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State v. Duarte11/15/2005
the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 159 L.Ed. 2d 403 (2004).
Our Supreme Court consistently has held that statutory aggravating factors are not required to be alleged in state indictments. State v. Allen, 359 N.C. 425, 438, 615 S.E.2d 256, 265 (2005) ("' he Fifth Amendment [does] not require aggravators, even if they were fundamental equivalents of elements of an offense, to be pled in a state-court indictment.'"(quoting State v. Hunt, 357 N.C. 257, 272, 582 S.E.2d 593, 603, cert. denied, 539 U.S. 985, 156 L.Ed. 2d 702 (2003)). Accordingly, this assignment of error is overruled as to the lack of aggravating factors in the indictment.
Defendant next contends that the trial court erred in sentencing him in the aggravated range based upon a past conviction which increased his prior record level and the finding of anaggravating factor _ neither of which were found by the jury. Defendant was found to have a prior record level of two with one point based upon the testimony of a deputy clerk of court that defendant previously had been convicted of larceny. Defendant argues that his prior conviction was required to have been found by a jury because it increased the penalty beyond the presumptive range. A defendant's prior record level does not, however, affect whether the sentence imposed is in the statutory mitigated, presumptive or aggravated ranges, but rather establishes what those ranges are. Defendant has assigned error to the trial court's sentencing him in the aggravated range, an issue upon which his prior record level has no bearing, but fails to assign error to the determination of his prior record level. Accordingly, any issue regarding his prior conviction is not properly before this Court for review. N.C. R. App. P. Rule 10(a) (2005).
The only aggravating factor found by the trial court was that the offense had been committed while defendant was on pretrial release. "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt." Allen, 359 N.C. at 437, 615 S.E.2d at 265; see also Blakely, 542 U.S. 296, 159 L.Ed. 2d 403. Accordingly, the aggravating factor found by the trial court in the case sub judice was required to have been found by the jury beyond a reasonable doubt. The State argues that any error in the trial court, rather than the jury, finding this aggravating factor is harmless as thejury could not have failed to find that fact. The State's brief was filed prior to our Supreme Court's decision in Allen, in which the Court held unequivocally that Blakely errors under our Structured Sentencing Act are structural and, therefore, reversible per se. Allen, 359 N.C. at 444, 615 S.E.2d at 269.
As the statutory aggravating factor that defendant committed the offense while on pretrial release, which was used as a basis to increase defendant's sentence, was neither stipulated to by defendant nor found by the jury, we hold that it constituted reversible error. Accordingly, this assignment of error is sustained. The case is remanded for re-sentencing.
Affirmed in part and remanded for re-sentencing.
Judges HUDSON and STEELMAN concur.
Report per 30(e).
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