State v. Norris , 172 N.C. App. 722 ( 2005 )

STEELMAN, Judge

concurring in part and dissenting in part.

I fully concur with the majority opinion as to the first two issues discussed. However, I must respectfully dissent as to the third issue.

I. Question Presented

Whether the holdings in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004) and State v. Allen, 359 N.C. 425, - S.E.2d - (2005) apply when the trial judge imposes a sentence from the presumptive range under North Carolina’s Structured Sentencing Act (Article 81B of Chapter 15A).

II. Decision in Blakely v. Washington

In Blakely, the United States Supreme Court held it was a violation of the Sixth Amendment to the United States Constitution for a judge to impose a sentence in excess of the “statutory maximum” sentence based on facts which were neither admitted by the defendant nor found by a jury. 542 U.S. at -, 159 L. Ed. 2d at 413-15. Writing for the Court, Justice Scalia stated: “the ‘statutory maximum’ for Apprendi purposes 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.” 542 U.S. at -, 159 L. Ed. 2d at 413.

In Allen, our Supreme Court stated:

“We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion — taking 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[s] within statutory limits in the individual case.”

Allen, 359 N.C. at 435, - S.E.2d at - (quoting Apprendi v. New Jersey, 530 U.S. 466, 481, 147 L. Ed. 2d 435, 449 (2000)).

I would hold that neither Blakely nor Allen are 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. Since the trial court in this case sentenced defendant from the presumptive range, neither Blakely nor Allen should be applied to require a new sentencing hearing.

III. North Carolina’s Structured Sentencing Scheme

N.C. Gen. Stat. § 15A-1340.16(c) (2005) provides: “The court shall make findings of the aggravating and mitigating factors present in the offense only if, in its discretion, it departs from the presumptive range of sentences specified in G.S. 15A-1340.17(c)(2).” Our courts have consistently held that our General Assembly intended for the trial court to take into account factors in aggravation or mitigation only when a presumptive range sentence is not imposed. State v. Campbell, 133 N.C. App. 531, 542, 515 S.E.2d 732, 739 (1999) (citing State v. Caldwell, 125 N.C. App. 161, 162, 479 S.E.2d 282, 283 (1997)). The trial judge has the discretion to impose a presumptive range sentence in any case regardless of the number or quality of aggravating or mitigating factors presented. Our appellate courts have consistently refused to review aggravating or mitigating factors when the trial court imposed a presumptive range sentence. See e.g. Campbell, 133 N.C. App. at 542, 515 S.E.2d at 739; State v. Taylor, 155 N.C. App. 251, 267, 574 S.E.2d 58, 69 (2002). In State v. Streeter, this Court specifically rejected the defendant’s argument that the imposition of a presumptive range sentence violated his due process and equal protection rights where there were uncontroverted statutory mitigating factors present. 146 N.C. App. 594, 599, 553 S.E.2d 240, 243 (2001).

In this case, after considering all the evidence presented at the sentencing hearing, the trial judge imposed a sentence from the presumptive range. The majority opinion reasons that a jury might not have found an aggravating factor and therefore, there was a “possibility that defendant might be sentenced in the mitigating range due to the absence of aggravating factors.” I submit that not only is this mere speculation, but is also irrelevant. The trial judge had discretion to sentence defendant from the presumptive range regardless of whether he found any aggravating factors present. This would be true no matter whether the aggravating factor was presented to the judge alone or to the jury under the provisions of N.C. Gen. Stat. § 15A-1340.16.³ In amending this statute to comply with Blakely, the General Assembly preserved the trial court’s discretion to sentence defendant from the presumptive range. The only changes provided for were a different burden of proof and a different fact finder for aggravating factors. It is solely in the trial court’s discretion to depart from the presumptive range.

The majority opinion starts the appellate courts down a slippery slope, which will require appellate review of each aggravating and mitigating factor and their balancing by the trial judge, even in cases where a presumptive sentence is imposed. Such an approach is contrary to the legislative intent of Structured Sentencing and binding case precedent of this state.

I would find no error in both the trial and sentencing of defendant in this matter.

3 . The General Assembly amended the previous version of the Structured Sentencing Act in order that it conform to the United States Supreme Court’s decision in Blakely v. Washington. 2005 N.C. Sess. Laws 145.