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September 7, 2004

The Blakely earthquake hits North Carolina

In what I believe are the first two cases from the North Carolina state courts dealing with Blakely, today in State v. Speight, 2004 WL 1960082, (N.C. App. Sept. 07, 2004) and State v. Allen, 2004 WL 1960333 (N.C. App. Sept. 07, 2004), two different appellate panels found, without much hesitation, that Blakely rendered unconstitutional aspects of North Carolina's state sentencing system.

In Speight, the court minced no words in identifying the Blakely problem and in rejecting the government's argument that a Blakely error should be deemed harmless:

Defendant received two consecutive aggravated sentences of a minimum of twenty and a maximum of twenty-four months for involuntary manslaughter and a consecutive aggravated sentence of twelve months for impaired driving. As the jury did not decide the aggravating factors considered by the trial court, defendant's Sixth Amendment right to a trial by jury was violated. See Blakely.

Nonetheless, the State argues that under a harmless error analysis, defendant's sentences should be upheld. However, as explained in State v. Allen, "[o]ur 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.'" 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 Allen, the court more fully discusses how the provision for imposing "aggravated sentences" in North Carolina "appears substantially similar to the portion of Washington's criminal sentencing statute analyzed in Blakely." Interestingly, according to the Allen court, state lawyers in North Carolina have been conceding after Blakely that aggravated range sentencings constitute a violation of a defendant's constitutional rights. (This apparently proper concession of Blakely's reach by North Carolina lawyers of course stands in sharp contrast to what we are seeing from federal lawyers in the federal courts, as discussed here and here).

Filling out its rejection of the state's harmless error claims, the Allen court explains:

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." State v. Ahearn, 307 N.C. 584, 602 (1983). In the case sub judice, it is undisputed that the trial judge unilaterally found the existence of an aggravating factor and, thereupon, sentenced defendant in the aggravated range. The State's argument, when viewed in light of the ruling articulated in Ahearn, must fail, as this Court should properly remand the case for resentencing. 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.

September 7, 2004 at 03:22 PM | Permalink

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Comments

I am a student in Jacksonville, Florida doing research for a friend (North Carolina vs. David S. Shimp)he plans on filing a appropriate relief and asked me to do some research. I appreciate your blog very helpful and precise. In Florida we do not have that law so nobody knew what it was and your website is the first that explained it effectively for us "outsiders" .

Posted by: Alaina Hughes | Apr 20, 2005 10:13:57 AM

Would the same apply to someone sentenced under the fair sentencing act in NC? Would four mitigating factors and one aggravating factor still give the Judge the right to impose aggravated sentence rather than using the presumptive sentence? If so, can the same aggrevating and mitigating factors be used in a
related charge and the presumptive be used there and the maximum be used on the other charge?

Your contribution is great. Thanks for the information. I am neither an attorney or student
but this information is vital to me.

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Posted by: laptop bettery | Mar 4, 2009 1:20:53 AM

I remember this. It was devastating to say the least. I'm glad you've written some text about it.

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