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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA04-737-2


Filed: 21 August 2007


v .                                 New Hanover County
                                    Nos. 02CRS25841, 43
KENNETH BROWN, JR.                             

    On order of the Supreme Court of North Carolina entered 29 December 2006 granting the State's Petition for Discretionary Review to reconsider our unpublished opinion. Appeal by defendant from judgment entered 8 September 2003 by Judge Ernest B. Fullwood in New Hanover County Superior Court. Originally heard in the Court of Appeals 26 January 2005.

    Attorney General Roy Cooper, by Assistant Attorney General K.D. Sturgis, for the State.

    Sofie W. Hosford for defendant appellant.

    McCULLOUGH, Judge.

    On 29 December 2006, a North Carolina Supreme Court order was entered allowing the State's Petition for Discretionary Review for the limited purpose of (1) vacating the portion of our opinion ordering remand to the trial court for resentencing and (2) remanding this case to us for reconsideration in light of State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006), cert. denied, ___ U.S. ___, 167 L. Ed. 2d 1114 (2007). Subsequently, we filed an order stating that we will reconsider this case as directed by the order of our Supreme Court without additional briefs or oralarguments. Therefore, except as herein modified, the opinion we filed on 2 August 2005 remains in full force and effect.
        Pursuant to a case which has subsequently been withdrawn, our Supreme Court has treated errors under Blakely as structural errors that are reversible per se. State v. Allen, 359 N.C. 425, 449, 615 S.E.2d 256, 272 (2005), withdrawn, 360 N.C. 569, 635 S.E.2d 899 (2006). However, in a recent case, Washington v. Recuenco, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), the United States Supreme Court held that “[f]ailure to submit a sentencing factor to the jury . . . is not structural error.” Id. at 2553, 165 L. Ed. 2d at 477. Thereafter, our Supreme Court has held in State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006), N.C. LEXIS 1301 (2006), that according to Recuenco, the failure to submit a sentencing factor to the jury is subject to harmless error review. [Blackwell, 361 N.C. at 46], [638] S.E.2d at [456], 2006 N.C. LEXIS 1301.

State v. McQueen, ___ N.C. App. ___, ___, 639 S.E.2d 131, 134 disc. review denied, appeal dismissed, 361 N.C. 365 (2007).
    In the instant case, the jury convicted defendant of assault with a deadly weapon with intent to kill inflicting serious injury and assault with a firearm on a law enforcement officer.
    Then the trial court found as an aggravating factor that the offense was committed for the purpose of avoiding or preventing a lawful arrest. We determine the trial court's failure to submit this sentencing factor to the jury was harmless error. During trial, the State presented evidence that a uniformed police officer witnessed a man completing what the officer thought was a drug transaction. The officer walked towards the man, and the man began walking away. The uniformed officer began running towards the man, and the man began running away. During the chase, the man shot theuniformed officer. Accordingly, it was harmless error for the trial court to not submit this sentencing factor to the jury.
    No prejudicial error.
    Judges ELMORE and SMITH concur.
    Report per Rule 30(e).

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