STATE OF NORTH CAROLINA
v. Robeson County
No. 02 CRS 19488-89
JOHN LARICE LOCKLEAR
Attorney General Roy Cooper, by Assistant Attorney General
Barry H. Bloch, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and
Kirby H. Smith, III, for defendant-appellant.
McGEE, Judge.
Defendant was convicted of assault with a deadly weapon
inflicting serious injury and common law robbery. He was sentenced
in the aggravated range to consecutive active terms of a minimum of
42 months and a maximum of 60 months for the former and a minimum
of 20 months and a maximum of 24 months for the latter. As a
factor in aggravation of both, the trial court found defendant
committed the crimes while on pretrial release on another charge
and on the common law robbery conviction, the trial court found
that the victim suffered serious injury.
The State presented evidence tending to show that on 30
October 2002, the victim was placing groceries in her vehicle
outside of the Food Lion grocery store in Red Springs, NorthCarolina. A vehicle, operated by a man whom she identified as
defendant, pulled in and parked beside her vehicle. Defendant
exited his vehicle and spoke to the victim briefly. Defendant then
snatched the victim's purse, jumped back into his vehicle, and
drove away. Because the victim's arm was still caught in the strap
of the purse, defendant's vehicle dragged the victim along,
breaking the victim's arm in four places. The victim underwent two
surgical procedures on 30 October 2002 and 20 March 2003, to
implant metal bars in her arm. The bars were still in her arm at
the time of trial and her arm had not healed.
The victim's purse contained, inter alia, a ruby and diamond
ring, an emerald and diamond ring, a diamond pendant, and a diamond
necklace, all inside a ziplock bag. Officer Ben Smith of the Red
Springs Police Department located a diamond necklace and a bracelet
at two pawn shops. The victim identified them as items that were
in her purse. The pawn tickets indicated that they had been pawned
by defendant and his wife, Ernestine Locklear.
Defendant also gave a statement to police in which he
confessed to taking the victim's purse. He further stated that he
pawned the jewelry contained in the purse at two pawn shops and
sold a ring at a flea market.
Defendant and his wife testified that they purchased the
jewelry from a man named Travis Jones. Defendant denied that he
snatched the victim's purse. Defendant asserted that he gave the
statement to the police in order to prevent his wife from being
charged with the crimes. By the first two arguments stated in his brief, defendant
contends the trial court erred (1) by not allowing him to testify
as to declarations made to him by Travis Jones and (2) by denying
his motion to dismiss the charges for insufficiency of the
evidence. Defendant does not present any argument in support of
these contentions because he claims the contentions are outside the
purview of this Court's grant of a writ of certiorari to review the
judgments. He "reserve[s]" the right to brief these issues in the
event this Court should decide to consider those assignments of
error.
Defendant has mistakenly interpreted this Court's order
granting certiorari as limiting review to sentencing issues only.
The order grants certiorari to review "the judgment entered 19
August 2003 in Robeson County Superior Court." The order does not
contain any language limiting review to sentencing issues only.
By not advancing any argument in his brief, defendant
abandoned these assignments of error. N.C.R. App. P. 28(b)(6);
See State v. Romero, 164 N.C. App. 169, 595 S.E.2d 208 (2004). If
defendant had any doubt as to whether the issues could be argued,
he should have argued them. These assignments of error are
dismissed.
By his remaining assignments of error, defendant contends that
the trial court erred by sentencing him in the aggravated range
based upon findings of aggravating factors that had not been found
by a jury or stipulated to by defendant. In State v. Allen, 359
N.C. 425, 438-39, 615 S.E.2d 256, 265 (2005)
, our Supreme Courtheld 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 violate the Sixth Amendment to the
United States Constitution.
The violation of one's right to a jury trial is a structural error
and is reversible per se. Id. at 440-41, 615 S.E.2d at 266-67.
The Court's holding in Allen applies to 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 yet final.'" Id. at 427, 615 S.E.2d at 258 (quoting State
v. Lucas, 353 N.C. 568, 598, 548 S.E.2d 712, 732 (2001)). As this
appeal was pending as of the date of the Allen decision, the Allen
holding applies.
In reviewing the record, we observe that the finding in both
judgments that defendant committed the offense while on pretrial
release is not based upon a jury finding or stipulation, and thus
must be vacated. In the judgment sentencing defendant for common
law robbery, the finding that the victim suffered serious injury is
actually supported by the jury's verdict finding defendant guilty
of assault with a deadly weapon inflicting serious injury. In
rendering this verdict, the jury necessarily found that defendant
inflicted serious injury upon the victim. We hold that finding can
stand, but because the balance struck by the trial court may have
been influenced by the improper finding, defendant must also beresentenced on the common law robbery conviction. State v. Ahearn,
307 N.C. 584, 602, 300 S.E.2d 689, 701 (1983).
Remanded for resentencing.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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