1. Evidence--prior crimes or bad acts--assault inflicting serious injury
The trial court erred in an assault case by admitting and publishing to the jury evidence of
a prior conviction for assault inflicting serious injury, and the case is remanded for a new trial,
because: (1) the bare fact of a defendant's prior conviction would rarely, if ever, be probative of
any legitimate Rule 404(b) purpose and the facts, and it is the circumstances underlying such a
conviction that hold probative value; and (2) the bare fact of the nontestifying defendant's prior
conviction was admitted and published to the jury in the instant case after testimony had been
elicited to establish the factual basis underlying the conviction.
2. Assault--instruction--deadly weapon as a matter of law--knife
The trial court did not err or commit plain error by instructing the jury that a knife is a
deadly weapon as a matter of law for the charge of assault with a deadly weapon inflicting serious
injury given the evidence of the knife's use and the injuries produced.
3. Assault--deadly weapon inflicting serious injury--failure to instruct on lesser-
included offenses
The trial court erred by failing to instruct the jury on the lesser-included offenses of assault
with a deadly weapon and assault inflicting serious injury for the charge of assault with a deadly
weapon inflicting serious injury, because: (1) the jurors were not instructed that defendant's hands
were deadly weapons per se, but rather they were asked to determine whether defendant's hands
became deadly weapons as used in the alleged assault; (2) there was no way to ascertain what
verdict the jury might have reached had it been given an alternative which did not include the use
of a deadly weapon; and (3) assault with a deadly weapon does not require the victim to suffer
serious injury, and the victim in the instant case did not seek medical treatment nor does the
record contain any evidence of pain, blood loss, or time lost from work as a result of the injuries.
4. Assault--deadly weapon inflicting serious injury--motion to dismiss--sufficiency of
evidence
The trial court did not err by denying defendant's motion to dismiss the charge of assault
with a deadly weapon inflicting serious injury because the State's evidence, including documents
from the domestic violence hearing that were admitted as substantive evidence, tended to show
that defendant stabbed the victim five times with a knife causing wounds still visible some eight
weeks after the assault, which adequately supported an inference that defendant assaulted the
victim with a deadly weapon.
5. Kidnapping--second-degree--motion to dismiss--sufficiency of evidence--restraint
The trial court did not err by denying defendant's motion to dismiss the second-degree
kidnapping charges arising from the events of 18 November and 25 December 2002 even though
defendant contends there was insufficient evidence of restraint, because: (1) hospital staff testified
that defendant restrained the victim by refusing to allow her to seek medical treatment for a
broken arm on or around 18 November 2002; and (2) an officer also testified that on 26December 2002 the victim told him that defendant had been holding her against her will for days
and would not let her contact her family.
6. Constitutional Law--double jeopardy--assault
The trial court violated defendant's right to be free of double jeopardy when it sentenced
him in 03 CRS 79519 for both assault with a deadly weapon inflicting serious injury and assault
inflicting serious injury, and in 03 CRS 71958 for both assault inflicting serious bodily injury and
assault with a deadly weapon inflicting serious injury, because: (1) N.C.G.S. § 14-33(c)(1)
provides, just as N.C.G.S. § 14-32.4 does, that the section does not apply if the conduct is
covered under some other provision of law providing greater punishment; and (2) although the
evidence establishes assaults on two different days, it does not establish that two separate and
distinct assaults occurred on each of the dates in question as opposed to multiple injuries arising
from a single continuous transaction.
7. Sentencing--aggravating factors--failure to submit to jury
The trial court erred in an assault inflicting serious bodily injury, double assault inflicting
serious injury, double assault with a deadly weapon, and double second-degree kidnapping case
by imposing an aggravated sentence when no aggravating factor was admitted by defendant or
found by the jury. Defendant would be entitled to a new sentencing hearing if defendant were not
already awarded a new trial on other grounds.
8. Constitutional Law--effective assistance of counsel--failure to show deficiency
Defendant did not receive ineffective assistance of counsel in an assault inflicting serious
bodily injury, double assault inflicting serious injury, double assault with a deadly weapon, and
double second-degree kidnapping case by allegedly requesting the court to impose consecutive
sentences on defendant, because: (1) the record indicates that defense counsel did not, in fact,
request consecutive sentences; and (2) defendant failed to demonstrate how his counsel's
performance was deficient.
Attorney General Roy Cooper, by Special Deputy Attorney
General Karen S. Long, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Charlesena Elliott Walker, for defendant.
HUDSON, Judge.
On 7 July 2003, a grand jury in Guilford County indicted
defendant, Jerome Cannon McCoy, for three counts each of assault
inflicting serious injury, assault with a deadly weapon inflicting
serious injury, and second-degree kidnaping. At the 23 February
2004 criminal session of the Superior Court in Guilford County, the
court dismissed one count each of assault with a deadly weapon
inflicting serious injury and second-degree kidnaping. A jury
found defendant guilty of one count of assault inflicting serious
bodily injury, two counts of assault inflicting serious injury, two
counts of assault with a deadly weapon, and two counts of second-
degree kidnaping. Based on its findings of aggravating factors, the
court sentenced defendant to consecutive terms of imprisonment
totaling more than sixteen years with credit for time served.
Defendant appeals. For the reasons discussed below, we conclude
that defendant is entitled to a new trial on all charges.
The State's evidence tended to show that sometime after
Christmas 2002, Melanie Hope Hunt gave a written statement to
Greensboro police stating that defendant had severely beaten her
and restrained her against her will over the course of the past
month and half. Hunt reported that between 9 through 13 November
2002, the defendant stabbed her five times with such force that the
knife became stuck in one of her arms. She further stated that the
defendant punched her so hard that she struck a wall, leaving an
imprint and forcing the pair to move to a different motel.
Hunt told police that on 17 or 18 November 2002, the defendant
beat her in the face, and twisted her arm until it fractured. After initially refusing to take her to get medical treatment,
defendant ultimately agreed to take Hunt to a hospital in High
Point. Defendant instructed her to tell hospital staff that she
had fallen out of the attic and broken her arm and that the stab
wounds were puncture wounds she received trying to climb over a
fence. Hunt further stated that on 24 and 25 December 2002,
defendant beat her, threw her to floor on her broken arm, hit her
in the stomach and back, and whipped her legs with a belt. She
stated that on 25 December 2002 defendant would not allow her to
see her family, and threatened to beat her each time she requested
to go.
At trial, Hunt admitted writing these statements, but insisted
that they were not true. She testified that she had written them
only because she had caught the defendant in bed with another
woman, and that she had written affidavits three different times
asking the State to dismiss all the charges.
The State introduced expert medical testimony from the
physician who treated Hunt at High Point Regional Hospital on 19
November 2002. Dr. Kevin Largen testified that Hunt's fractured
arm was inconsistent with a fall from an attic, and more likely was
caused by a twisting of the bone. He also noted that Hunt had
bruises of different ages and a large abrasion on the upper part of
her right arm. Based on Hunt's inconsistent statements and her
delay in seeking treatment, Dr. Largen concluded that Hunt was a
victim of domestic violence and contacted hospital social worker
Karen Chance. Mrs. Chance testified that Hunt told her thatdefendant had been beating her regularly for the past twelve years
and that he refused to get her treatment in Greensboro because she
was a known victim of abuse at the hospitals there.
Officer S.V. Petteway of the Greensboro Police Department
testified that on 26 December 2002 Hunt approached him at the
Dollar General Store on High Point Road. He testified that as soon
as Hunt began talking to him the defendant fled the store. Hunt
told the officer that the defendant had been holding her for days,
would not let her contact her family, had beaten her constantly and
broken her arm. Officer Petteway took Hunt to her grandmother's
house in Randolph County where she was admitted into a domestic
violence shelter. Shelter manager Dolly Weeks testified that Hunt
had told her that defendant had beaten her, broken her arm, and
stabbed her five times.
[1] Defendant argues that the trial court committed reversible
error when it admitted and published to the jury evidence of a
prior conviction for assault inflicting serious injury. He
contends that the admission of such evidence was improper under
N.C.R. Evid. 404(b) and was inherently prejudicial under the
holding in State v. Wilkerson, 356 N.C. 418, 418, 571 S.E.2d 583,
583, adopting per curiam, 148 N.C. App. 310, 319, 559 S.E.2d 5, 10-
11 (2002) (Wynn, J., dissenting). We agree.
Under Rule 404(b), evidence of a defendant's other crimes,
wrongs or acts is inadmissible to show that the defendant acted in
conformity therewith, but may be admissible “for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,knowledge, identity, or absence of mistake, entrapment or
accident.” N.C. Gen. Stat. § 8C-1, Rule 404(b) (2002). In
contrast to Rule 404(b), Rule 609 allows for the admission of a
prior conviction for the limited purpose of impeaching a
defendant's credibility as a witness if the evidence of the
convictions is “elicited from the witness or established by public
record during cross-examination or thereafter.” N.C. Gen. Stat. §
8C-1, Rule 609(a) (2002).
Our courts have held that the distinction between Rule 404(b)
and Rule 609 may not be blurred. Wilkerson, 148 N.C. App at 319,
559 S.E.2d 5, 11. This distinction is crucial because “the bare
fact of a defendant's prior conviction would rarely, if ever, be
probative of any legitimate Rule 404(b) purpose; instead, it is the
facts and circumstances underlying such a conviction which hold
probative value.” Id. Further, “even if a conviction, in and of
itself, held a scintilla of probative value for Rule 404(b)
purposes, the inherent prejudicial effect of such a conviction
would substantially outweigh its probativity, mandating its
exclusion under Rule 403.” Id. at 319-20, 559 S.E.2d at 11.
In Wilkerson, “testimony [from two law enforcement officers]
concerning defendant's prior crimes . . . was admitted under Rule
404(b) to show defendant's intent and knowledge with respect to the
charged drug offenses.” Id. at 323, 559 S.E.2d at 13. A deputy
clerk of court then testified that defendant had prior convictions
on several drug charges. Id. at 311, 559 S.E.2d at 6. The trial
court admitted both the officers' and the clerk's testimony underRule 404(b). The defendant did not testify or present evidence.
Id. at 312, 559 S.E.2d at 6. In his dissent, adopted by our
Supreme Court, Judge Wynn noted that the defendant must be granted
a new trial because:
admitting the bare fact of a defendant's prior
conviction, except in cases where our courts
have recognized a categorical exception to the
general rule . . ., violates Rule 404(b) . . .
as well as Rule 403, as the bare fact of a
prior conviction is inherently prejudicial
such that any probative value of the
conviction is substantially outweighed by the
danger of unfair prejudice.
Id. at 327-328, 559 S.E.2d 5, 16 (emphasis supplied).
Here, the State elicited the testimony of Greensboro Police
Officer Wall, who described the underlying facts of an assault
committed by the defendant upon Hunt in 1995. However, he did not
testify that this assault resulted in a criminal conviction.
Following Officer Wall's testimony, the State introduced a
certified copy of defendant's criminal conviction for assault
inflicting serious injury resulting from the events described by
Officer Wall. The trial court admitted both the testimony and the
exhibit under Rule 404(b). Defendant did not testify.
While the trial court properly admitted Officer Wall's
testimony under Rule 404(b), it erred in admitting the evidence of
defendant's prior conviction pursuant to Rule 404(b). As in
Wilkerson, the bare fact of a non-testifying defendant's prior
conviction was admitted and published to the jury under Rule 404(b)
after testimony had been elicited to establish the factual basis
underlying that conviction. Because we are unable to distinguishthis case from Wilkerson, we conclude that the trial court
committed prejudicial error entitling defendant to a new trial.
Although we grant defendant a new trial as discussed above, we
also address defendant's other assignments of error which could
arise in a new trial.
[2] Defendant next contends that the trial court erred when it
instructed the jury, in case No. 03 CRS 51797 (“Count Two”), that
a knife is a deadly weapon as a matter of law for the charge of
assault with a deadly weapon inflicting serious injury arising out
of the events of 6 November 2002. Defendant did not to object to
these instructions, but he did assign plain error to them.
Accordingly, we review this assignment of error under the plain
error standard. State v. Lowe, 150 N.C. App. 682, 685, 564 S.E.2d
313, 315 (2002).
The plain error review requires this Court to review
“fundamental errors or defects in jury instructions affecting
substantial rights, which were not brought to the attention of the
trial court.” To obtain relief under this rule, the defendant
“must show that the omission was error, and that, in light of the
record as a whole, the error had a probable impact on the verdict.”
State v. Bell, 87 N.C. App. 626, 634-35, 362 S.E.2d 288, 293
(1987).
The defendant contends that it was improper to instruct the
jury that a knife was a deadly weapon as a matter of law. A deadly
weapon is not one that must kill, but rather one that is likely to
cause death or great bodily harm. State v. Jones, 353 N.C. 159,164, 538 S.E.2d 917, 922 (2000). The definition of “deadly weapon”
can encompass most knives, but evidence in each case determines
whether a specific knife is properly characterized as lethal.
State v. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725-26
(1981).
“Whether a weapon is deadly is generally a decision for the
court . . . .” State v. Roper, 39 N.C. App. 256, 257, 249 S.E.2d
870, 871 (1978). Only “where the instrument, according to the
manner of its use or the part of the body at which the blow is
aimed, may or may not be likely to produce such results, its
allegedly deadly character is one of fact to be determined by the
jury.” State v. Joyner, 295 N.C. 55, 64-65, 243 S.E. 2d 367, 373-
74 (1978) (internal citations omitted) (discussing a Pepsi-Cola
bottle). “It has long been the law of this state that '[w]here the
alleged deadly weapon and the manner of its use are of such
character as to admit of but one conclusion, the question as to
whether or not it is deadly . . . is one of law, and the Court must
take the responsibility of so declaring.'” State v. Torain, 316
N.C. 111, 119, 340 S.E.2d 465, 470 (1986) (quoting State v. Smith,
187 N.C. 469, 470, 121 S.E. 737, 737 (1924)), cert. denied 479 U.S.
836, 93 L. Ed. 2d. 77 (1986) (emphasis in original omitted).
At trial, the State introduced statements made by Hunt during
the restraining order proceedings, in which she stated that on or
about 2 November through 5 November 2002, “Jerome McCoy stabbed me
twice on my right upper arm, twice on my right leg . . . and once
on my left (upper arm) [and] the knife got stuck in that arm.” Shelter manager Dolly Weeks testified that these wounds were still
visible on 26 December 2002. Defendant presented no conflicting
evidence as to the nature of the knife or its manner of use.
Taking the evidence of the knife's use and the injuries produced,
we cannot conclude the trial court committed error, let alone plain
error, when it instructed the jury that the knife used by defendant
was a deadly weapon as a matter of law.
[3] Defendant also argues that the court erred when it failed
to instruct the jury in 03 CRS 51798 on the lesser included
offenses of assault with a deadly weapon and assault inflicting
serious injury for the charge of assault with a deadly weapon
inflicting serious injury for the events of 18 November 2002. We
agree.
A trial judge is required to “submit lesser included offenses
as possible verdicts, even in the absence of a request by the
defendant, where sufficient evidence of the lesser offense was
presented at trial.” Lowe, 150 N.C. App. at 686, 564 S.E.2d at
316. In Lowe, on facts similar to those here, this Court held that
it was plain error for the trial judge not to submit misdemeanor
assault as a lesser included offense of assault with a deadly
weapon inflicting serious injury. Id. at 687, 564 S.E.2d at 316.
The court in Lowe held that where the weapon used by the defendant
could not properly be considered deadly as a matter of the law, the
trial court should have given the jury the option to convict of an
offense that did not require a deadly weapon. Id. Here, the State presented evidence that tended to show that on
or around 18 November 2002 defendant used his hands to twist Hunt's
arm until it broke. The jurors were not instructed that
defendant's hands were deadly weapons per se, but rather they were
asked to determine whether defendant's hands became deadly weapons
as used in the alleged assault on Hunt. Consequently, “[t]here is
simply no way to ascertain what verdict the jury might have reached
had they been given an alternative which did not include the use of
a deadly weapon.” State v. Bell, 87 N.C. App. at 635, 362 S.E.2d
at 293 (holding that the failure to instruct on the lesser included
offense of misdemeanor assault inflicting serious injury
constituted plain error).
The court also erred by omitting from the instructions on the
events of 18 November 2002, the lesser included offense of assault
with a deadly weapon, which does not require that the victim suffer
serious injury. A defendant “is entitled to an instruction on
lesser included offenses if the evidence would permit a jury
rationally to find him guilty of the lesser offense and acquit him
of the greater.” State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d
922, 924 (2000). “[W]hether a serious injury has been inflicted
depends upon the facts of each case and is generally for the jury
to decide under appropriate instructions.” State v. Hedgepeth, 330
N.C. 38, 53, 409 S.E.2d 309, 318 (1991), cert. denied, 529 U.S.
1006, 146 L. Ed. 2d 223 (2000). “Pertinent factors for jury
consideration include hospitalization, pain, blood loss, and time
lost at work.” State v. Woods, 126 N.C. App. 581, 592, 486 S.E.2d255, 261 (1997). Here, Hunt did not seek medical treatment
(allegedly because defendant would not allow her to do so), and the
record does not contain any evidence of pain, blood loss or time
lost from work as a result of her injuries. Because the jury could
rationally have found defendant guilty of assault with a deadly
weapon, the court erred by not instructing on that offense.
[4] Defendant also argues that the trial court erred when it
denied his motion to dismiss the charge of assault with a deadly
weapon inflicting serious injury for the events of 6 November 2002.
We disagree.
The standard of review on a motion to dismiss is well
established. When ruling on a motion to dismiss the trial court
must determine whether the State has introduced substantial
evidence of each essential element of the crime and of the
defendant being the perpetrator. State v. Smith, 357 N.C. 604,
615-16, 588 S.E.2d 453, 461 (2003), cert. denied, 124 U.S. 2915,
159 L.Ed.2d 819 (2004) (internal citations and quotation marks
omitted). Substantial evidence is such relevant evidence that a
reasonable mind would find adequate to support a conclusion. Id.
In reaching its decision, the trial court must consider the
evidence in the light most favorable to the State giving the State
the benefit of every reasonable inference. Id.
Defendant argues that the State presented no substantive
evidence that the knife was a dangerous or deadly weapon, which is
an essential element of assault with a deadly weapon inflicting
serious injury. See N.C. Gen. Stat. § 14-32(b) (2003). Instead,defendant maintains that the only evidence of the nature of the
knife and its manner of use was in the prior inconsistent
statements of Hunt which were not offered as substantive evidence.
The State's evidence, including the documents from the domestic
violence hearing which were admitted as substantive evidence,
tended to show that the defendant stabbed Hunt five times with a
knife causing wounds still visible some eight weeks after the
assault. This evidence could adequately support an inference by
the jury that the defendant assaulted Hunt with a deadly weapon.
Thus, the court did not err in denying the defendants motion to
dismiss the charge of assault with a deadly weapon inflicting
serious injury.
[5] Defendant also argues that the trial court erred in
denying his motion to dismiss the second-degree kidnaping charges
arising from the events of 18 November (03 CRS 071958) and 25
December 2002 (03 CRS 071959). We disagree.
The defendant's contention based on insufficiency of the
evidence of restraint also fails. See State v. Smith, 160 N.C.
App. 107, 119, 584 S.E.2d 830, 838 (2003) (“The offense of
kidnaping is established upon proof of an unlawful, nonconsensual
restraint, confinement or removal of a person from one place to
another, for the purpose of: (1) holding the person for ransom, as
a hostage or using them as a shield; (2) facilitating flight from
or the commission of any felony; or (3) terrorizing or doing
serious bodily harm to the person. See G.S. § 14-39(a).”) Again
defendant argues that the only evidence on this point was in theprior inconsistent statements of Hunt, which were not substantive
evidence. However, staff from High Point Regional Hospital
testified that defendant restrained Hunt by refusing to allow her
to seek medical treatment for a broken arm on or around 18 November
2002. Officer Petteway also testified that on 26 December 2002
Hunt told him that the defendant had been holding her against her
will for days and would not let her contact her family. In the
light most favorable to the State, this and other evidence was
sufficient to support the trial court's denial of defendant's
motion to dismiss the charges of second-degree kidnaping.
[6] Defendant next argues that the court violated his right to
be free of double jeopardy when it sentenced him in 03 CRS 79519
for both assault with a deadly weapon inflicting serious injury and
assault inflicting serious injury, and in 03 CRS 71958 for both
assault inflicting serious bodily injury and assault with a deadly
weapon inflicting serious injury. Again, we agree.
Double jeopardy is prohibited both by the Fifth Amendment to
the United States Constitution and by our State's common law.
State v. Ezell, 159 N.C. App. 103, 106, 582 S.E.2d 679, 682 (2003)
(citing State v. Ballard, 280 N.C. 479, 482, 186 S.E.2d 372, 373
(1972)). “The double jeopardy clause prohibits (1) a second
prosecution for the same offenses after acquittal; (2) a second
prosecution for the same offense after conviction; and (3) multiple
convictions for the same offense.” Id. Defendant contends that he
has been made subject to multiple convictions of assault for the
same offense. “In order for a defendant to be charged withmultiple counts of assault, there must be multiple assaults.”
State v. Maddox, 159 N.C. App. 127, 132, 583 S.E.2d 601, 604 (2003)
citing State v. Brooks, 138 N.C. App. 185, 189, 530 S.E.2d 849, 852
(2000)). “This requires evidence of 'a distinct interruption in
the original assault followed by a second assault.'” Id. at 132,
583 S.E.2d at 604-05 (quoting Brooks, 138 N.C. App. at 189, 530
S.E.2d at 852).
The charges which defendant contends subjected him to double
jeopardy are assault inflicting serious injury (pursuant to N.C.
Gen. Stat. § 14-32.4) and assault with a deadly weapon inflicting
serious injury (pursuant to N.C. Gen. Stat. § 14-32) for offenses
on 6 November 2002, and assault inflicting serious injury and
assault with a deadly weapon inflicting serious injury for offenses
on 19 November 2002. The evidence tended to show that on 6
November defendant stabbed and beat the victim and threw her into
a wall, while on 19 November, defendant struck the victim with his
hands causing multiple bruises and abrasions and twisted her arm
until it broke. In Ezell, the defendant was, as a result of a
single incident, sentenced for assault with a deadly weapon with
intent to kill inflicting serious injury under N.C. Gen. Stat. §
14-32(b) and assault inflicting serious bodily injury under N.C.
Gen. Stat. § 14-32.4. This Court first observed that N.C. Gen.
Stat. § 14-32.4 “makes an assault inflicting serious bodily injury
a Class F felony 'unless the conduct is covered under some other
provision of law providing greater punishment.'” Ezell, 159 N.C.
App. at 110, 582 S.E.2d at 684 (quoting N.C. Gen. Stat. § 14-32.4). Because defendant's conviction under N.C. Gen. Stat. § 14-32(b)
provided for greater punishment than N.C. Gen. Stat. § 14-32.4,
this Court held that the trial court “cannot convict and sentence
[a defendant] for both §§ 14-32 and 14-32.4 for the same conduct
without violating the double jeopardy provisions of the United
States and North Carolina constitutions.” Id. at 111, 582 S.E.2d
at 685.
In this case, with respect to 18 November 2002, defendant was
convicted of assault with a deadly weapon inflicting serious injury
under N.C. Gen. Stat. § 14-32(b) and assault inflicting serious
bodily injury under N.C. Gen. Stat. § 14-32.4. This is precisely
the same scenario found in Ezell. As for 6 November 2002,
defendant was convicted of assault with a deadly weapon inflicting
serious injury under N.C. Gen. Stat. § 14-32(b) and misdemeanor
assault inflicting serious injury under N.C. Gen. Stat. § 14-
33(c)(1). Because N.C. Gen. Stat. § 14-33(c)(1) provides--just as
§ 14-32.4 does--that the section should not apply if the “conduct
is covered under some other provision of law providing greater
punishment,” the 6 November 2002 charges come under Ezell as well.
Thus, we conclude we are bound by Ezell.
Here, we conclude that the evidence does establish assaults on
two different days. However, it does not establish that two
separate and distinct assaults occurred on each of the dates in
question, as opposed to multiple injuries arising from a single
continuous transaction. Thus, the evidence supported one assault
conviction per day. [7] Defendant also argues that the court erred in imposing an
aggravated sentence when no aggravating factor was alleged in the
indictment, admitted by defendant, or found by the jury. In light
of our Supreme Court's decision on this issue in State v. Allen,
359 N.C. 425, __ S.E.2d __ (2005) overruling State v. Lucas, 353
N.C. 568, 598, 548 S.E.2d 712, 732 (2001), we agree.
In Allen, our North Carolina Supreme Court considered the
application of Blakely v. Washington, 542 U.S. 296, __, 159 L. Ed.
2d 403, 412 (2004) to our State's Structured Sentencing Act. N.C.
Gen. Stat. § 15A-1340 et seq. (2001). The Court held that:
The United States Supreme Court has made clear
that the Sixth Amendment requires aggravating
sentencing factors, like elements, to be found
by a jury beyond a reasonable doubt. Blakely,
___ U.S. at ___, ___, 159 L. Ed. 2d at 413-14,
420. (See footnote 5) However, under North
Carolina's current structured sentencing
scheme, aggravating factors are completely
withheld from jury review and are determined
by a judge by a preponderance of the evidence.
N.C.G.S. § 15A-1340.16. No impartial jury
considers a defendant's evidence, arguments,
and defenses during sentencing, id., even when
the aggravating factors advanced by the State
are highly subjective in nature or disputed by
the defendant. Moreover, aggravating factors
are found to exist by a low standard of proof:
a preponderance of the evidence. Id.
Allen, 359 N.C. at 444, __ S.E.2d at __. The Court also concluded
that “the harmless-error rule does not apply to sentencing errors
which violate a defendant's Sixth Amendment right to jury trial
pursuant to Blakely. Such errors are structural and, therefore,
reversible per se.” Id. at 444, __ S.E.2d at __.
Here, the court sentenced defendant to the maximum aggravated
range terms of imprisonment based on its finding of two aggravatingfactors: “the defendant committed the offense while on pretrial
release for another charge” and “long and severe history of
domestic violence perpetrated by Defendant on victim Melanie Hunt
(12 years).” Even if we were not awarding defendant a new trial,
he would be entitled to a new sentencing hearing on this basis.
[8] Defendant also argues that he received ineffective
assistance of counsel in connection with his sentencing. We
disagree.
“To establish ineffective assistance of counsel a defendant
must first show that his defense counsel's performance was
deficient.'” State v. Poindexter, 359 N.C. 287, 290-91, 608 S.E.2d
761, 764 (2005) (citing Strickland v. Washington, 466 U.S. 668,
687, 80 L. Ed. 2d 674, 693 (1984)). Defendant contends that his
trial counsel requested that the court impose consecutive sentences
on defendant, an action for which defendant asserts his counsel
could not have had a valid reason. The record indicates that
defense counsel did not, in fact, request consecutive sentences.
Instead, he asked that defendant's four convictions for Class F
felonies be consolidated into a single mitigated sentence, to be
followed by one consolidated “intermediate sentence” pursuant to
N.C. Gen. Stat. § 7A-771 (3a) which would include anger management
treatment, but no active jail time. Because defendant does not
demonstrate how his defense counsel's performance was deficient, we
conclude that this assignment of error has no merit.
Defendant also assigns error to the court's use of the
disjunctive in instructing the jury on the charge of assault witha deadly weapon inflicting serious injury in 03 CRS 71957. Because
we have awarded defendant a new trial on other grounds, we do not
address this assignment of error.
New trial.
Judges HUNTER and GEER concur.
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