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					No. COA04-1000                                             TENTH DISTRICT


                   NORTH CAROLINA COURT OF APPEALS
                 ***********************************



STATE OF NORTH CAROLINA )
                        )
5.                      )               From Wake County
                        )               03 CRS 86370-71
ORLANDO ASHINT MORRISON )



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

                    DEFENDANT-APPELLANT’S BRIEF

                   *************************************
                                                       INDEX

TABLE OF AUTHORITIES........................................ iii

QUESTIONS PRESENTED......................................... 1

STATEMENT OF THE CASE......................................        2

STATEMENT OF THE FACTS.....................................        2

ARGUMENT.................................................... 10

         1.       The trial court erred in that it failed to consider all the purposes of sentencing in
                  the sentencing hearing in this matter and sentenced defendant with no prior record
                  to two consecutive active prison terms with aggravating range sentences in
                  violation of North Carolina General Statutes Section 15A-1340.12. This was in
                  violation of the North Carolina General Statutes, the common law of North
                  Carolina, the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
                  States Constitution, and Article I, Sections 18, 19, 23, 24, 27 and 35 of the North
                  Carolina Constitution. Defendant asserts constitutional error, trial error, or in the
                  alternative, plain error.................... 10

         2.       The trial court erred in that it found statutory aggravating factor number two
                  without the consent of defendant and without including the factor in an indictment
                  or submitting the factor to a jury. This was in violation of Blakely v. Washington,
                  542 U.S. __, 159 L.Ed.2d 403 (2004) the North Carolina General Statutes, the
                  common law of North Carolina, the Fifth, Sixth, Eighth, and Fourteenth
                  Amendments to the United States Constitution, and Article I, Sections 18, 19, 23,
                  24, 27, and 35 of the North Carolina Constitution. Defendant asserts
                  constitutional error, trial error or in the alternative, plain error..................... 13

CONCLUSION................................................... 16

CERTIFICATE OF SERVICE....................................... 17




                                         TABLE OF AUTHORITIES
                                 NORTH CAROLINA CASES

In re Inquiry Concerning a Judge Evelyn W. Hill; 357 N.C. 559, 591 S.E.2d 859
(2003)........................................ 12

State v. Levar Allen, COA03-1369, 7 September 2004........... 15

State v. Blackwell, COA03-793, 7 September 2004.............. 15

State v. Brinkley, 159 N.C.App. 446, 583 S.E.2d 335 (2003).. 13

State v. Larrimore, 340 N.C. 119, 456 S.E.2d 789 (1995)......                   12

State v. Mack, 161 N.C.App. 595, 589 S.E.2d 168 (2003).......                   12

State v. Mucci,_____N.C.App.____, 594 S.E.2d 411 (2004)......                   13

State v. Speight, COA03-776, 7 September 2004................                   15

                         NORTH CAROLINA GENERAL STATUTES

N. C. Gen. Stat. Section 15A-1340.12.........................                   11

N. C. Gen. Stat. Section 15A-1340.17.........................                   11

                                       FEDERAL CASES

Blakely v. Washington, 542 U.S.______, 159 L.Ed.2d 403 (2004). 15




                                                iii
No. COA04-1000                                                            TENTH DISTRICT



                       NORTH CAROLINA COURT OF APPEALS
                      ********************************


STATE OF NORTH CAROLINA            )
                                   )
v                                  )               From Wake County
                                   )               03 CRS 86370-71
ORLANDO ASHINT MORRISON            )



                                QUESTIONS PRESENTED

1.   Did the trial court err in that it failed to consider all the purposes of sentencing in the
     sentencing hearing in this matter and sentenced defendant with no prior record to two
     consecutive active prison terms with aggravating range sentences in violation of North
     Carolina General Statutes Section 15A-1340.12, the common law of North Carolina, the
     Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and
     Article I, Sections 18, 19, 23, 24, 27 and 35 of the North Carolina Constitution?

2.   Did the trial court err in that it found statutory aggravating factor number two without the
     consent of defendant and without including the factor in an indictment or submitting the
     factor to a jury in violation of Blakely v. Washington, 542 U.S. __, 159 S.E.2d 403
     (2004), the North Carolina General Statutes, the common law of North Carolina, the
     Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and
     Article I, Sections 18, 19, 23, 24, 27, and 35 of the North Carolina Constitution.
     Defendant asserts constitutional error, trial error or in the alternative, plain error?




                              STATEMENT OF THE CASE

     This matter came before the Superior Court of Wake County on January 9, 2004,


                                              1
Criminal Session, the Honorable Evelyn W. Hill, presiding. Defendant had been earlier arrested

and charged with First Degree Kidnapping and Robbery with a Dangerous Weapon. Defendant

entered pleas of guilty on Informations to Second Degree Kidnapping and Common Law

Robbery. Defendant was sentenced to 31 months minimum and 47 months maximum (03 CRS

86370) in the North Carolina Department of Correction for Second Degree Kidnapping and an

additional 16 months minimum and 20 months maximum (03 CRS 86371) for Common Law

Robbery to run at the expiration of the sentence in 03 CRS 86370. The sentencing hearing was

reconvened on June 4, 2004, Judge Evelyn W. Hill presiding, for correcting errors on the

judgment. Defendant appeals the judgment of the court to the North Carolina Court of Appeals.

                               STATEMENT OF THE FACTS

       This matter was called for entry of guilty pleas by

Assistant District Attorney Tom Ford on January 4, 2004, Judge

Evelyn W. Hill, presiding.               Defendant Orlando Morrison was

represented by Tommy Manning.                 (January 9 transcript, p 3).

       Defendant was entering pleas of guilty to one count of

common law robbery and one count of second degree kidnapping

along with two co-defendants, Joseph Sinclair and Aubrey Kevin

White, Jr. who were also entering pleas of guilty to common law

robbery and second degree kidnapping at the same hearing (January

9 transcript, p 3).

       Defendant Morrison answered the questions on the standard

transcript of plea form for the trial court, the court noting

that the plea was open for the court to sentence in its


                                               2
discretion except that the State had earlier reduced the charges

from first degree kidnapping to second degree kidnapping and from

robbery with a dangerous weapon to common law robbery (January 9

transcript, pp 4-8).

    The State presented the factual basis for the plea that 19

year old Brandon Hearndon was a student at St. Augustine’s

College in Raleigh and had known the defendants previously

(January 9 transcript, pp 17-18).    On October 8, 2003 Mr. White

and Mr. Morrison saw Brandon on campus and asked him for a ride

to N. C. Central and in return for giving them a ride Brandon

would receive a small amount of marijuana (January 9 transcript,

p 18).   Mr. Morrison and Mr. White got in the car with Brandon

and Mr. Morrison said that he had to go to his apartment first

(January 9 transcript, p 18).

    When they arrived at Mr. Morrison’s apartment Mr. Morrison

and Mr. White went inside, approached Mr. Sinclair, and said that

they were going to rob Brandon (January 9 transcript, p 19).    All

three of them got in the car with Brandon and Mr. White was

carrying a model 93 BB gun that was made to look like a .45

caliber firearm (January 9 transcript, p 19).   Mr. White got in

the seat behind the driver, Brandon; Mr. Morrison got in the

front passenger seat and Mr. Sinclair got in the right rear seat

(January 9 transcript, p 19).   Then Mr. White put the gun to

Brandon’s head and he and the others demanded money (January 9


                                 4
transcript, p 20).    Brandon handed over his wallet with $15.00

and a teller machine card (January 9 transcript, p 20).

       Mr. Morrison then became the driver and Brandon sat in the

front passenger seat while Mr. Sinclair held the gun to his head

(January 9 transcript, p 21).    He drove to a teller machine in

Raleigh and was unsuccessful in getting money out of the machine

(January 9 transcript, pp 21-22).     When they started driving

again, Brandon reached for a stun gun in the console and while

wrestling with Mr. Morrison, the driver, the car went through

some bushes and ended up crashing right at a Raleigh Fire

Department station where all four jump out (January 9 transcript,

pp 21-22). Brandon told the firemen there what happened and the

three co-defendants jumped out and ran (January 9 transcript, p

22).

       The Raleigh Police found Mr. Sinclair and Mr. Sinclair took

them back to his apartment where all three of them lived and

found Mr. Morrison hiding in a closet and Mr. White hiding under

a bed (January 9 transcript, p 24).    Mr. Morrison gave a “very

complete and very honest statement” according to Assistant

District Attorney Tom Ford (January 9 transcript, p 24).       The

damage to Brandon’s car was covered by insurance and a cell phone

and some CD’s were removed from Brandon’s car by Mr. White when

they ran (January 9 transcript, p 25).    The cell phone was

damaged or not recovered (January 9 transcript, p 25).


                                  5
       On behalf of Mr. Morrison, his attorney, Tommy Manning, said

that Mr. Morrison was born and raised in Philadelphia, was an

honor student in high school, had a 4.0 average at St.

Augustine’s College, was working on the weekends to support

himself in college, and his mother said that this incident was

“not like anything she’s ever known him to do” (January 9

transcript, pp 33-34).

       Mr. Manning said that Mr. Morrison’s family wanted him to

return to Pennsylvania and complete his education there and asked

the court to impose an intermediate sentence, intensive

probation, and transfer that probation to Pennsylvania (January 9

transcript, p 35).    Mr. Manning said that Mr. Morrison planned to

complete his education (January 9 transcript, p 36).

       The State told the court that these defendants had served 90

days in jail prior to entering their pleas and that the victim’s

grandmother did not think 90 days was appropriate for “someone

that’s done that to her grandson” (January 9 transcript, p 40).

Assistant District Attorney Mr. Ford said “I’d defer to the

Court’s experience and knowledge as to making a sentence that

doesn’t ruin these young men’s lives from here on if they’re

going to make something of themselves (January 9 transcript, p

41).

       Mr. Ford again credited Mr. Morrison with being honest and

candid about what happened and knowing that the victim was


                                  6
sincerely concerned about being killed (January 9 transcript, p

41).    Mr. Ford said all the victim wanted was to “be left alone”

(Plea transcript, p 41).

       Defendant Morrison read a letter to the court, the contents

of which were not recorded in the plea transcript (January 9

transcript, p 51).

       The court responded by talking to all three defendants about

her experience growing up during the 1960's and attending college

in 1968 and marching with Martin Luther King, Jr. and remarked

that “white civil rights workers, civil rights workers died so

that you [the defendants] can have what your parents and your

grandparents never had” (January 9 transcript, p 57).    The court

told the defendants that “you have no respect for your race” and

“what you are are bullies” (January 9 transcript, p 59).

       The court said that Mr. Hearndon, the victim, was “exactly

what Martin Luther King, Jr. died for” and that Mr. Hearndon was

“that dream come true” (January 9 transcript, p 61).

       Then the court said that she had occasion to read the

statute on the purposes of sentencing and she remarked “It says

the primary purpose of sentencing a person convicted of a crime

are...I think the order in which they’re listed is important: to

impose a punishment commensurate with the injuries the offense

has caused” (January 9 transcript, p 62).    The court did not

describe or read any further from that statute (January 9


                                  7
transcript, p 62).   In fact the court reiterated “In other words,

the primary purpose of sentencing a person convicted of a crime

are to impose a punishment commensurate with the injuries the

offense caused” (January 9 transcript, p 63).

    The court also remarked to the defendants that “I also

believe that you three gentlemen have a great deal to offer”

(January 9 transcript, p 63).

    Neither the State nor the defendant offered factors in

mitigation or aggravation but the court as to Mr. Morrison found

mitigating factor number 11a the defendant voluntarily

acknowledged wrongdoing in connection with the offense to a law

enforcement officer at an early stage of the criminal process and

a non-statutory mitigating factor that the defendant was a

college student with a good academic record and came from a good

family (January 9 transcript, p 64).

    The court on its own also found aggravating factor number

two that defendant joined with more than one person in committing

the offense and was not charged with conspiracy (January 9

transcript, p 64).

    The court found that the factor in aggravation outweighed

the factors in mitigation and sentenced the defendant to an

aggravating range sentence, a minimum of 31 months and a maximum

of 47 months for second degree kidnapping (January 9 transcript,

p 64).   The court also made the same findings pursuant to


                                 8
sentencing for common law robbery and sentenced defendant to

another aggravating range sentence, a minimum of 16 months and a

maximum of 20 months for common law robbery and ordered that

sentence to run at the expiration of the sentence for second

degree kidnapping (January 9 transcript, p 65).

    Defendant entered notice of appeal in writing filed with the

clerk on January 9, 2004 (Record, p 29).

    On June 4, 2004, Assistant District Attorney Tom Ford

initiated further sentencing proceedings in this matter for the

court to make corrections on the judgments (June 4 transcript).

Assistant District Attorney Ford pointed out to the court that in

03 CRS 86370 the court had earlier made findings in aggravation

and mitigation and the clerk checked “the Court makes no findings

of facts because the prison term imposed is in the presumptive

range” (June 4 transcript, p 2; Record, pp 15-16).   In 03 CRS

86371 Mr. Ford suggested that there were similar errors on the

judgment (June 4 transcript, p 3).

    Counsel for the defendant Mr. Manning was present at the

hearing and questioned whether the court had jurisdiction to

correct errors on the judgments while the case was on appeal and

pointed out that undersigned counsel, Sam Bridges, was

defendant’s appellate counsel (June 4 transcript, p 3).   The

court suggested that it had jurisdiction to correct errors and

concluded the proceedings as to Mr. Morrison (June 4 transcript,


                                9
p 3).

     As noted in an earlier filing with the Court of Appeals,

prior to the June 4 hearing Assistant District Attorney Tom Ford

indicated to undersigned counsel that the judgments in this

matter may need to be amended because the judgments did not

reflect that the court considered aggravating and mitigating

factors at sentencing.

     However, prior to the June 4 hearing Assistant District

Attorney Tom Ford did not serve a motion to amend the judgments

on undersigned counsel and never indicated to undersigned counsel

that he intended to conduct a hearing to amend the judgments in

this matter.




                                        ARGUMENT

1.   The trial court erred in that it failed to consider all the purposes of sentencing in the
     sentencing hearing in this matter and sentenced defendant with no prior record to two
     consecutive active prison terms with aggravating range sentences in violation of North
     Carolina General Statutes Section 15A-1340.12. This was in violation of the North
     Carolina General Statutes, the common law of North Carolina, the Fifth, Sixth, Eighth,
     and Fourteenth Amendments to the United States Constitution, and Article I, Sections 18,
     19, 23, 24, 27 and 35 of the North Carolina Constitution. Defendant asserts constitutional
     error, trial error, or in the alternative, plain error.


                                             10
       Plea transcript, pp 62-65. Record, pp 13-20.


       The trial court here sentenced defendant, a college student with a 4.0 average (January 9

transcript, pp 33-34) with no prior record (Record, pp 8-9) to two consecutive aggravating range

sentences (January 9 transcript, pp 64-65) despite the fact that the State did not offer aggravating

factors and the State did not take the firm position that defendant should be sentenced to prison

(January 9 transcript, pp 40-41).

       The court remarked about one of the purposes of sentencing when the court read a

portion of the purposes of sentencing statute (January 9 transcript, pp 62-63). In fact the

court reiterated “In other words, the primary purpose of

sentencing a person convicted of a crime are to impose a

punishment commensurate with the injuries the offense caused”

(January 9 transcript, p 63).



       The statute on the purposes of sentencing reads:

               The primary purposes of sentencing a person convicted
               of a crime are to impose a punishment commensurate with
               the injury that the offense has caused, taking into
               account factors that may diminish or increase the
               offender’s culpability; to protect the public by
               restraining offenders; to assist the offender toward
               rehabilitation and restoration to the community as a
               lawful citizen; and to provide a general deterrent to
               criminal behavior

N. C. Gen. Stat. Section 15A-1340.12.

       Clearly the court here did not read or review or consider

all the primary purposes of sentencing as suggested in this

statute.       The court simply ignored the fact that Mr. Morrison had

                                                 11
no prior record and was a 4.0 student in college and gave him the

maximum prison sentence allowable pursuant to his plea to second

degree kidnapping, a class E felony, and common law robbery, a

class G felony.   N. C. Gen. Stat. Section 15A-1340.17.

    It is important here to point out that this sentence may not

be outside the boundaries of the structured sentencing statute

pursuant to N. C. Gen. Stat. Section 15A-1340.17, however, the

purposes of sentencing statute 15A-1340.12 contemplates that a

trial court consider factors other than retribution in imposing a

sentence.

    Furthermore, the structured sentencing statutes and the

entire set of criminal law and procedure statutes contemplate

that the decisions made by a trial judge at trial or at

sentencing be impartial.   “It is fundamental to our system of

justice that each and every person charged with a crime be

afforded the opportunity to be tried before an impartial judge in

an atmosphere of judicial calm.” State v. Larrimore, 340 N.C.

119, 456 S.E.2d 789.

    As noted in previous opinions of this Court of Appeals, a

criminal trial or sentencing proceeding conducted in the presence

of Superior Court Judge Evelyn Hill is often an experience in

which defense attorneys are humiliated and defendants are

sentenced without regard to any sense of impartiality or

fairness.   See State v. Mack, 161 N.C.App. 595, 589 S.E.2d 168


                                12
(2003) (no prejudicial error where trial court’s comments and

actions were inappropriate and fell below the standard of

professionalism expected of an officer of the court where Judge

Hill told defense counsel to speak to the jury using his big boy

voice and where the court called its own witness at sentencing to

rebut the defendant’s psychological expert); see also In re

Inquiry Concerning a Judge Evelyn W. Hill; 357 N.C. 559, 591

S.E.2d 859 (2003) in which the Supreme Court of North Carolina

reviewed the recommendations of the Judicial Standards

Commission, censured Judge Hill and found in two separate

instances that Judge Hill conducted herself in a manner that was

prejudicial to the administration of justice and brought the

judicial office into disrepute in one instance by verbally

attacking an attorney in open court and in the other by reaching

toward the genitals of a deputy sheriff and making obscene

comments); see also State v. Mucci,_____N.C.App.____, 594 S.E.2d

411 (2004) (remanded for a new sentencing hearing where Judge

Hill sentenced a defendant to three thousand and six hundred

community service hours where defendant was also required to pay

back $26,000 in restitution) see also State v. Brinkley, 159

N.C.App. 446, 583 S.E.2d 335 (2003) (new trial ordered where

Judge Hill’s comments to trial counsel tainted the atmosphere of

the trial to the detriment of the defendant).

    Here, the Court of Appeals should look closely at this


                               13
sentence handed down by Judge Hill.                    The defendant had no prior

record and was a college student with a 4.0 average.                              There were

no physical injuries sustained by the victim.                          Nevertheless,

Judge Hill imposed two consecutive aggravating range prison

sentences.      This sentence was clearly not imposed by an impartial

judge with all of the purposes of sentencing in mind.                               N. C. Gen.

Stat. Section 15A-1340.12.


2.   The trial court erred in that it found statutory aggravating factor number two without the
     consent of defendant and without including the factor in an indictment or submitting the
     factor to a jury. This was in violation of Blakely v. Washington, 542 U.S. __, 159
     L.Ed.2d 403 (2004) the North Carolina General Statutes, the common law of North
     Carolina, the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
     Constitution, and Article I, Sections 18, 19, 23, 24, 27, and 35 of the North Carolina
     Constitution. Defendant asserts constitutional error, trial error or in the alternative, plain
     error.

     Plea transcript, pp 62-65. Record, pp 13-20.
     Neither the State nor the defendant offered factors in

mitigation or aggravation but the court as to Mr. Morrison found

mitigating factor number 11a the defendant voluntarily

acknowledged wrongdoing in connection with the offense to a law

enforcement officer at an early stage of the criminal process and

a non-statutory mitigating factor that the defendant was a

college student with a good academic record and came from a good

family (January 9 transcript, p 64).

     The court on its own also found aggravating factor number

two that defendant joined with more than one person in committing

the offense and was not charged with conspiracy (January 9


                                               14
transcript, p 64).

    The court found that the factor in aggravation outweighed

the factors in mitigation and sentenced the defendant to an

aggravating range sentence, a minimum of 31 months and a maximum

of 47 months for second degree kidnapping (January 9 transcript,

p 64).   The court also made the same findings pursuant to

sentencing for common law robbery and sentenced defendant to a

second aggravating range sentence, a minimum of 16 months and a

maximum of 20 months for common law robbery and ordered that

sentence to run at the expiration of the sentence for second

degree kidnapping (January 9 transcript, p 65).

    On September 7, 2004, this Court filed three opinions by

three separate panels ordering new sentencing hearings because of

Blakely violations.   Blakely v. Washington, 542 U.S.______, 159

L.Ed.2d 403 (2004).   The Court of Appeals interpreted the

decision in Blakely to mean that a trial court alone may not

impose a sentence in excess of the statutory maximum unless a

jury verdict finds additional facts or aggravating circumstances

or a defendant has waived his right to a jury trial with respect

to those aggravating factors.   State v. Blackwell, COA03-793, 7

September 2004.   In Blackwell the Court of Appeals held that

defendant’s right to a jury trial was violated because the trial

court alone found the existence of an aggravating factor and

sentenced defendant in the aggravated range when the jury did not


                                15
review or find the existence of the aggravating factor.

Blackwell, supra.

    In State v. Speight, COA03-776, 7 September 2004, the Court

of Appeals remanded aggravating range involuntary manslaughter

and driving while impaired judgments for resentencing pursuant to

Blakely, supra, for the same reasons, that the trial court alone

found the aggravating factors at sentencing and that in order for

the trial court to sentence in the aggravated range, a jury must

find the existence of aggravating factors that call for an

aggravating range sentence.    Speight, supra.

    In State v. Levar Allen, COA03-1369, 7 September 2004, the

Court of Appeals again found that the “reasoning of Blakely

applies to our criminal sentencing statute.”     The Court of

Appeals remanded this matter “to the trial court for resentencing

consistent with the holding in Blakely” because “the trial judge

unilaterally found the existence of an aggravating factor, and

thereupon, sentenced defendant in the aggravating range.”       Allen,

supra.

     Here in the instant case, the trial court committed the same
Blakely violation. The trial court unilaterally found the
existence of an aggravating factor without the factor being
reviewed by a jury and used that factor to impose two aggravating
range sentences. This matter should clearly be remanded for
resentencing pursuant to Blakely, supra.

                              CONCLUSION

    The trial court here clearly erred in this sentencing


                                  16
proceeding.   This sentence was clearly not imposed by an

impartial judge with all of the purposes of sentencing in mind.

N. C. Gen. Stat. Section 15A-1340.12.   Furthermore, the judgments

in this matter should be remanded for resentencing in compliance

with the requirements of Blakely.


    This the ________day of ______________, 20___.


                                    ________________________
                                    Samuel L. Bridges
                                    Attorney for Defendant
                                    PO Box 373
                                    Garner, NC 27529
                                    (919) 772-7440 phone
                                    (919) 779-1317 fax
                      CERTIFICATE OF SERVICE

     The undersigned hereby certifies that he has served a copy
of Defendant-Appellant’s Brief on Grady L. Balentine, Jr.
Assistant Attorney General, by either depositing a copy of the
foregoing Brief in the United States Mail, first-class, postage
prepaid, and addressed to the Office of the Attorney General at
the following address or by personal service to the delivery
address for the following:

         Grady L. Balentine, Jr.
         Assistant Attorney General
         Services to State Agencies
         9001 Mail Service Center
         Raleigh, NC 27699-9001

    This the ______ day of _______________, 20___.


                                     _________________________
                                     Samuel L. Bridges




                                17

				
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