Appeal by Defendant from judgments entered 1 April 2004 by
Judge Knox V. Jenkins in Superior Court, Cumberland County. Heard
in the Court of Appeals 11 May 2005, and opinion filed 16 August
2005, finding sentencing error and remanding for resentencing. On
remand to this Court by opinion of the North Carolina Supreme Court
filed 28 June 2007 reversing in part and remanding for
reconsideration in light of State v. Hurt
, 361 N.C. 325, 643 S.E.2d
915 (2007), and State v. Blackwell
, 361 N.C. 41, 638 S.E.2d 452
Attorney General Roy Cooper, by Assistant Attorney General
Daniel P. O'Brien, for the State.
M. Alexander Charns for Defendant.
This case comes before us on remand from the North Carolina
Supreme Court for reconsideration in light of its decisions in
State v. Hurt, 361 N.C. 325, 643 S.E.2d 915 (2007), and State v.
Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006), cert. denied,
Blackwell v. North Carolina, ___ U.S. ___, 167 L. Ed. 2d 1114
(2007). Assuming that Craig Clifford Wissink (Defendant) did notstipulate to the fact that he was on probation at the time of the
offense at issue in the present case, and that Blakely error did
occur, we hold that any error was harmless beyond a reasonable
Defendant pleaded not guilty to charges of first-degree
murder, conspiracy to commit robbery with a dangerous weapon,
attempted robbery with a dangerous weapon, discharging a firearm
into occupied property, and felonious larceny of a motor vehicle.
Prior to trial, the State dismissed the charge of conspiracy to
commit robbery with a dangerous weapon. A jury found Defendant
guilty of first-degree murder, attempted robbery with a firearm,
discharging a firearm into occupied property, and misdemeanor
larceny of a motor vehicle. The trial court arrested judgment on
the charge of attempted robbery with a firearm because it merged
with the first-degree murder charge.
The trial court found that Defendant committed the offense of
discharging a firearm into occupied property while Defendant was on
probation. As a result, Defendant's prior record level points
increased from eight to nine, and his prior record level increased
from III to IV. N.C. Gen. Stat. § 15A-1340.14(b)(7) (2003) (if a
defendant commits an offense while on probation, the defendant is
assigned one point); N.C. Gen. Stat. § 15A-1340.14(c)(4) (2003) (a
defendant with nine prior record points has a prior record Level
IV). The trial court sentenced Defendant to life imprisonment
without parole for the first-degree murder charge, thirty-seven to
fifty-four months for the charge of discharging a firearm intooccupied property, and sixty days for the charge of misdemeanor
larceny of a motor vehicle.
Defendant appealed the convictions and sentences. In State v.
Wissink, 172 N.C. App. 829, 617 S.E.2d 319 (2005), our Court found
no error in Defendant's convictions but remanded the case for
resentencing. Our Supreme Court allowed the State's petition for
writ of supersedeas and petition for discretionary review on 19
December 2006. State v. Wissink, 361 N.C. 180, 640 S.E.2d 392
(2006). In State v. Wissink, 361 N.C. 418, 645 S.E.2d 761 (2007)
(per curiam), our Supreme Court reversed our decision to remand the
case for resentencing and remanded the case to this Court for
reconsideration in light of Hurt and Blackwell. Id. at 419, 645
S.E.2d at 761. Our Supreme Court also stated that "[t]he Court of
Appeals opinion remains undisturbed in all other respects." Id.
In Apprendi v. New Jersey
, 530 U.S. 466, 147 L. Ed. 2d 435
(2000), the United States Supreme Court held that "[o]ther than the
fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt." Id.
at 490, 147
L. Ed. 2d at 455. In Blakely v. Washington
, 542 U.S. 296, 159 L.
Ed. 2d 403, reh'g denied
, 542 U.S. 961, 159 L. Ed. 2d 851 (2004),
the Supreme Court further held:
[T]he "statutory maximum" for Apprendi
purposes is the maximum sentence a judge may
impose solely on the basis of the facts
reflected in the jury verdict or admitted by
. . . . In other words, the
relevant "statutory maximum" is not themaximum sentence a judge may impose after
finding additional facts, but the maximum [the
judge] may impose without
at 303-04, 159 L. Ed. 2d at 413-14 (internal citations
, our Supreme Court held that "a judge may not find an
aggravating factor on the basis of a defendant's admission unless
that defendant personally or through counsel admits the necessary
facts or admits that the aggravating factor is applicable." Hurt
361 N.C. at 330, 643 S.E.2d at 918. This holding seems to suggest
that when defense counsel admits the facts necessary for an
aggravating factor, such a finding by a trial court does not
, our Supreme Court held that in accordance with
Washington v. Recuenco
, 548 U.S. ___, 165 L. Ed. 2d 466 (2006),
error is subject to harmless error review. Blackwell
N.C. at 44, 638 S.E.2d at 455. "In conducting harmless error
review, 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 the disputed
aggravating factor beyond a reasonable doubt." Id.
at 49, 638
S.E.2d at 458 (citing Neder v. United States
, 527 U.S. 1, 9, 144 L.
Ed. 2d 35, 47 (1999)). Our Supreme Court further held that "[a]
defendant may not avoid a conclusion that evidence of an
aggravating factor is 'uncontroverted' by merely raising an
objection at trial. Instead, the defendant must 'bring forth facts
contesting the omitted element,' and must have 'raised evidencesufficient to support a contrary finding.'" Id.
at 50, 638 S.E.2d
at 458 (quoting Neder
, 527 U.S. at 19, 144 L. Ed. 2d at 53).
In the present case, the following colloquy occurred at trial:
[THE STATE]: . . . the prior record level
. . . worksheet . . . shows that
. . . [D]efendant . . . has two -- eight
points plus a one point, that . . . he was on
probation at the time of this offense, which
gives him nine record level points, and he's a
level IV for the . . . sentencing, Your Honor.
My understanding, Your Honor, is that
would probably only . . . apply to discharging
a weapon into occupied property, a class E
Felony. The misdemeanor he'd be a level II,
if the Court --
THE COURT: All right.
[DEFENSE COUNSEL]: I think that's correct,
The State argues that, as a result of defense counsel's statements,
Defendant stipulated to the fact that he was on probation at the
time he committed the offense of discharging a firearm into
occupied property. However, we need not decide whether, pursuant
, Defendant stipulated to that fact. Even assuming that
defense counsel's statement did not amount to a stipulation, and
error occurred, any error was harmless beyond a
During Defendant's interview with Lieutenant Sam Pennica and
Sergeant Ray Wood, which was introduced into evidence, Defendant
admitted that he was on probation on 27 September 2000, the date of
the offense at issue in the present case. Moreover, in section I
of Defendant's prior record level worksheet, Defendant was given
eight points for prior convictions. Defendant also was given onepoint because he committed the offense at issue in the present case
"(a) while on supervised or unsupervised probation, parole, or
post-release supervision; or (b) while serving a sentence of
imprisonment; or (c) while on escape." In section II of
Defendant's prior record level worksheet, Defendant was assigned a
prior record level of IV because he had a total of nine points from
section I. Section III, entitled "Stipulation," states as follows:
The [State] and defense counsel
. . . stipulate to the accuracy of the
information set out in Sections I. and IV. of
this form, including the classification and
points assigned to any out-of-state
convictions, and agree with . . .
[D]efendant's prior record level or prior
conviction level as set out in Section II.
Both the State and defense counsel signed the prior record level
worksheet. Additionally, as we set forth above, the State said at
trial that Defendant had one prior record level point because
Defendant was on probation at the time of the offense, and defense
counsel stated: "I think that's correct, Your Honor."
Defendant does not contest this evidence. Rather, Defendant
argues the trial court erred by not submitting this factual issue
to a jury. However, based upon the evidence recited above, we hold
there was overwhelming and uncontroverted evidence that Defendant
committed the offense of discharging a firearm into occupied
property while he was on probation for another offense. Therefore,
even if Blakely
error occurred, any Blakely
error was harmless
beyond a reasonable doubt.
Except as herein modified, the opinion filed by this Court on
16 August 2005 remains in full force and effect.
No prejudicial error.
Judges CALABRIA and ELMORE concur.
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