¶1concurring in the result.
¶2State v. Chatman, 308 N.C. 169, 301 S.E. 2d 71 (1983) and State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983) require a new sentencing hearing in this case since the trial court found as aggravating factors that “[t]he sentence pronounced by the court is necessary to deter others from the commission of the same offense” and that “[a] lesser sentence than that pronounced by the court will unduly depreciate the seriousness of the defendant’s crime.” I, therefore, concur in the majority’s decision remanding this matter for resentencing. I write this concurring opinion, however, because I believe another error was committed at defendant’s sentencing hearing and because I disagree with what may be an implicit, albeit unintended, suggestion in footnote 1 of this Court’s opinion that Aheam needs to be reconsidered in view of recent United States Supreme Court holdings.
¶3I
¶4I find merit in defendant s argument that the trial court erroneously used an essential element of the offense — that defendant intended to commit the felony of robbery in the house — to find, as an aggravating factor, that the burglary was “planned.” Some “planning” is involved in every burglary. One who, on the spur of the moment, determines to burglarize a man’s house to steal money nevertheless has planned his action. Hasty, ill-advised, and less-than-detailed planning does not absolve a burglar of guilt. Further, there was no evidence in this case that defendant attempted to commit other burglaries. The absence of *233evidence evincing a design, or scheme, to commit a series of burglaries distinguishes this case from State v. Chatman. In Chatman, our Supreme Court upheld a finding that the burglary was planned solely because of evidence suggesting a master plan. The ChatmanCourt specifically found that “[t]here was evidence that the defendant would drive around in his car at night and break into homes for the purpose of raping women.”
¶5II
¶6Because footnote 1, ante p. 231, may suggest to some that the North Carolina Supreme Court, in requiring a new sentencing hearing whenever there is error in the finding of aggravating factors (Ahearn) went further than the United States Supreme Court, I believe the following comments are appropriate. First, a state is free to give its citizens more protection than that minimally required by the United States Constitution as interpreted by the United States Supreme Court. Second, with limited exceptions, it is the responsibility of the North Carolina Supreme Court, not the United States Supreme Court, to interpret North Carolina statutes. Third, to compare fair sentencing acts and death penalty statutes, as done in footnote 1, is to compare apples and oranges. The comparison is made more difficult by the fact, for example, that the Georgia death penalty statute requires a finding of aggravating circumstances by the jury, not by a judge. By way of further example, under Florida’s death penalty statute, the greater punishment (death) will not be imposed based entirely upon non-statutory aggravating circumstances. More specifically, it was only after the Supreme Court of Georgia, in response to a question certified to it by the United States Supreme Court, explained why the failure of one aggravating circumstance did not invalidate the prisoner’s death sentence, that the United States Supreme Court upheld the death sentence in Zant v. Stephens, — u.S. ---, 77 L.Ed. 2d 235, 103 S.Ct. --- (1983). Similarly, the United States Supreme Court, in Barclay v. Florida, — U.S. —, 77 L.Ed. 2d 1134, 103 S.Ct. — (1983), upheld Barclay’s death sentence only after it reviewed Florida Supreme Court decisions and determined that the erroneous consideration of defendant’s criminal record as an aggravating circumstance was harmless error under Florida law. Zantand Barclayboth turned on the interpretation of state law by state courts.