Converted WP file 060762-1

On writ of certiorari to review order dated 31 January 2005 by Judge Orlando F. Hudson, Jr. in Superior Court, Durham County. Heard in the Court of Appeals 15 March 2007.

Attorney General Roy Cooper, by Assistant Attorney General Amy C. Kunstling, for the State.

McAfee Law, P.A., by Robert J. McAfee, for Defendant.

McGEE, Judge.

    Willie Earl Sinclair (Defendant) pleaded guilty on 21 July 2004 to first-degree kidnapping, obtaining property by false pretenses, common law robbery, and first-degree burglary. During the State's presentation of a factual basis for Defendant's guilty plea, the State said that the victim was eighty years old. In accordance with Defendant's plea agreement, the trial court sentenced Defendant on 21 July 2004 to an aggravated term of 145 months to 183 months in prison. As the sole aggravating factor, the trial court found that the victim was very old.
    Defendant did not immediately appeal his conviction. However, Defendant filed a pro se motion for appropriate relief on 26 January 2005. In an order dated 31 January 2005, the trial courtdenied Defendant's motion. Defendant thereafter petitioned this Court for a writ of certiorari which was allowed by order entered 18 March 2005. The order allowed Defendant's petition "for the purpose of reviewing the [31 January 2005] order of Judge Orlando F. Hudson, Jr., denying [Defendant's] motion for appropriate relief."
    Defendant argues the trial court erred by denying Defendant's motion for appropriate relief because the motion set forth probable grounds for relief. Specifically, Defendant argues that he was sentenced in the aggravated range in violation of 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).
    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, the Court further stated:
        [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).
    However, in the present case, even assuming arguendo that theholding of Blakely applies, and that Defendant was sentenced in violation of Blakely, we hold that any Blakely error was harmless beyond a reasonable doubt. In State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006), cert. denied, Blackwell v. North Carolina, ___ U.S. ___, ___ L. Ed. 2d. ___ (2007), our Supreme Court held that in accordance with Washington v. Recuenco, 548 U.S. ___, 165 L. Ed. 2d 466 (2006), Blakely error is subject to harmless error review. Blackwell, 361 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 (quoting 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 evidence sufficient 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 trial court found as an aggravating factor that the victim was very old. See N.C. Gen. Stat. § 15A- 1340.16(d)(11) (2005) stating: "Aggravating Factors._ The following are aggravating factors: . . . The victim was . . . very old[.]" This aggravating factor was not found by a jury beyond a reasonable doubt, and Defendant argues this amounted to Blakely error. However, during the State's presentation of a factual basis for Defendant's guilty plea, the State said that the victim was eighty years old. Moreover, Defendant does not contest that the victim was eighty years old. We hold this was overwhelming and uncontroverted evidence that the victim in the present case was very old. See State v. Flowers, 100 N.C. App. 58, 394 S.E.2d 296 (1990) (upholding the trial court's finding, under the preponderance of evidence standard, that the seventy-six-year-old victim was very old); see also State v. Williams, 74 N.C. App. 574, 328 S.E.2d 775 (1985) (upholding the trial court's finding, under the preponderance of evidence standard, that the eighty-one-year- old victim was very old). Accordingly, we hold that even assuming arguendo that the holding of Blakely applies in the present case, any Blakely error was harmless beyond a reasonable doubt. Therefore, we overrule this assignment of error.
    Defendant concedes that he failed to present any argument in support of his remaining assignment of error. Therefore, Defendant has abandoned his remaining assignment of error. See N.C.R. App. P. 28(b)(6).
    Affirmed.
    Judges ELMORE and STEPHENS concur.
    Report per Rule 30(e).

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