State v. Robinson
Date Filed2022-12-16
Docket395A21
Cited0 times
StatusPublished
Syllabus
Whether the trial court abused its discretion in declining to reduce defendant's sentence on drug trafficking charges as permitted by N.C.G.S. 90-95(h)(5).
Full Opinion (html_with_citations)
IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-138
No. 395A21
Filed 16 December 2022
STATE OF NORTH CAROLINA
v.
KENNETH ANTON ROBINSON
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 279 N.C. App. 643, 2021-NCCOA-533, dismissing defendant’s
appeal and by writ of certiorari finding no error in a judgment entered on 11 July
2019 by Judge Gregory R. Hayes in Superior Court, Guilford County. Heard in the
Supreme Court on 19 September 2022.
Joshua H. Stein, Attorney General, by Nicholas R. Sanders, Assistant Attorney
General, for the State-appellee.
Glenn Gerding, Appellate Defender, by Aaron Thomas Johnson, Assistant
Appellate Defender, for defendant-appellant.
MORGAN, Justice.
¶1 In this appeal, defendant Kenneth Anton Robinson brings forward an
argument arising from a dissent in the Court of Appeals regarding the decision of the
trial court to decline defendant’s invitation to make a downward adjustment to
defendant’s sentence in light of the assistance provided by defendant to law
enforcement entities regarding their criminal investigations. After reviewing the
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2022-NCSC-138
Opinion of the Court
plain language of the relevant sentencing statutes, the existing precedent of this
Court, and the transcript of the sentencing hearing, we conclude that defendant has
failed to demonstrate an abuse of discretion by the trial court in declining to reduce
defendant’s sentence due to defendant’s rendition of substantial assistance.
Accordingly, we affirm the decision of the Court of Appeals which found no error in
defendant’s sentencing.
I. Factual background and procedural history
¶2 This appeal arises from the parties’ respective arguments which focus upon the
content and the result of defendant’s sentencing hearing; consequently, we present
only an abbreviated account of the factual circumstances underlying the case.
Defendant was arrested on 16 December 2016 following a search of defendant’s home
pursuant to a warrant issued upon, inter alia, information provided by a confidential
informant. Defendant was subsequently indicted on 6 February 2017 on charges of
(1) trafficking a controlled substance by possession of at least four grams but less
than fourteen grams of heroin in violation of N.C.G.S. § 90-95(h)(4)(a) and (2)
possession of a firearm by a felon in violation of N.C.G.S. § 14-415.1. Later, defendant
was released from custody but was arrested again on 7 February 2018 and indicted
on this date as well on a second charge of trafficking a controlled substance, which
alleged possession of at least fourteen grams but less than twenty-eight grams of
opium or heroin in violation of N.C.G.S. § 90-95(h)(4)(b). In April 2019, defendant
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moved to suppress evidence obtained in a search which occurred in December 2016.
The motion to suppress was denied, and defendant thereafter pled guilty on 9 July
2019 to all three pending charges pursuant to an agreement with the State.
¶3 Upon accepting defendant’s pleas of guilty, the trial court also conducted the
sentencing phase of the case on 9 July 2019. At sentencing, counsel for defendant
contended that defendant had provided “substantial assistance” to law enforcement
and that the trial court should employ its discretion provided by N.C.G.S. § 90-
95(h)(5) to reduce the sentences otherwise required upon defendant’s convictions for
violations of N.C.G.S. § 90-95(h)(4). Defense counsel stated:
Obviously, we are—we’re asking for a lot, and
there’s a lot on the line for [defendant]. He understands
that, and I think he’s—he’s earned the right to say to you,
Your Honor, you know, we want a finding of substantial
assistance, and we want a considerable reduction from
what he is facing.
Again, there’s no hard-and-fast rules in terms of how
we’ll define substantial assistance or whether or not, you
know, you have to work with every officer that’s arrested
you. You know, the statute just says if—the sentencing
judge may reduce the fine or suspend the prison term
imposed on the person and place the person on probation
when the person has to the best of their knowledge
provided substantial assistance in the identification,
arrest, or conviction of any accomplices, accessories, co-
conspirators, et cetera. And I would submit to the Court
that we have that here.
If Your Honor wants to look at the—you know, the
first two busts that came from this information for the first
case and then the last one from the last case, break it down
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2022-NCSC-138
Opinion of the Court
however Your Honor is comfortable, I think clearly he has
gone above and beyond in terms of comparing what he was
charged with and what he’s helped the officers to take off
the street.
The State did not express a specific position regarding defendant’s request for a
downward adjustment in sentencing which was based upon his claim of the provision
of substantial assistance. The trial court then permitted defendant to personally
speak in open court regarding sentencing considerations.
¶4 In announcing its sentencing determinations, the trial court first observed that
the two trafficking offenses to which defendant had pled guilty carried lengthy
mandatory minimum sentences, could “easily run consecutive to each other which
amounts up to a great deal of time” in light of defendant’s heightened prior record
level of Level IV, and required active sentences. The trial court then informed
defendant that it was “bothered” by the repeat nature of defendant’s drug-related
criminal violations:
THE COURT: . . . I hate to say—you know, I hate
to—2014 looks like some kind of minor charges to me, but
they are—they look like, you know, some minor drug
charges from 2014.
They popped you pretty good from the 2016 event,
and it’s clear that there’s no doubt that you helped—that
you offered—and even [a detective] says you offered
substantial assistance for that event. But you didn’t do it
till later, and I think one of the things that’s laying there
in my mind is that you—why did you even take that—2018,
that was a lot. The way I—I was trying to write down all
those bundles and bricks. That’s a lot. Right? I mean, I—
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Opinion of the Court
when you kept talking about bundles and bricks, you’re not
talking about a little minor amount of heroin. That’s a
pretty major amount of heroin, right?
[THE STATE]: It totaled up to approximately
seventeen grams.
THE COURT: Yeah. Yeah. But I mean, I kept
hearing bundles and bricks, and I heard sums of money
involved. And that was with these 2016 charges pending.
At this juncture in the sentencing phase, defendant explained to the trial court the
reasons for his continued participation in the illegal drug trade despite previous
convictions and pending charges.
¶5 The trial court then inquired about the previous plea agreement that
defendant had been offered:
THE COURT: Yeah. I think it’s only fair—and, at
this point, he mentioned—[defendant] mentioned
something. Since I’m sitting here with a huge decision on
this issue, what was the plea offer?
[THE STATE]: Your Honor, he was offered two
attempted traffickings [sic] and the G felony. So, basically,
it’s the exact same thing you have before you but taken out
of the mandatory minimum. He was offered attempted
trafficking for the E, attempted trafficking for the F, and
the firearm by felon charge [a Class G felony].
THE COURT: And then those would have been
sentenced at?
[THE STATE]: Level IV.
THE COURT: So he was offered to go into the
regular sentencing grid?
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[THE STATE]: That’s correct.
THE COURT: The regular E, F, and G sentencing
grid?
[THE STATE]: That’s right.
THE COURT: At a prior Record Level IV?
[THE STATE]: That’s correct. And any sort of
consolidation, anything like that would have been up to the
[c]ourt, if a judge would have chosen to consolidate any of
it. And, of course, dismissal of all other pending charges.
THE COURT: Yeah. Dismissal of all the other
charges. And when was that offered?
....
THE CLERK: It looked like January 31st, 2019, is
when Judge Craig signed the order.
THE COURT: Okay.
¶6 Ultimately, the trial court agreed with defense counsel that defendant had
provided “substantial assistance” but declined the invitation to make a downward
deviation from the applicable mandatory minimum sentences and instead elected to
recognize defendant’s assistance by consolidating, for sentencing purposes, not only
the two trafficking by possession convictions, but also the possession of a firearm by
a felon conviction. With respect to this development, the sentencing transcript shows
the following:
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Opinion of the Court
THE COURT: . . . There’s no doubt in the [c]ourt’s
mind and based on everybody’s testimony that he deserves
credit for substantial—[defendant] deserves credit for
substantial assistance that he provided to [law
enforcement] in the December 16, 2016, case. And he’s—
the way that credit is going to be delivered is to, therefore—
therefore, consolidate—consolidate all the cases into the
February 7th, 2018, event . . . . The trafficking by possession
from December 16th, the possession of the firearm by felon
from December 16th is all—they’re all consolidated into the
[2018 case].
....
. . . So on that—that one—that one case, it’s a Level
II trafficking offense between fourteen and twenty-seven
grams of heroin, a Class E felony. Everything is
consolidated into that one offense for—for a mandatory—
there was no substantial assistance in that case—for the
mandatory sentence in that one Class E offense of 90 to 120
months in the Department of Corrections. . . .
....
. . . I considered everything. You—if I gave you
consecutive sentences for your Class E, F, and G felonies,
you were going to get close to this sentence of this mandatory
minimum sentence anyway. I think it’s a—it’s a tough
sentence, but I go back. It’s the chart—it’s the sentence
that the legislature of North Carolina said should be
imposed for this type of offense, giving you credit—
basically taking away—I mean, giving—I’ve consolidated
everything with that—with that final offense, for that final
number, which is set by statute.
THE DEFENDANT: Twelve to fifteen years?
[DEFENSE COUNSEL]: It’s a little bit less than
that.
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THE COURT: Yeah. It’s 90 to 120 months. It is what
it is, but it’s what the legislature set forth as for the
punishment for this—this type of case. I know. It’s a very
difficult sentence. It’s a difficult sentence to impose. But I
don’t get to—sometimes I just have to follow what the
legislature says, and this is, I think, one of those times.
(Emphases added).
¶7 In conformance with the statements which it made in open court, the trial
court, in its judgment entered on 11 July 2019, consolidated the three felony
convictions into one judgment and sentenced defendant to a single active sentence of
90 to 120 months as required under N.C.G.S. § 90-95(h)(4)(b) for the Class E felony
of trafficking in opium or heroin by possession arising from the 7 February 2018
charge.
II. Appellate proceedings
¶8 Defendant filed a written Notice of Appeal on 17 July 2019, despite the fact
that defendant’s plea agreement had not indicated that he wished to retain his right
to appeal the trial court’s denial of defendant’s motion to suppress.1
1 While generally a defendant who pleads guilty to criminal charges may not appeal
from the resulting conviction, N.C.G.S. § 15A-1444(a1) (2021), a trial court’s order denying a
motion to suppress evidence may be reviewed upon an appeal from a guilty plea. N.C.G.S. §
15A-979(b) (2021). However, this Court has held that a defendant who wishes to maintain a
right to appeal from the denial of a motion to suppress despite pleading guilty after the denial
of the motion must either include in the plea transcript a statement reserving the right to
appeal the motion to suppress or orally advise the trial court and the prosecutor before the
conclusion of plea negotiations that the defendant intends to appeal the denial of the motion
to suppress. State v. Reynolds, 298 N.C. 380(1979), cert. denied,446 U.S. 941
(1980). Here,
defendant gave no such notification or advisement in the plea agreement or during the plea
process.
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¶9 In light of this deficiency, defendant’s appellate counsel filed a petition for writ
of certiorari on 29 December 2020, acknowledging the jurisdictional flaws in
defendant’s notice of appeal and stating that appellate counsel had “extensively
reviewed the trial record and the transcript in this case” but had “not located any
meritorious issues to present” on appeal, citing Anders v. California, 386 U.S. 738,
reh’g denied, 388 U.S. 924 (1967). Defendant’s appellate counsel also filed a “no-
merit” brief pursuant to Anders and State v. Kinch, 314 N.C. 99 (1985) in which
defendant’s appellate counsel stated that he had examined the record, statutes, and
relevant cases, but was unable to identify any meritorious issues that could support
a meaningful argument for relief on appeal. As is customary when an Anders brief is
filed, appellate counsel for defendant asked the Court of Appeals to examine the
record for possible prejudicial error which counsel might have overlooked.
¶ 10 After the Court of Appeals dismissed defendant’s appeal due to defendant’s
failure to comply with N.C.G.S. § 15A-979, the lower appellate court opted to exercise
its “discretion to grant defendant’s petition for writ of certiorari and address the
merits of defendant’s appeal.” State v. Robinson, 279 N.C. App. 643, 2021-NCCOA-
533, ¶ 9. As to its acceptance of defendant’s Anders brief, the Court of Appeals
determined that defendant’s appellate counsel “fully complied with Anders and
Kinch.” Id. ¶ 10. The lower appellate court then recognized the matters raised in the
Anders brief and resolved them in the following manner:
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Defendant’s appellate counsel submitted the following
legal points: (1) whether the indictments were sufficient to
confer jurisdiction upon the trial court; (2) whether the
trial court erred in denying the motion to suppress; (3)
whether there was a sufficient factual basis for the plea;
and (4) whether the trial court erred in sentencing
defendant. We agree with defendant’s appellate counsel
that it is frivolous to argue these issues.
Id. ¶ 11.
¶ 11 In deciding this case and concluding that no error was committed by the trial
court, id. ¶ 1, the Court of Appeals majority determined that: (1) “the indictments
against defendant were legally sufficient and conferred jurisdiction upon the trial
court, as they gave defendant sufficient notice of the charges against him,” id. ¶ 12;
(2) “[t]here was competent evidence to support the trial court’s denial of defendant’s
motion to suppress,” id. ¶ 13; (3) “[t]he transcript reflects the factual basis for the
plea was sufficient for each charge in the judgment,” id. ¶ 14; and (4) “the trial court
did not err in sentencing defendant to the mandatory minimum sentence pursuant to
the structured sentencing chart,” id. ¶ 15. The Court of Appeals dissent discerned
“multiple issues of arguable merit—the application of [d]efendant’s substantial
assistance to sentence mitigation under N.C.G.S. § 90-95(h)(5), and whether law
enforcement’s execution of the search warrant violated the notice requirements of
N.C.G.S. § 15A-249.” Id. ¶ 18 (Murphy, J., dissenting). Thus, the dissent would have
“remand[ed] for the appointment of new appellate counsel to provide briefing on
these, and any other, issues of potential merit.” Id.
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¶ 12 On the basis of the dissent, defendant gave notice of appeal to this Court
pursuant to N.C.G.S. § 7A-30(2), contending that the Court of Appeals majority erred
in holding that this appeal involves no issue of arguable merit and claiming that the
trial court appeared to misunderstand the scope of its discretion to depart from the
prescribed statutory sentence as permitted by N.C.G.S. § 90-95(h)(5) due to the
performance of substantial assistance by defendant. Specifically, defendant argued
that the trial court had abused its discretion by acting under a misapprehension of
law, to wit: an erroneous belief that N.C.G.S. § 90-95(h)(5) only permits a trial court
to reduce the statutory mandatory minimum sentence for trafficking opium or heroin
where the trial court determines that the defendant has provided substantial
assistance to law enforcement in the case for which the defendant is then being
sentenced.
¶ 13 A careful review of the transcript of the sentencing hearing reveals no such
misunderstanding by the trial court. Therefore, this Court affirms the determination
of the Court of Appeals that the trial court did not abuse its discretion in sentencing
defendant.
III. Analysis
¶ 14 The General Assembly has enacted a scheme of statutes, commonly referred to
as the North Carolina Controlled Substances Act, which, inter alia, defines certain
drug-related acts which constitute violations of the state’s criminal law and sets forth
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the range of potential punishments for such violations which trial courts may impose.
In the present case, defendant was charged with two counts of trafficking opium or
heroin by possession—one under subsection 90-95(h)(4)(a) (concerning possession of
at least four grams but less than fourteen grams of the controlled substances in
question) and the other under subsection 90-95(h)(4)(b) (concerning possession of
fourteen grams but less than twenty-eight grams of the controlled substances in
question). N.C.G.S. § 90-95(h)(4) (2021). Each of those subsections identifies a
minimum term and a maximum term for sentencing purposes. N.C.G.S. § 90-
95(h)(4)(a), (b).
¶ 15 In addition to the detailed sentencing ranges presented in N.C.G.S. § 90-
95(h)(4), the Legislature has provided an option for a trial court to depart from the
specified sentences in certain circumstances:
. . . . The sentencing judge may reduce the fine, or impose
a prison term less than the applicable minimum prison
term provided by this subsection, or suspend the prison
term imposed and place a person on probation when such
person has, to the best of the person’s knowledge, provided
substantial assistance in the identification, arrest, or
conviction of any accomplices, accessories, co-conspirators,
or principals if the sentencing judge enters in the record a
finding that the person to be sentenced has rendered such
substantial assistance.
N.C.G.S. § 90-95(h)(5) (2021) (emphases added). The ability to make a downward
departure from the otherwise mandatory minimum sentence as set out in N.C.G.S. §
90-95(h)(5) is entirely discretionary, see State v. Hamad, 92 N.C. App. 282, 289 (1988),
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aff’d per curiam, 325 N.C. 544 (1989), and this discretion by the trial court is exercised
at two points in the contemplative process. First, the trial court has the discretion to
find that a defendant has rendered “substantial assistance in the identification,
arrest, or conviction” of others involved in criminal activity. N.C.G.S. § 90-95(h)(5).
Second, in the event that a trial court does determine that “substantial assistance”
has been rendered by a defendant, the trial court retains discretion—as evidenced by
the Legislature’s choice of the phrase “[t]he sentencing judge may reduce” as opposed
to “shall reduce”—to depart from the mandatory minimum sentence which is
otherwise applicable to a defendant’s conviction or convictions. See id. Thus, the plain
language of N.C.G.S. § 90-95(4) is clear that a trial court is not required to reduce a
sentence even if the trial court finds that a defendant has provided “substantial
assistance.”
¶ 16 A trial court’s abuse of discretion “results where the court’s ruling is
manifestly unsupported by reason or is so arbitrary that it could not have been the
result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285 (1988) (citing State
v. Parker, 315 N.C. 249 (1985)). An abuse of a trial court’s discretion also occurs where
“a trial judge acts under a misapprehension of the law.” State v. Nunez, 204 N.C. App.
164, 170 (2010). The “ ‘accomplices, accessories, co-conspirators, or principals’
[referenced in the statute] need not be involved in the case for which the defendant
is being sentenced, and . . . [N.C.]G.S. § 90-95(h)(5) therefore permits the trial court
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to consider [the] defendant’s ‘substantial assistance’ in other cases.” State v. Baldwin,
66 N.C. App. 156, 158, aff’d per curiam,310 N.C. 623
(1984). In other words, a trial
court may choose to reduce a defendant’s sentence based upon his provision of
substantial assistance in any case, not merely for the substantial assistance which
was provided in the case for which the defendant is then being sentenced. It is this
circumstance which the Court of Appeals dissent utilizes to suggest that the trial
court may have abused its discretion by way of a misapprehension of law. The
dissenting view speculated that:
[T]he trial court may have improperly applied N.C.G.S. §
90-95(h)(5), as the trial court may have believed it could
only apply substantial assistance to mitigate sentencing
regarding cases on one date, based on the trial court’s
following statement:
There’s no doubt in the [trial] [c]ourt’s mind and
based on everybody’s testimony that [Defendant]
deserves credit for substantial—[Defendant]
deserves credit for substantial assistance that he
provided . . . in the [16 December 2016] case. And
he’s—the way that credit is going to be delivered is
to, therefore—therefore, consolidate—consolidate
all the cases into the [7 February 2018] event[.]
....
Everything is consolidated into that one offense
for—for a mandatory—there was no substantial
assistance in that case—for the mandatory sentence
in that one[.]
(Emphases added). It is not clear whether the trial court
understood it could apply Defendant’s substantial
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assistance to multiple cases on different dates—
specifically, whether the trial court understood it could
apply Defendant’s substantial assistance regarding the 16
December 2016 offense to both that offense and the 7
February 2018 offense under N.C.G.S. § 90-95(h)(5).
Robinson, ¶ 28 (Murphy, J., dissenting) (alterations in original).
¶ 17 Defendant emphasizes that this excerpt from the sentencing hearing
transcript potentially indicates that the trial court labored under a misapprehension
of law which was similar to the matter addressed in Baldwin. Here, defendant
submits that the trial court wrongly believed that it could only recognize defendant
for his substantial assistance in the 2016 matter by making a downward adjustment,
pursuant to N.C.G.S. § 90-95(h)(5), in the sentence imposed based upon defendant’s
conviction of his 2016 offense, and that such substantial assistance could not be
“carried over” to support a downward departure in the sentence imposed based upon
defendant’s conviction of his 2018 offense. Defendant buttresses his view of the trial
court’s surmised confusion about the applicable law here by emphasizing that (1) the
trial court “twice used the word ‘mandatory’ to describe the 90 to 120 month sentence
it imposed, even though [defendant]’s assistance to [law enforcement] made such a
sentence discretionary rather than mandatory” and (2) the trial court further
explained its sentence of 90 to 120 months as “a very difficult sentence. It’s a difficult
sentence to impose. But I don’t get to—sometimes I just have to follow what the
legislature says, and this is, I think, one of those times.” Defendant summarizes his
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appellate argument as follows:
Under these circumstances—with [defendant]’s
assistance bearing fruit far beyond what is typically
expected; defense counsel asking for probation; and the
State declining to object—the likeliest explanation for the
trial court not granting a downward departure for the 2018
charge is that it did not realize it had the option.
¶ 18 In light of this assertion by defendant, we reiterate that N.C.G.S. § 90-95(h)(5)
expressly gives discretion to a trial court to determine whether substantial assistance
has been provided by a particular defendant. However, even if a trial court
determines that substantial assistance has been provided in any case, the statute
then provides the trial court with the discretionary option that “[t]he sentencing judge
may . . . impose a prison term less than the applicable minimum prison term.”
N.C.G.S. § 90-95(h)(5) (emphasis added). Ultimately, the statutory provision
unequivocally establishes that the trial court is not required to impose a reduced
sentence even where a trial court has determined that a defendant provided
substantial assistance. Thus, irrespective of the extent or value of defendant’s
substantial assistance, defendant’s requested sentencing results from substantial
assistance, or the State’s position on the trial court’s determination of substantial
assistance, the trial court was empowered to determine whether to employ the option
set forth in N.C.G.S. § 90-95(h)(5) to reward defendant for his assistance.
¶ 19 Applying this interpretation of the pertinent cited statutes and appellate case
law to the instant case, we do not view the sentencing remarks by the trial court as
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it openly shared its thought process in ruminating about the trial court’s options and
determinations, as suggesting any misunderstanding by the trial court of the
discretion which it retained pursuant to N.C.G.S. § 90-95(h)(5). As reflected by the
entirety of the trial court’s commentary and the divulgence of the rationale
underlying its sentencing choices, it readily appears that the trial court was fully
familiar with its given statutory discretion to find that substantial assistance had
been provided by defendant in one case and to impose a judgment which was less
than the mandatory minimum sentence in light of defendant’s substantial assistance,
if the trial court desired to do so and in the dearth of any evident error in the record
before us. See State v. Williams, 274 N.C. 328, 333 (1968) (“An appellate court is not
required to, and should not, assume error by the trial judge when none appears on
the record before the appellate court.”).
¶ 20 The trial court operated within its proper parameters of discretion in
determining that defendant had rendered “substantial assistance” in connection with
the 2016 trafficking charge but not with regard to the 2018 charge. Moreover, despite
defendant’s substantial assistance, the trial court permissibly elected to refrain from
implementing a downward departure authorized in N.C.G.S. § 90-95(h)(5) to utilize
the concept of substantial assistance to reduce the statutory criminal sentences
established in N.C.G.S. § 90-95(4). Nevertheless, the trial court chose to employ its
discretion pursuant to a different statute to afford consideration to defendant by
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consolidating both of defendant’s trafficking convictions and a third felony conviction
for purposes of sentencing. See N.C.G.S. § 15A-1340.15(b) (2021) (“If an offender is
convicted of more than one offense at the same time, the court may consolidate the
offenses for judgment and impose a single judgment for the consolidated offenses.”
(emphasis added)). This discretionary election by the trial court resulted in a sentence
for defendant which might have been longer than defendant requested, but was
permissible in the trial court’s discretion. Although the trial court was not required
to justify or explain its sentencing decisions in this matter, the transcript in this case
indicates that the trial court weighed appropriate factors and circumstances in
reaching its determinations regarding sentencing.
¶ 21 We agree with the lower appellate court that the acceptance of defendant’s no-
merit brief was appropriate pursuant to the principles enunciated in Anders and in
Kinch. We further agree that the trial court did not abuse its discretion in its
sentencing considerations. Accordingly, the decision of the Court of Appeals finding
no error in defendant’s sentence is affirmed.
AFFIRMED.
Justice EARLS dissenting.
¶ 22 “[A]n abuse-of-discretion standard does not mean a mistake of law is beyond
appellate correction.” Koon v. United States, 518 U.S. 81, 100 (1996); see also In re
Estate of Skinner, 370 N.C. 126, 146 (2017) (Morgan, J, dissenting) (“It is well-
established in this Court's decisions that a misapprehension of the law is
appropriately addressed by remanding the case to the appropriate lower forum in
order to apply the correct legal standard.” (first citing Wilson v. McLeod Oil Co., 327
N.C. 491, 523(1990); and then citing State v. Grundler,249 N.C. 399, 402
(1959), cert.
denied, 362 U.S. 917 (1960))).
¶ 23 “When the exercise of a discretionary power of the court is refused on the
ground that the matter is not one in which the court is permitted to act, the ruling of
the court is reviewable.” State v. Ford, 297 N.C. 28, 30–31,252 S.E.2d 717, 718
(1979),
quoted in State v. Brogden, 334 N.C. 39, 46 (1993). Here, there was ample evidence
that the trial court mistakenly believed it was prohibited from exercising its
discretionary power to grant Mr. Robinson a downward sentencing departure from
the mandatory minimum sentence for drug trafficking for his February 2018 offense
based on substantial assistance that he provided to law enforcement after his
December 2016 offenses. See N.C.G.S. § 90-95(h)(5) (2021). I therefore dissent from
the majority’s conclusion that “the trial court was fully familiar with its given
statutory discretion . . . to impose a judgment which was less than the mandatory
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minimum sentence in light of defendant’s substantial assistance.” This matter
should be remanded to the trial court for re-sentencing.
¶ 24 A criminal defendant’s “substantial assistance” can be used to mitigate the
sentence for a crime other than the one in which the substantial assistance was
provided. See State v. Baldwin, 66 N.C. App. 156, 158, aff’d per curiam,310 N.C. 623
(1984). But a review of the record reveals that the trial court was unaware of this
flexibility. For example, during sentencing the trial court stated:
There’s no doubt in the Court’s mind and based on
everybody’s testimony that he deserves credit for
substantial -- Mr. Robinson deserves credit for substantial
assistance that he provided to Detective Jeter in the
December 16, 2016, case. And he’s -- the way that credit is
going to be delivered is to . . . consolidate all the cases into
the February 7th, 2018, event . . . everything is
consolidated into 18CRS67753. The trafficking by
possession from December 16th, the possession of the
firearm by felon from December 16th is all -- they’re all
consolidated into the 18CRS67753.
....
So on that -- that one -- that one case, it’s a Level II
trafficking offense between fourteen and twenty-seven
grams of heroin, a Class E felony. Everything is
consolidated into that one offense for -- for a mandatory --
there was no substantial assistance in that case -- for the
mandatory sentence in that one Class E offense of 90 to 120
months in the Department of Corrections.
(Emphasis added.) In short, to credit Mr. Robinson for his substantial assistance
provided directly after the 2016 offenses, the trial court consolidated Mr. Robinson’s
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2022-NCSC-138
Earls, J., dissenting
sentence for the 2016 offenses with his sentence for the 2018 offense. As a result of
the consolidated sentences, Mr. Robinson would functionally serve only one sentence
for the 2018 offense.
¶ 25 The trial court was free to determine that this was the proper way to credit
Mr. Robinson for both of his convictions based on the assistance Mr. Robinson
provided law enforcement. But throughout this process, the trial court expressed its
view that Mr. Robinson “deserve[ed] credit for substantial assistance that he provided
. . . in the December 16, 2016 case.” Meanwhile, the trial court seemed to believe that
it was required to give Mr. Robinson the mandatory sentence for the conviction
arising out of his 2018 offense because “there was no substantial assistance in that
case.” This indicates that the trial court mistakenly believed it could only credit Mr.
Robinson for his substantial assistance by reducing his sentence for the conviction
arising from his 2016 offenses.
¶ 26 The trial court’s mistaken interpretation of the law is further demonstrated
in an exchange between the trial judge and Mr. Robinson when Mr. Robinson asked
the trial court to repeat the sentence that had been handed down. The trial court
explained:
It’s 90 to 120 months. It is what it is, but it’s what the
legislature set forth as for the punishment for this -- this
type of case. I know. It’s a very difficult sentence. It’s a
difficult sentence to impose. But I don’t get to -- sometimes
I just have to follow what the legislature says, and this is,
I think, one of those times.
STATE V. ROBINSON
2022-NCSC-138
Earls, J., dissenting
Again, in stating that it had to “follow what the legislature [said],” the trial court
appeared to believe itself bound by the mandatory minimum sentences prescribed in
N.C.G.S. § 90-95(h)(4)(b).
¶ 27 Whether the trial court was obligated to grant Mr. Robinson a reduced
sentence in exchange for providing information to law enforcement is not at issue
here. All parties, including Mr. Robinson, recognize this decision is a matter that is
purely within the trial court’s discretion. The trial court was, however, obligated to
understand the statutory constraints placed upon it, as well as the correct bounds of
the discretion it is afforded. The evidence in the record demonstrates that the trial
court did not understand the latter. This is not a matter of assuming error on the part
of the trial court but rather reading the transcript fairly and acknowledging the error
that occurred.
¶ 28 The ramifications of failing to properly credit Mr. Robinson for the assistance
he provided implicate important public policy concerns by threatening law
enforcement’s crime prevention efforts. “[O]ur criminal justice system could not
adequately function without information provided by informants.” United States v.
Bernal-Obeso, 989 F.2d 331, 334 (9th Cir. 1993); see also Alexandra Natapoff,
Snitching: The Institutional and Communal Consequences, 73 U. Cin. L. Rev. 645,
655 (2004) (explaining that “[o]ur justice system has become increasingly dependent
on criminal informants over the past twenty years”). Informants are particularly
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2022-NCSC-138
Earls, J., dissenting
indispensable to the prosecution of drug crimes. See, e.g., Law Enforcement
Confidential Informant Practices: Joint Hearing Before the Subcomm. on Crime,
Terrorism, & Homeland Sec. & the Subcomm. on the Const., Civ. Rts., & Civ. Liberties
of the H. Comm. on the Judiciary, 110th Cong. 66 (2007) (“Informants are a
cornerstone of drug enforcement. It is sometimes said that every drug case involves
a snitch.” (statement of Alexandra Natapoff, Professor of Law, Loyola Law School));
Natapoff, Snitching, 73 U. Cin. L. Rev. at 655 (“[N]early every drug case involves an
informant, and drug cases in turn represent a growing proportion of state and federal
dockets.”).
¶ 29 As Mr. Robinson’s counsel explained during sentencing proceedings, one
benchmark for assessing the substantial assistance provided is whether that
assistance resulted in “get[ting] the same amount [of drugs] off the street that you
. . . were caught with.” In this case, the results far exceeded that benchmark. The
information Mr. Robinson provided led directly to three ounces of heroin, two ounces
of cocaine, two firearms, and approximately $18,000 being recovered. That
information led officers to other cases, allowing them to ultimately recover four
ounces plus twelve kilos of cocaine, over $87,000, two additional firearms, and a motor
vehicle. As Officer Jeter testified, sometimes information provided by an informant
simply “stops with the next individual, but in this case [law enforcement] kept
climbing up the ladder.” Officer Jeter recognized that this “ladder” could be “traced
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2022-NCSC-138
Earls, J., dissenting
back to the initial information that Mr. Robinson provided” and that the last drug
bust to which Mr. Robinson’s assistance led yielded a substantial amount of illegal
narcotics and guns.
¶ 30 Mr. Robinson’s case demonstrates the efficacy of using informants to uncover
illegal drug operations. But failing to properly credit criminal defendants for the
information they provide reduces their incentives to cooperate with law enforcement.
There is thus a significant public interest in ensuring that the trial court correctly
understood the breadth of its discretion to reduce not just Mr. Robinson’s sentence
for his 2016 offenses, but for his 2018 offense as well.
¶ 31 Because the record demonstrates that the trial court did not understand the
scope of its discretion, I would reverse and vacate the Court of Appeals’ holding that
these facts do not give rise to any “arguable issues,” State v. Robinson, 2021-NCCOA-
533, ¶ 16, and remand this case to the trial court for re-sentencing in line with the
correct understanding of the trial court’s discretion under N.C.G.S. § 90-95(h)(5).