State v. Johnson, ___ N.C. App. ___, 827 S.E.2d 139 (Apr. 16, 2019)

In this drug case, the court held, over a dissent, that the trial judge improperly considered her personal knowledge of matters outside the record when sentencing the defendant and that a resentencing was required. The defendant asserted that during sentencing the trial court improperly considered her personal knowledge of unrelated charges arising from a heroin-related death in her home community. A sentence within the statutory limit is presumed regular and valid. However that presumption is not conclusive. If the record discloses that the trial court considered irrelevant and improper matter in determining the sentence, the presumption of regularity is overcome, and the sentence is improper. The verbatim transcript indicates that the trial court did in fact consider an unrelated homicide. The State did not dispute that there was no evidence of the homicide charge in the record, nor did it argue that the charge was relevant to the defendant’s sentencing. Instead, the State argued that, in context, the trial court’s statement reflects the seriousness of the drug charges, an appropriate sentencing consideration. The court agreed that the trial court’s remarks must be considered in context and that the seriousness of drug crimes is a valid consideration. It noted that if the trial court had only addressed the severity of the offenses by reference to the effects of the drug epidemic in her community or nationwide, “there would be no issue in this case.” Here, however, the trial court did not just consider the impact of the defendant’s drug offenses on the community, “but clearly indicated in her remarks that she was considering a specific offense in her community for which the defendant was not charged.” This was error. The court remanded for resentencing without consideration of matters outside the record.