Opinion
No. COA04-1238
Filed 18 October 2005
Sentencing — aggravating factor — failure to submit to jury
The trial court erred in imposing an aggravated sentence for robbery with a dangerous weapon based upon the court's finding an aggravating factor not admitted by defendant nor found by a jury beyond a reasonable doubt, and the case is remanded for a new sentencing hearing.
Judge TIMMONS-GOODSON concurring in a separate opinion.
Appeal by defendant from judgment entered 4 May 2004 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 22 April 2005.
Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State. Geoffrey W. Hosford for defendant-appellant.
On 26 October 2003, at approximately 1:30 am, defendant and four other males attacked William C. McKlemurry (victim) on the campus of East Carolina University for the purpose of robbing him. One of the perpetrators with defendant pulled out a gun and demanded the victim's money. The victim said "no," whereupon defendant began to push and punch the victim. Defendant took the victim's cell phone and broke it, and then took his wallet from his pocket and removed $26.00. The perpetrators then fled the scene, but were subsequently arrested. The incident was captured on videotape by a surveillance camera belonging to the East Carolina Police Department.
Defendant was indicted 9 February 2004 for robbery with a dangerous weapon and possession of a weapon on educational property. Defendant and the State reached a plea arrangement whereby defendant pled guilty to the charge of robbery with a dangerous weapon in exchange for dismissal of the charge of possession of a weapon on educational property.
Defendant accepted the plea agreement in open court on 4 May 2004. Both the State and the defendant were heard on sentencing factors. The trial court found as a mitigating factor that defendant's age or immaturity at the time of the commission of the offense significantly reduced his culpability. As an aggravating factor the trial court found that the defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy. Finding that the aggravating factor outweighed the mitigating factor, the trial court sentenced defendant to an aggravated range sentence of 80 to 105 months imprisonment. From this sentence defendant appeals.
In defendant's sole assignment of error he argues the trial court erred in finding an aggravating factor not admitted by defendant nor found by a jury beyond a reasonable doubt. We agree.
The United States Supreme Court case of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004) held that a jury must find aggravating factors that would increase a defendant's sentence above that authorized by a finding that a defendant was guilty of the offense. This ruling was applied to North Carolina's Structured Sentencing of Persons Convicted of Crimes (Article 81B of Chapter 15A of the General Statutes) by the North Carolina Supreme Court in State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005). Both Blakely and Allen provide that "the judge may still sentence a defendant in the aggravated range based upon the defendant's admission to an aggravating factor enumerated in N.C.G.S. § 15A-1340.16(d)." Allen, 359 N.C. at 439, 615 S.E.2d at 265.
Since a jury did not find any aggravating factors in this case, the resolution of this appeal hinges upon whether the defendant made admissions to the trial court of the aggravating sentencing factor found by the trial court.
The trial court found only one aggravating factor, that "[t]he defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy." N.C. Gen. Stat. § 15A-1340.16(d)(2). The State asserts that defendant, through his counsel, admitted to all of the essential elements of the aggravating factor found at N.C. Gen. Stat. § 15A-1340.16(d)(2) under the rationale of State v. Mullican, 329 N.C. 683, 406 S.E.2d 854 (1991). See also State v. Alexander, 359 N.C. 824, 616 S.E.2d 914 (2005).
However, the identical issue presented in this case was decided by this court in favor of defendant in State v. Meynardie, 172 N.C. App. 127, 616 S.E.2d 21 (2005) and State v. Wissink, 172 N.C. App. 829, 617 S.E.2d 319 (2005). This panel is bound by these decisions. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36-37 (1989).
This case is reversed and remanded for a new sentencing hearing.
REVERSED AND REMANDED.
Judge McCULLOUGH concurs.
Judge TIMMONS-GOODSON concurs in a separate opinion.