No. 8215SC674.

300 S.E.2d 7 (1983)

STATE of North Carolina v. Gary Wayne TEAGUE.

Court of Appeals of North Carolina.

February 15, 1983.

Attorney(s) appearing for the Case

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Tiare B. Smiley, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Nora B. Henry, Raleigh, for defendant.

WELLS, Judge.

The questions defendant raises on this appeal pertain to sentencing. When a convicted felon is given a sentence in excess of the presumptive sentence, he may appeal as a matter of right, and the only question before the appellate court on such an appeal is whether the sentence is supported by evidence introduced at trial and the sentencing hearing. G.S. 15A-1444(a1). Under our scheme of presumptive sentencing, as it applies to the present case, the trial judge must impose the statutorily set presumptive sentence unless he properly makes written findings of aggravating or mitigating factors and then finds that one set of factors outweighs the other. See G.S. 15A-1340.4. As long as they are not essential to the establishment of elements of the offense, all circumstances that are both transactionally related to the offense and reasonably related to the purposes of sentencing must be considered by the sentencing judge. State v. Melton, 307 N.C. 370, 298 S.E.2d 673 (1983), citing G.S. 15A-1340.4(a). The trial judge may consider aggravating and mitigating factors supported by evidence not used to prove an essential element as long as those factors are reasonably related to the purposes of sentencing. G.S. 15A-1340.4(a). The factors found must be supported by a preponderance of the evidence. G.S. 15A-1340.4(a). The balancing of the properly found factors in aggravation and mitigation is left to the sound discretion of the trial judge. State v. Melton, supra.

At the sentencing hearing, defendant's attorney urged the judge to consider that defendant submitted to arrest without incident, that defendant's acts were a result of his being unable to rapidly adapt to society outside prison walls, that a lengthy prison term without treatment would be of no benefit to a homosexual, and that, if not incarcerated, defendant would have available a stable and supportive family environment. By his first assignment of error, defendant contends that the trial judge erred in failing to find these four "mitigating factors." While we believe that each of these asserted "factors" could, under the proper circumstances, support the finding of factors in mitigation, on the facts of the present case we do not find it to be error for the trial judge to fail to find mitigating factors based on the evidence in this case. Stated differently, we hold that the trial judge could have properly rejected each of the submitted "factors" because he found them to be either not reasonably related to the purposes of sentencing, see State v. Melton, supra, not transactionally related to the offense, see id., or not proven by a preponderance of the evidence, see State v. Davis, 58 N.C. App. 330, 293 S.E.2d 658 (1982). Additionally, we note that the trial judge did order that defendant be given whatever treatment was available while incarcerated.

By his second assignment of error, defendant contends that the aggravating factor found (i.e. that defendant has prior convictions for criminal offenses punishable by more than 60 days confinement) is insufficient to support the imposition of a sentence in excess of the presumptive term. This contention is without merit. Pursuant to G.S. 15A-1340.4, the trial judge must consider whether the defendant has prior convictions for criminal offenses punishable by more than 60 days confinement. The evidence of defendant's prior convictions was in a form which is preferred by statute: a certified copy of the court record. See G.S. 15A-1340.4(e); and State v. Massey, 59 N.C. App. 704, 298 S.E.2d 63 (1982) (stating that G.S. 15A-1340.4(e) does not preclude the State from using reliable methods of proof other than those enumerated by the statute for proving prior convictions). The balancing of the aggravating and mitigating factors is left to the discretion of the trial judge. Melton, supra. Defendant has not shown that there was an abuse of discretion. Therefore, this assignment of error is overruled.

For the reasons stated, the judgment of the trial court is


VAUGHN, C.J., and BRASWELL, J., concur.


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