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STATE OF NORTH CAROLINA v. NATHAN NORWOOD NORRIS, JR.
Justice TIMMONS-GOODSON did not participate in the consideration or
decision of this case.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the
decision of a divided panel of the Court of Appeals, 172 N.C.
App. 722, 617 S.E.2d 298 (2005), finding no prejudicial error in
defendant's trial, which resulted in a judgment imposing a
sentence of fifty-one to seventy-one months imprisonment entered
by Judge Gary L. Locklear on 3 October 2003 in Superior Court,
Robeson County, but remanding the case for resentencing. Heard
in the Supreme Court 15 February 2006.
Roy Cooper, Attorney General, by Christopher W. Brooks,
Assistant Attorney General, for the State-appellant.
Nora Henry Hargrove for defendant-appellee.
The issue is whether the trial court violated the
defendant's Sixth Amendment right to jury trial, as construed in
Blakely v. Washington, 542 U.S. 296 (2004), and State v. Allen,
359 N.C. 425, 615 S.E.2d 256 (2005), when it found an aggravating
factor but imposed a sentence within the presumptive range.
Because we hold these facts do not implicate the Sixth Amendment,
we reverse the Court of Appeals.
Following his indictment for first-degree arson,
defendant was tried during the 30 September 2003 Criminal Session
of Robeson County Superior Court. Evidence introduced at trial
showed that, on 29 January 2003, defendant's wife, Jessica Wood
(Jessica), informed defendant she no longer loved him.
Defendant thereafter drove Jessica to a mobile home in St. Pauls
where Jessica's mother, Peggy Wood (Ms. Wood), lived with her
son (age twelve) and other daughter (age seventeen). The couple
argued during the drive, and as Jessica left the automobile,
defendant said, If I was you, I'd sleep light tonight.
Defendant made his way to a service station, where he partially
filled a twenty-ounce bottle with gasoline. Defendant returned
to Ms. Wood's residence and poured the gasoline onto one of its
walls. He used a lighter to ignite the fuel and then fled the
scene. Hearing an explosion, Ms. Wood awoke and saw flames
through her bedroom window. She roused her children, and the
family escaped outside. The mobile home sustained fire and smoke
damage to its exterior. On 3 October 2003, a jury convicted defendant of first-
degree arson. Explaining it planned to sentence in the
presumptive range, the trial court expressed uncertainty as to
whether it should find aggravating and mitigating factors. After
the prosecutor recommended making findings, the trial court found
as a statutory aggravating factor that defendant had knowingly
created a great risk of death to more than one person by means of
a weapon or device which would normally be hazardous to the lives
of more than one person. N.C.G.S. § 15A-1340.16(d)(8) (2005).
The court also found multiple statutory mitigating factors: (1)
prior to arrest defendant had voluntarily acknowledged [his]
wrongdoing to a law enforcement officer; (2) defendant enjoyed a
support system in the community; and (3) he possessed a
positive employment history or [was] gainfully employed. Id
15A-1340.16(e)(11), (18), (19). The court weighed the one
aggravating factor against the three mitigating factors and
sentenced defendant to imprisonment for fifty-one to seventy-one
months, a sentence within the presumptive range.
In 2004, while defendant's appeal to the Court of
Appeals was pending, the United States Supreme Court announced
its decision in Blakely v. Washington
. There, the Supreme Court
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.
(See footnote 1)
542 U.S. at 301
. According to Blakel
unless the defendant admits to them, such
facts must be submitted to a jury and proved beyond a reasonable
. This Court first applied Blakely
in State v. Allen
concluding therein that Blakely
errors entail mandatory
(See footnote 2)
359 N.C. at 449, 615 S.E.2d at 272 (We further
hold that the harmless-error rule does not apply to sentencing
errors which violate a defendant's Sixth Amendment
right to jury
trial pursuant to Blakely
. [These] errors are structural and,
therefore, reversible per se
In response to Blakely
, defendant argued on appeal that
the trial court erred by not submitting the aggravating factor to
(See footnote 3)
On 16 August 2005, a divided Court of Appeals agreed
and characterized the trial court's failure to refer the
aggravating factor to the jury as Blakely
error even though the
court sentenced defendant in the presumptive range. State v.Norris
, 172 N.C. App. 722, _____, 617 S.E.2d 298, 303 (2005).
Relying on Allen
, the majority
remanded the case to the trial
court with instructions to submit any aggravating factor to the
jury before resentencing. Id
. at _____, 617 S.E.2d at 304. The
dissent maintained no new sentencing hearing was needed inasmuch
as neither Blakely
[is] implicated unless the trial
judge imposes a sentence in excess of the statutory maximum based
upon facts which were neither admitted by defendant nor found by
a jury. Id
. at _____, 617 S.E.2d at 305 (Steelman, J.,
concurring in part and dissenting in part).
On 1 September 2005, the State filed a motion for
temporary stay, a petition for writ of supersedeas, and a notice
of appeal with this Court. We allowed the motion for temporary
stay on 6 September 2005 and the petition for writ of supersedeas
on 3 November 2005. On 15 February 2006, defendant filed a
motion to dismiss the State's appeal.
II. MOTION TO DISMISS
 We review the decision of the Court of Appeals
solely to determine whether the trial court violated defendant's
Sixth Amendment right to jury trial. N.C. R. App. P. 16(b)
(Where the sole ground of the appeal of right is . . . a dissent
in the Court of Appeals, review by the Supreme Court is limited
to . . . those questions which are . . . specifically set out in
the dissenting opinion . . . .). Before continuing, however, we
first consider defendant's motion to dismiss. Defendant alleges
he raised his Blakely claim through a motion for appropriate
relief filed with the Court of Appeals. Since N.C.G.S. § 15A-1422(f) provides that most Court of Appeals decisions on motions
for appropriate relief are final and not subject to further
review, defendant insists this Court is barred from entertaining
the State's appeal.
We have previously noted that N.C.G.S. § 15A-1422
cannot circumscribe this Court's constitutionally granted power
to 'issue any remedial writs necessary to give it general
supervision and control over the proceedings of the other
courts.' Allen, 359 N.C. at 429, 615 S.E.2d at 260 (quoting
N.C. Const. art. IV, § 12, cl. 1). Yet we need not take the
unusual step of invoking our supervisory authority under Article
IV of the North Carolina Constitution. Section 7A-30 of the
General Statutes clearly affords the State an appeal of right.
N.C.G.S. § 7A-30(2) (2005) (providing an appeal of right when
there is a dissent in the Court of Appeals). Furthermore,
defendant pressed his Blakely claim at the Court of Appeals both
in a motion for appropriate relief and in his appellate brief.
Norris, 172 N.C. App. at 729, 617 S.E.2d at 303 (In his brief as
well as in a motion for appropriate relief . . . . [d]efendant
asserts that his sentence should be remanded due to the trial
court's failure to submit the aggravating factor to the jury for
proof beyond a reasonable doubt.). Nothing in N.C.G.S. § 15A-
1422 prohibits us from addressing issues presented in a party's
brief to the Court of Appeals. Thus, the State's appeal is
properly before this Court.
Along with other state legislatures, our General
Assembly has enacted laws intended to produce consistency in
criminal sentencing. Allen
, 359 N.C. at 430, 615 S.E.2d at 260
(observing North Carolina's move away from indeterminate
sentencing resulted from 'a perceived evil of disparate
sentencing, and . . . a perceived problem in affording trial
judges and parole authorities unbridled discretion in imposing
sentences' (citations omitted)). See generally
Obsolescence and Immanence in Penal Theory and Policy
, 105 Colum.
L. Rev. 1233, 1245 (2005) (discussing various motives behind
states' abandonment of indeterminate sentencing). The North
Carolina Structured Sentencing Act (the Structured Sentencing
Act or the Act) was crafted, at least
in part, to ensure
punishment [is] commensurate with the injury the offense has
caused, taking into account factors that may diminish or increase
the offender's culpability. N.C.G.S. § 15A-1340.12 (2005).
The Act attempts to achieve its objectives by requiring
that trial courts specify minimum and maximum terms of
imprisonment for felony convictions. See id
. § 15A-1340.13(c)
(2005). A sentencing chart makes the potential minimum sentences
available in a given case contingent on the offense class of the
felony (A-I) and the defendant's prior record level (I-VI). Id
§ 15A-1340.17(c) (2005). For each combination of offense class
and prior record level, the chart sets forth potential minimum
sentences in aggravated, presumptive, and mitigated ranges. Id
The trial court must select a minimum sentence from the
presumptive range unless it determines aggravating factorsjustify a more severe sentence or mitigating factors warrant a
less severe sentence. N.C.G.S. § 15A-1340.16(b) (2005). Once
the trial court has settled on a minimum punishment, it must
ordinarily refer to a separate chart for the corresponding
§ 15A-1340.17(d), (e), (e1) (2005).
Notwithstanding the provisions described above, trial
courts retain considerable discretion during sentencing. The
range of potential sentences for some combinations of offense
class and prior record level is quite large. For example, the
presumptive range of minimum punishments for a defendant who
stands convicted of a Class C felony, such as first-degree
kidnapping, and who has a prior record level of VI is 135 to 168
months imprisonment. Id
§ 15A-1340.17(c). Depending on the
presumptive minimum sentence imposed, the statutory maximum for
the same defendant could be as low as 171 or as high as 211
§ 15A-1340.17(e). Although sentences in the
aggravated range require findings of aggravating factors and
those in the mitigated range findings of mitigating factors, the
trial court is free to choose a sentence from anywhere in the
presumptive range without findings other than those in the jury's
verdict. Even assuming evidence of aggravating or mitigating
factors exists, the Act leaves the decision to depart from the
presumptive range in the discretion of the trial court. Id
15A-1340.16(a) (2005). Moreover, and despite the advice the
trial court received, while the Act directs trial courts to
consider evidence of aggravating or mitigating factors in every
case, it further instructs the courts to make findings of theaggravating and mitigating factors only if, in [their]
discretion, [they] depart from the presumptive range.
(See footnote 4)
 In the case sub judice
, a jury convicted defendant
of first-degree arson, a Class D felony. Id
. § 14-58 (2005).
Since defendant had a prior record level of I, the Act capped his
maximum presumptive sentence at eighty-six months. Having found
an aggravating factor, the trial court nonetheless imposed a
sentence of fifty-one to seventy-one months, punishment at the
bottom of the presumptive range. T
he Court of Appeals majority
ruled the sentence unconstitutional inasmuch as the judge, not
the jury, found the aggravating factor.
(See footnote 5)
To resolve this case,
we must decide whether a trial court contravenes a defendant's
Sixth Amendment right to jury trial when it finds an aggravating
factor but sentences within the presumptive range.
In Blakely v. Washington
he United States Supreme
Court evaluated the constitutionality of a statutory scheme
allowing trial courts to enhance a defendant's sentence upon
finding certain facts
. The Blakely
defendant pleaded guilty tosecond-degree kidnapping involving domestic violence and a
firearm. 542 U.S. at 298-99. Washington State's Sentencing
Reform Act specified a 'standard range' of forty-nine to fifty-
three months for the offense; however, the Sentencing Reform Act
authorized the trial court to exceed the standard range if it
found 'substantial and compelling reasons justifying an
exceptional sentence.' Id
. at 299 (quoting Wash. Rev. Code Ann.
§ 9.94A.120(2) (West 2000)). Finding the defendant had acted
with 'deliberate cruelty,' a statutorily enumerated ground for
departure in domestic-violence cases, the trial court imposed an
exceptional sentence of ninety months imprisonment. Id
. at 300.
he Supreme Court reversed, holding Washington's
sentencing procedure violated the defendant's Sixth Amendment
right to jury trial. In so doing, the Court cited Apprendi v.
, 530 U.S. 466 (2000)
, for the proposition that a trial
court violates the Sixth Amendment if it finds any fact, other
than the fact of a prior conviction, and relies on that fact to
impose a sentence greater than the [statutory] maximum. 542
U.S. at 303. The Court defined statutory maximum
as the most
severe sentence a judge may impose based entirely on facts
admitted by the defendant or found by a jury beyond a reasonable
he Court went on to hold the trial court had
impermissibly inflicted punishment beyond the statutory maximum
without first submitting the fact warranting enhancement to the
jury. 542 U.S. at 303-05
Our Court confronted its first Blakely
challenge to the
Structured Sentencing Act in State v. Allen
. There, a
juryconvicted the defendant of felony child abuse inflicting serious
bodily injury. 359 N.C. at 427, 615 S.E.2d at 258. The Act
capped the defendant's presumptive sentence at 129 months. Id
at 427, 615 S.E.2d at 259. Pursuant to the version of the Act
then in effect, the trial court found as a statutory aggravating
factor that the crime was especially heinous, atrocious, or cruel
and imposed an aggravated sentence of 115 to 147 months
. at 427, 615 S.E.2d at 258-59.
On appeal, this Court determined
that the presumptive
range for a given offense and prior record level constitutes the
statutory maximum under Blakely
We thus deemed
unconstitutional those portions of N.C.G.S. § 15A-1340.16(a)-(c)
which permitted judges to find aggravating factors and rely on
those factors to sentence above the presumptive range.
(See footnote 6)
438-39, 615 S.E.2d at 265. We stressed, though, that our ruling
did not impair provisions of N.C.G.S. § 15A-1340.16 governing a
trial court's ability to find mitigating factors and allowing the
judge to balance them against aggravating factors. Id
. at 439,
615 S.E.2d at 266. Having also concluded Blakely
structural errors not susceptible to harmless error analysis
this Court remanded for a new sentencing hearing. Id
. at 449,
615 S.E.2d at 272. But see Washington v. Recuenco
, 2006 WL1725561 (U.S. June 26, 2006) (holding Blakely
errors are subject
to harmless error analysis).
While neither Blakely
addresses the precise
issue presented here, Blakely
does establish a bright-line rule
for appellate courts tasked with deciding whether an instance of
judicial fact-finding contravenes the Sixth Amendment.
dispositive question for Blakely
purposes is whether the jury's
verdict alone . . . authorize[d] the sentence. 542 U.S. at 305.
Put differently, could the trial court have pronounced the same
sentence without the judicial finding? Contrary to the opinion
of the Court of Appeals majority, Blakely
stands for the
proposition that a judge does not exceed his proper authority
inflicts [enhanced] punishment . . . the jury's verdict
alone does not allow. Id
. at 304; see also United States v.
, 543 U.S. 220, 232 (2005) (stating the right to jury trial
is implicated whenever a judge seeks to impose a sentence that
is not solely based on 'facts reflected in the jury verdict or
admitted by the defendant' (quoting Blakely
, 542 U.S. at 303
Hence, the Supreme Court ruled in favor of
not because the trial judge made the
disputed finding, but because he relied on the finding to impose
an exceptional sentence of ninety months. Blakely
, 542 U.S.
The Supreme Court's
treatment of the antecedent
decision confirms this reading of Blakely
. Some of
arguably suggests that judicial findings
violate the Sixth Amendment if they expose a defendant to asentence above the statutory maximum, regardless of the actual
punishment inflicted. See, e.g.
, 530 U.S. at 482-83
(criticizing legislative scheme[s] that remove the jury from
the determination of a fact that, if found, exposes the criminal
defendant to a penalty exceeding the [statutory] maximum
(emphasis deleted)). Perhaps recognizing this, the Court used
to clarify the holding of Apprendi
: In [Apprendi
concluded that the defendant's constitutional rights had been
violated because the judge had imposed a sentence greater than
the maximum he could have imposed under state law without the
challenged factual finding
. 542 U.S. at 303 (emphasis added).
contains wording one could quote
to bolster the position of the Court of Appeals. See, e.g.
N.C. at 439, 615 S.E.2d at 266 (holding
portions of the Structured Sentencing Act which permit
to impose an aggravated sentence after finding . . . aggravating
factors by a preponderance of the evidence (emphasis added)).
359 N.C. at 444 n.5, 615 S.E.2d at 269 n.5 (noting the
Sixth Amendment demands that a jury find aggravating factors
only when the defendant is sentenced beyond the statutory
maximum defined by Blakely
). Just as the Supreme Court refined
the holding of Apprendi
, however, this Court has honed
its approach to alleged Blakely
errors in a line of cases
In State v. Speight
, 359 N.C 602, 614 S.E.2d 262
(2005), filed the same day as Allen
, a jury convicted the
defendant of two counts of involuntary manslaughter and one countof driving while impaired. 359 N.C. at 604, 614 S.E.2d at 263.
The trial court sentenced the defendant in the aggravated range
after finding statutory and nonstatutory aggravating factors.
. This Court affirmed the decision of the Court of Appeals
remanding for a new sentencing hearing and articulated exactly
will be invoked to invalidate a sentence.
[T]he rationale in Allen
applies to all cases
in which (1) a defendant is constitutionally
entitled to a jury trial, and (2) a trial
court has found one or more aggravating
factors and [has] increased a defendant's
sentence beyond the presumptive range without
submitting the aggravating factors to a jury
359 N.C. at 606, 614 S.E.2d at 264 (emphasis added).
Consistent with Speight
, in State v. Blackwell
N.C. 814, 618 S.E.2d 213 (2005), we declared the judge ran afoul
by imposing an aggravated sentence . . . after making
a unilateral finding that defendant was on pretrial release for
another charge when he committed the instant offense.
at 819, 618 S.E.2d at 217. Likewise, in State v. Hurt
, 359 N.C.
840, 616 S.E.2d 910 (2005), this Court remanded for resentencing
sentence exceed[ed] the 'statutory maximum' and
the increased penalty [was] supported only by the judicial
findings of fact
359 N.C. at 845, 616 S.E.2d at 913. Most
recently, we ordered a new sentencing hearing
in State v. Forte
360 N.C. 427, 629 S.E.2d 137 (2006), upon concluding the trial
court had erred by increasing [the] defendant's sentence beyond
the presumptive range [based on its] finding that the victim was
physically infirm. 360 N.C. at 446, 629 S.E.2d at 149. Our
precedents, then, have interpreted Blakely
to meanjudicial 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.
Our holding comports with the concerns that led the
Framers to enshrine the right to jury trial in the Bill of
Rights. Far from viewing the right as a mere procedural
formality, the Framers considered it a fundamental reservation
of power in our constitutional structure. Blakely
, 542 U.S. at
305-06. Just as suffrage ensures the people's ultimate control
in the legislative and executive branches, jury trial is meant to
ensure their control in the judiciary. Id
. at 306. The Blakely
decision advances this design
by ensuring that the judge's
authority to sentence derives wholly from the jury's verdict.
. This Court in Allen
and subsequent cases has followed
in holding that trial courts are limited to whatever
punishment the jury's verdict authorizes.
Although the Structured Sentencing Act directed the
trial court to find aggravating and mitigating factors only if
sentencing outside the presumptive range, the court's actions did
not jeopardize the values underlying the Sixth Amendment. By
expressly identifying those factors before sentencing defendant,
the court made explicit what judges do anytime part of a
punishment is reserved to their discretion, namely, review the
evidence for facts warranting leniency or severity. The SupremeCourt has emphasized the right to jury trial is not imperiled
when a trial court exercises discretion to punish within the
statutory range corresponding to the jury's verdict.
We should be clear that nothing in th[e]
history [of the right to jury trial] suggests
that it is impermissible for judges to . . .
tak[e] into consideration various factors
relating both to offense and offender  in
imposing a judgment within the range
prescribed by statute. We have often noted
that judges in this country have long
exercised discretion of this nature in
imposing sentence within statutory limits
the individual case.
, 530 U.S. at 481; see also Booker
, 543 U.S. at 233
([W]hen a trial judge exercises his discretion to select a
specific sentence within a defined range, the defendant has no
right to a jury determination of the facts that the judge deems
relevant.) We believe the trial court
in finding aggravating
and mitigating factors merely exercised the discretion our legal
system has always demanded of individuals charged with passing
judgment on their fellow citizens. Furthermore, we are persuaded
the General Assembly expected judges would weigh all evidence
relevant to punishment when it established a range of potential
sentences for defendant's offense class and prior record level.