An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 ure.

NO. COA04-150


Filed: 16 August 2005


v .                         Caldwell County
                            No. 03 CRS 050157

    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.

    TYSON, Judge.

    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 defendant's sentence.

I. Background
    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- and-fifteen pounds.
    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 deformity.
    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.
II. Issues
    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 agree.
    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 at ___.
    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.
IV. Conclusion
    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 prison.
    No Error at Trial, Sentence Vacated.
    Judges GEER and LEVINSON concur.
    Report per Rule 30(e).

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