1. Criminal Law--writ of certiorari--guilty plea--factual basis
The Court of Appeals treated defendant's appeal from the trial court's alleged improper
acceptance of his guilty plea in a felonious breaking and entering case as a writ of certiorari and
found no error, because: (1) the sworn testimony of the arresting officer was sufficient to support
the factual basis for defendant's plea; and (2) the testimony of the officer provided an overview of
the evidence which would have established the essential elements of felony breaking and entering.
2. Sentencing--aggravating factor not submitted to jury--Blakely error
The trial court erred in a felony breaking and entering case by sentencing defendant in the
aggravated range without submitting to the jury the aggravating factor that the trial court found
that defendant was armed with a deadly weapon at the time of the crime, and the case is remanded
for resentencing.
3. Sentencing--prior record level--elements of present offense included in prior
offense_finding by trial court_no Blakely error
Defendant is not entitled to resentencing in a felony breaking and entering case even
though the trial court itself found pursuant to N.C.G.S. § 15A-1340.14(b)(6) that all the elements
of the present offense are included in a prior offense, because: (1) neither Blakely v. Washington,
542 U.S. 296 (2004), nor State v. Allen, 359 N.C. 425 (2005), preclude the trial court from
assigning a point in the calculation of one's prior record level where all the elements of the
present offense are included in a prior offense; and (2) the exercise of assigning a point for the
reason set forth in N.C.G.S. § 15A-1340.14(b)(6) is akin to the trial court's determination that
defendant had in fact been convicted of certain prior offenses and is not something that increases
the statutory maximum within the meaning of Blakely or Allen.
Attorney General Roy Cooper, by Assistant Attorney General
Kathryn J. Thomas for the State.
Douglas L. Hall, for defendant.
LEVINSON, Judge.
Defendant (Carl Ray Poore, Jr.) appeals from judgment entered
upon his plea to one count of felony breaking and entering.
Defendant has not appealed from other judgments and commitments
related to the events of 26 January 2003. We remand for
resentencing.
Defendant pled guilty to breaking and entering pursuant to
N.C.G.S. § 14-54(a). The trial court heard the sworn testimony of
the arresting officer of the Alleghany County Sheriff's Department.
On 26 January 2003, the officer was investigating a burglar alarm
call at Meadow Fork Road when a second call came in of a break-in
at a residence one mile away. The officer saw a white pickup truck
parked on the side of the road near the second residence. A
license plate check on the pickup truck revealed that the truck was
registered in Cana, Virginia to defendant. The officer observed
jewelry and boxes in the truck. Footprints in the snow led up to
the residence where a window was broken. During a search of the
residence, the officer found defendant underneath a bed with a
stolen rifle lying next to him. According to the officer,
defendant had “already been through the house and [was] fixing to
take the VCR.” The officer arrested defendant and “charged him
with breaking and entering, second degree burglary because of it
[being] dark at this second residence and [he] had to use a
flashlight, and charged him with felony possession of stolen
property.” The trial court found, as an aggravating factor, that
the defendant “was armed with a deadly weapon at the time of thecrime[,]” and imposed an aggravated sentence of 24 to 29 months
imprisonment. From this judgment, defendant appeals.
On appeal defendant argues (1) there was an insufficient
factual basis to support the entry of plea, (2) he is entitled to
resentencing under Blakely v. Washington, because the trial court
itself found an aggravating factor, and (3) he is entitled to
resentencing under Blakely because the trial court itself found,
pursuant to N.C.G.S. § 15A-1340.14(b)(6)(2003), that “all the
elements of the present offense are included in [a] prior
offense[.]”
[1] We first address defendant's argument that there was an
insufficient factual basis supporting the entry of his plea.
Preliminarily, we note that defendant has no appeal of right as to
this issue. See State v. Bolinger, 320 N.C. 596, 601, 359 S.E.2d
459, 462 (1987) (“[A] defendant is not entitled as a matter of
right to appellate review of his contention that the trial court
improperly accepted his guilty plea.”). However, according to this
Court's analysis in State v. Rhodes, 163 N.C. App. 191, 193, 592
S.E.2d 731, 732 (2004), we find “[defendant's] arguments may be
reviewed pursuant to a petition for writ of certiorari. We choose
to treat defendant's appeal as a petition for writ of certiorari,
which we now allow.” Therefore, we address the merits of
defendant's first argument.
The elements of felonious breaking and entering under N.C.G.S.
§ 14-54(a) are “(1) the breaking or entering, (2) of any building,(3) with the intent to commit any felony or larceny therein.”
State v. Walton, 90 N.C. App. 532, 533, 369 S.E.2d 101, 103 (1988).
N.C.G.S. § 15A-1022 (2003), governing the requirements for
entry of a plea, provides in pertinent part:
(c) The judge may not accept a plea of guilty
or no contest without first determining that
there is a factual basis for the plea. This
determination may be based upon information
including but not limited to:
. . . .
(4) Sworn testimony, which may include
reliable hearsay.
In interpreting this statute, our Supreme Court has held:
The statute “does not require the trial judge
to elicit evidence from each, any or all of
the enumerated sources . . . .”
. . . .
The statute, if it is to be given any meaning
at all, must contemplate that some substantive
material independent of the plea itself appear
of record which tends to show that defendant
is, in fact, guilty.
State v. Sinclair, 301 N.C. 193, 198-99, 270 S.E.2d 418, 421-22
(1980)(quoting State v. Dickens, 299 N.C. 76, 79, 261 S.E.2d 183,
185 (1980)).
In the instant case, the sworn testimony of the arresting
officer was offered to support the factual basis for defendant's
plea. The testimony of the officer provided an overview of the
evidence which would have established the essential elements of
felony breaking and entering. We conclude this testimony wassufficient to establish a factual basis for the offense of felony
breaking and entering. This assignment of error is overruled.
____________________________________
[2] Defendant next argues that, because the trial court
sentenced him in excess of the statutory maximum based on an
aggravating factor not found by a jury beyond a reasonable doubt or
admitted by defendant, he is entitled to a new sentencing hearing
under Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, reh'g
denied, __ U.S. __, 159 L. Ed. 2d 851 (2004). We agree.
Defendant's sentence was aggravated based on a finding that
the defendant “was armed with a deadly weapon at the time of the
crime.” The trial court sentenced defendant in the aggravated
range to a term of 24 to 29 months. The aggravating factor was not
found beyond a reasonable doubt by a jury and was not admitted by
defendant. Therefore, in conformity with the rulings in Blakely
and State v. Allen, 359 N.C. 425, ___ S.E.2d ___ (No. 485PA04)
(filed 1 July 2005), we must remand for resentencing.
___________________________________
[3] We address defendant's final argument because it may recur
on remand. Defendant contends it was Blakely error for the trial
court, when determining defendant's prior record level, to assign
a point because “all the elements [of the] present offense [are]
included in a prior offense[]” as provided in G.S. § 15A-
1340.14(b)(6). Defendant argues that, because the jury did not
make such a “finding” beyond a reasonable doubt and he did not
admit to the same, the trial court committed error. We disagree. G.S. § 15A-1340.14, pertaining to the calculation of a
defendant's prior record level for sentencing, provides in
pertinent part:
(a) Generally. -- The prior record level of a
felony offender is determined by calculating
the sum of the points assigned to each of the
offender's prior convictions that the court
finds to have been proved in accordance with
this section.
(b) Points. -- Points are assigned as follows:
. . . .
(6) If all the elements of the present
offense are included in any prior
offense for which the offender was
convicted, whether or not the prior
offense or offenses were used in
determining prior record level, 1
point.
In applying Blakely to North Carolina's structured sentencing
scheme, our Supreme Court in Allen held:
We emphasize that Blakely, which is grounded
in the Sixth Amendment right to jury trial,
affects only those portions of the Structured
Sentencing Act which require the sentencing
judge to consider the existence of aggravating
factors not admitted to by a defendant or
found by a jury and which permit the judge to
impose an aggravated sentence after finding
such aggravating factors by a preponderance of
the evidence.
. . . .
[We] hold that, to the extent N.C.G.S. § 15A-
1340.16 (a), (b), and (c) require trial judges
to find aggravating factors by a preponderance
of the evidence section 15A-1340.16 violates
Blakely.
Allen, 359 N.C. at __, __ S.E.2d at __. Allen, in applying Blakely to North Carolina, did not hold
that the functions assigned to the trial court by virtue of G.S. §
15A-1340.14 are constitutionally infirm. See id. Moreover,
Blakely itself specifically excepted from its holding a
determination made during sentencing that an individual has certain
prior conviction(s). We conclude that neither Blakely nor Allen
preclude the trial court from assigning a point in the calculation
of one's prior record level where “all the elements of the present
offense are included in [a] prior offense.” See G.S. § 15A-
1340.14(b)(6). This is true even though the same has neither been
found by the jury beyond a reasonable doubt nor admitted by the
defendant. The exercise of assigning a point for the reason set
forth in G.S. § 15A-1340.14(b)(6) is akin to the trial court's
determination that defendant had in fact been convicted of certain
prior offenses, and is not something that increases the “statutory
maximum” within the meaning of Blakely or Allen. This assignment
of error is overruled.
Remanded.
Judges McGEE and HUNTER concur.
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