An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-414


Filed: 7 March 2006


    v .                     Johnston County
                            Nos. 02 CRS 6247;02 CRS 54284

    Appeal by defendant from judgment entered 19 August 2004 by Judge Knox V. Jenkins, Jr., in Johnston County Superior Court. Heard in the Court of Appeals 30 November 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Marc Bernstein, for the State.

    Jon W. Myers for defendant-appellant.

    CALABRIA, Judge.

    On 13 January 2003, Terry Lee Holder (“defendant”) pled guilty to selling cocaine and attaining the status of an habitual felon. Defendant was sentenced in the mitigated range from 80 to 105 months based upon defendant's alleged stipulation to nine prior record level points. Defendant appealed and this Court, despite affirming defendant's convictions, remanded for re-sentencing finding the record lacked proof defendant had, in fact, stipulated to eight prior record level points based upon prior convictions.   (See footnote 1)      On 19 August 2004 at defendant's re-sentencing hearing, the State introduced certified copies of defendant's two felony and four misdemeanor convictions and determined defendant's prior convictions totaled eight prior record points. The State then presented a certified copy of a document entitled “Judgment Suspending Sentence_Felony” indicating defendant committed the instant offense 22 days into a term of supervised probation for pleading guilty to an earlier transgression of financial identity fraud. Based upon this evidence, the trial court found defendant sold cocaine while he was on probation and added a ninth point to his prior record level point calculation. As a result of adding the ninth point defendant's corresponding prior record level was a level four. Without the ninth point, defendant would have received a prior record level of three. The trial court again sentenced defendant to the same mitigated range punishment of 80 to 105 month term. Defendant appeals.
    Defendant argues the trial court committed plain error in conducting a re-sentencing hearing and re-sentencing defendant prior to this Court's issuance of Holder I. We disagree. Plain error review is limited to potential errors regarding jury instructions or evidentiary issues. See State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109-10 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999). A re-sentencing hearing is neither. Thus, according to N.C. R. App. P. 10(c)(4), defendant cannot preserve this question for appellate review as it fails to amountto plain error. Furthermore, defendant failed to argue or cite to any authority as to why this alleged error amounted to plain error.
        Defendant's empty assertion of plain error, without supporting argument or analysis of prejudicial impact, does not meet the spirit or intent of the plain error rule. By simply relying on the use of the words “plain error” as the extent of his argument in support of plain error, defendant has effectively failed to argue plain error and has thereby waived appellate review.

State v. Cummings, 352 N.C. 600, 637, 536 S.E.2d 36, 61 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001) (citations omitted). This assignment of error is overruled.
    Defendant next argues the trial court committed plain error in calculating defendant's prior record level for purposes of sentencing. Defendant contends the basis for adding the ninth point was found by a judge and not a jury and furthermore, because this same basis was neither a prior conviction nor admitted to by defendant, defendant's resulting punishment as a level four and not level three offender violated Blakely v. Washington. We agree.
    As a preliminary matter, we note this question is properly before us. The State argues this appeal should be dismissed under N.C. R. App. P. 10(b)(1) because defendant failed to preserve the alleged Blakely error by not objecting during the sentencing hearing. We disagree. “An error at sentencing is not considered an error at trial for the purposes of 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, __ N.C. App. __, __, 615S.E.2d 417, 422 (2005) (emphasis added) (quoting State v. Hargett, 157 N.C. App. 90, 93, 577 S.E.2d 703, 705 (2003)). Consequently, “defendant was not required to object at sentencing to preserve this issue for appellate review.” Id. 615 S.E.2d at 422-23.
    Our Supreme Court, applying United States Supreme Court precedent advanced in both Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004) clearly stated “[o]ther than the fact of a prior conviction, any 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.” State v. Allen, 359 N.C. 425, 437, 615 S.E.2d 256, 265 (2005). “This Court has recently held that a defendant's probationary status, used to increase a defendant's prior record level, was a 'fact other than a prior conviction' and therefore was required to be submitted to a jury and proved beyond a reasonable doubt.” State v. Shine, __ N.C. App. __, __, 619 S.E.2d 895, 901 (2005) (quoting State v. Wissink, __ N.C. App. __, 617 S.E.2d 319 (2005), temp. stay allowed, 360 N.C. 77, 620 S.E.2d 527, 2005 WL 2277377 (Sept. 1, 2005) (No. 484P05)). Thus, because we are bound by the decision in Wissink, supra, see In Re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (stating “[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent), we “must hold that the trial court erred 'by adding a point to defendant's prior record level without first submitting the issue to a jury.'” Shine, __ N.C. App. at __, 619 S.E.2d at 901 (quoting Wissink, __ N.C. App. at __, 617 S.E.2d at 325). Therefore, we must remand this case to the trial court for re-sentencing.
    Defendant's final assignment of error was never argued in his brief and thus according to N.C. R. App. P. 28(b)(6), it is abandoned.
    No error in part; remand for re-sentencing.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

Footnote: 1
     See State v. Holder, 165 N.C. App. 706, 601 S.E.2d 331 (2004) (hereinafter Holder I). Reported as an unpublished opinion per N.C. R. App. P. 30(e).

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