter in the death of his wife, Danielle Rae Newell (“Newell”), and received

an active sentence on 23 September 2016. He appeals his sentence contending that

the trial court failed to find extraordinary mitigating circumstances during his

sentencing hearing due to an erroneous view of North Carolina law. After careful

review, we find that the trial court accurately understood the law and properly

exercised its discretion. Thus, we affirm Defendant’s active sentence.
                                  STATE V. LEONARD

                                  Opinion of the Court



                                  BACKGROUND

      Newell and Defendant met each other in 1991 and were married about a

decade later. They were “two peas in a pod” and “loved each other very much.”

Neither spouse was in any way violent or abusive to the other prior to Newell’s death.

Newell suffered from migraine headaches for her entire life, but in 2005 they became

more frequent and severe; she was experiencing debilitating migraines on a daily

basis. Her migraines were sometimes triggered and exacerbated by light, sound, or

other stimuli, so she often remained in bed, in darkness, wearing noise cancelling

headphones. She lost the ability to work, drive, leave the house, and socialize. Newell

tried a number of treatments and medications for her migraines which carried serious

side effects, but none were able to stop or alleviate her migraines. During this time,

Defendant was Newell’s primary caretaker, and in 2015, Newell was determined to

be totally disabled.

      For many years, Defendant and Newell lived together at a house on Lake

Norman owned by a friend. However, in 2015, the friend sold the Lake Norman

house, and they had to move. Defendant and Newell found a house in Charlotte

located in the “NODA” neighborhood. Shortly after moving there, it became apparent

that the new setting was exacerbating Newell’s migraines. Neighbors ran a noisy gas

generator at all times, the house did not have working heating for several days, and

neighborhood dogs barked frequently.



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                                  STATE V. LEONARD

                                  Opinion of the Court



      Then, in December 2015, Newell became so distressed that she repeatedly

smashed her forehead into a doorjamb. She told Defendant that if he did not help her

commit suicide she would do it without him. Prior to this event, Newell had expressed

some intent to commit suicide. For example, she had discussed being drowned in a

tub at the Lake Norman house. In 2013, Newell became so depressed and suicidal

that Defendant and Newell’s mother had her involuntarily committed at

Presbyterian Hospital. While Newell did not fear death, she worried that if she

attempted suicide by herself she might only end up in a vegetative state. Defendant

was “exhausted” and “couldn’t do it anymore,” and it was at this point he agreed to

help Newell end her life.

      The couple rented a hotel room in Cornelius for the night of 8 December 2015

and went to a hardware store, where they bought a rubber hose and duct tape.

Defendant was uncertain in his ability to follow through with the plan, so he went to

a restaurant near the hotel and drank a great deal of alcohol. While Defendant was

drinking, Newell was at the hotel writing notes to her friends and family. After

getting angry at Defendant for not helping her kill herself, she drank a full bottle of

Ambien, which left her unconscious for about 24 hours. When she came to, she and

Defendant agreed to carry out the plan. Defendant then bound Newell’s wrists and

ankles with duct tape and drowned her in the hotel room’s bathtub. He immediately




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                                  STATE V. LEONARD

                                  Opinion of the Court



drove back to the Charlotte house and attempted to commit suicide by rerouting his

vehicle’s exhaust into the passenger compartment with a rubber hose.

      After his suicide attempt, Defendant was hospitalized in Kings Mountain,

where he told the police what happened at the hotel. Defendant was then held in

detention for nearly seven months before being put on pre-trial release. Upon release

he moved in with Newell’s mother in Asheville.

      Defendant was initially charged with first degree murder, but he pleaded

guilty to the lesser included charge of voluntary manslaughter in violation of N.C.G.S.

§ 14-18. Defendant’s plea agreement provided that:

             The [D]efendant shall plead guilty to voluntary
             manslaughter and the State proposes a sentence of 51-74
             months active. The State’s position is that the defendant
             may argue for and the Court in its discretion may impose
             an intermediate sentence pursuant to the Extraordinary
             Mitigation statute (N.C.G.S. 15A-1340.13).


Defendant’s Sentence

      The legislature has promulgated a sentencing grid which requires an active

sentence for voluntary manslaughter unless there is a finding of extraordinary

mitigating circumstances in accordance with N.C.G.S. § 15A-1340.13(g). During his

sentencing hearing, Defendant requested that the trial court find extraordinary

mitigating circumstances.     He presented evidence, including testimony from a

forensic psychiatrist and from Newell’s mother, who stated that she did not feel that



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                                  STATE V. LEONARD

                                   Opinion of the Court



it was appropriate to imprison Defendant. Letters from Newell’s other relatives were

also submitted, which tended to show that Defendant and Newell were under severe

distress and the killing of Newell was “an act of love.”

      In its judgment, the trial court found ten of the mitigating factors described in

N.C.G.S. § 15A-1340.16(e). They also found that two non-statutory mitigating factors

were present: (1) “Defendant had no history of violent behavior;” and (2) “Defendant

has the full support of members of the decedent’s family, none of whom wish to see

him incarcerated.” The State presented no evidence and no aggravating factors were

found. However, the trial court did not find that any of the mitigating factors rose to

the quality of an extraordinary mitigating factor.          Accordingly, it found no

extraordinary mitigation and ordered an active sentence of 38 to 58 months, which is

the shortest sentence possible within the statutory mitigated range. Defendant gave

notice of appeal in open court.

                                      ANALYSIS

      Sentencing decisions, including the trial court’s failure to find extraordinary

mitigating circumstances, are reviewed under an abuse of discretion standard. State

v. Williams, 227 N.C. App. 209, 218, 741 S.E.2d 486, 491 (2013). Thus, the finding of

the trial court may only be overturned if it is “manifestly unsupported by reason” or

“so arbitrary that it could not have been the result of a reasoned decision.” Id. at 218,

741 S.E.2d at 491.



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                                  STATE V. LEONARD

                                  Opinion of the Court



      Voluntary Manslaughter is a Class D felony. N.C.G.S. § 14-18 (2017). As such,

it entails a mandatory active sentence, even for an offender such as the Defendant

with no prior criminal record in the mitigated range. N.C.G.S. § 15A-1340.17 (2017).

When an active sentence is required, the trial court may only order an intermediate

sentence if (1) extraordinary mitigating factors exist, (2) the mitigating factors

substantially outweigh any aggravating factors, and (3)“[i]t would be a manifest

injustice to impose an active punishment.”          N.C.G.S. § 15A-1340.13(g) (2017)

(Dispositional Deviation for Extraordinary Mitigation).       Merely finding a large

number of statutory mitigating factors is not sufficient. State v. Melvin, 188 N.C.

App. 827, 831, 656 S.E.2d 701, 703 (2008). Rather, “[t]he trial court must look to the

quality and nature of the factor to determine whether it is an extraordinary factor in

mitigation.” Id.

       Defendant pleaded guilty to voluntary manslaughter, a crime requiring a

mandatory active sentence unless the trial court finds extraordinary mitigation. On

appeal, he argues that the trial court acted under an erroneous belief that it did not

have discretion to consider a mitigating factor extraordinary if that factor was one of

the factors enumerated in N.C.G.S. § 15A-1340.16(e). In other words, because a

victim’s “consent” to the crime is listed in the mitigation statute, the trial court

believed that Newell’s consent to her own death by drowning, regardless of its

significance, could never be considered an extraordinary mitigating factor.



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                                   STATE V. LEONARD

                                    Opinion of the Court



      While it is undisputed that a number of mitigating factors existed and that no

aggravating factors did, the sentencing hearing transcript makes plain that the trial

court understood the extraordinary mitigation statute and exercised proper

discretion within its confines. See N.C.G.S. § 15A-1340.13(g) (2017).

             An extraordinary mitigating factor is defined to be of a kind
             significantly greater than in a normal case, not the
             quantity, again, but in terms of merit. In this case, the
             statutory mitigating factors and the non-statutory
             mitigating factors are contemplated by the statute.
             Therefore, I think it’s difficult to know the basis for the
             significant, greater than in a normal case, are present in a
             normal case. The mitigating factors outweigh any factors
             in aggravation, so with regard to the first prong on the test
             I can’t find that they are significantly greater than are
             present in a normal case.

Defendant’s brief cites this portion of the transcript to support his argument that

the trial court misunderstood the law. His argument, however, overlooks several

legally accurate statements made by the trial court about extraordinary mitigation.

On multiple occasions, the trial court described an extraordinary factor as one

“greater than in a normal case.” Additionally, the trial court correctly stated that

“[t]he quality of the factors, not the quantity, is the prime consideration of the Court.”

These statements by the trial court convey exactly what the law says: the consent

and participation of the victim, or the support of one’s family, can only be an

extraordinary mitigating factor if its quality and nature is substantially greater than

the normal case.



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                                 STATE V. LEONARD

                                 Opinion of the Court



                                 CONCLUSION


      The law gives the trial court broad discretion to determine whether

extraordinary mitigating factors exist.     While we recognize that a number of

mitigating factors were present here, we conclude that the trial court correctly

understood the law and applied it reasonably to the unusual and tragic facts of this

case. Therefore, the trial court’s determination that none of those factors were

extraordinary was an appropriate exercise of its discretion. Accordingly, we find no

error and affirm the judgment.


      AFFIRMED.

      Judges CALABRIA and ZACHARY concur.




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