No. 7PA06 TWENTY-SIXTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
*******************************
STATE OF NORTH CAROLINA )
)
v ) From Mecklenburg
)
ANH VIET THAI )
*******************************
DEFENDANT-APPELLEE’S NEW BRIEF
*******************************
INDEX
TABLE OF CASES AND AUTHORITIES ................................. ii
QUESTION PRESENTED .............................................. 1
STATEMENT OF THE CASE ........................................... 2
STATEMENT OF THE FACTS .......................................... 3
ARGUMENT:
I. THE COURT OF APPEALS WAS CORRECT IN HOLDING THAT “THE
TRIAL COURT ERRED BY ADDING A POINT TO DEFENDANT‟S
PRIOR RECORD LEVEL WITHOUT SUBMITTING THE ISSUE OF
WHETHER DEFENDANT WAS ON PROBATION AT THE TIME OF THE
OFFENSE TO
THE JURY TO PROVE BEYOND A REASONABLE
DOUBT.”...............12
CONCLUSION ..................................................... 41
CERTIFICATE OF SERVICE ......................................... 42
APPENDIX:
Robert L. Farb, Blakely v. Washington and Its Impact on
North Carolina‟s Sentencing Laws.........................App. 1-
16
Report on Study of Structured Sentencing Act in Light of
Blakely v. Washington Pursuant to Session Law 2004-161,
Section 44.1”.........................................App. 17-31
Administrative Office of the Courts Records for Trolando
Ranquel Shine.........................................App. 32-34
Unpublished Opinion in State v. William Dale Evans
(No. COA05-694, filed March 21, 2006).................App. 35-38
Administrative Office of the Courts Records for William
Dale Evans.............................................App. 39-40
Unpublished Opinion in State v. Terry Lee Holder,
(No. COA05-414, filed March 7, 2006)..................App. 41-43
Unpublished Opinion in State v. Terry Lee Holder,
(No. COA06-1103, filed February 6, 2007)..............App. 44-45
Administrative Office of the Courts Records for Anh Viet Thai
presented by the State at the sentencing hearing......App. 46-47
TABLE OF CASES AND AUTHORITIES
Cases
Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct.
1219, 140 L. Ed. 2d 350 (1998) .......................... 22, 25
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.
2d 435 (2000) ........................................... 13, 29
Blakely v. Washington, 542 U.S. ---, 124 S. Ct. 2531, 159 L. Ed.
2d 403 (2004) ....................................... 13, 15, 29
Cunningham v. California, --- U.S. ---, 127 S. Ct. 856, 166 L. Ed.
2d 856 (2007) ............................................... 29
Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 152 L. Ed.
2d 524 (2002) ............................................... 27
In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989)....... 24
In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368
(1970) ...................................................... 14
Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed.
2d 311 (1999) ....................................... 14, 26, 29
Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed.
2d 35 (1999) ................................................ 37
Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391
(1992) ...................................................... 21
Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556
(2002) ...................................................... 29
Shephard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L.
Ed. 2d 205 (2005) ....................................... 26, 29
State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), withdrawn on
other grounds, 360 N.C. 569, 635 S.E.2d 899 (2006). ......... 16
State v. Benenati, 203 Ariz. 235, 52 P.3d 804 (2002) .......... 31
State v. Blackwell, 359 N.C. 814, 618 S.E.2d 213 (2005), vacated
on other grounds after remand, 361 N.C. 41, 638 S.E.2d 452
(2006) ...................................................... 30
State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006)........ 37
State v. Brown, No. W2003-01863-CCA-R3-CD, 2004 Tenn. Crim. App.
LEXIS 787 (2004) ............................................ 33
State v. Evans, 2006 N.C. App. LEXIS 662 (No. COA05-694, filed
March 21, 2006) ............................................. 34
State v. Gross, 201 Ariz. 41, 31 P.3d 815 (2001) .............. 30
State v. Holder, 2006 N.C. App. LEXIS 488 (No. COA05-414, filed
March 7, 2006) .............................................. 34
State v. Perez, 196 Ore. App. 364, 102 P.3d 705 (2004), reversed
on other grounds, 340 Ore. 310, 131 P.3d 168 (2006) ......... 21
State v. Saunders, 131 N.C. App. 551, 507 S.E.2d 911 (1998)... 34
State v. Shine, 173 N.C. App. 699, 619 S.E.2d 895 (2005) ...... 34
State v. Wissink, 172 N.C. App. 829, 617 S.E.2d 319 (2005), disc.
review allowed, 2006 N.C. LEXIS 1375 (December 19, 2006) .... 23
Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182, 113 S.
Ct. 2078 (1993) ............................................. 14
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed.
2d 621 (2005) ............................................... 29
United States v. Gaudin, 515 U.S. 506, 132 L. Ed. 2d 444, 115 S.
Ct. 2310 (1995) ............................................. 14
Washington v. Recuenco, 548 U.S. ---, 126 S. Ct. 2546, 165 L.
Ed. 2d 466 (2006) ........................................... 37
Statutes
N.C. Gen. Stat. § 15A-1340.14(b)(5) ........................... 12
N.C. Gen. Stat. § 15A-1340.14(b)(7) ................... 13, 17, 33
N.C. Gen. Stat. 1340.14(c)(1) ................................. 13
N.C. Gen. Stat. § 15A-1340.16............................. 20, 33
N.C. Gen. Stat. § 15A-1340.17(c) .............................. 13
N.C. Gen. Stat. § 15A-1340.17(e) .............................. 13
N.C. Gen. Stat. § 90-95....................................... 34
N.C. Gen. Stat. § 90-95(h)(3)a................................ 34
Treatises
1 J. Bishop, Criminal Procedure § 87, p. 55 (2d ed. 1872)..... 16
4 W. Blackstone, Commentaries on the Laws of England 343
(1769)...................................................... .16
Constitutional Provisions
Art. I, § 18, N.C.
Constitution..................................14
Art. I, § 19, N.C. Constitution
.................................14
Art. I, § 23, N.C. Constitution
.................................14
Art. I, § 24, N.C. Constitution
.................................14
Fifth Amendment, U.S. Constitution ..................14, 21, 25,
28
Fourteenth Amendment, U.S. Constitution .............14, 21, 27,
29
Sixth Amendment, U.S. Constitution ........14, 15, 20, 21, 24, 25,
26, 27, 29
Other Authorities
Robert L. Farb, Blakely v. Washington and Its Impact on North
Carolina‟s Sentencing Laws .................................. 18
Report on Study of Structured Sentencing Act in Light of
Blakely v. Washington Pursuant to Session Law 2004-161,
Section 44.1................................................. 19
No. 7PA06 TWENTY-SIXTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
*******************************
STATE OF NORTH CAROLINA )
)
v ) From Mecklenburg
)
ANH VIET THAI )
*******************************
DEFENDANT-APPELLEE’S NEW BRIEF
*******************************
QUESTION PRESENTED
I. WAS THE COURT OF APPEALS CORRECT IN HOLDING THAT “THE
TRIAL COURT ERRED BY ADDING A POINT TO DEFENDANT‟S
PRIOR RECORD LEVEL WITHOUT SUBMITTING THE ISSUE OF
WHETHER DEFENDANT WAS ON PROBATION AT THE TIME OF THE
OFFENSE TO THE JURY TO PROVE BEYOND A REASONABLE
DOUBT”?
-2-
STATEMENT OF THE CASE
The defendant, Anh Viet Thai, was charged with attempted
first-degree murder and assault with a deadly weapon with intent
to kill inflicting serious injury. He was acquitted of the
attempted murder charge but was found guilty of assault with a
deadly weapon with intent to kill inflicting serious injury at the
May 24, 2004 Criminal Session of Superior Court of Mecklenburg
County, the Honorable James C. Lanning presiding. He was
sentenced to a term of imprisonment of a minimum of 90 months and
a maximum of 117 months on May 28, 2004. Defendant gave notice of
appeal to the North Carolina Court of Appeals on June 1, 2004.
The transcript was ordered on June 2, 2004 and was delivered to
the parties on October 13, 2004.
The Record on Appeal was filed in the North Carolina Court of
Appeals on March 14, 2005 and docketed on April 4, 2005. On
December 20, 2005, the Court of Appeals filed its decision finding
no error in defendant‟s conviction but remanding the case for
resentencing. On January 6, 2006, the State filed a motion for
temporary stay, a petition for writ of supersedeas, and a petition
for discretionary review. The motion for temporary stay was
allowed on January 10, 2006. On December 19, 2006, this Court
allowed the State‟s petitions for writ of supersedeas and
discretionary review. On February 23, 2007, this Court allowed
defendant‟s motion for a four-day extension of time within which
to file his new brief.
-3-
STATEMENT OF THE FACTS
The State presented evidence which tends to show the
following: On February 17, 2002, nineteen year old Danny Vo (also
known as Bang Vo and hereinafter referred to as Danny) attended
the 12:00 p.m. service at St. Joseph‟s Catholic Church in
Charlotte. (Tpp. 23-27; 47; 59) After the service ended at 1:00
p.m., Danny‟s friend, Tony Luong, (also known as Thien Luong and
hereinafter referred to as Tony) agreed to take Danny home in his
white Honda Prelude. On the way, Danny decided that he instead
wanted to go to the Asian Corner Mall [hereinafter ACM] to shoot
pool. After arriving at the mall, Tony and Danny got out of the
car and started walking toward the entrance. (Tpp. 29-31) A black
Honda Civic came up the same aisle, stopped about five feet away,
and five men jumped out. Danny testified that he had never seen
the men before and that one of the men kicked him in the stomach.
The five men then jumped on Danny. Danny pushed them away and
one of the men, later identified as defendant, pulled out a
handgun and shot Danny right below his chest. (Tpp. 36-40; 48)
Defendant never said anything. Danny turned around and ran and
defendant shot him in the back of the thigh. (Tp. 41) Danny kept
running and entered the mall. When he saw the Civic leaving, he
went back outside and laid down. An off-duty officer called for
help. An ambulance arrived and Danny was taken to the hospital.
He had a collapsed lung and was taken into surgery to repair his
liver and his spleen. Danny was in the hospital for five or six
days. (Tpp. 45-49)
-4-
Tony Luong testified that he had occasionally seen defendant
with a group of five to ten males at St. Joseph‟s Catholic Church
but he had never spoken with him until about a week before the
incident in question. Tony and Danny Vo‟s brother had been at the
ACM to celebrate Vietnamese New Year‟s on a Saturday night. Danny
Vo was not present. As Tony walked past a group of five to ten
teenagers, he heard defendant say in Vietnamese, “F--- you Tony.”
Tony went back and asked him why he had said that because Tony
did not know him and had never done anything to him. (Tpp. 102-
105; 115) Defendant told him that “you tried to talk back to me
now because there are two officers who are standing right over in
the corner.” He also said that if he saw Tony at church on
Sunday, he would beat him up. Tony walked back inside the pool
hall and when he came back out two hours later, the group had gone
home. The next day, Tony did not go to 12:00 Mass as was his
habit. He waited until 5:00 to go to church so he would not get
beaten up. Defendant and his friends were not there. (Tpp. 109-
112)
The following Sunday, February 17th [the date in question],
Tony went back to 12:00 p.m. Mass. As he left the church, a group
of five to ten men approached him and one asked him why he was not
at church the previous Sunday. Tony told him because someone
would beat him up. Tony did not know if any of those men were the
same ones which had been at the ACM the previous Saturday.
Defendant was not present. A tall man stepped up and told Tony if
he saw him in public, he would beat him up. (Tpp. 113-116)
-5-
Thereafter, Tony saw Danny and asked him if he wanted a ride
home. Danny said yes and halfway to Danny‟s house, he decided to
go to the ACM to shoot pool. Tony did not pay attention but he
“probably” saw a black Honda Civic on the way to the mall and the
occupants “may think we follow them or -- I don‟t know.” After
parking, the two men walked toward the mall entrance. A black
Civic pulled up next to them and five men jumped out. Tony had
seen all of them but defendant at church that morning. One man
kicked Danny and Danny “pushed out.” Tony saw defendant pull out
a gun and shoot Danny. Danny ran and defendant chased him and
shot again. Tony ran to Danny who was bleeding from his chest and
leg. The five men jumped in their car and took off very fast.
(Tpp. 117-126)
Charlotte-Mecklenburg Police Officer Michael Nguyen was
shopping at the ACM on the date in question when he heard two loud
sounds like fireworks. Nguyen ran outside and saw Danny Vo
holding his chest. Someone identified a black Honda as being
involved. It was leaving the parking lot heading toward North
Tryon Street. Nguyen had earlier noticed that car with Asian men
inside circling the parking lot. He spoke with the 911 dispatcher
and told her what was going on. (Tpp. 235-238) Officer Paul Weis
arrived and roped off the scene. Nguyen gave a description of the
car to an officer and then stayed with Danny until MEDIC arrived.
(Tpp. 169-170; 172; 238-239)
As MEDIC lifted Danny onto the stretcher, Weis saw a bullet
round lying in Danny‟s clothes which had been cut off by MEDIC.
-6-
Weis and another officer also found two spent shell casings about
thirty to fifty feet from where Danny was laying. A Crime Scene
technician, Carrie LaVere, arrived at 2:03 p.m. and took
photographs and collected evidence, including two spent .380
Remington Peters shell casings and a spent projectile. (Tpp. 171;
175-194)
Office P.W. Bean heard the dispatcher say to be on the
lookout for a black Honda Civic. Officer Long responded that he
was near the area and Bean went also. When Bean arrived, Long had
already stopped the black Honda. The two officers removed each of
the five Asian male occupants separately. Defendant was one of
the occupants. Officers found a long-barrel revolver under the
right front passenger seat which had been occupied by Sang Pham.
(Tpp. 202-204; 206; 210; 217; 220) It was a fully loaded .357
Magnum revolver and it had not been fired. (Tpp. 211-214) Nguyen
arrived and identified the car as being the same car he had seen
at the ACM. (Tp. 239) Officer Torri Tellis drove defendant to the
Law Enforcement Center [LEC] and on the way, defendant repeatedly
asked to speak with Officer Nguyen. (Tpp. 221; 232)
Nguyen interviewed defendant at the LEC at approximately 6:05
p.m. They spoke Vietnamese because defendant speaks broken
English. Detective Tim Jolly was also present. Nguyen explained
defendant‟s rights to him and defendant waived them. Defendant
then stated the following: he had been at home when his sister
called and told him that there was trouble at the church, a chase
was occurring, and defendant‟s friends were being followed;
-7-
defendant‟s friend, Huy (also known as Nick), had then called and
said that after church, he and another friend had been followed
all over Charlotte by Tony Luong and another man; Nick said that
he was coming over to defendant‟s apartment; four of defendant‟s
friends arrived at defendant‟s apartment -- Huy, Cuong, Luong, and
Sang; defendant got a big gun and a small gun out of the closet
and they took the guns to the ACM to look for Tony and the other
man; the guns belonged to the group; they saw Danny (whom
defendant referred to as “the big guy”) and Tony in front of the
mall and they got into a verbal altercation; Sang tried to kick
Danny and a fight broke out; defendant pulled out a gun and shot
Danny; after leaving the mall, defendant threw the small gun out
the window. Defendant also stated that he did not use the big gun
because he did not want to kill Danny. Det. Jolly got a tape
recorder and defendant repeated his earlier statements up to the
point where he pulled out the gun. He then refused to speak
further on tape. (Tpp. 241-250; 260-261) Although detectives
searched for the gun in the area described by defendant, it was
never located. (Tpp. 216; 278)
Homicide Detective Gary McFadden interviewed Danny Vo on
March 5, 2002 at the LEC. He also showed him two photographic
lineups, one containing defendant‟s photograph, and one containing
a photograph of Sang Pham, the suspect who allegedly kicked him.
(Tpp. 269-270; 277) Danny identified defendant as being the
shooter and Pham as being the kicker. (Tpp. 53-56; 273; 276)
The defendant presented the following evidence: Ang Hoang
-8-
Thai, defendant‟s brother, testified that he went to St. Joseph‟s
Catholic Church on the date in question and stood outside with his
girlfriend. After the service, Thai saw defendant‟s friends come
outside. He then saw Tony Luong and Danny Vo in a white Honda
Prelude following defendant‟s friend‟s car. Defendant‟s friend
[whose last name is also Luong] had three passengers in his car.
Thai left and saw that Tony‟s car was still following defendant‟s
friend‟s car. Tony was chasing them very closely and both cars
were driving very fast. Thai called defendant because he was
afraid that defendant‟s friends would go to defendant‟s house and
that something bad would happen since they were being chased.
(Tpp. 290-305)
Defendant testified that he has lived in the United States
for four years. A week before the date in question, defendant and
Tony Luong had argued at the ACM. As Tony exited the pool hall,
the man sitting next to defendant cursed at Tony. Tony and the
man began cursing at each other and then Tony turned to defendant
and said, “Talk to me.” Tony wanted to know why defendant had
cursed at him and what he wanted. Defendant told him that he was
not the one who cursed at him and that there were police officers
nearby and he did not want anything to happen. (Tpp. 308; 311;
320-321; 335)
On the date in question, defendant was at home with his
pregnant wife. His sister called and said that his friends had
had a verbal argument at the church and Tony Luong was chasing
them in his car. She thought there may have been some shooting on
-9-
the highway. Defendant‟s friends then called and said they were
being chased and that the people wanted to shoot them. Defendant
told them to come over to his apartment. (Tpp. 308-310; 328)
Cuong, Luong, Sang, and Nick arrived and asked him to go to the
ACM with them. Defendant agreed to go because he was afraid there
would be violence at his apartment if he stayed. He did not know
that Tony and Danny would be at the mall. Sang took two guns from
the apartment and put them in the black Civic because they had
been chased earlier. Defendant drove separately but then got into
the black Honda Civic when his car overheated on the highway. He
did not have a weapon with him. (Tpp. 311-314; 339-341)
When they arrived at the ACM, they drove around looking for a
parking spot. Tony and Danny turned and walked in front of their
car, blocking it so that they could not drive past. (Tpp. 315;
321) Defendant found a small gun under his seat and put it in his
pocket because he was scared and he wanted it for self-protection.
Defendant saw a bigger gun in the front seat of the car but he did
not take that one because a larger bullet might inflict serious
injury or kill. The five men jumped out of the Civic. Defendant
stayed by the car. Defendant saw his friend, Sang, run over and
kick Danny. Danny has a bigger body and he held Sang‟s leg and
“threw him out.” Danny ran toward defendant waving his hands and
it looked like he wanted to hit defendant. (Tpp. 322-323; 326-327)
Defendant was close to Danny and took out the gun and pointed it
downward. (Tpp. 317-318) He thought Danny may have a weapon since
the two men had been chasing his four friends for a long distance.
-10-
Defendant shot the gun and saw Danny jump toward him. Defendant
did not mean to shoot at Danny or to kill him. He wanted to fire
the gun so Danny and Tony would not come towards him. (Tp. 326)
Defendant did not know whether he had hit Danny. Danny kept
coming toward defendant so he shot a second time. Danny changed
direction and ran toward the mall. (Tp. 317)
At the time defendant spoke to Officer Nguyen, he could not
remember all the details because things happened so fast. He just
wanted to see his wife. He was afraid and nervous and he just
focused on telling about the shooting. When he left the mall, he
felt bad and guilty because he did not know whether Danny was
alive or dead. (Tp. 330-333) He threw the gun out the window
because he knew he had used it to shoot someone. (Tp. 338)
Defendant‟s wife, Hoang Huong, testified that she was
pregnant on the date in question. She and defendant were sleeping
when the phone rang and Nick asked to speak to defendant. She
heard Nick say something about being chased with his friends in
the car. Defendant did not want them to come over and he left
because he did not want trouble at his house. (Tpp. 341-343)
Huy Pham testified that his American name is Nick. He went
to the Catholic Church on the date in question. Defendant was not
there. After church, Pham went outside and talked with friends.
He saw Tony and Sang arguing or talking. Pham left the church in
a black Honda Civic driven by his friend, Luong. As the men left
the church, a man stuck his head in the Civic window and the guys
in the back seat said, “You guys want to fight or something?”
-11-
After defendant‟s friends left the church, they saw a white
Prelude following them with Tony Luong and Danny Vo inside. (Tpp.
348-351) Luong drove the black Civic faster and the Prelude sped
up to catch them. The faster the Civic would go, the faster the
Prelude would go. The men in the Civic were afraid to stop
because something might happen due to the earlier argument. They
called defendant and said that someone was following them and that
they were afraid. They then went to defendant‟s apartment and Sang
went inside. They then went to the mall to have lunch. When they
arrived, Danny and Tony were there. Pham was scared of them and
he ran to the car. He did not see the shooting. He did not know
there was a gun in the car on the way to the mall. Pham also did
not see defendant with a gun nor did he see defendant throw it out
the window. He did see the big gun from under his seat after they
had been stopped by police and it was taken by police from the
car. (Tpp. 351-360)
-12-
ARGUMENT
I. THE COURT OF APPEALS WAS CORRECT IN HOLDING THAT “THE
TRIAL COURT ERRED BY ADDING A POINT TO DEFENDANT’S
PRIOR RECORD LEVEL WITHOUT SUBMITTING THE ISSUE OF
WHETHER DEFENDANT WAS ON PROBATION AT THE TIME OF THE
OFFENSE TO THE JURY TO PROVE BEYOND A REASONABLE
DOUBT.”
At the sentencing hearing in the present case, the prosecutor
submitted a Prior Record Level Worksheet which asserted that
defendant had prior convictions for (1) simple assault, a Class 2
misdemeanor; and (2) second degree trespass, a Class 3
misdemeanor. (Tp. 470; Rpp. 35-36) The Legislature has determined
that neither of these low level misdemeanors count toward the
finding of a defendant‟s felony prior record level. See N.C. Gen.
Stat. § 15A-1340.14(b)(5)(stating that misdemeanor is defined for
felony sentencing purposes “as any Class A1 and Class 1 nontraffic
misdemeanor offense. . . .”). The prosecutor, however, asserted
that defendant was on probation for the simple assault at the time
the present offense was committed “thereby giving the defendant 1
point for being on probation.” Although the trial court asked the
prosecutor if the defense attorney had seen the worksheet, to
which the prosecutor replied, “They have seen it, Your Honor,”
defendant in no way acknowledged or stipulated to the validity of
the information contained in the Prior Record Level Worksheet.
(Tp. 470) The trial court found defendant to be a Prior Record
Level II based on having one point for being on probation at the
time the present offense was committed. Defendant was sentenced
to a term of imprisonment in the presumptive range of a minimum of
90 months and a maximum of 117 months. (Tp. 472; Rp. 37) In the
-13-
absence of the addition of this point, defendant would have had no
prior points, thereby placing him at a Prior Record Level I for
sentencing purposes. See N.C. Gen. Stat. § 15A-1340.14(c)(1). If
defendant had been sentenced as a Prior Record Level I, the
maximum prison sentence he could have received in the presumptive
range for a Class C offense was a minimum of 73 months and a
maximum of 97 months. See N.C. Gen. Stat. § 15A-1340.17(c) and
(e).
At issue in this case is whether or not the finding of the
factor found in N.C. Gen. Stat. § 15A-1340.14(b)(7) that one point
may be added to defendant‟s prior record level if “[t]he offense
was committed while the offender was on supervised or unsupervised
probation” is appropriate for a trial judge‟s determination. The
Court of Appeals found that it was not under Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),
and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L.
Ed. 2d 403 (2004). This is a correct ruling and this Court
should uphold the decision of the Court of Appeals.
A. The determination of whether a defendant was on
probation at the time the offense was committed
does not fall within the “prior conviction”
exception of Apprendi.
In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000), the petitioner pled guilty to two
counts of second-degree possession of a firearm for an unlawful
purpose and one count of third-degree offense of unlawful
possession of an antipersonnel bomb. The New Jersey state court
-14-
enhanced his sentence by finding by a preponderance of the
evidence that the petitioner acted with a purpose to intimidate
an individual or group of individuals because of race. The
United States Supreme Court reversed the judgment, finding that
the procedure was an unacceptable departure from the jury
tradition. The Court stated:
[In] Jones v. United States, 526 U.S. 227, 119 S. Ct.
1215, 143 L. Ed. 2d 311 (1999), construing a federal
statute. . . [w]e there noted that “under the Due
Process Clause of the Fifth Amendment and the notice
and jury trial guarantees of the Sixth Amendment, any
fact (other than prior conviction) that increases the
maximum penalty for a crime must be charged in an
indictment, submitted to a jury, and proven beyond a
reasonable doubt.” Id., at 243, n.6 . . . The
Fourteenth Amendment commands the same answer in this
case involving a state statute.
Id. at 476, 120 S. Ct. at 2355, 147 L. Ed. 2d at 446(emphasis
added).1
The Court went on to further note:
At stake in this case are constitutional
protections of surpassing importance: the proscription
of any deprivation of liberty without “due process of
law,” Amdt. 14, and the guarantee that “in all criminal
prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury,” Amdt.
6. n3 Taken together, these rights indisputably
entitle a criminal defendant to “a jury determination
that [he] is guilty of every element of the crime with
which he is charged, beyond a reasonable doubt.”
United States v. Gaudin, 515 U.S. 506, 510, 132 L. Ed.
2d 444, 115 S. Ct. 2310 (1995); see also Sullivan v.
Louisiana, 508 U.S. 275, 278, 124 L. Ed. 2d 182, 113 S.
Ct. 2078 (1993); [In re] Winship, 397 U.S. at 364 (“The
Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with
1
The North Carolina Constitution, through Article I, §§ 18, 19, 23, 24,
provides similar guarantees of due process, notice, and trial by jury.
-15-
which he is charged”).
Id. at 476-78, 120 S. Ct at 2355-56, 147 L. Ed. 2d at 447
(emphasis added). The Court then endorsed the statement of the
rule set forth in Jones, that “[i]t is unconstitutional for a
legislature to remove from the jury the assessment of facts that
increase the prescribed range of penalties to which a criminal
defendant is exposed. It is equally clear that such facts must
be established by proof beyond a reasonable doubt.” Id. at 490,
120 S. Ct at 2363, 147 L. Ed. 2d at 455.
Four years later, in Blakely v. Washington, 542 U.S. 296,
124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the United States
Supreme Court applied Apprendi to a structured sentencing system
very much like the one used in North Carolina. There, the
petitioner was sentenced under a Washington statute to more than
three years above the fifty-three month statutory maximum of the
standard range because the trial judge found that he had acted
with “deliberate cruelty.” The petitioner appealed and argued
that the sentencing procedure violated his Sixth Amendment right
to a trial by jury. The United States Supreme Court agreed and
again reiterated the rule of Apprendi that “[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” Id. at 301,
124 S. Ct. at 2536, 159 L. Ed. 2d at 412. “[T]he „statutory
maximum‟ for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury
-16-
verdict or admitted by the defendant.” Id. at 303, 124 S. Ct. at
2537, 159 L. Ed. 2d at 413.
In making its determination, the Supreme Court noted that
the Apprendi rule
reflects two longstanding tenets of common-law criminal
jurisprudence: that the “truth of every accusation”
against a defendant “should afterwards be confirmed by
the unanimous suffrage of twelve of his equals and
neighbours,” 4 W. Blackstone, Commentaries on the Laws
of England 343 (1769), and that “an accusation which
lacks any particular fact which the law makes essential
to the punishment is . . . no accusation within the
requirements of the common law, and it is no accusation
in reason,” 1 J. Bishop, Criminal Procedure § 87, p 55
(2d ed. 1872).n5 These principles have been
acknowledged by courts and treatises since the earliest
days of graduated sentencing; we compiled the relevant
authorities in Apprendi, see 530 U.S., at 476-483, 489-
490, n 15, 147 L. Ed. 2d 435, 120 S. Ct. 2348; id., at
501-518, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (Thomas,
J., concurring), and need not repeat them here.
Id. at 301-02, 124 S. Ct at 2536-37, 159 L. Ed. 2d at 412-13.2
The Court then stated that its commitment to Apprendi reflected
not just respect for longstanding precedent, but “the need to
give intelligible content to the right of jury trial. The right
is no mere procedural formality, but a fundamental reservation of
power in our constitutional structure.” Id. at 305-06, 124 S. Ct
at 2538-39, 159 L. Ed. 2d at 415 (emphasis added).
Here, the Court of Appeals, following its precedent set out
in State v. Wissink, 172 N.C. App. 829, 617 S.E.2d 319 (2005),
disc. review allowed, 2006 N.C. LEXIS 1375 (December 19, 2006),
correctly remanded the case for resentencing because whether or
2
This Court has held that Blakely applied to North Carolina‟s structured
sentencing scheme. See, e.g., State v. Allen, 359 N.C. 425, 615 S.E.2d 256
(2005), withdrawn on other grounds, 360 N.C. 569, 635 S.E.2d 899 (2006).
-17-
not defendant was on probation when he committed the present
offense does not fall within the very narrow exception set forth
in Apprendi and Blakely. Unlike the fact of a prior conviction,
one cannot simply look at the Judgment and Commitment to
determine whether the defendant was on probation at the time of
the present offense. The crucial factual issue here was not
whether defendant received a probationary sentence pursuant to a
prior conviction, but whether or not he was actually on
supervised or unsupervised probation at a particular point in
time after that prior conviction had occurred. This is a very
different question and entails more than just a mere
determination that defendant has a “prior conviction.” For
example, a dispute may arise as to whether or not probation had
been revoked or terminated successfully or unsuccessfully at the
time that the present offense was committed. Additionally, the
probationary term listed on the face of the original Judgment and
Commitment may not reflect the actual dates of probation since
the defendant may have appealed and probation is stayed during
the pendency of the appeal. See N.C. Gen. Stat. § 15A-
1451(a)(4). In short, the factual issue here which “increases
the penalty for a crime” is precisely the type of situation
envisioned by the Supreme Court in Apprendi and Blakely when it
plainly stated that a jury must determine any fact “other than
the fact of a prior conviction.”
It must also be remembered that N.C. Gen. Stat. § 15A-
1340.14(b)(7) applies not only to a defendant‟s probationary
-18-
status but also operates to add a point to a defendant‟s prior
record level if the offense was committed while the offender was
on “parole, or post-release supervision, or while the offender
was serving a sentence of imprisonment, or while the offender was
on escape from a correctional institution while serving a
sentence of imprisonment.” These are factual issues which, like
a defendant‟s probationary status, are not prior convictions and
therefore are required to be determined by a jury using the
“beyond a reasonable doubt” standard of proof.
After the United States Supreme Court‟s decision in Blakely,
Robert L. Farb, Professor of Public Law and Government at the UNC
School of Government, prepared a memorandum entitled “Blakely v.
Washington and Its Impact on North Carolina‟s Sentencing Laws.”3
In it, Professor Farb writes:
Because the Blakely ruling does not apply to prior
convictions (the Court‟s opinion quoted from the
Apprendi ruling, “Other than the fact of a prior
conviction . . .” slip opinion at 5), the assignment of
points for prior convictions and proof of prior
convictions under G.S. 15A-1340.14(b),(d),(e) and (f)
is not subject to the ruling.
G.S. 15A-1340.14(b)(7) assigns one point if the
offense was committed while the defendant was on
probation, parole, or post-release supervision, or
while the defendant was on escape from a correctional
institution while serving a sentence of imprisonment.
Because this factual information is neither a prior
conviction nor reflected in the jury’s verdict or a
defendant’s guilty pleas to an offense it appears
Blakely applies to the findings necessary to assign
these points.
See App. 7-8 (emphasis added). Thus, in Professor Farb‟s
3
This Memorandum is dated July 9, 2004 (revised) and can be located at
http://iog.unc.edu/programs/crimlaw/blakelyfarbmemo.pdf.
-19-
opinion, a defendant‟s status under N.C. Gen. Stat. § 15A-
1340.14(b)(7) is a factual issue and is clearly not a prior
conviction; thus, Blakely applies.
The North Carolina Sentencing and Policy Advisory
Commission, in studying Apprendi and Blakely, also came to the
same conclusion. During the 2004 Session of the General
Assembly, the Legislature asked the Commission to study North
Carolina‟s Structured Sentencing Act in light of the Blakely
decision. See App. 20. This Commission was chaired by Superior
Court Judge W. Ervin Spainhour and included, among others,
representatives from the Court of Appeals, the Office of the
Attorney General, the Conference of District Attorneys, and
several state senators. See App. 18. In its “Report on Study of
Structured Sentencing Act in Light of Blakely v. Washington
Pursuant to Session Law 2004-161, Section 44.1,” which was
submitted to the 2005 Session of the North Carolina General
Assembly, the Commission stated:
5. The Sentencing Commission recommends requiring the jury
to find whether the prior record level point assigned
if the offense was committed while the offender was on
supervised or unsupervised probation, parole, or post-
release supervision, or while the offense was serving a
sentence of imprisonment, or while the offender was on
escape from a correctional institution while serving a
sentence of imprisonment, should be assessed unless the
defendant stipulates to it. The point must be found
beyond a reasonable doubt.
Commentary: The status of the defendant during the
commission of the offense is a factual issue and,
therefore, must be determined by the jury. Whether all
the elements of the current offense are included in the
prior offense for which the defendant has been
convicted is a legal issue and for the judge to decide.
-20-
App. 22 (emphasis in original).
The Legislature adopted the Sentencing Commission‟s
recommendation and in June 2005 amended N.C. Gen. Stat. § 15A-
1340.16 to add the following language:
(a5) Procedure to Determine Prior Record Level Points
Not Involving Prior Convictions. -- If the State seeks
to establish the existence of a prior record level
point under G.S. 15A-1340.14(b)(7), the jury shall
determine whether the point should be assessed using
the procedures specified in subsections (a1) through
(a3) of this section. The State need not allege in an
indictment or other pleading that it intends to
establish the point.
(a6) Notice of Intent to Use Aggravating Factors or
Prior Record Level Points. -- The State must provide a
defendant with written notice of its intent to prove
the existence of one or more aggravating factors under
subsection (d) of this section or a prior record level
point under G.S. 15A-1340.14(b)(7) at least 30 days
before trial or the entry of a guilty or no contest
plea. A defendant may waive the right to receive such
notice. The notice shall list all the aggravating
factors the State seeks to establish.
Thus, the Legislature recognized and specifically addressed the
clear constitutional problem of allowing a trial judge to
determine the existence of a fact other than the bare fact of a
prior conviction.
The State asserts that the “better-reasoned view of the
issue, and the view taken by a majority of courts, is that the
Sixth Amendment allows the judge to determine a defendant‟s
probation status.” New Brief for the State, p. 12. However,
defendant contends, for the reasons stated above, that the
better-reasoned view is that taken by the North Carolina Court of
Appeals in Wissink, Professor Farb, the North Carolina Sentencing
-21-
Commission, and the North Carolina General Assembly.
B. The “prior conviction” exception does not apply
here where procedural safeguards have not attached
to the allegation that defendant was on probation
at the time the offense was committed.
The rationale behind the Apprendi “prior conviction”
exception is that in obtaining the “prior conviction,” the State
afforded defendant all of his constitutional rights under the
Fifth, Sixth, and Fourteenth Amendments; thus, there is no need
to subject this prior conviction to further examination. The
State asserts that this rationale applies equally to the
situation at bar. Specifically, the State alleges that “[a]
defendant‟s probationary status is, like a prior conviction, the
product of proceedings that afforded fair notice, the right to
jury trial, and proof beyond a reasonable doubt.” New Brief for
the State, p. 18. This is not so.
In State v. Perez, 196 Ore. App. 364, 102 P.3d 705 (2004),
reversed on other grounds, 340 Ore. 310, 131 P.3d 168 (2006), the
Oregon Court of Appeals reviewed this same contention, and held:
Thus, the exception to the general rule in
Apprendi hinges on the fact that a prior conviction
already has been subjected to the rigors of jury
determination and the “reasonable doubt” standard of
proof. An exception for the bare fact of a prior
conviction is, in fact, entirely consistent with the
general rule that “any fact that increases the penalty
for a crime beyond the prescribed statutory maximum
must be submitted to a jury and proved beyond a
reasonable doubt.” Id. at 490. Where the state obtained
the prior conviction while observing the defendant‟s
constitutional procedural rights, there is no need to
test the conviction again in the later trial. See
Parke v. Raley, 506 U.S. 20, 31, 113 S. Ct. 517, 121 L.
Ed. 2d 391 (1992)(stating that a presumption of
regularity attaches to final judgments).
-22-
The same is not true of facts other than the bare
fact of a prior conviction -- even those related
thereto. Here, for example, the allegation that
defendant was on probation or parole when he committed
the offenses of conviction has not been proved to a
jury beyond a reasonable doubt, so the same “procedural
safeguards” had not attached to that “fact” when he was
sentenced. Moreover, the issue whether a previous term
of parole or probation “failed to deter” defendant from
committing further offenses is even more removed from
any previous factual determination by a jury. As
discussed, in this case defendant argued that the
state‟s failure to provide him with substance abuse
treatment while on supervision caused him to violate
his terms of supervision. Extending the exception in
Apprendi to the resolution of such factual disputes
would not be consistent with the rule in Apprendi
because it would allow a sentence that exceeds the
“prescribed statutory maximum” based on facts whose
validity has not been tested by the applicable
procedural safeguards.
Id. at 371-72, 102 P.3d at 709-10 (emphasis added). The Perez
Court‟s reasoning makes it clear that while a defendant‟s
probationary status may be related to the bare fact of a prior
conviction, that particular fact has never been determined by a
jury “beyond a reasonable doubt”; thus, the safeguards of fair
notice, the right to a jury trial, and proof beyond a reasonable
doubt have not been determined in that regard.
In remanding for a new sentencing hearing, the Court in Perez
further stated:
We conclude that the Supreme Court plainly meant
what it said when it described the holding in
Almendarez-Torres [v. United States, 523 U.S. 224, 118
S. Ct. 1219, 140 L. Ed. 2d 350 (1998),] as “a narrow
exception to the general rule” and stated that, other
than “the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi, 530 U.S.
at 490 (emphasis added). It is therefore beyond
reasonable dispute that the exception applies only to
-23-
the fact of a prior conviction. In this case, defendant
did not admit to the aggravating factors, and the state
did not prove them beyond a reasonable doubt to a jury.
It follows that his departure sentences are unlawful.
We exercise our discretion to reach the error because
the state asserts no valid interest in requiring
defendant to serve an unlawful sentence.n5 We there-
fore vacate defendant‟s sentences and remand for
resentencing.
Id. at 373, 102 P.3d at 710 (citation omitted and emphasis
added).
In its decision below, the North Carolina Court of Appeals
followed its previous decision in State v. Wissink, 172 N.C. App.
829, 617 S.E.2d 319 (2005), disc. review allowed, 2006 N.C. LEXIS
1375 (December 19, 2006).4 In Wissink, the defendant raised the
same issue raised by the case at bar. Although the State argued
that probationary status was “essentially the same as the fact of
a prior conviction,” the Court of Appeals stated:
In this case, a fact other than a prior
conviction, defendant‟s probationary status, that
increased defendant‟s sentence was not submitted to a
jury and proved beyond a reasonable doubt. We
recognize, as the State argues, that the fact of a
defendant‟s probationary status is analogous to and not
far-removed from the fact of a prior conviction.
However, we find that we are bound by the language in
Blakely, Apprendi and Allen that states that only the
fact of a prior conviction is exempt from being proven
to a jury beyond a reasonable doubt. Furthermore, we
note that the fact of defendant’s probationary status
did not have the procedural safeguards of a jury trial
and proof beyond a reasonable doubt recognized in
Apprendi as providing the necessary protection for
defendants at sentencing. We find that the trial court
erred by adding a point to defendant‟s prior record
level without first submitting the issue to a jury to
find beyond a reasonable doubt. We remand for
resentencing.
4
This case is currently before this Court for review in Case No. 484PA05.
-24-
Id. at 837, 617 S.E.2d at 325 (emphasis added).5
The Court of Appeals was correct in its holding in Wissink.
While a defendant‟s probationary status may flow from proceedings
where the defendant was afforded the procedural safeguards of
fair notice, the right to a jury trial, and proof beyond a
reasonable doubt, none of these rights specifically attached to
the crucial sentencing fact at issue here –- whether the
defendant was on probation at the time that he committed the
present offense. Defendant was not given fair notice that the
State intended to seek a sentence beyond that which the jury‟s
verdict allowed and this issue was not submitted to the jury for
their decision using the “beyond a reasonable doubt” standard of
proof. To find otherwise would offend the basic reason for the
fundamental rule of Apprendi and Blakely: ensuring that the
procedural protections afforded by the Sixth Amendment apply to
factual determinations that may increase a sentence.
C. Almendarez-Torres and its progeny do not support a
finding under the Sixth Amendment that a
defendant’s probationary status is encompassed by
the narrow prior conviction exception.
The State, in its first argument, contends that the prior
conviction exception “should be read to encompass probationary
status because it is the Almendarez-Torres focus on recidivism
that is the origin of the prior conviction exception.” New Brief
for the State, p. 9. It then goes on to heavily rely on
5
While subsequent panels of the Court of Appeals, including the panel in the
case below, did not agree with the holding in Wissink, they were bound by its
decision. See In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989).
-25-
Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219,
140 L. Ed. 2d 350 (1998), to support its assertion that “[w]here
recidivism findings exist that enhance a sentence and are
unrelated to the elements of the current offense, the Almendarez-
Torres focus on recidivism is controlling; and the language of
Apprendi, the „fact of a prior conviction,‟ refers broadly to
include those enhancements that involve recidivism.” New Brief
for the State, p. 11. Almendarez-Torres and the cases that
followed it do not support the State‟s position.
The express exemption in Apprendi for the fact of a prior
conviction arises from the United States Supreme Court‟s decision
in Almendarez-Torres. There, the petitioner was convicted of
illegal reentry to the United States after an earlier conviction
for aggravated felonies followed by deportation. A person
convicted of that offense is normally subject to a two-year term
of imprisonment, but a person previously deported for an
aggravated felony may be sentenced to a maximum, twenty-year term.
The petitioner received a twenty-year sentence and then argued on
appeal that the prior felony convictions used at sentencing to
enhance his sentence were required to be stated in the indictment
under the Due Process Clause of the Fifth Amendment. In a five to
four decision, the Supreme Court held that the prior convictions
were sentence enhancements, not elements of the crime charged in
that proceedings; thus, it was not necessary under the Fifth
Amendment to plead the prior convictions in that indictment. The
Court engaged in no analysis under the Sixth Amendment.
-26-
The Court based its decision in large part on the fact that
the sentencing factor at issue there, recidivism, was a
traditional basis for a sentencing court‟s increasing an
offender‟s sentence. The case “stands for the proposition that
not every fact expanding a penalty range must be stated in a
felony indictment, the precise holding being that recidivism
increasing the maximum penalty need not be so charged.” Jones v.
United States, 526 U.S. 227, 248, 119 S. Ct. 1215, 1126-27, 143 L.
Ed. 2d 311, 329 (1999). Although the State asserts at page 10 of
its New Brief that the “United States Supreme Court has reaffirmed
the Almendarez-Torres exception at every subsequent opportunity .
. . ,” the continued validity of this case has, in fact, been
questioned and there are serious doubts about its continued
validity.
In Shephard v. United States, 544 U.S. 13, 125 S. Ct. 1254,
161 L. Ed. 2d 205 (2005), Justice Thomas [who had concurred in the
5-4 Almendarez-Torres decision] stated in his concurrence that
both Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109
L. Ed. 2d 607 (1990), and Almendarez-Torres, which permit judicial
findings of prior convictions, have been eroded by the United
States Supreme Court‟s “subsequent Sixth Amendment jurisprudence,
and a majority of the Court now recognizes that Almendarez-Torres
was wrongly decided.” Id. at 27, 125 S. Ct. at 1264, 161 L. Ed.
2d at 219 (emphasis added). Justice Thomas further noted that the
“parties do not request it here, but in an appropriate case, this
Court should consider Almendarez-Torres’ continued viability.
-27-
Innumerable criminal defendants have been unconstitutionally
sentenced under the flawed rule of Almendarez-Torres, despite the
fundamental „imperative that the Court maintain absolute fidelity
to the protections of the individuals afforded by the notice,
trial by jury, and beyond-a-reasonable-doubt requirements.‟” Id.
at 28, 125 S. Ct. at 1264, 161 L. Ed. 2d at 219 (quoting Harris v.
United States, 536 U.S. 545, 581-82, 122 S. Ct. 2406, 2427, 152 L.
Ed. 2d 524, 553 (2002)(Thomas, J., dissenting)).
Justice Souter, in Part III of the Court‟s opinion in
Shephard [joined by Justices Stevens, Scalia, and Ginsburg] also
wrote that a judicial determination of disputed facts related to
the factual basis of the plea, and the propriety of sentence
enhancement under a recidivist statute, raise the “concern
underlying Jones and Apprendi: the Sixth and Fourteenth Amendments
guarantee a jury standing between a defendant and the power of the
state, and they guarantee a jury‟s finding of any disputed fact
essential to increase the ceiling of a potential sentence.” Id.
at 25, 125 S. Ct. at 1262, 161 L. Ed. 2d at 217. Justice Souter
went on to state that while the fact disputed in Shephard,
[whether a sentencing court could look to police reports or
complaint applications to determine whether an earlier guilty plea
necessarily admitted, and supported a conviction for, generic
burglary such that it could serve as a basis for a predicate
offense under the Armed Career Criminal Act] “can be described as
a fact about a prior conviction, it is too far removed from the
conclusive significance of a prior judicial record, and too much
-28-
like the findings subject to Jones and Apprendi, to say that
Almendarez-Torres clearly authorizes a judge to resolve the
dispute.” Id. (emphasis added).
Even as early as Apprendi [decided only two years after
Almendarez-Torres], the United States Supreme Court had doubts
about the validity of its decision in Almendarez-Torres. Justice
Stevens [joined by Justices Scalia, Souter, Thomas, and Ginsberg]
stated that “as we made plain in Jones last Term, Almendarez-
Torres . . ., represents at best an exceptional departure from the
historic practice that we have described.” Id. at 487, 120 S. Ct
at 2362, 147 L. Ed. 2d at 453. The Court further stated:
Even though it is arguable that Almendarez-Torres
was incorrectly decided, n15 and that a logical
application of our reasoning today should apply if the
recidivist issue were contested, Apprendi does not
contest the decision‟s validity and we need not revisit
for purposes of our decision today to treat the case as
a narrow exception to the general rule we recalled at
the outset. Given its unique facts, it surely does not
warrant rejection of the otherwise uniform course of
decision during the entire history of our
jurisprudence.
Id. at 489-90, 120 S. Ct at 2362, 147 L. Ed. 2d at 454-55
(emphasis added).
Thus, the language of Apprendi does not refer “broadly to
include those enhancements that involve recidivism” as alleged by
the State. Instead, the Apprendi Court plainly meant what it said
when it characterized the prior conviction exception enunciated in
Almendarez-Torres as an “exceptional departure” from historic
practice and as a “narrow exception to the general rule.”
In any event, the ruling in Almendarez-Torrez was based only
-29-
on Fifth Amendment jurisprudence which was not the sole basis for
defendant‟s objection in the Court of Appeals to the trial court‟s
finding of probationary status in this case. In the Court below,
defendant specifically asserted error based on the Sixth and
Fourteenth Amendment guarantees of notice and the right to a jury
trial. Since the ruling in Almendarez-Torres, the United States
Supreme Court has had several opportunities to discuss factors
which increase a defendant‟s sentence in light of the Sixth and
Fourteenth Amendment protections of “surpassing importance.” In
each case, the Court has found that the criminal defendant was
entitled to have any fact other than the fact of a prior
conviction decided by a jury beyond a reasonable doubt. See,
e.g., Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143
L. Ed. 2d 311 (1999); Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Ring v. Arizona, 536 U.S.
584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002); Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403
(2004); United States v. Booker, 543 U.S. 220, 125 S. Ct. 738,
160 L. Ed. 2d 621 (2005); Shephard v. United States, 544 U.S. 13,
125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005); and Cunningham v.
California, --- U.S. ---, 127 S. Ct. 856, 166 L. Ed. 2d 856
(2007). The Court of Appeals‟ decision here was based on
jurisprudence under the Sixth and Fourteenth Amendments which
guarantees a defendant the right to a trial by jury using a
“beyond a reasonable doubt” standard; thus Almendarez-Torres does
not control the disposition of this case.
-30-
D. Apprendi does not permit the trial court to
determine a defendant’s probationary status even
if it could be determined by a review of court
records.
The State also argues in its New Brief that the prior
conviction exception should “be read broadly” to encompass
probationary status because trial judges already determine factual
issues relating to the existence of prior convictions such as
whether that conviction occurred prior to the present offense, and
whether multiple prior convictions were obtained in one court
week. New Brief for the State, pp. 12-14. The State extends this
logic to include probationary status since it “simply involves the
„whens‟ of a defendant‟s prior convictions and a „what,‟ i.e., the
nature of his commitment. . . .” Id. at p. 13. This Court should
find this argument to be unpersuasive for the reasons set out
below.
The Arizona Court of Appeals, Division One, addressed a
similar argument in State v. Gross, 201 Ariz. 41, 31 P.3d 815
(2001). There, the State argued that a trial judge could
constitutionally enhance a defendant‟s sentence if the judge found
that a defendant was on pretrial release at the time that he
committed the present offense.6 One of the arguments propounded
6
In North Carolina, the aggravating factor that “defendant committed the
offense while on pretrial release on another charge” is set out in N.C. Gen.
Stat. § 15A-1340.16(d)(12). This Court has held that Blakely applies to the
finding of this factor. See State v. Blackwell, 359 N.C. 814, 618 S.E.2d 213
-31-
by the State for allowing a trial judge to find the release status
without submission to the jury was the fact that the finding “did
not require a subjective evaluation but could be accomplished by
reviewing objective, documentary evidence” and “the sentencing
court could merely take judicial notice of its own records.” Id.
at 45, 31 P.3d at 819 (citation omitted). The Arizona Court of
Appeals did not agree with this argument, stating:
Apprendi focuses on a defendant‟s right to have a
jury decide facts that affect the potential punishment.
Indeed, with the exception of the fact of a prior
conviction, Apprendi requires that any determination
exposing a defendant to a penalty exceeding the maximum
be submitted to the jury. 530 U.S. at 490. Under
Apprendi, it is a defendant’s exposure to additional
punishment, not the ease or accuracy with which that
fact can be determined by a trial court, that is
pivotal in triggering a defendant’s right to have a
jury decide.
Id. (emphasis added). See also State v. Benenati, 203 Ariz. 235,
240-41, 52 P.3d 804, 809-10 (2002)(holding that even though a
defendant‟s pretrial release status is “akin to the existence of
a prior conviction,” and “can be proven by objective, documentary
evidence typically containing few, if any, disputed facts,”
Apprendi and Ring do not permit determination of that status by a
trial judge rather than by a jury).
This Court should follow the above reasoning of the Arizona
courts. Even assuming arguendo that a defendant‟s probationary
status can be easily and accurately proven by reference to
documentary evidence, that status, like a defendant‟s pretrial
release status, must still be determined by a jury beyond a
(2005), vacated on other grounds after remand, 361 N.C. 41, 638 S.E.2d 452
-32-
reasonable doubt because that fact “increases the maximum penalty”
for the crime charged. Instead of reading the prior conviction
exception expansively as urged by the State, this Court should
view the exception as the Apprendi Court did -- as an “exceptional
departure” from historic practice and as a “narrow exception to
the general rule.”
E. Probationary status is not “the same as” a prior
conviction and therefore it does not fall within
the Apprendi exception.
Probationary status simply is not the “same as” the fact of a
prior conviction as asserted by the State on page 14 of its New
Brief. The existence of a prior conviction can easily be
determined from a review of the particular judgment and all of the
procedural safeguards have necessarily already attached to that
conviction. As stated in the previous arguments, this is not so
with regard to a defendant‟s probationary status. See §§ A and B,
supra. Furthermore, if probationary status is actually “the same
as” a prior conviction, then the prior conviction would be double-
counted if defendant received points for the prior conviction and
then also received a point for being on probation at the time of
the offense. The General Assembly certainly did not intend that
result when it enacted N.C. Gen. Stat. § 15A-1340.14(d)(7).
Even if probationary status is seen, not as “the same as,”
but as “intimately related to” or “akin to” or “a derivative of”
or “flowing from” or “arising from” or “ancillary to” or “a mere
(2006).
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subsidiary to” a prior conviction, it is still not a prior
conviction. The Court of Appeals found this to be true in Wissink
when it recognized “that the fact of a defendant‟s probationary
status is analogous to and not far-removed from the fact of a
prior conviction,” but then nevertheless held that it was “bound
by the language in Blakely, Apprendi and Allen that states only
the fact of a prior conviction is exempt from being proven to a
jury beyond a reasonable doubt.” Id. at 837, 617 S.E.2d at 325
(emphasis added). See also State v. Brown, No. W2003-01863-CCA-
R3-CD, 2004 Tenn. Crim. App. LEXIS 787 (2004)(holding that
although a defendant‟s probationary or bail status is “related to
one of the defendant‟s prior convictions,” it does not fall with
in the prior conviction exception). The United States Supreme
Court meant what it said in Apprendi when it said that the prior
conviction exception was a “narrow exception to the general rule”
and this Court should find likewise.
F. It would be inherently unfair to defendant to find
that Blakely does not apply to probationary status
and this Court should find that discretionary
review was improvidently allowed.
As noted above in § A, the Legislature amended N.C. Gen.
Stat. § 15A-1340.16 to provide for written notice and to provide
that a jury shall determine whether or not the point set out in
N.C. Gen. Stat. § 15A-1340.14(b)(7) should be assessed. The
effective date of this legislation was June 30, 2005. Defendant
was alleged to have committed this offense on February 17, 2002.
He was convicted on May 28, 2004 -- approximately one month after
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the decision in Blakely. If the alleged offense had occurred
after the effective date of the Blakely Act, defendant would have
been statutorily entitled to written notice and a jury
determination of his probationary status. However, if this Court
finds that Blakely does not apply, defendant will be denied jury
determination of this factual issue while every defendant charged
with committing an offense after June 30, 2005, will be entitled
to jury review.
Additionally, counsel notes that while there were at least
five cases in which the Court of Appeals ruled that Blakely
mandated a remand for resentencing based on the trial court‟s
erroneous finding of the defendant‟s probationary status, the
State chose to seek a writ of supersedeas and discretionary review
in only two of them –- the present case and Wissink. See State v.
Shine, 173 N.C. App. 699, 619 S.E.2d 895 (2005); State v. Evans,
2006 N.C. App. LEXIS 662 (No. COA05-694, filed March 21,
2006)(unpublished); and State v. Holder, 2006 N.C. App. LEXIS 488
(No. COA05-414, filed March 7, 2006)(unpublished). Upon remand,
two of those defendants received lesser sentences.
In Shine, the defendant was convicted of trafficking in
cocaine, possession with intent to sell and deliver cocaine, and
maintaining a dwelling for keeping and selling cocaine. He was
sentenced to a term of imprisonment of a minimum of thirty-five
months and a maximum of forty-two months for the trafficking
offense as is required by N.C. Gen. Stat. § 90-95(h)(3)a. without
consideration of the defendant‟s prior record level. See State
-35-
v. Saunders, 131 N.C. App. 551, 507 S.E.2d 911 (1998)(holding
that the punishment range set out in the Structured Sentencing
Act does not control the minimum sentence when an applicable
statute, such as N.C. Gen. Stat. § 90-95, requires or authorizes
another minimum sentence). The remaining two convictions were
consolidated and defendant was sentenced to a term of
imprisonment of a minimum of ten months and a maximum of twelve
months. That sentence was suspended and the defendant was placed
on probation for a term of thirty-six months. On remand for
resentencing based on the erroneous finding of the defendant‟s
probationary status by the trial judge, the defendant received a
lesser sentence on the two consolidated charges. Instead of a
ten to twelve-month suspended sentence, he received an eight to
ten-month suspended sentence. See App. 32-34.
In Evans, the defendant was originally sentenced for
felonious larceny as a habitual felon, Prior Record Level VI, to
a term of imprisonment of a minimum of 158 months and a maximum
of 191 months. See App. 35-38. According to the records of the
Administrative Office of the Courts, the defendant was sentenced
upon remand as a Prior Record Level V to the lesser term of
imprisonment of a minimum of 134 months and a maximum of 170
months. See App. 39-40.
Lastly, in Holder, the defendant had been sentenced as a
Prior Record Level IV to a mitigated term of imprisonment of a
minimum of eighty months and a maximum of 105 months. See App.
41-43. Upon remand, he was sentenced as a Prior Record Level
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III, and received the same sentence in the mitigated range. See
App. 44-45.
The State sought review in Wissink -- the fourth case raising
the same issue as presented by the case at bar. In Wissink, the
defendant was convicted of first degree murder, discharging a
firearm into occupied property, and misdemeanor larceny of a motor
vehicle. He was sentenced to life imprisonment without parole for
the murder conviction, thirty-seven to fifty-four months for
discharging a firearm into occupied property, and sixty days for
the larceny conviction. The trial court found that the defendant
committed the discharging a firearm into occupied property while
he was on probation and sentenced him at a higher prior record
level because of it. Regardless of whether the defendant in
Wissink ultimately gets relief on that charge, he will
nevertheless continue to serve a life sentence without parole for
the murder conviction.
Thus, it appears that of the five defendants who received
relief from the Court of Appeals based on the Blakely issue
presented by this case, three have now been resentenced, and the
fourth one, Wissink, will continue serving his life sentence
regardless of the outcome of the appeal in his case. That
apparently leaves defendant in the case at bar as the only known
defendant who would benefit from the Court of Appeals‟ line of
cases ruling that Blakely applies to the finding of a defendant‟s
probationary status. The Blakely Act will operate to provide the
necessary procedures for all offenders who committed crimes after
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June 30, 2005. As argued in defendant‟s Response to State‟s
Petition for Discretionary Review, since the decision below will
affect very few defendants and have very little effect on the
jurisprudence of this State, defendant respectfully requests that
this Court reconsider its allowance of the State‟s Petition for
Discretionary Review and find that discretionary review was
improvidently allowed.
G. The State failed to meet its burden of showing
that the Blakely error here was harmless beyond a
reasonable doubt.
This case was decided in the Court of Appeals prior to the
United States Supreme Court‟s decision in Washington v. Recuenco,
548 U.S. ---, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), which
held that error under Blakely v. Washington was subject to
federal harmless error analysis. See also State v. Blackwell,
361 N.C. 41, 638 S.E.2d 452 (2006). The Court of Appeals treated
the error as structural and simply remanded for a new sentencing
hearing without engaging in any error analysis. If this Court
reaches the question of whether or not the error was harmless
beyond a reasonable doubt, defendant asserts that the State has
failed to meet its burden in that regard. In conducting harmless
error review, this Court must determine from the record whether
the evidence against the defendant was so “overwhelming” and
“uncontroverted” that any rational fact-finder would have found
the disputed aggravating factor beyond a reasonable doubt. Neder
v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35
(1999).
-38-
In State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006),
this Court held that Blakely error occurred when the trial judge
found, by a preponderance of the evidence, found the existence of
the aggravating factor that defendant was on pretrial release at
the time he committed the offense. This Court then engaged in
harmless error review and determined that error was harmless
beyond a retainable doubt. The evidence of the aggravating factor
in that case included testimony by a state trooper that he had
arrested the defendant and charged him with driving while
impaired and driving while license revoked prior to the
commission of the offense for which the defendant was charged.
The trooper actually referred to the citation for those offenses
and noted that the lack of judgment on either of them indicated
that they were still pending at the time the defendant committed
the present offense. This citation was introduced into evidence.
The defendant failed to object to this testimony or present any
evidence to rebut it.
Additionally, the prosecutor, at the sentencing hearing,
argued to the judge that “the defendant committed the offense
while on pretrial release” for a DWI charge, and “if the Court
looks at this defendant‟s history, that‟s a pretty typical
pattern over the last twenty-five years. . . .” Id. at 51, 638
S.E.2d at 459. Again, defendant failed to object to the
assertion that he was on pretrial release. This Court stated:
Taken together, Trooper Davis‟s testimony, the 4
May 1996 citation, defendant‟s failure to object, and
defendant‟s failure to present any arguments or
evidence contesting the sole aggravating factor
-39-
constitute uncontroverted and overwhelming evidence
that defendant committed the present crimes while on
pretrial release for another offense. There can be no
serious question that if the instant case were remanded
to the trial court for a jury determination of the sole
aggravating factor presented, the state would offer
identical evidence in support of that aggravator in the
form of official state documents and the testimony of
state record-keepers. Accordingly, the Blakely error
which occurred at defendant‟s second trial was harmless
beyond a reasonable doubt.
Id.
In this case, the evidence was neither “overwhelming” nor
“uncontroverted.” Unlike in Blackwell, there was no testimony
under oath from a witness with personal knowledge that defendant
was actually on probation at the time of the present offense.
The only documents offered by the State at the sentencing hearing
were the Prior Record Level Worksheet showing defendant to be a
Prior Record Level II and a copy of “the Administrative Office of
the Court‟s records in support of that.” (T p. 470) See App. 46-
47. These documents were not verified. In any event, the
Administrative Office of the Courts‟ printout was only sufficient
to show that defendant had a prior conviction for assault and
that he had received a probationary sentence for it. Contrary to
the State‟s assertions in its New Brief, it was not sufficient to
“unequivocally” show that defendant was actually on probation at
the time he committed the offense in question. New Brief for
State, pp. 23-24. At a minimum, the State would have needed to
introduce the actual district court file (or certified true
copies of its contents) from that case, or testimony by the Clerk
of Court that no other action had been taken in that case with
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regard to probation such as termination or revocation, or
testimony by a member of the Probation Department that defendant
was actually on probation at the relevant time.
Additionally, defendant at no time stipulated to the
accuracy of the Prior Record Level Worksheet nor did he ever
admit that he was on probation at the time he allegedly committed
the offense. In fact, the following colloquy occurred between
the prosecutor and defendant on cross-examination:
Q. Do you remember being convicted of assault 11
days prior to shooting Danny?
A. I think it happened one time, but I did
community service and they cleared me for it already.
(T p. 324) Thus, defendant believed that he had received only
Community Service for the assault offense and that he had no
further obligations. The defendant‟s testimony alone raised
reasonable doubt in this case. Clearly, “taken together” this
evidence was not “overwhelming” or “uncontroverted”; thus, it was
not sufficient to show that the Blakely error was harmless beyond
a reasonable doubt. Accordingly, defendant asserts that the Court
of Appeals‟ decision finding Blakely error and remanding the case
for resentencing was correct and should be affirmed.
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CONCLUSION
For the reasons stated above, the Defendant-Appellee respect-
fully requests that the opinion of the North Carolina Court of
Appeals rendered in this case on December 20, 2005 be affirmed.
Respectfully submitted, this the 2nd day of March, 2007.
__________________________________
Julie Ramseur Lewis
Assistant Public Defender
Office of the Public Defender
720 E. Fourth Street
Suite 308
Charlotte, NC 28202
(704) 347-7870 (switchboard)
(704) 417-1965 (direct)
Julie.Lewis@MecklenburgCountyNC.gov
ISABEL SCOTT DAY
PUBLIC DEFENDER
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CERTIFICATE OF SERVICE
I hereby certify that a copy of Defendant-Appellee‟s New
Brief has been duly served upon Q. Shante Martin, Assistant
Attorney General, North Carolina Department of Justice, P.O. Box
629, Raleigh, NC 27602, by placing same, first class postage
prepaid, in the United States Mail.
This the _____ day of March, 2007.
_______________________________
Julie Ramseur Lewis
Assistant Public Defender
-43-
CONTENTS OF APPENDIX
Robert L. Farb, Blakely v. Washington and Its Impact on
North Carolina‟s Sentencing Laws............................App.
1
Report on Study of Structured Sentencing Act in Light of
Blakely v. Washington Pursuant to Session Law 2004-161,
Section 44.1”............................................App. 17
Administrative Office of the Courts Records for Trolando
Ranquel Shine............................................App. 32
Unpublished Opinion in State v. William Dale Evans
(No. COA05-694, filed March 21, 2006)....................App. 35
Administrative Office of the Courts Records for William
Dale Evans................................................App. 39
Unpublished Opinion in State v. Terry Lee Holder,
(No. COA05-414, filed March 7, 2006).....................App. 41
Unpublished Opinion in State v. Terry Lee Holder,
(No. COA06-1103, filed February 6, 2007).................App. 44
Administrative Office of the Courts Records for Anh Viet Thai
presented by the State at the sentencing hearing.........App. 46