State v. Wood is an unpublished opinion by the North Carolina Court of Appeals in which the Court examined whether the trial court’s imposition of an active sentence was based on a consideration of irrelevant and improper factors. Here Mr. Woods was tried and convicted by a jury on two counts of obtaining property by false pretenses. He was sentenced as a prior record level III offender and received two consecutive terms of 10-21 months active and ordered to pay restitution in the amount of $31,500. At sentencing, Mr. Woods asked for a probationary sentence which would allow him to work and pay the restitution. The State asked for an active sentence based on Mr. Woods’s “prior convictions for obtaining property by false pretenses” and the “significant amount of restitution owed.” Before imposing sentence, the trial court noted Mr. Woods’s prior criminal history of two DWI convictions, a firearm conviction, three obtaining property by false pretenses convictions, a fleeing to elude conviction, as well as a drug paraphernalia conviction. The court also noted that the case actually began 5 to 6 years prior to the trial and Mr. Woods had not made any restitution payments to the victims during that period of time.
On appeal, Mr. Woods argues that the trial court’s denial of his request for a probationary sentence was unlawful in that the court based its decision on an improper factor. Mr. Woods essentially argues that if he had brought money to court to pay restitution to the victims, then the court would have been inclined to grant his request for a probationary sentence. Mr. Woods essentially relies on the following statement from the trial court during sentencing:
You owe this king of money, you drag these people around
for years, and you come in five, six years after the case with
zero money and then say you want to try to pay them back. I
think I would have come with quite a bit of money today, if
that’s what you wanted to do.
The trial court’s imposition of a sentence based on a consideration of irrelevant and improper factors is a question of law subject to de novo review. A sentence that is imposed in the presumptive range is normally deemed to be valid. However, if a court considers an irrelevant and improper matter in the imposition of a sentence, then a defendant’s rights have been violated. In this case Mr. Woods did receive a sentence within the presumptive range. The active sentence that was imposed was not solely based on the restitution that had not been paid or the fact that Mr. Woods did not bring any money to court with him at the time of his sentencing. The trial court took into consideration Mr. Woods’s prior criminal history which included prior convictions for the offense of which he had just been found guilty. The amount of restitution that was owed plus the fact that the victims had not received any restitution from Mr. Woods, although mentioned by the trial court during sentencing, cannot be characterized as irrelevant and improper.
The Court of Appeals concluded that Mr. Woods received a presumptive sentence and the nature of the sentence imposed was within the discretion of the trial court. In a unanimous decision, the Court of Appeals found no error in the jury’s decision or the trial court’s sentence. As a practical matter, if a defendant is charged with obtaining property by false pretenses, having some money for restitution on hand or readily available may demonstration to the trial court an ability or at least a willingness to compensate the victims.
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