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State v. Blackwell9/7/2004
the trial court did not abuse its discretion in excusing her for cause.
Finally, Defendant has filed a motion for appropriate relief contending the trial court's imposition of a sentence in the aggravated range was done in violation of the Sixth Amendment to the United States Constitution as interpreted by Blakely v. Washington, ____ U.S. _____, 159 L.Ed.2d 403 (2004).
In Blakely, the U.S. Supreme Court held that a trial court alone may not impose a sentence in excess of the "statutory maximum," unless either a jury's verdict finds that additional facts, or aggravating circumstances, warrant an increased sentence, or the defendant has waived his Sixth Amendment right to trial by jury. . . . The "statutory maximum" for an offense is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." The relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.
State v. Allen, ____ N.C. App. _____, _____ S.E.2d ____(2004)(COA03-1369).
The trial court determined one aggravating factor was applicable in this case--"the defendant committed the offense while on pretrial release on another charge." After determining the aggravating factor outweighed any mitigating factors, Defendant received consecutive aggravated sentences of a minimum of 353 and a maximum of 461 months for second degree murder, 26 to 32 months for habitual impaired driving and 66 to 89 months for assault with a deadly weapon inflicting serious injury.*fn1
As the jury did not decide the aggravating factor considered by the trial court, Defendant's Sixth Amendment right to a trial by jury was violated. See Blakely, ___ U.S. at ___, 159 L.Ed. 2d at 412.
Nonetheless, the State argues that under a harmless error or plain error analysis, Defendant's sentences should be upheld. However, as explained in State v. Allen, "our Supreme Court has definitively stated that when the trial judge has erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing." Allen, ____ N.C. App. at ____, ___ S.E.2d at ____. Accordingly, we grant Defendant's motion for appropriate relief and remand this case to the trial court for resentencing consistent with the holding in Blakely.
In sum, the admission of Defendant's 1979 driving while impaired conviction constituted non-prejudicial error. Furthermore, under the facts of this case, we conclude sufficient evidence supported the driving while license revoked charge. We also conclude Defendant's remaining arguments regarding the trial of this matter are without merit. However, we conclude Defendant's sentences violate the Sixth Amendment to the United States Constitution as interpreted by Blakely v. Washington.
No prejudicial error in trial; remanded for resentencing.
Judge HUNTER concurs.
Judge TYSON concurs in the result in separate opinion.
Report per Rule 30(e). NO. COA03-793
TYSON, Judge concurring in the result only.
The majority's opinion does not address whether the admission of defendant's prior DWI convictions into evidence was error. The majority's opinion assumes for the sake of argument the trial court erred by admitting this evidence, but holds the error to be harmless or non-prejudicial because "additional evidence of the circumstances surrounding other prior convictions elicited from the officer rendered any error harmless." Proceeding to a prejudicial error analysis assumes error occurred. No error occurred in defen
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