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State v. Verrett10/4/2005
erefore, there is substantial evidence to support a finding of guilt for all charges. Hence, we conclude the trial court did not commit error by denying defendant's motion to dismiss all of the charges due to insufficient evidence. Accordingly, this assignment of error is without merit.
Defendant also contends his sentences "could be considered cruel and unusual punishment in violation of the 8th Amendment to the U.S. Constitution" and N.C. Const. art. I, § 27. Defendant argues that "his actions in the matter at bar do not support his sentence of 192 to 240 months of incarceration" because his actions were not intentional. We disagree.
We first note that defendant has not properly preserved this issue for appellate review as " t is well settled that an error, even one of constitutional magnitude, that defendant does not bring to the trial court's attention is waived and will not be considered on appeal." State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39 (2002), cert. denied, 537 U.S. 1117, 154 L.Ed. 2d 795 (2003). Even assuming defendant had properly preserved this issue for consideration, we conclude defendant's sentence was not grosslydisproportionate to the offense committed since " nly in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment's proscription of cruel and unusual punishment." State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983). Here, defendant was convicted of second degree murder under N.C. Gen. Stat. § 14-17, and our General Assembly has chosen to punish this serious offense as a Class B2 felony, N.C. Gen. Stat. § 14-17. It was within the trial court's discretion to impose a term of 192 to 240 months imprisonment, which is within the presumptive range for the Class B2 felon. See N.C. Gen. Stat. § 15A-1340.17 (2003). Accordingly, this assignment of error is overruled.
No error.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).
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