STATE OF NORTH CAROLINA
v. Caldwell County
Nos. 02 CRS 9566-75
KRISTEN M. ROSS
Attorney General Roy Cooper, by Assistant Attorney General Amy
C. Kunstling, for the State.
Russell J. Hollers III, for defendant-appellant.
On 15 October 2002, Kristen M. Ross (defendant) pled guilty to
twenty-one counts of obtaining property by false pretenses. The
trial court found as factors in aggravation that defendant took
advantage of a position of trust or confidence to commit the
offense, N.C. Gen. Stat. § 15A-1340.16(d)(15) (2005), and that the
victim was very old, N.C. Gen. Stat. § 15A-1340.16(d)(11)
The trial court then sentenced defendant within the aggravated
range to ten consecutive terms of ten to twelve months in prison.
Defendant's sentences were suspended and she was placed on
supervised probation for sixty months. Defendant did not appeal.
On 30 December 2002, probation violation reports were filed
alleging that defendant had violated several terms of her
probation. Defendant absconded and the probation violation hearing
was not held until 8 September 2005. Defendant admitted to
violating her probation.
The trial court found that defendant
willfully violated the terms of her probation and revoked her
However, the trial court expressed concern that
defendant's original sentence might be in violation of B
, 542 U.S. 296, 159 L. Ed. 2d 403, reh'g denied, 542 U.S.
961, 159 L. Ed. 2d 851 (2004)
. The trial court continued the
On 7 July 2006, the trial court considered defendant's
arguments pursuant to Blakely as a motion for appropriate relief.
The trial court denied the motion and activated defendant's
On appeal, the sole issue before the Court is whether defendant can attack the aggravated sentences imposed and suspended in the 15 October 2002 trial court judgments based on Blakely by appealing from the 7 July 2007 trial court judgments revoking her probation and activating her sentences. Our Supreme Court recently held in a similar case that the defendant's appeal constituted an impermissible collateral attack on the original judgments, and that Blakely was inapplicable. State v. Holmes, 361 N.C. 410, 413, 646 S.E.2d 353, 355 (2007) . Holmes is indistinguishable from the instant case. Accordingly, for the reasons stated in Holmes, we affirm.
Judges WYNN and BRYANT concur.
Report per Rule 30(e).
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