On writ of certiorari from the judgments dated 22 and 23 May
2000 by Judge Thomas D. Haigwood in Vance County Superior Court.
Heard in the Court of Appeals
27 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for defendant.
BRYANT, Judge.
On 24 September 1998, Lucius Demond Nix (defendant) pled
guilty pursuant to a plea agreement
to two counts of second degree
murder
, one count of first degree kidnapping with a felony firearm
enhancement, and one count of robbery with a dangerous weapon.
Sentencing was continued. The trial court's judgments against
defendant were dated 22 May 2000 (98 CRS 4750) and 23 May 2000 (98
CRS 3500)
.
First, the trial court found as an aggravating factor the
murders committed by defendant were done with “premeditation and
deliberation.” Accordingly, the trial court sentenced defendant
from the aggravated range of punishment to two consecutive terms of
196 to 245 months imprisonment. Defendant was sentenced to aconsecutive term of 133 to 169 months imprisonment for the
kidnapping conviction with the felony firearm enhancement.
Finally, defendant was sentenced to a concurrent term of sixty-four
eighty-six months imprisonment for robbery.
On 30 December 2003,
this Court allowed defendant's petition for writ of certiorari
granting him a belated appeal.
_______________________________
On appeal, defendant argues the trial court erred by: (I)
sentencing him in the aggravated range and (II) enhancing his
kidnapping sentence.
I
Defendant first contends the trial court erred in sentencing
him in the aggravated range because the aggravating factor was not
submitted to the jury. We agree.
In
State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005)
, our
Supreme Court concluded that, pursuant to
Apprendi v. New Jersey,
530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000)
and
Blakely v.
Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004)
: “Other 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.”
Allen,
359 N.C. at 437, 615 S.E.2d at 265 (citing
Blakely, 542 U.S. at
302-303, 159 L. Ed. 2d at 413-14;
Apprendi, 530 U.S. at 490, 147 L.
Ed. 2d at 455
; N.C.G.S. §§ 15A-1340.13, 15A-1340.14, 15A-1340.16,
15A-1340.17). Here, the trial court, not the jury, found as a non-
statutory aggravating factor in each murder conviction that thecrimes were committed with premeditation and deliberation. The
trial court's finding of this aggravating factor increased
defendant's sentence above the statutory maximum allowed by his
guilty pleas to second degree murder. Accordingly, in light of our
Supreme Court's decision in
Allen, this matter must be remanded for
resentencing.
II
Defendant next argues
the trial court erred by enhancing his
kidnapping sentence based upon a judicially found firearm
enhancement. However, this argument is not properly before the
Court. On 9 December 2003, defendant filed a petition for writ of
certiorari with this Court seeking a belated appeal of the four
judgments in this case. This Court granted the petition in part,
limiting appellate review to the two murder convictions. This
Court did not allow certiorari as to defendant's conviction for
kidnapping. Thus, we are without jurisdiction to review the
assignment of error. Furthermore, to the extent that the Court
were to treat the issue as a petition for writ of certiorari, the
petition must be denied because the Court has already denied
defendant's request for a belated appeal.
See In the Matter of
Appeal from Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989)
(“Where 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, unless it has been overturned by a higher
court.”);
see also State v. Winnex, 66 N.C. App. 280, 282, 311
S.E.2d 594, 596 (1984) (Court without jurisdiction to considerdefendant's argument where defendant's petition for writ of
certiorari had been rejected by another panel of the Court).
Accordingly, defendant's assignment of error is dismissed.
Remanded for resentencing in part, dismissed in part.
Chief Judge MARTIN and Judge GEER concur.
Report per Rule 30(e).
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