NORTH CAROLINA COURT OF APPEALS
Filed: 21 August 2007
STATE OF NORTH CAROLINA
v. Pitt County
Nos. 02 CRS 5685,
CHAUMON MARTE WEBB, 02 CRS 5687-88,
Defendant. 02 CRS 54018
On remand by order of the North Carolina Supreme Court filed
29 December 2006, vacating in part and remanding the unanimous
decision of the Court of Appeals, State v. Webb, 172 N.C. App. 594,
616 S.E.2d 693 (2005) (unpublished opinion), for reconsideration in
light of State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006).
Appeal by defendant from a judgment dated 24 July 2003 by Judge Cy
A. Grant in Pitt County Superior Court. Originally heard in the
Court of Appeals 3 November 2004.
Attorney General Roy Cooper, by Assistant Attorney General
John G. Barnwell, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
This case comes before us on remand from the North Carolina
Supreme Court in order that we may reexamine the issue of
sentencing in light of its recent decision in State v. Blackwell,
361 N.C. 41, 638 S.E.2d 452 (2006). For the reasons stated herein,
we hold that the trial court's finding of an aggravating factor
during defendant's sentencing was not error, however the case must
be remanded for the limited purpose of correcting a clerical erroras addressed in our original opinion. See State v. Webb, 172 N.C.
App. 594, 616 S.E.2d 693 (2005) (unpublished opinion).
Facts and Procedural History
On 15 April 2002, Chaumon Marte Webb (defendant) was indicted
by a grand jury for attempted murder, possession of a firearm by a
felon, robbery with a dangerous weapon, and assault with a deadly
weapon with intent to kill. Defendant was convicted of all charges
by a jury on 24 July 2003. Prior to sentencing defendant, the
trial court found one aggravating factor, that defendant committed
the offense while on pretrial release on another charge. This
aggravating factor was not brought before the jury. However,
defendant stipulated at trial that he committed the offense while
on pretrial release on another charge. The following exchange
THE COURT: What says the State?
[PROSECUTOR]: Your Honor, first of all, I
would like to allege one aggravating factor.
THE COURT: All right.
[PROSECUTOR]: That being the Defendant was out
on bond _ pretrial release at the time of
these offenses, Your Honor. He had been
arrested for a series of breaking, entering,
and larcenies. 01 CR 65556, 6557 and 01-6573,
which he was arrested on 12-13-01, and made a
bond on those cases on the same date, Your
Honor, and was out on pretrial release these
charges [sic] _ when these were committed,
Your Honor. I have those files. . . .
If you want me to hand these file[s] up,
Judge. The Defendant may stipulate he was out
[DEFENSE COUNSEL]: He was.
THE COURT: All right.
The trial court subsequently consolidated the charges and
entered judgment, sentencing defendant in the aggravated range to
a minimum of 392 months and a maximum of 480 months imprisonment.
In accordance with the findings of the trial court, the aggravating
factor that should have been marked on the judgment sheet is N.C.
Gen. Stat. § 15A-1340.16(d)(12) (defendant committed the offense
while on pretrial release on another charge). However, as a result
of a clerical error, the aggravating factor actually marked on the
judgment form was N.C. Gen. Stat. § 15A-1340.16(d)(1) (defendant
induced others to participate in the commission of the offense).
Defendant argues the trial court's imposition of a sentence in
the aggravated range was done in violation of Blakely v.
, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), and his Sixth
Amendment right to a trial by a jury. The United States Supreme
Court held in Blakely
that a judge may not impose a sentence based
on findings that are in addition to the facts reflected in the
jury verdict or admitted by the defendant. Id.
at 303, 159 L. Ed.
2d at 413 (citation omitted). However, a trial court's imposition
of a sentence on the basis of an admission to an aggravating factor
does not violate the Sixth Amendment if that defendant personally
or through counsel admits the necessary facts. State v. Hurt
N.C. 325, 330, 643 S.E.2d 915, 918 (2007).
In the instant case, the transcript indicates the State was
prepared to present evidence showing that defendant was out onpretrial release, but did not because defendant stipulated to this
fact. Defendant's unequivocal stipulation to the fact that he was
out on pretrial release when he committed the instant offenses
constitutes an admission of the necessary facts relied on by the
trial court to increase defendant's sentence and the trial court's
subsequent sentence based on the aggravating factor did not violate
defendant's Sixth Amendment right to a trial by a jury. State v.
, __ N.C. __, __, 646 S.E.2d 348, __ (2007); see also Hurt
361 N.C. at 329-30, 643 S.E.2d at 917-18.
Having reviewed the Supreme Court's opinion in State v.
, we find it is not directly applicable to this case.
Instead, we rely on a more recent Supreme Court opinion, State v.
, in reaching this decision. Except as herein modified, the
opinion filed by this Court on 16 August 2005 remains in full force
No error. Remanded for correction of clerical error.
Judges McGEE and JACKSON concur.
Report per Rule 30(e).
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