State v Brown, (05-217) 01/17/2006

Appeal by defendant from judgments entered 21 May 2003 by Judge John O. Craig in Stokes County Superior Court. Heard in the Court of Appeals 27 December 2005.

Attorney General Roy A. Cooper, III, by Assistant Attorney General John P. Scherer, II, for the State.

Teeter Law Firm, by Kelly Scott Lee, for defendant-appellant.

JACKSON, Judge.

    On 20 May 2003, Calvin Lamonte Brown (“Defendant”) entered an Alford plea to charges of first-degree burglary, assault with a deadly weapon with intent to kill inflicting serious injury, assault inflicting serious bodily injury, assault with a deadly weapon inflicting serious injury, and conspiracy to commit assault with a deadly weapon inflicting serious injury. The trial court found three factors in aggravation under North Carolina General Statutes, section 15A-1340.16(d) (2003), and five factors in mitigation. After finding that the aggravating factors outweighed the mitigating factors, the trial court imposed sentences in the aggravated range for each of the five offenses. Defendant thengave notice of appeal in open court.
    On appeal, defendant's counsel requested that this Court conduct its own review of the record for possible prejudicial error pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985). See, State v. Brown, 165 N.C. App. 270, 598 S.E.2d 263 (2004). Counsel only included sufficient documents in that record on appeal to enable this Court to review two of defendant's five judgments. Brown, 165 N.C. App. at 272, 598 S.E.2d at 265. After finding no possible prejudicial errors in those two judgments (03 CRS 50233 and 50284), this Court remanded the cause for appointment of new appellate counsel to bring forward defendant's appeal of right from the three remaining judgments (03 CRS 1379, 50234, and 50276). Id. at 272-73, 598 S.E.2d at 265. The trial court subsequently appointed the Office of the Appellate Defender to represent defendant, and defendant's appointed counsel has perfected his appeal from those three judgments.
    Defendant contends the trial court erred by sentencing him in the aggravated range in violation of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). He argues the matter before this Court must be remanded for resentencing because he did not admit the facts used by the trial court to find the three aggravating factors, nor did a jury find those facts. We agree.
    “[A]ny fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt[,]” other than facts admitted by thedefendant or the fact of a prior conviction. State v. Allen, 359 N.C. 425, 437, 615 S.E.2d 256, 265 (2005). Because defendant's case is now pending on direct review, the holding in Allen is applicable to it. See id. at 450, 615 S.E.2d at 272. Neither of the exceptions to Allen and Blakely are applicable to the three aggravating factors found by the trial court, so all three judgments must be remanded for resentencing in accordance with Blakely and Allen. Defendant has abandoned his remaining assignment of error. N.C. R. App. P. 28(b)(6).
    Remanded for resentencing.
    Judges WYNN and CALABRIA concur.
    Report per Rule 30(e).

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