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State v. Long10/18/2005
ses the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt." 359 N.C. at 437, 615 S.E.2d at 264-65 (citing Blakely, 542 U.S. at ___, 159 L.Ed. 2d at 413-14; Apprendi, 530 U.S. at 490, 147 L.Ed. 2d at 455; N.C. Gen. Stat. §§ 15A-1340.13, 15A-1340.14, 15A-1340.16, 15A-1340.17).
In the instant case, following defendant's conviction for second-degree murder, the trial court enhanced defendant's sentence after unilaterally finding that defendant 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. The trial court did not submit the issue to the jury for proof beyond a reasonable doubt. In light of the Supreme Court's decision in Allen, we conclude that the trial court erred.
The State contends that this error was harmless because,according to the State, had the issue been submitted to the jury, the jury would have found that defendant's conduct fell within the aggravating factor utilized by the trial court. However, we note that in Allen, our Supreme Court rejected application of the harmless error doctrine to such sentencing errors, noting that " ecause 'speculat on what juries would have done if they had been asked to find different facts' is impermissible, the Washington Supreme Court concluded, as do we, that ' armless error analysis cannot be conducted on Blakely Sixth Amendment violations.'" 359 N.C. at 448, 615 S.E.2d at 271-72 (quoting State v. Hughes, 154 Wash. 2d 118, 148, 110 P.3d 192, 208 (2005)). Thus, in light of the foregoing, we conclude that the trial court committed reversible error by sentencing defendant in the aggravated range for second-degree murder, and therefore, we remand the case for resentencing.
No error at trial; remanded for resentencing.
Judges CALABRIA and LEVINSON concur.
Report per Rule 30(e).
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