An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-37

                      NORTH CAROLINA COURT OF APPEALS

                              Filed: 15 July 2014


STATE OF NORTH CAROLINA

       v.                                   Mecklenburg County
                                            No. 10 CRS 233832
CHEOKEE THORPE



       On writ of certiorari to review judgment entered 19 January

2011    by   Judge   H.   William     Constangy    in    Mecklenburg     County

Superior Court.      Heard in the Court of Appeals 30 June 2014.


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

       Anna S. Lucas for defendant-appellant.


       BRYANT, Judge.


       Pursuant to N.C. Gen. Stat. § 15A-1340.16, the decision

whether to sentence a defendant in the presumptive or mitigated

range is within the discretion of the trial court.

       On 19 January 2011, pursuant to a plea agreement, defendant

pled guilty to robbery with a dangerous weapon and conspiracy to
                                          -2-
commit     robbery    with    a   dangerous       weapon.        The    charges       were

consolidated for judgment and defendant was sentenced to 64 to

86 months imprisonment.

      On 3 July 2013, defendant filed a pro se petition for writ

of   certiorari      in   this    Court    seeking    review      of    the       judgment

entered upon his guilty plea.               By order entered 16 July 2013,

this Court allowed defendant’s petition for writ of certiorari,

limiting review to “those issues designated in N.C. Gen. Stat. §

15A-1444(a2) (2011) as reviewable in an appeal from a judgment

entered upon a guilty plea.”

                             ___________________________

      On   28   March     2014,   the     State    filed    a    motion      to   dismiss

defendant’s appeal, contending defendant lacks a right to appeal

this issue and that the issue is beyond the scope of review

allowed by this Court in its order.                  In our discretion we deny

the State’s motion to dismiss defendant’s appeal and address the

merits of defendant’s argument.

                             ___________________________

      In his sole argument on appeal, defendant contends his case

should     be   remanded     to   the   trial     court    for   a     new   sentencing

hearing because it appears from the record that the trial court
                                        -3-
intended to sentence him in the mitigated range rather than in

the presumptive range.         We disagree.

    “The     court    may     deviate    from      the   presumptive       range   of

minimum   sentences      of   imprisonment         specified    for    a   class   of

offense and prior record level if it finds, pursuant to G.S.

15A-1340.16,     that       aggravating       or    mitigating        circumstances

support such a deviation.”              N.C. Gen. Stat. § 15A-1340.13(e)

(2013).    “The 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.”    Id. § 15A-1340.16(a) (2013).

           If aggravating factors are present and the
           court determines they are sufficient to
           outweigh any mitigating factors that are
           present, it may impose a sentence that is
           permitted by the aggravated range described
           in G.S. 15A-1340.17(c)(4).     If the court
           finds that mitigating factors are present
           and   are   sufficient   to   outweigh   any
           aggravating factors that are present, it may
           impose a sentence that is permitted by the
           mitigated range described in G.S. 15A-
           1340.17(c)(3).

Id. § 15A-1340.16(b) (2013) (emphasis added).

    Here, the trial court found that mitigating factors existed

and that they outweighed the aggravating factors, but sentenced

defendant in the presumptive range.                Defendant argues that since
                                       -4-
the trial court made these findings and failed to check the box

on the judgment that states the court makes no written findings

of fact because the prison term is in the presumptive range, the

case should be remanded for a new sentencing hearing.                        We are

not persuaded.          This Court has held that “[s]ince subsection(b)

[sic] [of N.C.G.S. 15A-1340.16] provides that if a judge finds

that mitigating factors are present and outweigh any aggravating

factors,    he    has    the   discretion    to   impose    a    sentence    in   the

mitigated range, he ipso facto, likewise may in his discretion

decline to do so and sentence in the presumptive range.”                      State

v. Bivens, 155 N.C. App. 645, 648, 573 S.E.2d 259, 262 (2002).

As such, it was within the trial court’s discretion to sentence

defendant    in    the    presumptive,      rather   than       mitigated,   range.

Accordingly, the decision of the trial court is affirmed.

    Affirmed.

    Judges STROUD and HUNTER, Robert N., Jr., concur.

    Report per Rule 30(e).
