STATE OF NORTH CAROLINA

v .                         Mecklenburg County
                            No. 02 CRS 207578
ANH VIET THAI

    Appeal by defendant from judgment entered 28 May 2004 by Judge James E. Lanning in Mecklenburg County Superior Court. This case was originally heard in the Court of Appeals on 17 November 2005. See State v. Thai, 175 N.C. App. 249, 623 S.E.2d 89 (2005) (Unpublished). Upon remand by order from the North Carolina Supreme Court, filed 28 June 2007 which reversed and remanded to this Court for reconsideration of defendant's re-sentencing in light of its decision in State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006), cert. denied, ___ U.S. ___, 167 L. Ed. 2d 1114 (2007). See State v. Thai, ___ N.C. ___, 645 S.E.2d 761 (2007).

    Attorney General Roy Cooper, by Assistant Attorney General Q. Shanté Martin, for the State.

    Public Defender Isabel Scott Day, by Assistant Public Defender Julie Ramseur Lewis, for defendant-appellant.

    TYSON, Judge.

    This Court initially addressed Anh Viet Thai's (“defendant”) appeal from judgment entered after a jury found him to be guilty of assault with a deadly weapon with intent to kill inflicting serious injury. This Court unanimously held no error occurred at trial, but remanded for re-sentencing following this Court's priordecision in State v. Wissink, 172 N.C. App. 829, 617 S.E.2d 319 (2005), rev'd, ___ N.C. ___, 645 S.E.2d 761 (2007) (citing State v. Hurt, 361 N.C. 325, 330, 643 S.E.2d 915, 918 (2007)), and our Supreme Court's decision in State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), withdrawn, 360 N.C. 569, 635 S.E.2d 899 (2006) (citing Washington v. Recuenco, ___ U.S. ___, 165 L. Ed. 2d 466 (2006)). See State v. Thai, 175 N.C. App. 249, 623 S.E.2d 89 (2005) (Unpublished). The State petitioned for discretionary review. Our Supreme Court entered an order that: (1) allowed the State's petition for discretionary review; (2) vacated that portion of this Court's opinion remanding to the trial court for re- sentencing; and (3) remanded the matter to this Court for reconsideration of our holding in light of its decision in State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006) (Holding Blakely error is subject to harmless error review.), cert. denied, ___ U.S. ___, 167 L. Ed. 2d 1114 (2007). See State v. Thai, ___ N.C. ___, 645 S.E.2d 761 (2007) (“The Court of Appeals opinion remains undisturbed in all other respects.”). After further review of the record, we hold that any errors in defendant's sentencing were harmless beyond a reasonable doubt.

I. Background

    On 11 March 2002, a grand jury indicted defendant for assault with a deadly weapon with intent to kill inflicting serious injury. On 28 May 2004, a jury convicted defendant for assault with a deadly weapon with intent to kill inflicting serious injury.    At the sentencing hearing, the prosecutor asserted defendant was on probation for a simple assault offense at the time of the shooting. One point was reflected on his prior record level worksheet. The trial court found defendant to be a Prior Record Level II based upon the one point assessed. The trial court sentenced defendant in the presumptive range for a minimum of ninety and a maximum of 117 months incarceration.

II. Probationary Status

    Defendant argues the trial court erred by sentencing him as a Prior Record Level II when the fact that he was on probation at the time of the offense was not submitted to and found beyond a reasonable doubt by the jury.
    In Blakely v. Washington, the United States Supreme Court reiterated the rule first stated in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000): “'[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.'” 542 U.S. 296, 301, 159 L. Ed. 2d 403, 412 (2004) (quoting Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455). In Recuenco, the United States Supreme Court held that an error under Blakely is not per se or structural error and is subject to federal harmless error analysis. ___ U.S. at ___, 165 L. Ed. 2d at 474-77.
    In Blackwell, our Supreme Court concluded that Blakely error is subject to harmless error analysis and a trial court's finding of an aggravating factor does not violate Article I, Section 24 ofthe North Carolina Constitution. 361 N.C. at 42, 638 S.E.2d at 453.
    Here, the trial court increased defendant's prior record level and the penalty for defendant's crime beyond the presumptive or prescribed statutory maximum. The trial court committed Blakely error by failing to require the State to prove beyond a reasonable doubt whether defendant was on probation at the time of the offense and to submit that issue to the jury. Blakely, 542 U.S. at 301, 159 L. Ed. 2d at 412; Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455. This error is subject to our further review for us to determine whether the error is harmless beyond a reasonable doubt. Recuenco, ___ U.S. at ___, 165 L. Ed. 2d at 474-77; Blackwell, 361 N.C. at 42, 638 S.E.2d at 453.

III. Harmless Error Analysis

    The State argues the trial court's Blakely error was harmless beyond a reasonable doubt. We agree.

A. Standard of Review

    “In Washington v. Recuenco, the United States Supreme Court concluded that error under Blakely v. Washington, was subject to federal harmless error analysis.” Blackwell, 361 N.C. at 42, 638 S.E.2d at 453 (internal citations omitted). “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, 43 (1999)).

    Defendant admitted he had been convicted of assault eleven days prior to the shooting. The records from the Administrative Office of the Courts show that defendant was on probation from a 6 February 2002 simple assault when the shooting occurred. Under harmless error review, we hold a rational fact-finder would have found defendant to be on probation at the time of the shooting beyond a reasonable doubt. Id.

IV. Conclusion

    Uncontroverted and overwhelming evidence was presented at trial in support of defendant's probationary status at the time of the shooting. Id. The trial court's Blakely error was harmless beyond a reasonable doubt. Remand for re-sentencing is not warranted under harmless error review.
    Harmless Error.

    

    Judges STROUD and SMITH concur.
    Report per Rule 30(e).

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