State v. Rico (Lawyers Weekly No. 12-07-0066, 25 pp.) (Ann Marie Calabria, J.) (Sanford L. Steelman Jr., J., concurring in part & dissenting in part) Appealed from Sampson County Superior Court. (Russell J. Lanier Jr., J.) N.C. App. Click here for the full-text opinion.
Holding: Where the sentencing judge failed to make any findings as to aggravating factors and failed to exercise his discretion in determining whether an aggravated sentence – as called for in defendant’s plea agreement – was appropriate, defendant’s original sentence was invalid as a matter of law.
Defendant’s sentence, including the restitution order, is vacated. We remand for re-sentencing upon defendant’s plea of guilty to voluntary manslaughter.
Where the original sentence was affected by errors of law, it could not be corrected under the guise of amending a clerical error.
Since defendant could appeal his sentence as a matter of right, he was also permitted to challenge the trial court’s restitution recommendation. The restitution recommendation was not supported by competent evidence and must also be vacated.
There was a mistake in the plea agreement in that, contrary to the belief of the parties, the aggravating factor of use of a firearm cannot enhance a sentence for voluntary manslaughter by use of that same firearm. However, defendant has fully complied with the terms of his plea agreement, and the risk of any mistake in a plea agreement must be borne by the state. As a result, the state remains bound by the plea agreement, and defendant should be resentenced upon his guilty plea to voluntary manslaughter.
(Steelman, J.) I dissent in this matter because the plea arrangement must be set aside and this matter remanded to the trial court for disposition of the murder charge against defendant.
Essential and fundamental terms of the plea agreement were unfulfillable. Defendant has elected to repudiate a portion of his agreement. Defendant cannot repudiate in part without repudiating the whole.