State v. Heggs, 280 N.C. App. 95, 2021-NCCOA-564 (Oct. 19, 2021)

The defendant pled guilty to felony death by motor vehicle and impaired driving in Wake County pursuant to a plea bargain. He stipulated in the plea transcript to the existence of three factors in aggravation and was sentenced to an aggravated term of imprisonment. On appeal, the defendant argued that the aggravating facts were based on the same evidence supporting the elements of the offenses of conviction. Under G.S. 15A-1340(16)(d), “evidence necessary to support an element of the offense shall not be used to prove any factor in aggravation.” One of the aggravating factors alleged that the defendant was armed with a deadly weapon—the vehicle he was driving—at the time of the offenses. The evidence to support this factor was the same evidence to support the “driving” element of felony death by motor vehicle. Similarly, the aggravating factor that the defendant caused serious and permanent injury to the victim was based only on the victim’s death, another essential element of felony death by motor vehicle. These two aggravating factors therefore violated G.S. 15A-1340(16)(d). A third aggravating factor—that the defendant knowingly created a great risk of death to more than one person by his driving—did not implicate the elements of the offenses and was properly found based on the defendant’s reckless driving and high rate of speed before the collision.

Because the defendant stipulated to the aggravating factors as a part of the plea bargain, the entire plea bargain was vacated, and the matter remanded for new proceedings. According to the unanimous court:

Defendant seeks to repudiate the portion of his agreement with the State in which he stipulated to the existence of aggravating factors while retaining the portions which are more favorable; namely, his plea of guilty to felony death by motor vehicle in exchange for the State’s agreement to not seek an indictment on the charge of second-degree murder. ‘Defendant cannot repudiate in part without repudiating the whole.’ Heggs Slip op. at 10 (quoting State v. Rico, 218 N.C. App. 109, rev’d per curiam for reasons stated in the dissent, 366 N.C. 327 (2012).