State v Burch, (04-1082) 08/02/2005

Appeal by defendant from judgment entered 6 November 2003 by Judge Susan C. Taylor in Cabarrus County Superior Court. Heard in the Court of Appeals 9 March 2005.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Brent D. Kiziah, for the State.

Don Willey for defendant-appellant.

HUNTER, Judge.

    Leon Adam Burch (“defendant”) appeals from judgments dated 6 November 2003 entered consistent with a plea of guilty to charges of robbery with a dangerous weapon and assault with a deadly weapon inflicting serious injury. For the foregoing reasons, we find no error in defendant's sentence.
    The evidence tends to show that on 29 June 2003, defendant fired a shotgun at Dennis Mutts (“Mutts”) from the passenger window of the vehicle in which he was traveling, injuring Mutts. The evidence also tends to show that on 8 August 2003, defendant, along with two other individuals, entered and robbed the Quick Cash Pawn Shop in Kannapolis at gunpoint.    Defendant was indicted by the grand jury on charges of robbery with a dangerous weapon, assault with a deadly weapon with intent to kill inflicting serious injury, and discharging a firearm into an occupied dwelling. Pursuant to a plea agreement, defendant pled guilty to robbery with a dangerous weapon and the lesser included offense of assault with a deadly weapon inflicting serious injury, and the charge of discharging a weapon into an occupied dwelling was dismissed. Defendant further stipulated to a prior record level of 2, and to the existence of an aggravating factor, that defendant joined with more than one other person in committing the offense and was not charged with committing conspiracy. The trial court consolidated the charges and sentenced defendant in the aggravated range to 94 to 122 months. Defendant appeals.
    Defendant contends the trial court improperly entered an aggravated sentence in violation of defendant's constitutional rights. Before reaching the merits, this Court must first consider whether it has the authority to hear defendant's appeal. N.C. Gen. Stat. § 15A-1444(a1) (2003) states in pertinent part that:
        A defendant who has . . . entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the issue of whether his or her sentence is supported by evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record or conviction level and class of offense.

Id.     Defendant contends that his aggravated sentence was improper as the evidence of the aggravating factor was not alleged norproven. As defendant was sentenced in the aggravated range, he therefore has a right of appeal before this Court.
    The State further contends that defendant failed to properly preserve this error for appeal, as no objection was made to the imposition of the aggravated sentence. However, N.C. Gen. Stat. § 15-1446(d)(18) (2003) states that:
            (d)    Errors based upon any of the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection, exception or motion has been made in the trial division.

            . . .

            (18)    The sentence imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law.

Id. Defendant contends that the imposition of an aggravated sentence when the aggravating factor was not alleged in the indictment or proven to a jury is a violation of his federal Sixth Amendment rights. Thus, defendant's failure to preserve the issue at trial does not bar its consideration by this Court. We therefore consider the merits of defendant's assignment of error.
    Defendant, relying on recent holdings by the United States Supreme Court in Blakely v. Washington, 542 U.S. ___, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000), contends that the trial court lacked jurisdiction to sentence him in the aggravated range, as the aggravating factor used by the trial court was not alleged in the indictment, and the factor was not presented and proven to a jury beyond a reasonabledoubt. Defendant argues that imposition of such a sentence violates his Sixth Amendment right to trial by jury.
    Our Supreme Court, in the case of State v. Allen, ___ N.C. ___, ___ S.E.2d ____ (No. 485PA04 filed 1 July 2005), recently held that Blakely applies to the North Carolina Structured Sentencing Act, and that sentencing facts which increase the penalty for a crime beyond the statutory maximum must be either found by “the jury's verdict or admitted by the defendant, without additional judge-made findings of fact.” Allen, ___ N.C. at ___, ___ S.E.2d at ___ (slip op. 11). The Court in Allen recognized, however, that “under Blakely the judge may still sentence a defendant in the aggravated range based upon the defendant's admission to an aggravating factor enumerated in N.C.G.S. § 15A-1340.16(d).” Id. at ___, ___ S.E.2d at ___ (slip op. 21). Allen further clarified that sentencing factors which might lead to a sentencing enhancement do not have to be alleged in the indictment. Id. at ___, ___ S.E.2d at ___ (slip op. 20) (specifically overruling State v. Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001)).
    Thus, as a review of the record shows that defendant stipulated to the aggravating factor used by the trial court in the imposition of an aggravated sentence, and as our Supreme Court has held an aggravating factor does not have to be alleged in the indictment, we find the trial court did not err in entering an aggravated sentence.
    Affirmed.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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