An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced
NORTH CAROLINA COURT OF APPEALS
Filed: 16 August 2005
STATE OF NORTH CAROLINA
No. 03 CRS 050157
RICHARD ALEXANDER FILL
Appeal by defendant from judgment entered 1 October 2003 by
Judge Beverly T. Beal in Caldwell County Superior Court. Heard in
the Court of Appeals 21 October 2004.
Attorney General Roy Cooper, by Special Deputy Attorney
General William P. Hart and Assistant Attorney General Karen
A. Blum, for the State.
William B. Gibson, for defendant-appellant.
Richard Alexander Fill (defendant) appeals from judgment
entered after a jury found him to be guilty of assault inflicting
serious bodily injury.
We find no error at trial, but vacate
The State's evidence tended to show defendant and Tina Bryant
(Bryant) had been dating for eleven months. On 24 January 2003,
Bryant went to defendant's house around 7:30 p.m. She had left her
youngest daughter at a friend's house and checked on her oldest
daughter at home. After Bryant arrived, defendant began accusing
her of arriving late due to taking drugs. Bryant denied
defendant's accusation. When Bryant would not admit taking drugs,defendant punched her in the face six to seven times. He continued
to accuse her of taking drugs while he beat her. Bryant began
bleeding from cuts to her face and suffered a broken nose.
Defendant is six-feet-four-inches tall and weighed two-hundred-and-
twenty pounds. Bryant is five-feet tall and weighed one-hundred-
When defendant stopped beating Bryant, she asked him to take
her to the hospital to get treated for the bleeding and facial
swelling. Defendant refused to take her. Instead, defendant made
Bryant take a shower to wash away the blood and put her in bed.
Defendant rolled her onto her side when he became concerned that
she would choke on her own blood.
Bryant left defendant's house early the next morning while
defendant slept. She drove to a coworker's house, who took Bryant
home. Bryant's oldest daughter drove her to the hospital. Bryant
initially told the nurses she was in an all-terrain vehicle
accident. When questioned later by the police, she admitted that
defendant had beaten her.
Doctors determined Bryant suffered multiple fractures,
swelling, bruises, and lacerations to her face. Bryant's nose was
broken, both eyes were swollen shut, and bones in her face had been
shattered. Bryant underwent four surgeries to insert titanium
plates and screws to stabilize the facial bones and wire her jaw
shut. Testimony during trial indicated Bryant could have died from
her injuries and would permanently suffer from nerve damage aroundone eye, loss of muscle function, numbness, and persistent facial
On 25 January 2003, the day after the beating, defendant was
arrested and charged with violating N.C. Gen. Stat. § 14-32.4,
Assault Inflicting Serious Bodily Injury. During an interview
with a sheriff's deputy, defendant admitted to the altercation.
Defendant was indicted by a grand jury on that same charge on 10
March 2003. The prosecution also filed a bill of information
alleging defendant assaulted Bryant inflicting serious bodily
injury on 29 September 2003. That day, the 10 March 2003
indictment was dismissed.
At trial, the jury returned a verdict of guilty for the charge
of assault inflicting serious bodily injury. The trial court
determined defendant had attained prior record level II for
sentencing. It found two non-statutory aggravating factors and
entered judgment in the aggravated range, imposing a minimum
sentence of twenty-three months and a maximum of twenty-eight
months with credit for 151 days spent in confinement prior to date
of judgment. Defendant appeals.
The sole issue on appeal is whether defendant's federal and
State constitutional rights were violated when the trial court, not
the jury, found aggravating factors and imposed a jail term beyond
the statutory presumptive range.
III. Aggravated Sentencing
Defendant asserts the trial court erred by sentencing him in
the aggravated range based on findings made by the trial court, not
the jury, in violation of his rights under the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution and Article
I, Sections 11, 19, and 23 of the North Carolina Constitution. We
Our Supreme Court recently addressed and ruled on this issue
in State v. Allen, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (July 1,
2005) (No. 485PA04) and State v. Speight, ___ N.C. ___, ___, 614
S.E.2d 262, 265 (2005). In vacating the defendant's aggravated
sentence in Allen, the Supreme Court held [o]ther than the fact of
a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed presumptive range must be submitted to a jury
and proved beyond a reasonable doubt. ___ N.C. at ___, ___ S.E.2d
The Court later stated in Speight, the rationale in Allen
applies to all cases in which (1) a defendant is constitutionally
entitled to a jury trial, and (2) a trial court has found one or
more aggravating factors and increased a defendant's sentence
beyond the presumptive range without submitting the aggravating
factors to a jury. ___ N.C. at ___, 614 S.E.2d at 264.
Here, the trial court determined defendant had two prior
convictions and classified defendant as prior record level II. The
trial court then found two aggravating factors: (1) defendant has
not expressed any remorse, has repudiated prior statment [sic] to
officer which included some admission of wrongdoing; and (2)defedent [sic] increased suffering of victim by hendering [sic]
her receiving prompt medical care when he had the opportunity and
means to diminish suffering and fear normally associated with
serious bodily injury which he inflicted. The trial court
sentenced defendant in the aggravated range to a minimum of twenty-
three months, maximum of twenty-eight months.
Based on our Supreme Court's holding in Allen and Speight, the
trial court erred by sentencing defendant in the aggravated range
without submission to or a finding by the jury beyond a reasonable
doubt of factors to support the aggravated sentence. Allen, ___
N.C. at ___, ___ S.E.2d at ___; Speight, ___ N.C. at ___, 614
S.E.2d at 265. Defendant's sentence is vacated. Normally, we
would remand for resentencing. However, we judicially notice that
with 151 days jail credit, defendant has completed his sentence and
was released from prison on 7 July 2005. Remanding for
resentencing is unnecessary.
The trial court erred by sentencing defendant in the
aggravated range without submitting those aggravating factors to
the jury to be proven beyond a reasonable doubt. We vacate
defendant's sentence. Remand for resentencing is unnecessary since
defendant has served his sentence and has been released from
No Error at Trial, Sentence Vacated.
Judges GEER and LEVINSON concur.
Report per Rule 30(e).
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