[1] On appeal, Defendant first contends that because he
received an imprisonment sentence based on an aggravated factor
neither submitted to a jury nor proved beyond a reasonable doubt,
his sentence is in violation of
Apprendi v. New Jersey and
Blakely
v. Washington, and is therefore invalid as a matter of law.
In
Apprendi v. New Jersey, the United States Supreme Court
held that “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury and proved beyond a
reasonable doubt.” 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455
(2000).
The Supreme Court of North Carolina interpreted
Apprendi
in
State v. Lucas, and held that the statutory maximum for purposes
of
Apprendi was the longest sentence a defendant could receive at
the highest prior record level for a particular class of offense.
353 N.C. 568, 596, 548 S.E.2d 712, 731 (2001),
overruled on other
grounds by State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005). The United States Supreme Court defined statutory maximum for
applying the
Apprendi rule in
Blakely v. Washington, 542 U.S. 296,
159 L. Ed. 2d 403 (2004). The
Blakely Court held that “the
'statutory maximum' for
Apprendi purposes is the maximum sentence
a judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant.”
Blakely, 542 U.S.
at 303, 159 L. Ed. 2d at 413. Thus, “the relevant 'statutory
maximum' is not the maximum sentence a judge may impose after
finding additional facts, but the maximum he may impose without any
additional findings.”
Id. at 303-04, 159 L. Ed. 2d at 413-14.
The Supreme Court of North Carolina examined the
constitutionality of North Carolina's Structured Sentencing Act in
light of
Apprendi and
Blakely in
Allen, 359 N.C. 425, 615 S.E.2d
256. In
Allen, our Supreme Court concluded that “those portions of
N.C.G.S. § 15A-1340.16 (a), (b), and (c) which require trial judges
to consider evidence of aggravating factors not found by a jury or
admitted by the defendant and which permit imposition of an
aggravated sentence upon judicial findings of such aggravating
factors by a preponderance of the evidence” are unconstitutional.
Id. at 438-39, 615 S.E.2d at 265. The Court held, “
Blakely errors
arising under North Carolina's Structured Sentencing Act are
structural and, therefore, reversible
per se.”
Id. at 444, 615
S.E.2d at 269. However, the
Allen Court made clear that its
holdings applied only to those cases “in which the defendants have
not been indicted as of the certification date of this opinion and
to cases that are now pending on direct review or are not yetfinal.”
Id. at 427, 615 S.E.2d at 258 (internaal citation and
quotation omitted). The
Allen opinion was certified on 21 July
2005
.
In this case, Defendant pled guilty to burglary, larceny, and
habitual felon status, and was sentenced to a single term of
imprisonment within the aggravated range based upon the trial
judge's finding the victim was physically infirm. On direct
appeal, Defendant challenged the sufficiency of the evidence to
support the trial judge's finding, and this Court filed its opinion
affirming the trial court's judgment on 18 November 2003.
Defendant did not seek discretionary review of this Court's opinion
in the Supreme Court of North Carolina. Thus, Defendant's case
became final on 23 December 2003, the date his time expired for
seeking discretionary review of this Court's opinion.
See N.C. R.
App. P. 15(b) (providing that the time for filing a petition for
discretionary review expires fifteen days after the mandate of this
Court has issued);
see also State v. Zuniga, 336 N.C. 508, 512 n.1,
444 S.E.2d 443, 445 n.1 (1994) (noting that “final” meant “a case
in which a judgment of conviction has been rendered, the
availability of appeal exhausted, and the time for petition for
certiorari elapsed or a petition for
certiorari finally denied[.]”
(citation omitted)).
Although this Court allowed Defendant's
petition for writ of
certiorari on 30 November 2004, Defendant's
case was pending before this Court on collateral review, not direct
review.
Because Defendant's conviction was already final when
Allen was certified on 21 July 2005, and our Supreme Court heldthat
Allen only applies to cases that were pending on direct review
or were not yet final as of the certification date of the
Allen opinion, we find no error in the trial court's denial of
Defendant's motion for appropriate relief.
See Allen, 359 N.C. at
427, 615 S.E.2d at 258.
[2] In his final argument on appeal, Defendant contends the
trial court erroneously denied his request for a new trial based on
ineffective assistance of appellate counsel which violated his
constitutional rights.
(See footnote 3)
Specifically, Defendant argues that his
appellate counsel failed to challenge the constitutionality of the
trial court imposing a sentence in excess of the presumptive range
that was neither submitted to the jury, nor proved beyond a
reasonable doubt in violation of
Apprendi, 530 U.S. at 490, 147
L.Ed. 2d. at 455, and
Ring v. Arizona, 536 U.S. 584, 609, 153 L.
Ed. 2d 556, 576-77 (2002). Defendant's arguments are without
merit.
To show ineffective assistance of appellate counsel, Defendant
must meet the same standard for proving ineffective assistance of
trial counsel.
Smith v. Robbins, 528 U.S. 259, 285, 145 L.Ed. 2d
756, 780 (2000). The United States Supreme Court outlined a
two-part test in
Strickland v. Washington to determine if an
ineffective assistance of counsel claim has merit: First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
'counsel' guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693,
reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984). Our Supreme
Court adopted the
Strickland test in
State v. Braswell, 312 N.C.
553, 324 S.E.2d 241 (1985).
Defendant contends
he received ineffective assistance due to
counsel's failure to raise an issue on appeal based upon
Apprendi
and
Ring. As discussed above, in
Apprendi, the United States
Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury and
proved beyond a reasonable doubt.” 530 U.S. at 490, 147 L. Ed. 2d
at 455.
In
Ring, the United States Supreme Court held that the
Sixth Amendment requires a jury, not a judge, to find aggravating
circumstances necessary to impose the death penalty.
536 U.S. at
609, 153 L. Ed. 2d at 576-77.
At the time Defendant filed his direct appeal in this Court on
27 February 2003, the prevailing law in North Carolina and many
jurisdictions was that the rules of
Apprendi and
Ring did not apply
to aggravating factors in non-capital cases.
See, e.g., Lucas, 353
N.C. at 596, 548 S.E.2d at 730-31;
see also Blakely 542 U.S. at __n.1, 159 L. Ed. 2d at 424 n.1 (O'Connor, J., dissenting) (outlining
a number of cases concluding that
Apprendi did not apply to
aggravating factors in non-capital cases).
But see State v. Gould,
23 P.3d 801 (Kan. S.C. 2001).
In light of the number of arguably reasonable jurists
rejecting the notion that
Apprendi and
Ring had any effect on non-
capital sentencing prior to
Blakely, we hold that it was well
within reason for Defendant's appellate counsel not to pursue this
issue on appeal. Our holding is consistent with other
jurisdictions that have found no ineffective assistance of counsel
in similar circumstances.
See, e.g., United States v. Carew, 140
Fed. Appx. 15, 18 (10th Cir. 2005) (holding that even after
Apprendi was decided, “counsel's failure to predict
Booker's
constitutional and remedial holdings is not objectively
unreasonable”);
State v. Febles, 210 Ariz. 589, 597, 115 P.3d 629,
637 (2005) (holding that “[c]ounsel's failure to predict future
changes in the law, and in particular the
Blakely decision, is not
ineffective because clairvoyance is not a required attribute of
effective representation.” (citation omitted));
State v.
Vlahopoulos, __ Ohio App. 3d __, __ N.E.2d __ (No. 82035) (16 Aug
2005) (holding that “[a]ppellate counsel cannot be required to
anticipate future changes in the law and argue such potential
changes on appeal.”).
Similarly, Defendant's argument that appellate counsel should
have pursued his case through our Supreme Court and to the United
States Supreme Court is also without merit. A criminal defendanthas no right to counsel past the initial appeal.
Ross v. Moffitt,
417 U.S. 600, 612, 41 L. Ed. 2d 341, 352 (1974). Thus, a defendant
cannot base an ineffective assistance of counsel claim on the
failure of appellate counsel to pursue an appeal past the initial
appeal.
Wainwright v. Torna, 455 U.S. 586, 587-88, 71 L. Ed. 2d
475, 477-78 (1982) (holding that where there is no constitutional
right to counsel for a discretionary appeal there can be no
ineffective assistance of counsel for failing to seek discretionary
review). Because Defendant's appellate counsel acted reasonably in
not raising an issue under
Apprendi and
Ring where courts had
rejected similar claims, and there is no constitutional right to
counsel for a discretionary appeal, Defendant's assignment of error
is rejected.
Affirmed.
Chief Judge MARTIN and Judge STEPHENS concur.
Footnote: 1