State v Brown, (04-970) 08/02/2005

Appeal by defendant from judgment entered 25 March 2002 by Judge Susan Chandler Taylor in Iredell County Superior Court. Heard in the Court of Appeals 9 March 2005.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Ted R. Williams and Assistant Attorney General Lori A. Kroll, for the State.

William B. Gibson for defendant-appellant.

    HUNTER, Judge.

    Marshall Lee Brown, Jr. (“defendant”) appeals from a judgment dated 25 March 2002 entered consistent with a plea of no contest to a charge of second degree murder. For the reasons stated herein, we find no merit in the appeal.
    The evidence tends to show that in the early morning hours of 29 December 1996, defendant came to a disabled van parked on Railroad Avenue. Four other individuals were in the van, including Steven Calhoun (“Calhoun”) and David Brown (“Brown”). Defendant, seated in the front passenger seat, took out a gun and fired it at Calhoun, seated immediately behind him in the rear passenger seat. Calhoun later died from the gunshot. Brown attempted to obtain theweapon from defendant, who tried to shoot Brown during the struggle. At the time of the offense, defendant was a fugitive who had escaped from prison in April 1996 while serving a sentence for second degree murder. Defendant fled after the incident, but was arrested in July 1999.
    Defendant was indicted by the grand jury on the charge of first degree murder. Pursuant to a plea agreement, defendant pled no contest to the lesser offense of second degree murder. Defendant further stipulated to a prior record level of 3, and to the existence of an aggravating factor, that defendant knowingly created a risk of death to more than one person by means of a weapon or device which could normally be hazardous to the lives of more than one person. The trial court sentenced defendant in the aggravated range to 240 to 297 months. Defendant appeals.
    The issue in this case is an appeal pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967). In Anders, the United States Supreme Court held that a defendant's counsel must “support his client's appeal to the best of his ability[,]” but that “if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court[.]” Anders, 386 U.S. at 744, 18 L. Ed. 2d at 498. The Court additionally specified that such a request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” and that “the court -- not counsel -- then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.” Id.    Defendant's appointed counsel submits they have been unable to find any meaningful argument for relief on appeal, and asks that this Court conduct its own review of the record for possible prejudicial error. We find that defendant's counsel has fully complied with the requirements of Anders v. California, and has identified in the filed brief one assignment of error which might arguably support the appeal. Therefore, pursuant to Anders, this Court now determines, after a full examination of the proceedings, whether the appeal is wholly frivolous or has some merit. See State v. Kinch, 314 N.C. 99, 106, 331 S.E.2d 665, 669 (1985).
    Counsel raises the issue of defendant's aggravated sentence for this Court's consideration. Counsel contends the imposition of an aggravated sentence, where defendant stipulated to the aggravating factor, is not a violation of defendant's federal Sixth Amendment rights. After full consideration of the entire proceedings, we agree and find the appeal to be wholly frivolous.
    Our Supreme Court, in the case of State v. Allen, ___ N.C. ___, ___ S.E.2d ____ (No. 485PA04 filed 1 July 2005), recently held that the United States Supreme Court decision in Blakely v. Washington, 542 U.S. ___, 159 L. Ed. 2d 403 (2004), applies to the North Carolina Structured Sentencing Act and, therefore, judge-made findings of fact may not be used to increase the penalty for a crime beyond the statutory maximum. Allen, ___ N.C. at ___, ___ S.E.2d at ___ (slip op. 18). The Court in Allen recognized, however, that “under Blakely the judge may still sentence a defendant in the aggravated range based upon the defendant'sadmission to an aggravating factor enumerated in N.C.G.S. § 15A-1340.16(d).” Id. at ___, ___ S.E.2d at ___ (slip op. 21).
    Here, a careful review of the record reveals that defendant stipulated to the statutory aggravating factor used by the trial court in sentencing defendant in the aggravated range. Therefore, we find no error as defendant's sentence beyond the statutory maximum was not based on judge-made findings of fact, but upon defendant's own admission.
    Upon our examination of the full proceedings, we find defendant's appeal to be wholly frivolous.
    Affirmed.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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