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Whitehead Willie by XM46j3gN

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									No. COA04-1238                  JUDICIAL DISTRICT 3-A

                 NORTH CAROLINA COURT OF APPEALS

          ***************************************

STATE OF NORTH CAROLINA         )    FROM PITT COUNTY
                                )    04 CRS 1776
         VS.                    )
                                )
WILLIE ODELL WHITEHEAD          )

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                   DEFENDANT-APPELLANT’S BRIEF

     *************************************************

                       QUESTIONS PRESENTED

    1.   DID THE TRIAL COURT ERR WHEN IT ENHANCED WILLIE
         ODELL WHITEHEAD’S SENTENCE WITH AN AGGRAVATING
         FACTOR THAT WAS NEITHER ADMITTED NOR FOUND BY A
         JURY BEYOND A REASONABLE DOUBT?

                      STATEMENT OF THE CASE

    At the 3 May 2004 Criminal Session of Pitt County

Superior Court, the District Attorney called this criminal

case for hearing, charging Willie Odell Whitehead on a bill

of indictment with robbery with a dangerous weapon.      The

Honorable W. Russell Duke, Jr. presided.      Pursuant to plea

agreement, Mr. Whitehead pleaded guilty to one count of

robbery with a dangerous weapon and they dismissed a

separate gun charge.

    The court determined the prior record level of Mr.

Whitehead to be record level one.    The State asked the



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court to find as an aggravating factor that Mr. Whitehead

joined with more than one other person to commit this

offense and was not charged with conspiracy.     The court

found as a mitigating factor that the defendant’s age or

immaturity at the time of the offense reduced his

culpability.   The court found that the aggravating factor

outweighed the mitigating factor and sentenced Mr.

Whitehead to a term of imprisonment of a minimum of 80

months and a maximum of 105 months in the North Carolina

Department of Corrections.   Mr. Whitehead entered timely

notice of appeal of this judgment on 12 May 2004.

          STATEMENT OF GROUNDS FOR APPELLATE REVIEW

      This Court has jurisdiction over this appeal by virtue

of N.C.G.S. §7A-27(b) and N.C.G.S. § §15A-1442.     A timely

notice of appeal was entered on 12 May 2004.     (R. p. 27).

                      STATEMENT OF FACTS

      On 4 May 2004, Willie Odell Whitehead pleaded guilty

to one count of robbery with a dangerous weapon.     (T. p.

4).   His grandmother, mother, brother and friend appeared

on his behalf in court for sentencing.     (T. p. 4).   After

the court went over the plea transcript with Willie, the

State presented the factual basis for the plea.     (T. p. 9).

      On 26 December 2003, a man on the Eastern Carolina

University campus reported having been robbed by five black


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males in a parking lot.      (T. p. 9).   One man pointed a gun

toward William McKlemurry.      (T. p. 9).   A younger man,

later identified as Willie Whitehead, punched McKlemurry

and threw and destroyed his cellular phone.       (T. p. 9).

Then, Willie pushed and punched McKlemurry before taking

his wallet from his back pocket.      (T. p. 10).   Willie did

not point the gun toward McKlemurry.       (T. p. 11).     The men

took $26.00 from McKlemurry.      (T. p. 19).   All of this

activity was captured on videotape surveillance.         (T. p.

10).    All of the men were later arrested.     (T. p. 11).

       After his arrest, Willie Whitehead remained in

detention.    (T. p. 12).    During that time, he had little

family support at his court appearances and, as a result,

could not be released.      (T. p. 12).   The State moved to

transfer the case to superior court and the case was

eventually bound over to that court.       (T. p. 12).     In the

meantime, Willie met with a psychologist.       (T. p. 13).

       Dr. Joan Lester evaluated Willie.     (T. p. 13).    She

diagnosed him as suffering from mild mental retardation and

cannabis abuse and adolescent antisocial behavior.          (T. p.

14).    At the time of the offense, Willie was fifteen years

old and attending the educable mentally retarded classes at

school.    (T. p. 14).   Lester determined Willie’s full-scale

IQ to be 68.    (T. p. 14).    She also assessed that he


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probably perceived individuals as threatening and his

environment as hostile.      (T. p. 14).     Accordingly, Willie

asked that the court find two mitigating factors.        (T. p.

16).

       Specifically, he asked that the court find that he had

a mental conditions insufficient to constitute a defense

but significant enough to reduce his culpability.        (T. p.

16).    Willie also asked that the court find that his age at

the time of the commission of the offense significantly

reduced his culpability.      (T. p. 16).    All of the co-

defendants were older than Willie and he did not act as the

group’s “ringleader.”    (T. p. 16).       At sentencing, Willie

Whitehead expressed remorse for his role in this offense.

(T. p. 21).    The State asked the court to consider one

aggravating factor in sentencing.      (T. p. 20).

       The State asked that the court find as an aggravating

factor that there were more than two people involved in the

commission of the offense and they were not charged with

conspiracy.    (T. p. 20).    The court found this as an

aggravating factor.    (T. p. 21).    The court found as a

mitigating factor that Willie Whitehead’s age at the time

of the offense significantly reduced his culpability.         (T.

p. 21).    Then, the court found that the aggravating factors

outweighed the mitigating factors and sentenced Willie


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Whitehead in the aggravated range, to 80 to 105 months in

the North Carolina Department of Corrections.   (T. p. 21).

                            ARGUMENT

    1.     THE COURT FOUND AS AN AGGRAVATING FACTOR THAT
           WILLIE ODELL WHITEHEAD COMMITTED THIS OFFENSE
           WITH MORE THAN ONE OTHER PERSON AND WAS NOT
           CHARGED WITH CONSPIRACY. THIS FACTOR, HOWEVER,
           WAS NOT SUBMITTED TO A JURY AND FOUND BEYOND A
           REASONABLE DOUBT OR ADMITTED BY WILLIE WHITEHEAD.
           THEREFORE, THE COURT EXCEEDED ITS AUTHORITY BY
           IMPOSING A SENTENCE IN THE AGGRAVATED RANGE.

 (Assignment of Error No. 1: T. p. 21, lines 16-21; R. p.
                            34)

    At the sentencing hearing in the instant case, the

trial court found as an aggravating factor that Willie

Odell Whitehead committed this offense with more than one

other person and was not charged with conspiracy.    This

fact, however, was not submitted to a jury, and found

beyond a reasonable doubt or admitted by Willie.    As such,

the court exceeded its authority when it imposed an

aggravated range sentence on the charge of robbery with a

dangerous weapon.

    N.C.G.S. §15A-1340.17 provides that, at record level

one, the presumptive range punishment for a class D felony

is a range of a minimum of 51 months up to a maximum of 86

months.   Id.   In other words, the maximum sentence that the

court could have imposed in the presumptive range for the

class D felony would have been 64 to 86 months.     In this


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case, however, the court imposed an aggravated range

sentence of 80 to 105 months on the robbery with a

dangerous weapon charge, representing the absolute maximum

prescribed for this offense and no prior record.        Because

Willie Whitehead did not stipulate to the aggravating

factor and this factor was not found by a jury beyond a

reasonable doubt, his aggravated range sentence was illegal

as a matter of law and it violated his sixth amendment

right to trial by jury.

      On facts similar to the instant case, the United

States Supreme Court recently held that facts supporting an

aggravated sentence must be admitted by the defendant or

found by a jury beyond a reasonable doubt.         Blakely v.

Washington, 124 S. Ct. 2531, 2543 (2004).      In Blakely, the

defendant pleaded guilty to kidnapping his estranged wife.

Id. at 2534.   The standard sentence under Washington state

law permitted a maximum of 53 months, but the judge imposed

a 90 month sentence after finding that the defendant had

acted with deliberate cruelty.      Id. at 2537.    Deliberate

cruelty constituted an aggravating factor which provided

grounds to depart from the standard range of punishment.

Id.   The defendant did not stipulate to the existence of

the aggravating factor.   Id.




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    In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),

the Supreme Court held 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.

In Blakely, the Supreme Court followed Apprendi and held

that the maximum sentence a judge may impose is not the

maximum he may impose after finding additional facts, but

the sentence he may impose without any additional findings.

Id. at 2537.

    In other words, the judge exceeds his own authority

and violates a defendant’s sixth amendment jury trial

guarantee when he inflicts punishment that the jury’s

verdict alone does not allow.       Id.   Similarly, in the case

at bar, the court exceeded his authority when he sentenced

Willie Odell Whitehead in the aggravated range, after

finding an aggravating factor to which he did not

stipulate.

    Willie Whitehead did not stipulate or consent to the

aggravating factor found by the court.       While he stipulated

to the State providing a factual basis for the plea, he did

not admit having participated in an uncharged conspiracy

with the other co-defendants.       The use of this factor in

sentencing required the judge to make additional findings


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beyond those admitted pursuant to plea.   Without finding

the aggravating factor, the maximum sentence that the court

could have imposed in the presumptive range for the class D

felony would have been 64 to 86 months.   Because the

sentence imposed in the instant case exceeded that range

the sentence is illegal as a matter of law.

    Therefore, this Court should reverse and remand this

matter for a new sentencing hearing consistent with the

Supreme Court’s holding in Blakely v. Washington, 124 S.

Ct. 2531 (2004).

                         CONCLUSION

    For all of the foregoing reasons set out above, the

defendant-appellant respectfully requests that this Court

remand this case for the re-sentencing of Willie Odell

Whitehead.

    Respectfully submitted, this the 12th day of November,

2004.



                         Geoffrey W. Hosford
                         Attorney for Defendant-Appellant
                         State Bar No. 21239
                         P.O. Box 1653
                         Wilmington, NC 28402
                         (910)251-8333




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                   CERTIFICATE OF SERVICE

     The undersigned counsel for defendant-appellant,
Willie Odell Whitehead, hereby certifies that a copy of the
foregoing Defendant-Appellant’s Brief was served upon the
State of North Carolina by placing said copy in the United
States Mail, First Class Postage affixed, on the 12th day of
November, 2004, and addressed as follows.

          Christopher W. Brooks
          Appellate Section
          Dept. of Justice
          P.O. Box 629
          Raleigh, NC 27602-0629




                         Geoffrey W. Hosford
                         Attorney for Defendant-Appellant




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