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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-887-2

NORTH CAROLINA COURT OF APPEALS

Filed: 19 June 2007

STATE OF NORTH CAROLINA

v .                         Alamance County
                            Nos. 03 CRS 56601
BRANDON M. CAPLES,     03 CRS 56607
        Defendant.
_________________________________________________________________

STATE OF NORTH CAROLINA

v .                         Alamance County
                            Nos. 03 CRS 56792
CHRISTOPHER G. MITCHELL,     03 CRS 56793
        Defendant.

    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and remanding the unanimous decision of the Court of Appeals, State v. Caples, ___ N.C. ___, 617 S.E.2d 721 (2005) (unpublished opinion), for reconsideration in light of State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006). Appeal by defendants from a judgment entered 8 December 2003 by Judge Evelyn W. Hill in Alamance County Superior Court. Originally heard in the Court of Appeals 9 March 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Jonathan P. Babb, for the State (Caples appeal)
.

    M. Alexander Charns for defendant Brandon M. Caples.

    Attorney General Roy Cooper, by Special Deputy Attorney General Steven M. Abogast, for the State (Mitchell appeal).

    Paul Pooley for defendant Christopher G. Mitchell.

    
    BRYANT, Judge.
    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 the trial court's Blakely error to be harmless beyond a reasonable doubt.

Facts and Procedural History

    On 18 August 2003, Brandon M. Caples and Christopher G. Mitchell (defendants) were indicted by a grand jury for first- degree kidnapping, felony larceny, felony breaking and entering, and robbery with a dangerous weapon of Ms. Violet Neese. Defendants were convicted of all charges by a jury on 8 December 2003. Prior to sentencing defendants, the trial court found one aggravating factor, that the victim of the crime was “very old.” However, this aggravating factor was not brought before the jury. The trial court sentenced defendants in the aggravated range to the following consecutive sentence: Brandon Caples for a minimum term of 125 months to a maximum term of 159 for the offense of first- degree kidnapping, followed by a minimum term of 95 months and a maximum term of 123 months for the offenses of robbery with a dangerous weapon, felony breaking and entering, and felony larceny; Christopher Mitchell to serve a minimum of 92 months to a maximum of 120 months for the offense of first-degree kidnapping, followed by 80 months to 105 months for the offenses of robbery with a dangerous weapon, felony breaking and entering, and felony larceny.
_________________________
    The opinions of the United States Supreme Court in Washington v. Recuenco, Blakely v. Washington, and Apprendi v. New Jersey have set forth national guidelines for courts applying structured sentencing laws and set the framework for determining whether the process of imposing a particular sentencing structure is constitutional. Washington v. Recuenco, __ U.S. __, 165 L. Ed. 2d 466 (2006); Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004); and Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000) .
    The United States Supreme Court has 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.” Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455.
        [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 the defendant. In other words, the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.

Blakely, 542 U.S. at 303-04, 159 L. Ed. 2d at 413-14 (internal citations omitted) (emphasis in original).
    The North Carolina Supreme Court subsequently applied Blakely and Recuenco to North Carolina's Structured Sentencing Act, and held that a trial court's unilateral finding of an aggravating factor did not violate Article I, Section 24 of the North Carolina Constitution and that Blakely error was subject to harmless erroranalysis. Blackwell, 361 N.C. at 42-45, 638 S.E.2d at 453-55. When confronted with the task of conducting harmless error review, the court must decide, based on 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 (citation omitted) (emphasis applied). It is the responsibility of the defendant to bring forth facts (1) contesting the applicability of the aggravating factor and (2) that support a contrary finding. Id. at 50, 638 S.E.2d at 458.
    The trial court in the instant case erred when it unilaterally found an aggravating factor that increased the penalty for defendants' crimes beyond the presumptive range into the aggravated range. It is this Court's position, however, based on our Supreme Court's analysis in Blackwell, that the error committed by the trial court is harmless error that does not warrant a remand for re-sentencing.
    In the case at hand, the trial court found one aggravating factor, that the victim of the crime was “very old,” yet this aggravating factor was not submitted to the jury. The victim, Ms. Violet Neese, testified in court, however, that she was born on 12 June 1923, and that she was over eighty years old. While Ms. Neese was on the stand, it would have been clear to the jury not only from her appearance but also from her testimony that she was a senior citizen and that she would qualify as being “very old.” Therefore, while the trial court did err by not submitting thisaggravating factor to the jury for a finding that it had been proved beyond a reasonable doubt, the evidence of the victim's age is “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. Accordingly, we hold the trial court's Blakely error to be harmless beyond a reasonable doubt.
    Except as herein modified, the opinion filed by the Court on
6 September 2005 remains in full force and effect.
    Harmless error.
    Judges McGEE and STEELMAN concur.
    Report per Rule 30(e).

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