Appeal by defendant from judgment dated 9 July 2004 by Judge
E. Penn Dameron in Superior Court, Henderson County. Heard in the
Court of Appeals 11 October 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Joseph Finarelli, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for defendant-appellant.
Sonya Case Harris (defendant) was indicted on 8 October 2001on a charge of second-degree murder of David Boyd (Boyd).
Defendant's case was joined for trial with those of Harlan Ponder
and Jason Ponder (collectively, the Ponders). Defendant and the
Ponders were convicted by a jury of second-degree murder. The
trial court found three aggravating factors and sentenced defendant
in the aggravated range to a term of imprisonment of 276 months to
341 months. Defendant appealed the conviction and sentence. In an
unpublished opinion, our Court affirmed defendant's conviction but
remanded for resentencing. State v. Ponder, 163 N.C. App. 613, 594
S.E.2d 258 (2004).
At the resentencing hearing on 6 July 2004, the trial court
found two aggravating factors and again sentenced defendant in the
aggravated range to a term of imprisonment of 276 months to 341
months. Defendant appeals.
Defendant, the Ponders, and Boyd were involved in a fight in
the presence of Boyd's girlfriend and Robert Banks (Banks) on 22
July 2001. Banks testified that defendant attempted to kick Boyd
in the face, after which the Ponders hit Boyd until he lost
consciousness and fell to the ground, hitting his head. Boyd
regained consciousness and defendant and the Ponders resumed
beating him. After Boyd lost and regained consciousness a second
time, defendant and the Ponders kicked and stomped on Boyd's ribs.
The Ponders then dragged Boyd to a nearby field, while defendant
grabbed Boyd's girlfriend and threatened her with a knife. Boyd
died as a result of a head injuries that caused bleeding inside
Boyd's skull. Boyd also suffered two fractured ribs, fractured ribcartilage, and cuts on his back.
At the resentencing hearing, defendant testified on her own
behalf and admitted that she kicked Boyd, smacked and punched him
in the face, and made multiple cuts on Boyd's back with a knife.
Defendant denied asking the Ponders to assault Boyd or to otherwise
come to her defense. Defendant also denied that she ever joined
the Ponders while they kicked and beat Boyd. The State asked the
trial court to find three aggravating factors: (1) that defendant
was armed with a deadly weapon at the time of the offense; (2) that
defendant joined with more than one other person in committing the
offense and was not charged with conspiracy; and (3) that defendant
induced the Ponders to participate in the offense or occupied a
position of leadership over them. Defense counsel disputed that
defendant induced the Ponders to participate or occupied a position
of leadership over them. Defense counsel did not dispute the
existence of the two other aggravating factors. Defense counsel
advised the trial court that none of the statutory mitigating
factors applied to defendant, but defense counsel asked the trial
court to consider defendant's children:
I would just suggest to the Court that
[defendant] does have these two kids. And I
don't think that anyone is going to stand up
and try to say, and I don't think she would
tell the Court, that she was mother of the
year. I mean, she acknowledged that she used
drugs, she acknowledged she abused alcohol. Tough -- tough to be a parent under the best
of circumstances. Certainly tough if you're
Defense counsel stated that the father of defendant's children was
deceased but was corrected by defendant that he was alive.
The trial court found two aggravating factors: (1) that
defendant was armed with a deadly weapon at the time of the
offense; and (2) that defendant joined with more than one other
person in committing the offense and was not charged with
conspiracy. The trial court then stated that he "would not find
the existence of any mitigating factors" and that the aggravating
factors were sufficient to outweigh any mitigating factors that
Defendant argues four assignments of error, which we will
address as two issues: (I) whether the trial court erred in
imposing a sentence in the aggravated range and (II) whether
defendant was deprived of the effective assistance of counsel.
 Defendant argues that the trial court erred in imposing a
sentence in the aggravated range, where that sentence was based on
factors neither (1) pled in an indictment, (2) found by a jury
beyond a reasonable doubt, nor (3) admitted by defendant.
The State contends defendant failed to preserve this issue for
our Court's review because defendant did not object to the trial
court's imposition of an aggravated sentence. N.C.R. App. P.10(b)(1) ("In order to preserve a question for appellate review, a
party must have presented to the trial court a timely request,
objection or motion[.]"). However, our Court has held that "[a]n
error at sentencing is not considered an error at trial for the
purpose of Rule 10(b)(1) because this rule is 'directed to matters
which occur at trial and upon which the trial court must be given
an opportunity to rule in order to preserve the question for
appeal.'" State v. Curmon
, 171 N.C. App. 697, 703, 615 S.E.2d 417,
422 (2005) (quoting State v. Hargett
, 157 N.C. App. 90, 93, 577
S.E.2d 703, 705 (2003)); see also State v. Jeffery
, 167 N.C. App.
575, 605 S.E.2d 672 (2004); State v. Canady
, 330 N.C. 398, 410
S.E.2d 875 (1991). Accordingly, despite defendant's failure to
object to the sentence, the issue is properly before this Court.
 Defendant argues that in the absence of an indictment
alleging the aggravating factors, the trial court lacked
jurisdiction to impose a sentence in the aggravated range.
Defendant cites State v. Lucas
, 353 N.C. 568, 548 S.E.2d 712
(2001), overruled in part by State v. Allen
, 359 N.C. 425, 615
S.E.2d 256 (2005), for the rule that any fact that increases the
maximum penalty for a crime must be alleged in an indictment.
However, our Supreme Court has overruled Lucas
to the extent it
required that sentencing factors be alleged in an indictment.
, 359 N.C. at 438, 615 S.E.2d at 265. Therefore, defendant's
argument is without merit.
 Defendant also contends that the aggravating factors used
to enhance her sentence must have been submitted to a jury andfound beyond a reasonable doubt. The United States Supreme Court
held in Blakely v. Washington
, 542 U.S. 296, 159 L. Ed. 2d 403
(2004), that aggravating factors that would increase a defendant's
sentence above that authorized by a jury verdict must be found
beyond a reasonable doubt by a jury. This Sixth Amendment
principle was applied to North Carolina's structured sentencing
scheme in Allen
. However, Allen
provides that a trial court,
without a jury, "may still sentence a defendant in the aggravated
range based upon [a] defendant's admission to an aggravating factor
enumerated in N.C.G.S. § 15A-1340.16(d)." Allen
, 359 N.C. at 439,
615 S.E.2d at 265.
In the present case, the trial court sentenced defendant in
the aggravated range based upon two statutory aggravating factors:
(1) defendant was armed with a deadly weapon at the time of the
offense; and (2) defendant joined with more than one other person
in committing the offense and was not charged with conspiracy. See
N.C. Gen. Stat. § 15A-1340.16(d) (2003). Since the trial court did
not submit the issue of aggravating factors to a jury, the query
for our Court is whether defendant admitted to the aggravating
factors. If defendant did not admit to the aggravating factors,
the trial court's finding of the aggravating factors was error.
does not provide guidance as to the form a defendant's
admission must take in order to constitute a valid waiver of a
defendant's constitutional right to a jury determination of
aggravating factors. However, this Court has stated that a waiver
of a constitutional right under Blakely
must be madeknowingly and intelligently. In State v. Meynardie
, 172 N.C. App.
127, 616 S.E.2d 21 (2005), for example, our Court held:
Since neither Blakely
decided at the time of defendant's sentencing
hearing, defendant was not aware of his right
to have a jury determine the existence of the
aggravating factor. Therefore, defendant's
stipulation to the factual basis for his plea
was not a "knowing [and] intelligent act
done with sufficient awareness of the relevant
circumstances and likely consequences."
at 131, 616 S.E.2d at 24 (quoting Brady v. United States
397 U.S. 742, 748, 25 L. Ed. 2d 747, 756 (1970)); see State v.
, 174 N.C. App. 165, 620 S.E.2d 272 (2005); State v.
, 172 N.C. App. 829, 617 S.E.2d 319 (2005)
; State v.
, 172 N.C. App. 234, 616 S.E.2d 237 (2005).
Moreover, in light of Blakely
, the North Carolina
General Assembly enacted Session Law 2005-145 (the Blakely
which requires that an admission to a statutory aggravating factor
take the same form as a defendant's guilty plea. The Blakely
requires a trial court to advise a defendant that "[h]e or she is
entitled to have a jury determine the existence of any aggravating
factors[.]" 2005 N.C. Sess. Laws ch. 145, § 4. Moreover,
"[b]efore accepting an admission to the existence of an aggravating
factor . . ., the [trial] court shall determine that there is a
factual basis for the admission, and that the admission is the
result of an informed choice by the defendant." Id
. Although the
bill is effective only for offenses committed on or after
30 June 2005, and we are not bound by it, we find the General
Assembly's language instructive on this issue. The State argues that defendant admitted to the first
aggravating factor, being armed with a deadly weapon at the time of
the offense. Defendant testified at the resentencing hearing as
Q. Did you at any point use the knife or
threaten to use the knife regarding Mr. Boyd?
Did you threaten him with the knife?
A. No, I didn't threaten him with the knife.
Q. Did you at some point, either before all
this took place or after it took place, take
that knife that you carried with you and make
marks on the back of Mr. Boyd as are shown in
this photograph that the Judge has?
A. Yes, I did.
Q. Okay. Where did you do that?
A. On his back.
Q. When did you do that?
A. After _- when I was fighting with [Boyd's
girlfriend] and I was coming back up the bank,
[the Ponders] hollered, let's go, the police
is going to be coming. And they [were]
already going through the field and they
hollered for me to leave. And [Boyd] was
laying there in the field and I done it.
As for the second aggravating factor, defendant denied that
she joined with more than one other person in committing the
offense. The State contends that despite defendant's denial,
defense counsel admitted the existence of both aggravating factors.
The State contends that defendant stipulated to the second
aggravating factor through a statement made by defense counsel at
the sentencing hearing. The relevant portion of the sentencing
hearing transpired as follows: [STATE]: Your Honor, the State would like to
argue to the Court pursuant to 15A-1340.16,
Subpart D, that there are aggravating factors
in this case and that those include, Nos. 1,
that the person of [defendant] occupied a
position of leadership or dominance of the
other participants in the commission of this
. . . .
We'd argue that the second aggravating factor
concerning joining with more than one other
person and not being charged with conspiracy
applies in this instant. . . .
And Subpart 10, that the defendant was armed
with a deadly weapon at the time of the
crime[.] . . .
The State would argue that the Court could use
any one of those in order to find mitigating
-- or the aggravating range appropriate here.
And we request that the Court do so.
THE COURT: All right. Mr. Newman.
[DEFENSE COUNSEL]: Thank you. Your Honor, really, I don't think there's a dispute as to
[aggravating factors] Nos. 2 [that defendant joined with
more than one other person in committing the offense,]
and 10 [that defendant was armed with a deadly weapon].
I mean, there's just no reason to say anything about
those. That was the finding before [at the first
sentencing hearing]. And I mean, Mr. Ellis is right,
that does reflect the evidence at the trial.
. . . .
I would just ask the Court to -- that if you
find 2 and 10, that No. 1, I think, would
actually be open to some dispute there.
. . . .
[DEFENSE COUNSEL]: Did you want to say
anything, Ms. Harris?
[DEFENDANT]: I would like to apologize.
. . . .
[THE COURT]: . . . Based on the evidence thatI've heard, Miss Harris, I would find by the
standard of proof required at this sentencing
hearing, that you did participate in this
crime with the involvement of more than one
other person, but were not charged with a
conspiracy involved in the commission of this
The trial court also found that defendant was armed with a deadly
The State contends that defense counsel's concession that
there was no dispute as to two of the aggravating factors amounts
to an admission or stipulation of those factors, and therefore
does not apply. The State, citing State v. Mullican
N.C. 683, 406 S.E.2d 854 (1991), argues that North Carolina courts
have permitted such concessions by a defense attorney to serve as
stipulations to facts necessary to support aggravated sentences.
, our Supreme Court held that a defendant stipulated to
evidence supporting the finding of an aggravating factor where the
defendant did not object during the State's summary of the evidence
and defense counsel made a statement consistent with the State's
, 329 N.C. at 686, 406 S.E.2d at 855-56. Since
, this Court has held that a defendant may impliedly
stipulate to the presence of aggravating factors through statements
by counsel. In State v. Sammartino
, 120 N.C. App. 597, 463 S.E.2d
307 (1995), we held that where the defendants' attorneys did not
rebut the State's recitation of a codefendant's statement about an
aggravating factor, but instead used the statement to argue against
the aggravating factor, we could "infer that [the] defendants
consented to the prosecutor's recitation of the factual basis andthe reading of the codefendant's statement." Id.
at 601, 463
S.E.2d at 310. See State v. Jackson
, 119 N.C. App. 285, 458 S.E.2d
235 (1995) (holding that a defense counsel's statements at a
pretrial hearing amounted to an admission of prior convictions as
an aggravating factor)
and the related cases cited by the State are
inapplicable to the present case because those cases were decided
. In light of Blakely
relevant inquiry for this Court is not whether defendant stipulated
to the factual basis for a finding of an aggravating factor by the
trial court, but rather whether defendant effectively waived her
constitutional right to have a jury determine the existence of any
aggravating factor. See Meynardie
, 172 N.C. App. at 130, 616
S.E.2d at 24; Wissink
, 172 N.C. App. at 838, 617 S.E.2d at 325;
, 172 N.C. App. at 246, 616 S.E.2d at 243. A valid waiver
of the constitutional right to a jury trial must be knowing and
, 297 U.S. at 748, 25 L. Ed. 2d at 456; see
State v. Harbison
, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985).
A defendant must be "sufficient[ly] aware of the relevant
circumstances and likely consequences" of a waiver. Brady
U.S. at 748, 25 L. Ed. 2d at 756.
In the present case, the record is void of any evidence that
defendant, defense counsel, or the trial court was aware of the
consequences of statements made by defense counsel or defendant at
the sentencing hearing. There is no discussion in the record that
concessions or stipulations would be tantamount to a waiver ofdefendant's right to a jury trial under Blakely
, which was decided
only six working days prior to defendant's resentencing hearing.
We hold that there is no factual basis upon which to find that
any stipulation by defendant or counsel was a knowing and
intelligent waiver of the right to have a jury determine the
existence of any aggravating factors. Accordingly,
we remand for
a second resentencing. At the resentencing hearing, the State
bears the burden of proving to a jury, beyond a reasonable doubt,
the existence of any aggravating factors unless defendant admits to
the existence of any aggravating factors. Any waiver by defendant
of the right to a jury trial as to aggravating factors must be a
knowing and intelligent surrender of that right under Blakely
 Defendant next argues she was deprived of effective
assistance of counsel on two grounds: (1) her attorney was
apparently ignorant of the Blakely
decision and (2) her attorney
failed to make a reasoned argument in support of a mitigated range
sentence. However, defendant offers the first ground as an
alternative argument: in the event we find an objection was
necessary under Rule (10)(b)(1) to preserve defendant's right to
appeal her aggravated sentence, defendant contends that counsel's
failure to object, in ignorance of Blakely
, constituted ineffective
assistance of counsel. Since we hold that no objection was
necessary to preserve defendant's right to appeal, we need not
address defendant's first ground. Generally, assistance of counsel is deemed ineffective when a
defendant shows that "counsel's performance was deficient" and that
"the deficient performance prejudiced the defense." Strickland v.
, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). The
first part of this standard requires that a defendant show "that
counsel's representation fell below an objective standard of
. at 688, 80 L. Ed. 2d at 693. The second part
of the standard "requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable." Id
. at 687, 80 L. Ed. 2d at 693. Our Supreme
Court has interpreted this to mean that a defendant must show that
"'absent the deficient performance by defense counsel, there would
have been a different result at trial.'" State v. Rogers
, 355 N.C.
420, 449-50, 562 S.E.2d 859, 878 (2002) (quoting State v.
, 346 N.C. 443, 455, 488 S.E.2d 194, 201 (1997), cert.
, 522 U.S. 1078, 139 L. Ed. 2d 757 (1998), and cert. denied
354 N.C. 579, 559 S.E.2d 551 (2001)).
Defendant argues her counsel's failure to advocate for
mitigating factors, as well as counsel's statements about
aggravating factors, fell below an objective standard of
reasonableness. However, defendant presents no argument that
counsel's deficient performance prejudiced the outcome of the
proceeding. We note that in certain circumstances, the deficiency
of a counsel's performance is so great that prejudice need not be
argued. United States v. Cronic
, 466 U.S. 648, 658, 80 L. Ed. 2d
657, 667 (1984). For example, in State v. Davidson
, 77 N.C. App.540, 335 S.E.2d 518 (1985), this Court found that a defendant
received ineffective assistance at sentencing where the defense
counsel's statement to the trial court began, "'Your Honor, every
now and then you get appointed in a case where you have very little
to say and this is one of them.'" Id
. at 545, 335 S.E.2d at 521.
As the defense counsel continued, he implied that the defendant had
provided false information, informed the trial court of the
defendant's prior conviction, and disparaged the defendant for
refusing a plea bargain. Id
. Upon review, our Court found the
counsel's statement was
altogether lacking in positive advocacy.
Counsel offered no argument in defendant's
favor, made no plea for findings of mitigating
factors, . . . failed to suggest any favorable
or mitigating aspects of defendant's
background, and failed even to advocate
leniency. More significant, the
representation consisted almost exclusively of
commentary entirely negative to defendant.
Unlike the facts of Davidson
, defense counsel's performance in
the present case is not "
altogether lacking in positive advocacy
. Here, defendant's counsel asked the trial court for a
mitigated sentence, contested one of the aggravating factors found
at the initial sentencing hearing, and identified mitigating
aspects of defendant's personal history. This performance by
defense counsel was not so deficient that prejudice need not be
argued. See Conic
, 466 U.S. at 658, 80 L. Ed. 2d at 667. With no
allegation of prejudice, defendant has failed to meet her burden
under the second part of the Strickland
, 466U.S. at 687, 80 L. Ed. 2d at 693. This assignment of error is
Remanded for resentencing.
Judges WYNN and GEER concur.
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