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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1301

NORTH CAROLINA COURT OF APPEALS

Filed: 19 June 2007

STATE OF NORTH CAROLINA

v .                         Caldwell County
                            No. 05 CRS 1922
JERRY LEE HOLLAR

    Appeal by defendant from judgment entered 28 February 2006 by Judge Yvonne Mims Evans in Caldwell County Superior Court. Heard in the Court of Appeals 25 April 2007.

    Attorney General Roy A. Cooper, III, by Special Counsel Isaac T. Avery, III, for the State.

    Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for defendant-appellant.

    JACKSON, Judge.

    As a result of a traffic accident on 19 March 2005, Jerry Lee Hollar (“defendant”) was charged with driving while impaired (“DWI”). Following a trial in District Court, defendant was found guilty of DWI on 18 July 2005, which he appealed to the Superior Court. On 27 February 2006, defendant was tried before a jury in Caldwell County Superior Court, and subsequently was found guilty of DWI. During defendant's sentencing hearing, the State presented evidence showing that defendant had a prior conviction for DWI on 24 July 2003, and that at the time of the instant accident, defendant's drivers license had been revoked indefinitely as a result of a previous impaired driving conviction. The trial judge found as two grossly aggravating factors that: 1) defendant “hasbeen convicted of a prior offense involving impaired driving which conviction occurred within seven years (7) . . . before the date of this offense[;]” and 2) he “drove, at the time of the current offense, while the defendant's drivers license was revoked under G.S. 20-28 and the revocation was an impaired driving revocation under G.S. 20-28.2(a).” Defendant was then sentenced under Level One punishment to a term of six months imprisonment.
    On appeal, defendant presents arguments for two of his eight assignments of error, thus the remaining assignments of error for which no argument has been presented are deemed abandoned. N.C. R. App. P. 28(b)(6) (2006).
    Defendant's sole argument on appeal is that the trial court erred in finding the existence of two grossly aggravating factors pursuant to North Carolina General Statutes, section 20-179, and in subsequently sentencing defendant under a Level One punishment. Defendant contends the trial court's unilateral finding of the two grossly aggravating factors violated the Supreme Court's holding in 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), and his Constitutional right to a jury trial.
    In Blakely, the United States Supreme Court reiterated that a trial court violates a defendant's Sixth Amendment right to jury trial if it finds any fact, other than the fact of a prior conviction, which “increases the penalty for a crime beyond the prescribed statutory maximum.” Id. at 301, 159 L. Ed. 2d at 412. Thus, “'[o]ther than the fact of a prior conviction, any fact thatincreases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'” Id. at 301, 159 L. Ed. 2d at 412 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000)). Our state's Supreme Court has held that “[t]he dispositive question for Blakely purposes is whether the 'jury's verdict alone . . . authorize[d] the sentence.' Put differently, could the trial court have pronounced the same sentence without the judicial finding?” State v. Norris, 360 N.C. 507, 514, 630 S.E.2d 915, 919 (quoting Blakely, 542 U.S. at 305, 159 L. Ed. 2d at 414), cert. denied, __ U.S. __, 166 L. Ed. 2d 535 (2006). Under Blakely, a trial judge “does not 'exceed his proper authority' until he 'inflicts [enhanced] punishment . . . the jury's verdict alone does not allow.'” Id. (quoting Blakely, 542 U.S. at 304, 159 L. Ed. 2d at 414).
        Our precedents . . . have interpreted Blakely . . . to mean judicial fact-finding does not trigger the Sixth Amendment right to jury trial so long as trial courts sentence inside the presumptive or, a fortiori, the mitigated range. Here, the court inflicted punishment within the presumptive range, and consequently its finding of an aggravating factor did not implicate the Sixth Amendment.
Id. at 516, 630 S.E.2d at 920.
    The trial court's finding that defendant had a prior DWI conviction within the last seven years was the equivalent of determining his prior record level, thus the trial court's finding of this grossly aggravating factor was proper, and did not constitute error under Blakely. The finding of this one grosslyaggravating factor alone was sufficient for defendant to be sentenced under a Level Two punishment. See N.C. Gen. Stat. § 20- 179(c) (2005). On appeal, defendant concedes that his prior conviction for DWI is not subject to the requirements of Blakely, and thus sentencing under a Level Two punishment would have been proper based upon his prior conviction for DWI in 2003.
    North Carolina General Statutes, section 20-179 provides that the Level One and Level Two punishment for an individual convicted of impaired driving shall be:
        (g) Level One Punishment. -- A defendant subject to Level One punishment may be fined up to four thousand dollars ($4,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 30 days and a maximum term of not more than 24 months. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 30 days. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.

        (h) Level Two Punishment. -- A defendant subject to Level Two punishment may be fined up to two thousand dollars ($2,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than seven days and a maximum term of not more than 12 months. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least seven days. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6 for therestoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.
N.C. Gen. Stat. § 20-179(g), (h) (2005).
    In the instant case, defendant was sentenced to an active term of six months imprisonment with the North Carolina Department of Correction. His sentence to a term of only six months imprisonment is one which is permitted under both the Level One and Level Two sentencing guidelines. As the trial court had the authority to review defendant's prior convictions, and determine his prior record level, the trial court did not err in finding the grossly aggravating factor that defendant had been convicted of a prior offense involving impaired driving within seven years of the date of the instant offense. As this finding alone is sufficient to require the imposition of a Level Two punishment, we hold defendant's sentence is proper with respect to the finding of this first grossly aggravating factor.
    In State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006), cert. denied, __ U.S. __, __ L. Ed. 2d __ (May 14, 2007), the Supreme Court recently held that based upon Washington v. Recuenco, __ U.S. __, 165 L. Ed. 2d 466 (2006), the failure to submit a sentencing factor to the jury is subject to harmless error review. Blackwell, 361 N.C. at 49, 638 S.E.2d at 458. Pursuant to Blackwell, in conducting the harmless error review, the appellate court must “weigh the evidence supporting the aggravating factor and determine whether the evidence was so 'overwhelming' and 'uncontroverted' as to render any error harmless.” Id. at 46, 638S.E.2d at 456 (citing Neder v. United States, 527 U.S. 1, 9, 144 L. Ed. 2d 35, 47 (1999)). To the extent that there was no evidence presented during defendant's trial that his license was revoked at the time of the incident, or that he had any prior DWI conviction for which his license had been revoked, we cannot say that the trial court's finding of the second grossly aggravating factor was harmless error under the Blakely/Recuenco analysis.
    However, we still must hold that defendant's Sixth Amendment right to a jury trial was not violated, based upon the fact that the sentence he was given is within what is permitted for a Level Two punishment.
    Our General Assembly has created a sentencing structure which provides the trial court with great discretion when imposing a sentence upon a defendant. Norris, 360 N.C. at 512, 630 S.E.2d at 918. Under our state's Structured Sentencing Act, a trial court determines a criminal defendant's minimum sentence based upon a sentencing chart, which takes into consideration the offense class of the felony and the defendant's prior record level. N.C. Gen. Stat. § 15A-1340.17(c) (2005). “The range of potential sentences for some combinations of offense class and prior record level is quite large.” Norris, 360 N.C. at 512, 630 S.E.2d at 918.
    While sentencing for impaired driving offenses is not imposed pursuant to the Structured Sentencing Act, the trial judges imposing sentences for these offenses also are given discretion in the actual sentences imposed. North Carolina General Statutes, section 20-179 sets forth the sentencing procedure following aconviction for impaired driving. As with the Structured Sentencing Act, a defendant's prior convictions for impaired driving and certain other serious traffic offenses are taken into consideration. See N.C. Gen. Stat. § 20-179(c)(1), (d)(5)-(8) (2005). Also, as with a defendant's prior record level under the Structured Sentencing Act, an impaired driving defendant's prior convictions for similar traffic offenses will increase the level of punishment the defendant faces. N.C. Gen. Stat. § 20-179(c), (f) (2005). The sentencing framework for impaired driving convictions allows for the trial judge to impose a range of punishment based upon which of the five levels of punishment into which a defendant falls. N.C. Gen. Stat. § 20-179(g)-(k) (2005). As noted previously, a defendant facing a Level One punishment
        shall be sentenced to a term of imprisonment that includes a minimum term of not less than 30 days and a maximum term of not more than 24 months. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 30 days.

N.C. Gen. Stat. § 20-179(g) (2005) (emphasis added). A defendant facing a Level Two punishment
        shall be sentenced to a term of imprisonment that includes a minimum term of not less than seven days and a maximum term of not more than 12 months. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least seven days.
N.C. Gen. Stat. § 20-179(h) (emphasis added). Under each of the two levels of punishment, the trial court has discretion in the amount of actual prison time a defendant is ordered to serve.
    This court has held that when a “[d]efendant's punishment falls within the presumptive range, our Supreme Court has made it clear that no factors need be presented to the jury.” State v. Garcia, 174 N.C. App. 498, 506, 621 S.E.2d 292, 298 (2005) (holding that since defendant was sentenced within the presumptive range, the trial court's finding of aggravating factors not admitted by defendant or submitted to the jury did not violate Blakely). While the sentencing framework for impaired driving convictions does not contain a “presumptive range” as found in the Structured Sentencing Act, the discretion granted to the trial courts in imposing a sentence within one of the five appropriate levels of punishment is analogous. Thus, as defendant was given a sentence which is permissible under either a Level One or Two punishment level, and he has conceded that based upon his prior impaired driving convictions he is subject to a Level Two punishment level, we hold defendant's Sixth Amendment right to a jury trial was not violated, and his sentence does not constitute error under Blakely. See Norris, 360 N.C. at 516, 630 S.E.2d at 920; Garcia, 174 N.C. App. at 506, 621 S.E.2d at 298.
    No error.
    Judges McGEE and LEVINSON concur.
    Report per Rule 30(e).

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