An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-589


Filed: 02 August 2005


v .                         Durham County
                            No. 95 CRS 634

    Appeal by defendant from judgment entered 2 February 2004 by Judge Ronald L. Stephens in Durham County Superior Court. Heard in the Court of Appeals 26 January 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Amanda P. Little, for the State.

    Kevin P. Bradley for defendant-appellee.

    STEELMAN, Judge.

    On 19 July 1995, a jury found defendant, Willie James Wilder, guilty of assault with a deadly weapon with intent to kill inflicting serious injury for stabbing his wife nineteen times. The indictment in the matter alleged this crime took place on 1 January 1995. At his original sentencing hearing, Superior Court Judge Robert L. Farmer, determined defendant had fourteen prior record points, thus classifying him as a Level IV offender for sentencing purposes. The trial judge found there to be two aggravating factors and no mitigating factors, and determined the aggravating factors outweighed the mitigating factors. The trial judge sentenced defendant from the aggravated range of sentences to 144 to 182 months imprisonment. Defendant appealed. This Courtupheld defendant's conviction, but remanded for re-sentencing. State v. Wilder, 123 N.C. App. 789, 475 S.E.2d 741 (1996)(unpublished). This was the first appeal of this case.
    On 12 November 1996, defendant was re-sentenced to a term of 140 to 177 months imprisonment. Defendant gave notice of appeal. On 11 June 1999, the superior court determined there was no realistic possibility that a transcript of defendant's re- sentencing hearing would ever be produced. As a result, the trial court vacated defendant's sentence and ordered that a new sentencing hearing be held. On 30 June 1999, the trial court re- sentenced defendant to an aggravated range sentence of 140 to 177 months imprisonment. Defendant appealed. This Court found the trial court erred and again remanded the case for re-sentencing. State v. Wilder, 140 N.C. App. 791, 541 S.E.2d 237 (2000) (unpublished). On remand, the trial court sentenced defendant to a term of 144 to 182 months imprisonment. Defendant appealed, and this Court yet again remanded the case for re-sentencing after finding error. State v. Wilder, 159 N.C. App. 230, 582 S.E.2d 725 (2003) (unpublished).
    On 2 February 2004, Superior Court Judge Ronald L. Stephens presided over defendant's fifth sentencing hearing. He found two aggravating factors: (1) the offense was especially heinous, atrocious or cruel, and (2) the offense was done with premeditation and deliberation. The judge also found factors in mitigation, including: (1) defendant completed a drug treatment program subsequent to arrest and prior to trial; (2) he completed the DARTprogram while serving his sentence; and (3) he completed rational behavior training while serving his sentence. After determining the factors in aggravation outweighed those in mitigation, the trial judge sentenced defendant from the aggravated range to 140 to 177 months imprisonment. It is from this judgment that defendant now appeals.
    In defendant's first argument he contends the trial court was divested of jurisdiction to sentence him because the delay in holding his re-sentencing hearings following this Court's remands was unreasonable and that he was prejudiced as a result of the delays. We disagree.
    In defendant's brief he contends the trial court delayed for a total of one year, nine months, and eighteen days following this Court's remands of the case for re-sentencing in 2000 and 2003. To properly analyze defendant's argument it must be noted that this delay was not one continuous period of time, but rather two separate periods. The first period of time, constituting the bulk of the delay to which defendant refers, involves the re-sentencing following the second appeal of this case, Wilder, 159 N.C. App. 230, 582 S.E.2d 725. The judgment by this Court remanding the case for re-sentencing was certified to the Durham County Superior Court on 27 December 2000. The sentencing hearing was held on 12 June 2002. There was a delay of one year, five months and sixteen days between the date of certification and the re-sentencing hearing. However egregious this delay may be, the issue of that delay is not properly before this Court. It has long been held that where adefendant fails to raise an alleged error on direct appeal, that defendant will be deemed as having waived his right to complain about such error upon subsequent appeal. State v. Locklear, 39 N.C. App. 671, 673, 251 S.E.2d 638, 639 (1979) . Defendant is attempting to collaterally attack the trial court's jurisdiction on 12 June 2002 to re-sentence him, which is not permitted. The appropriate time to have addressed this alleged error was on direct appeal following the 12 June 2002 re-sentencing. We have carefully examined the appellant's brief from that appeal and the opinion which resulted therefrom (Wilder, 159 N.C. App. 230, 582 S.E.2d 725), and find that defendant failed to raise the issue of delay before this Court, even though he had raised the issue before the trial court. Therefore, defendant's argument that the first delay was unreasonable is not properly before this Court.
    The second period of time about which defendant complains concerns the delay between this Court's most recent remand for re- sentencing in Wilder, 159 N.C. App. 230; 582 S.E.2d 725, which was certified on 4 August 2003, and the re-sentencing hearing scheduled for 8 December 2003. The issue of whether the delay of approximately four months was unreasonable is properly before us as defendant has raised the matter on direct appeal.
    It is a generally accepted principle that a defendant must be sentenced within a “reasonable time” following their conviction or plea of guilty. State v. Absher, 335 N.C. 155, 156, 436 S.E.2d 365, 366 (1993); State v. Degree, 110 N.C. App. 638, 641, 430 S.E.2d 491, (1993). See also N.C. Const. art. I, § 18 (“[J]usticeshall be administered without favor, denial, or delay”). In order to determine whether a sentence has been entered within a reasonable time this Court must consider several factors, including: “the reason for the delay, the length of the delay, whether defendant has consented to the delay, and any actual prejudice to defendant which results from the delay.” Degree, 110 N.C. App. at 641, 430 S.E.2d at 493. We do not read Degree and the cases that follow as holding that any one of the factors is determinative, but rather that they must be considered in their totality. See e.g. State v. Lea, 156 N.C. App. 178, 180-81, 576 S.E.2d 131, 132-33 (2003).
    Here, the record is devoid of any improper purpose for such a delay. Furthermore, the delay of four months between this Court's last remand of the case and the time the sentencing hearing was scheduled was not unreasonable. This is so especially in light of the fact that defendant, not the State, requested that the sentencing hearing be delayed in order to have time to prepare.
    Next, we must consider whether defendant consented to the delay. At no time prior to the scheduled 8 December 2003 re- sentencing hearing did defendant ask that judgment be pronounced. It is not the State's burden alone to request that the trial court pronounce judgment, as a defendant is entitled to request the same himself. See Degree, 110 N.C. App. at 641, 430 S.E.2d at 493 (citing State v. Everitt, 164 N.C. 399, 403, 79 S.E. 274, 276 (1913). Thus, defendant's failure to make such a request is “tantamount to his consent” to the delay. Id. at 641-42, 430 S.E.2dat 493 (citing Miller v. Aderhold, 288 U.S. 206, 210, 77 L. Ed. 702, 705 (1933), which held that a defendant cannot complain of a delay in sentencing if he made no request for entry of judgment). Nor did defendant suffer any prejudice as a result of the delay, as he was given full credit for the time he served while awaiting his re-sentencing.
    Therefore, the four month delay in sentencing defendant was not unreasonable and the trial court was not divested of jurisdiction to sentence him.
     In defendant's second argument he contends his sentence must be vacated because the trial court erred in sentencing him from the aggravated range where the aggravating factors found were not alleged in the indictment. We disagree.
    The trial court found two aggravating factors, neither of which were alleged in the indictment. Our Supreme Court recently held that aggravating circumstances need not be specifically alleged in an indictment. State v. Allen, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (July 1, 2005) (No. 485PA04); State v. Speight, ___ N.C. ___, ___ S.E.2d ___ (2005) (July 1, 2005) (No. 491PA04). Thus, this argument is without merit.
    Defendant further argues his sentence must be vacated because the judge failed to submit the aggravating factors to the jury for determination beyond a reasonable doubt, as directed by the recent decision of the United States Supreme Court in Blakley v. Washington, ___ U.S. ___, 159 L. Ed. 2d 403 (2004). We agree.     We note that defendant raised this issue in his brief subsequent to the Supreme Court's decision in Blakely and while his case was on direct appeal. Therefore, this issue is properly before this Court. Allen, ___ N.C. at ___, ___ S.E.2d at ___.
    The trial judge committed reversible structural error by finding the aggravating circumstances in this case, rather than submitting them to a jury. Allen, ___ N.C. at ___, ___ S.E.2d ___ at ___. Such an error is reversible per se and requires this Court to remand this matter for re-sentencing in accordance with Allen and Speight. Id.
    Finally, we note that because this offense was committed on 1 January 1995, the re-sentencing of defendant shall be under the sentencing grid in effect on that date as found in 1993 N.C. Sess. Laws ch. 538, § 1. The sentencing grid currently in effect is not applicable to this crime.
    We remand this matter to the Superior Court of Durham County for a sixth sentencing hearing.
    Judges TIMMONS-GOODSON and HUDSON concur.
     Report per Rule 30(e).

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