STATE OF NORTH CAROLINA
v
.
Guilford County
No. 00 CRS 34978
VERNELLE LAFARRIS BULLOCK, SR.
Roy A. Cooper, III, Attorney General, by Amy C. Kunstling,
Assistant Attorney General, for the State.
Staples Hughes, Appellate Defender, by Daniel R. Pollitt and
Kelly D. Miller, Assistant Appellate Defenders, for defendant.
MARTIN, Chief Judge.
On 28 September 2000, defendant was found guilty by a jury of
attempted first degree murder and possession of a firearm by a
felon; he thereafter pled guilty to having attained the status of
an habitual felon. The charges arose out of an incident occurring
on 29 April 2000 when defendant went to the home of his former wife
and shot her four times. The trial court entered judgments
sentencing defendant to a minimum of 313 months and a maximum of
385 months for attempted first degree murder; and a consecutive
sentence, as an habitual felon, of a minimum of 110 months and a
maximum of 141 months for possession of a firearm by a felon.
Defendant appealed. By an opinion filed 3 December 2002, a panel of this Court
found no error with respect to defendant's conviction of possession
of a firearm by a felon and his plea to having attained status as
an habitual felon. State v. Bullock, 154 N.C. App. 234, 246, 574
S.E.2d 17, 24 (2002), disc. review denied, 357 N.C. 64, 579 S.E.2d
396, cert. denied, ___ U.S. ___, 157 L. Ed. 2d 231 (2003). With
respect, however, to defendant's conviction of attempted first
degree murder, this Court held that “because the indictment lacked
the phrase 'malice aforethought,' it failed to properly allege the
crime charged.” Bullock, 154 N.C. App. at 244, 574 S.E.2d at 23.
Relying on the holding in State v. Rainey, 154 N.C. App. 282, 283,
574 S.E.2d 25, 26, disc. review denied, 356 N.C. 621, 575 S.E.2d
520 (2002), “that attempted voluntary manslaughter is (1) a crime
in North Carolina, and, (2) a lesser-included offense of attempted
first-degree murder,” this Court arrested judgment on defendant's
conviction of attempted first degree murder and remanded the case
for entry of judgment of guilty of the lesser included offense of
attempted voluntary manslaughter, and re-sentencing, since “the
jury found defendant to have been guilty of all elements of
attempted first degree murder, including specific intent, but” the
indictment failed to support that offense. Bullock, 154 N.C. App.
at 245-46, 574 S.E.2d at 24.
Upon remand, defendant's trial counsel was permitted to
withdraw due to defendant's dissatisfaction with his services and
new counsel was appointed. At defendant's re-sentencing hearing,
the victim testified that as a result of defendant's attack, shelost permanent sight in her left eye, requiring a prosthesis and
preventing her from driving at night; suffers from severe headaches
and seizures in her legs; can only open and close her right hand;
is unable to cook because she cannot feel her right side and fears
burning herself; and has short term memory problems. In addition,
she testified that her children have suffered because their father
told them that he did not shoot her, and so she had to “battle with
them knowing that I was telling the truth.”
After hearing the evidence, the trial court sentenced
defendant
for the crime of attempted voluntary
manslaughter, Class E offense, however
enhanced to the sentence Class C as habitual
felon, prior record Level IV. The Court,
after reviewing the opinion and the factual
basis from the Court of Appeals opinion and
hearing from the victim in this case, will
elect to find aggravating factor No. 19, the
serious and permanent debilitating injury, and
would elect under these circumstances to
sentence him in the aggravated range to 167 to
210 months. The Court would note that the
other sentence ran at the expiration of this
sentence. The Court would, of course, give
him credit on this first sentence for any time
served awaiting this hearing.
The trial court entered judgment accordingly, sentencing defendant
to a minimum term of 167 months and a maximum term of 210 months,
to begin at the expiration of defendant's sentence as an habitual
felon for possession of a firearm by a felon. Defendant again
appeals.
_____________________
Defendant argues that his conviction for attempted voluntary
manslaughter must be vacated because (1) the offense does not existunder North Carolina law, (2) the conviction was not supported by
the bill of indictment, (3) the conviction is not supported by the
evidence, and (4) the offense was never submitted to a jury. The
previous opinion of this Court in this case is dispositive of each
of those arguments. “According to the doctrine of the law of the
case, once an appellate court has ruled on a question, that
decision becomes the law of the case and governs the question both
in subsequent proceedings in a trial court and on subsequent
appeal.” State v. Boyd, 148 N.C. App. 304, 308, 559 S.E.2d 1, 3
(2002) (quoting Weston v. Carolina Medicorp, Inc., 113 N.C. App.
415, 417, 438 S.E.2d 751, 753 (1994)). The previous decision of
this Court mandating entry of judgment of conviction of attempted
voluntary manslaughter and requiring defendant's re-sentencing for
that offense is the law of the case. Therefore, these assignments
of error are overruled.
Defendant also asserts that his sentence for attempted
voluntary manslaughter was enhanced based upon an aggravating
factor found by the trial judge by a preponderance of the evidence,
rather than by a jury beyond a reasonable doubt, and therefore
violates his rights under the Sixth Amendment to the United States
Constitution. In Blakely v. Washington, the United States Supreme
Court held 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.” 542 U.S. ___, 159 L. Ed. 2d
403, 412 (2004) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490,
147 L. E. 2d 435, 455 (2000)). Our North Carolina Supreme Courtapplied the rule in Blakely to our structured sentencing scheme and
determined that “statutory maximum” is equivalent to “presumptive
range.” State v. Allen, ___ N.C.___, ___, ___ S.E.2d ___, ___
(July 1, 2005) (No. 485PA04). Further interpreting Blakely, our
Supreme Court has held that “those portions of N.C.G.S. § 15A-
1340.16.(a),(b), and (c) which require trial judges to consider
evidence of aggravating factors not found by a jury or admitted by
the defendant and which permit imposition of an aggravated sentence
upon judicial findings of such aggravating factors by a
preponderance of the evidence” violate the Sixth Amendment, id. at
___, ___ S.E.2d at ___, and that such Blakely errors are structural
errors and are, therefore, reversible per se. Id. at ___, ___
S.E.2d at ___. Because defendant's sentence for attempted
voluntary manslaughter was enhanced by an additional 34 and 41
months imprisonment based on the aggravating factor made by the
trial court, that “the victim of this offense suffered a serious
injury that is permanent and debilitating,” we must remand for a
new sentencing hearing. In light of our decision, we need not
address defendant's other arguments regarding his re-sentencing.
Remanded for a new sentencing hearing.
Judges HUDSON and JACKSON concur.
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