Upon remand from the North Carolina Supreme Court, appeal by
defendant from judgment entered 29 October 2003 by Judge Quentin T.
Sumner in Nash County Superior Court. Originally heard in the
Court of Appeals 10 January 2005.
Attorney General Roy Cooper,
by Assistant Attorney General
Wallace Finlator, Jr.
, for the State.
Marilyn G. Ozer for defendant-appellant.
This case comes before us on remand from the North Carolina
Supreme Court so that we may reexamine the issue of sentencing in
light of the Supreme Court's recent decisions in State v.
Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006), cert. denied, __
U.S. __, 167 L. Ed. 2d 1114, 127 S. Ct. 2281 (2007), and State v.
Hurt, 361 N.C. 325, 643 S.E.2d 915 (2007). The sole issue before
us on remand is whether the trial court's finding (during
defendant's sentencing) of an aggravating factor, without
submitting the factor to a jury for a determination beyond a
reasonable doubt, constitutes harmless error beyond a reasonable
doubt. We hold that it does.
On 13 January 2003, defendant was indicted on one count of
attempted first degree murder, one count of first degree
kidnapping, and one count of felony conspiracy. The State's
evidence tended to show that in November 2002, defendant took his
six-week-old daughter from her mother, without the mother's
knowledge, and abandoned the infant in an unheated, collapsing shed
out in the country. Although two days passed before the baby was
found, during which time the temperature dropped into the 30s, the
baby survived. A jury found defendant guilty on all three counts
of the indictment.
During sentencing, the trial judge found as an aggravating
factor that the victim was very young and found as mitigating
factors that defendant had been honorably discharged from the armed
services, had supported his family, and had a support system in the
community. The judge determined that the aggravating factor
outweighed the mitigating factors and sentenced defendant in the
aggravated range to consecutive sentences of 196 to 245 months on
the attempted murder conviction, 92 to 120 months on the first
degree kidnapping conviction, and 80 to 105 months on the
Defendant timely appealed and, while this case was pending on
appeal, filed two motions for appropriate relief based on Blakely
, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531
(2004). This Court affirmed defendant's convictions, but remanded
for resentencing based on Blakely
. See State v. Pittman
, 174 N.C.App. 745, 754-55, 622 S.E.2d 135, 142 (2005). The North Carolina
Supreme Court allowed the State's petition for discretionary review
and remanded to this Court for reconsideration of that portion of
our opinion ordering resentencing.
The United States Supreme Court has held that aggravating
factors other than prior convictions that increase a defendant's
sentence "beyond the prescribed statutory maximum must be submitted
to a jury, and proven beyond a reasonable doubt." Apprendi v. New
, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348,
2362-63 (2000). Further, "the 'statutory maximum' . . . 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."
, 542 U.S. at 303, 159 L. Ed. 2d at 413, 124 S. Ct. at 2537
(emphasis omitted). "Thus, while a trial court may impose an
aggravated sentence on the basis of admissions made by a defendant,
error occurs when a judge aggravates a criminal sentence on the
basis of findings made by the judge that are in addition to or in
lieu of findings made by a jury." Hurt
, 361 N.C. at 329, 643
S.E.2d at 917.
Nevertheless, a trial court's reliance in sentencing on an
aggravating factor not submitted to the jury does not automatically
require resentencing. See Blackwell
, 361 N.C. at 51-52, 638 S.E.2d
at 459. Instead, "we must determine from the record whether the
evidence against the defendant was so 'overwhelming' and
'uncontroverted' that any rational fact-finder would have found thedisputed aggravating factor beyond a reasonable doubt." Id.
638 S.E.2d at 458.
Here, the sole aggravating factor found by the trial court was
that the victim was very young. Since it is undisputed that the
victim was only six weeks old, there can be no serious doubt that
a rational jury would have found this aggravating factor beyond a
reasonable doubt. Therefore, pursuant to Blackwell
, we hold that
any error under Blakely
was harmless beyond a reasonable doubt and
uphold the trial court's sentence.
Chief Judge MARTIN and Judge CALABRIA concur.
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