{ "id": 8350914, "name": "STATE OF NORTH CAROLINA v. WILLIE ODELL WHITEHEAD, JR.", "name_abbreviation": "State v. Whitehead", "decision_date": "2005-10-18", "docket_number": "No. COA04-1238", "first_page": "165", "last_page": "171", "citations": [ { "type": "official", "cite": "174 N.C. App. 165" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "617 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633713 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/617/0319-01" ] }, { "cite": "616 S.E.2d 21", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633460 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/616/0021-01" ] }, { "cite": "616 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633665 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/616/0914-01" ] }, { "cite": "615 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633238 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "265" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0256-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "36-37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "172 N.C. App. 829", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8321682 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/172/0829-01" ] }, { "cite": "172 N.C. App. 127", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8319002 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/172/0127-01" ] }, { "cite": "359 N.C. 824", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798415 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0824-01" ] }, { "cite": "406 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554860 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0683-01" ] }, { "cite": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0425-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "615 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633238 ], "weight": 5, "year": 2005, "pin_cites": [ { "page": "265", "parenthetical": "emphasis added" }, { "page": "271" }, { "page": "258", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/se2d/615/0256-01" ] }, { "cite": "110 P.3d 192", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2005, "pin_cites": [ { "page": "208" } ], "opinion_index": 1 }, { "cite": "154 Wash. 2d 118", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 5628941 ], "year": 2005, "pin_cites": [ { "page": "148" } ], "opinion_index": 1, "case_paths": [ "/wash-2d/154/0118-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "490" }, { "page": "455" } ], "opinion_index": 1, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "573 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 1 }, { "cite": "356 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511334, 1511565, 1511597, 1511471, 1511486 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/nc/356/0442-01", "/nc/356/0442-02", "/nc/356/0442-05", "/nc/356/0442-04", "/nc/356/0442-03" ] }, { "cite": "420 S.E.2d 475", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 1 }, { "cite": "107 N.C. App. 468", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527705 ], "year": 1992, "opinion_index": 1, "case_paths": [ "/nc-app/107/0468-01" ] }, { "cite": "336 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "314 N.C. 618", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696312 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc/314/0618-01" ] }, { "cite": "567 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "152 N.C. App. 335", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250039 ], "opinion_index": 1, "case_paths": [ "/nc-app/152/0335-01" ] }, { "cite": "463 S.E.2d 307", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "310-11" } ], "opinion_index": 1 }, { "cite": "120 N.C. App. 597", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916934 ], "year": 1995, "pin_cites": [ { "page": "601" } ], "opinion_index": 1, "case_paths": [ "/nc-app/120/0597-01" ] }, { "cite": "186 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 1 }, { "cite": "280 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571535, 8571569, 8571443, 8571476, 8571510 ], "year": 1972, "opinion_index": 1, "case_paths": [ "/nc/280/0303-04", "/nc/280/0303-05", "/nc/280/0303-01", "/nc/280/0303-02", "/nc/280/0303-03" ] }, { "cite": "185 S.E.2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 1 }, { "cite": "13 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550411 ], "year": 1971, "opinion_index": 1, "case_paths": [ "/nc-app/13/0107-01" ] }, { "cite": "326 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "73 N.C. App. 248", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523181 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc-app/73/0248-01" ] }, { "cite": "118 S.E.2d 617", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1961, "pin_cites": [ { "page": "619" }, { "page": "620" }, { "page": "619" } ], "opinion_index": 1 }, { "cite": "254 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625597 ], "weight": 3, "year": 1961, "pin_cites": [ { "page": "234" }, { "page": "234-35" }, { "page": "234" } ], "opinion_index": 1, "case_paths": [ "/nc/254/0231-01" ] }, { "cite": "406 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "855-56" }, { "page": "856" }, { "page": "855" } ], "opinion_index": 1 }, { "cite": "329 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554860 ], "year": 1991, "pin_cites": [ { "page": "686" } ], "opinion_index": 1, "case_paths": [ "/nc/329/0683-01" ] }, { "cite": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "439" } ], "opinion_index": 1, "case_paths": [ "/nc/359/0425-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "413-14" } ], "opinion_index": 1, "case_paths": [ "/us/542/0296-01" ] } ], "analysis": { "cardinality": 781, "char_count": 16298, "ocr_confidence": 0.759, "pagerank": { "raw": 4.8172472706271035e-08, "percentile": 0.30322057386357276 }, "sha256": "c9de0a4692c5e12c52f6c41ea71c5789ebded8d4eae9e3f96209bb00d9207dfa", "simhash": "1:a96b5666731dec74", "word_count": 2661 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McCULLOUGH concurs.", "Judge TIMMONS-GOODSON concurs in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIE ODELL WHITEHEAD, JR." ], "opinions": [ { "text": "STEELMAN, Judge.\nOn 26 October 2003, at approximately 1:30 am, defendant and four other males attacked William C. McKlemurry (victim) on the campus of East Carolina University for the purpose of robbing him. One of the perpetrators with defendant pulled out a gun and demanded the victim\u2019s money. The victim said \u201cno,\u201d whereupon defendant began to push and punch the victim. Defendant took the victim\u2019s cell phone and broke it, and then took his wallet from his pocket and removed $26.00. The perpetrators then fled the scene, but were subsequently arrested. The incident was captured on videotape by a surveillance camera belonging to the East Carolina Police Department.\nDefendant was indicted 9 February 2004 for robbery with a dangerous weapon and possession of a weapon on educational property. Defendant and the State reached a plea arrangement whereby defendant pled guilty to the charge of robbery with a dangerous weapon in exchange for dismissal of the charge of possession of a weapon on educational property.\nDefendant accepted the plea agreement in open court on 4 May 2004. Both the State and the defendant were heard on sentencing factors. The trial court found as a mitigating factor that defendant\u2019s age or immaturity at the time of the commission of the offense significantly reduced his culpability. As an aggravating factor the trial court found that the defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy. Finding that the aggravating factor outweighed the mitigating factor, the trial court sentenced defendant to an aggravated range sentence of 80 to 105 months imprisonment. From this sentence defendant appeals.\nIn defendant\u2019s sole assignment of error he argues the trial court erred in finding an aggravating factor not admitted by defendant nor found by a jury beyond a reasonable doubt. We agree.\nThe United States Supreme Court case of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004) held that a jury must find aggravating factors that would increase a defendant\u2019s sentence above that authorized by a finding that a defendant was guilty of the offense. This ruling was applied to North Carolina\u2019s Structured Sentencing of Persons Convicted of Crimes (Article 81B of Chapter 15A of the General Statutes) by the North Carolina Supreme Court in State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005). Both Blakely and Allen provide that \u201cthe judge may still sentence a defendant in the aggravated range based upon the defendant\u2019s admission to an aggravating factor enumerated in N.C.G.S. \u00a7 15A-1340.16(d).\u201d Allen, 359 N.C. at 439, 615 S.E.2d at 265.\nSince a jury did not find any aggravating factors in this case, the resolution of this appeal hinges upon whether the defendant made admissions to the trial court of the aggravating sentencing factor found by the trial court.\nThe trial court found only one aggravating factor, that \u201c[t]he defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy.\u201d N.C. Gen. Stat. \u00a7 15A-1340.16(d)(2). The State asserts that defendant, through his counsel, admitted to all of the essential elements of the aggravating factor found at N.C. Gen. Stat. \u00a7 15A-1340.16(d)(2) under the rationale of State v. Mullican, 329 N.C. 683, 406 S.E.2d 854 (1991). See also State v. Alexander, 359 N.C. 824, 616 S.E.2d 914 (2005).\nHowever, the identical issue presented in this case was decided by this court in favor of defendant in State v. Meynardie, 172 N.C. App. 127, 616 S.E.2d 21 (2005) and State v. Wissink, 172 N.C. App. 829, 617 S.E.2d 319 (2005). This panel is bound by these decisions. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36-37 (1989).\nThis case is reversed and remanded for a new sentencing hearing.\nREVERSED AND REMANDED.\nJudge McCULLOUGH concurs.\nJudge TIMMONS-GOODSON concurs in a separate opinion.", "type": "majority", "author": "STEELMAN, Judge." }, { "text": "TIMMONS-GOODSON, Judge,\nconcurring.\nI concur in the result reached by the majority. However, I write separately to distinguish my reasoning in concluding that defendant is entitled to a new sentencing hearing.\nAs detailed by the majority, the record in the instant case indicates that defendant accepted the plea agreement offered by the State in open court. Following the State\u2019s recitation of the factual basis for his plea, defense counsel informed the trial court that defendant was fifteen years old at the time of the offense, has a full-scale IQ of 68, and has been diagnosed as \u201chaving mild mental retardation and cannabis abuse and adolescent antisocial behavior.\u201d Defense counsel thereafter requested that the trial court find as mitigating factors that defendant has a mental condition insufficient to constitute a defense but significant enough to reduce culpability and that defendant\u2019s age and maturity at the time of the commission of the offense significantly reduced his culpability. Defense counsel also requested that the trial court find that defendant \u201cwasn\u2019t the ringleader, and . . . was high at the time that they were doing this.\u201d The State requested that the trial court find as an aggravating factor that defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy.\nThe trial court agreed with the State, thereafter finding as an aggravating factor that defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy. As a mitigating factor, the trial court found that defendant\u2019s age or immaturity at the time of the commission of the offense significantly reduced his culpability. After concluding that the aggravating factor outweighed the mitigating factor, the trial court sentenced defendant to eighty to 105 months imprisonment, a term within the aggravated range specified by N.C. Gen. Stat. \u00a7 15A-1340.17. On appeal, defendant argues that the trial court was prohibited from sentencing him in the aggravated range without first submitting the aggravating factor to a jury for proof beyond a reasonable doubt. The State contends that defendant stipulated to the presence of the aggravating factor by accepting the State\u2019s recitation of the facts and by impliedly admitting to its presence during the sentencing hearing. In light of our Supreme Court\u2019s recent decision in State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), and other pertinent case law, I agree with defendant.\nIn State v. Powell, 254 N.C. 231, 234, 118 S.E.2d 617, 619 (1961), our Supreme Court noted that \u201c \u2018[w]hile a stipulation need not follow any particular form, its terms must be definite and certain in order to afford a basis for judicial decision, and it is essential that they be assented to by the parties or those representing them.\u2019 \u201d (quoting 83 C.J.S., Stipulations, \u00a7 24b(3)). In that case, the Court held that the purported stipulation \u201cwas not definite and certain\u201d and that the trial court \u201cinadvertently fell into error by not insisting upon a full, complete, definite and solemn admission and stipulation\u201d where, when the prosecutor stated the defendant\u2019s record, the defendant remained silent and the prosecutor \u201cdid not state that [the] defendant admitted the truth of the matters contained in the . . . record or that [the] defendant stipulated that he was the person referred to in the record.\u201d Powell, 254 N.C. at 234-35, 118 S.E.2d at 620.\nAlthough it has been distinguished by this Court, see, e.g., State v. Curtis, 73 N.C. App. 248, 326 S.E.2d 90 (1985) and State v. Fountain, 13 N.C. App. 107, 185 S.E.2d 284 (1971), cert. denied, 280 N.C. 303, 186 S.E.2d 513 (1972), Powell has not been overruled by our Supreme Court. Nevertheless, in State v. Mullican, 329 N.C. 683, 686, 406 S.E.2d 854, 855-56 (1991), the Court concluded that a defendant may stipulate to the presence of an aggravating factor where the defend- ant does not object during the State\u2019s summary of the evidence and his counsel thereafter makes a statement consistent with the State\u2019s summary. In that case, the Court held that the defendant stipulated that he took advantage of a position of trust in committing first-degree sexual assault where, following the State\u2019s recitation of the evidence against him, the defendant\u2019s counsel stated that \u201cevidently [the defendant] lived there with his mother and [his] sister [would] leave her child there .... [a]nd his mother might go and see some neighbors and come back later . . . and it was pretty much evident that he was stuck with care of the child.\u201d Id. at 684, 406 S.E.2d at 856. The Court noted that the defendant had an \u201cinvitation\u201d to object to the State\u2019s summary of the evidence and chose not to do so, that his counsel\u2019s statement was \u201cconsistent\u201d with the State\u2019s summary of the evidence, and that his counsel concluded his statement by saying, \u201c[o]f course that is not any excuse for [the defendant\u2019s] doing this.\u201d Id. at 685, 406 S.E.2d at 855.\nThis Court has relied upon Mullican and its reasoning in holding that a defendant may impliedly stipulate to the presence of aggravating factors during sentencing. See, e.g., State v. Sammartino, 120 N.C. App. 597, 601, 463 S.E.2d 307, 310-11 (1995) (\u201cThe recitation of the factual basis and the statements of [the] defendants show that [the] defendants destroyed a monument erected to the memory of slain police officers during the trial of the slayer of two police officers in an effort to \u2018make the news.\u2019 We hold that there was sufficient evidence presented to support the nonstatutory aggravating factor that [the] defendants\u2019 \u2018conduct was intended to show disrespect to law enforcement [in a] manner calculated to be highly publicized.\u2019 \u201d); State v. Murphy, 152 N.C. App. 335, 340 n.5, 567 S.E.2d 442, 446 n.5 (\u201cWhen a defendant pleads guilty, the trial court may rely upon the circumstances surrounding the offense, including factual allegations in the indictment, in determining whether aggravating factors exist.\u201d) (citing State v. Thompson, 314 N.C. 618, 336 S.E.2d 78 (1985); Sammartino, supra; State v. Flowe, 107 N.C. App. 468, 420 S.E.2d 475 (1992)), disc. review denied, 356 N.C. 442, 573 S.E.2d 161 (2002). In the instant case, although I recognize that defendant pled guilty to the offense of armed robbery and did not object to the State\u2019s summary of the factual basis for his plea, I am not convinced that the circumstances and implications surrounding defendant\u2019s plea cure the trial court\u2019s failure to submit the aggravating factor to a jury for proof beyond a reasonable doubt.\nOur Supreme Court recently examined the constitutionality of this state\u2019s structured sentencing scheme in Allen. After reviewing the pertinent case law, including the United States Supreme Court\u2019s decisions in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), the Court concluded that, when \u201c[a]pplied to North Carolina\u2019s structured sentencing scheme, the rule of Apprendi and Blakely is: 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.\u201d Allen, 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. \u00a7\u00a7 15A-1340.13, 15A-1340.14, 15A-1340.16, 15A-1340.17).\nIn the instant case, the trial court enhanced defendant\u2019s sentence based upon a unilateral finding that defendant joined with more than one person to commit the offense and was not charged with a conspiracy. In support of its contention that defendant stipulated to the presence of this aggravating factor, the State relies upon the Assistant District Attorney\u2019s description of the offense and recitation of the procedural history of the case, as well as defense counsel\u2019s statements that McKlemurry was \u201cconverged on from different directions[,]\u201d that defendant \u201cknew they were going to rob him[,]\u201d that \u201cnone of them knew . . . that it was on videotape[,]\u201d that defendant \u201cknew they were coming here to do this in Greenville, this group from Pinetops[,]\u201d and that \u201cthere was one other juvenile, but the rest of these people were older, and . . . [defendant] followed the leader.\u201d The State also relies upon defendant\u2019s statement to the trial court that \u201cwe asked for the money and he said no, so I went over there and hit him.\u201d However, after reviewing the record in the instant case, I am unable to conclude that any of these statements represents the \u201c \u2018definite and certain\u2019 \u201d stipulation required by Powell 254 N.C. at 234, 118 S.E.2d at 619. Defense counsel\u2019s statements were made following his request \u201cjust ... to be heard . . . for sentencing.\u201d Defendant\u2019s statements were made after he was asked what he \u201cha[d] to say about it[.]\u201d I am not convinced that any of these statements were offered as an express stipulation, and I note the lack of any such finding by the trial court.\nFurthermore, I am also unconvinced that the circumstances of the instant case require us to find an implied stipulation by defendant. I recognize that \u201cunder Blakely the judge may still sentence a defendant in the aggravated range based upon the defendant\u2019s admission to an aggravating factor enumerated in N.C.G.S. \u00a7 15A-1340.16(d).\u201d Allen, 359 N.C. at 439, 615 S.E.2d at 265 (emphasis added). However, I also recognize that in Allen, the Court examined the inherent prejudice associated with Blakely-related Sixth Amendment violations, and it refused to apply the harmless error doctrine to these \u201cstructural\u201d errors, noting that \u201c \u2018speculation] on what juries would have done if they had been asked to find different facts\u2019 is impermissible\u201d when reviewing Blakely Sixth Amendment violations. Id. at 448, 615 S.E.2d at 271 (quoting State v. Hughes, 154 Wash. 2d 118, 148, 110 P.3d 192, 208 (2005)). This reverence for the defendant\u2019s fundamental right to a jury trial and to have aggravating factors submitted to a jury leads me to conclude that a defendant\u2019s stipulation to the presence of an aggravating factor must be unequivocally specific and not drawn from an after-the-fact implication based upon the circumstances. Indeed, the best practice would be for the trial court to obtain an express stipulation from the defendant regarding the presence of aggravating factors, whereby a reviewing court need not examine the adequacy and implication of statements contained in the transcript. Having determined that no such stipulation exists in the instant case, I agree that defendant is entitled to a new sentencing hearing. Accordingly, I also vote to remand the case to the trial court.\n. I note that the State argues that because defendant failed to object at sentencing, Allen is inapplicable to the instant case. However, in Allen, the Court stated that its holding would \u201capply to cases \u2018in which the defendants have not been indicted as of the certification date of this opinion and to cases that are now pending on direct review or are not yet final.\u2019 \u201d 359 N.C. at 427, 615 S.E.2d at 258 (citations omitted). Furthermore, I also note that N.C. Gen. Stat. \u00a7 15A-1446(d)(18) and (19) (2003) allow a defendant to challenge his or her sentence on appeal without prior objection where the sentence was unauthorized when .imposed, otherwise invalid as a matter of law, or is effected by a significant change in the law which applies to the underlying proceedings.", "type": "concurrence", "author": "TIMMONS-GOODSON, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.", "Geoffrey W. Hosford for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIE ODELL WHITEHEAD, JR.\nNo. COA04-1238\n(Filed 18 October 2005)\nSentencing\u2014 aggravating factor \u2014 failure to submit to jury\nThe trial court erred in imposing an aggravated sentence for robbery with a dangerous weapon based upon the court\u2019s finding an aggravating factor not admitted by defendant nor found by a jury beyond a reasonable doubt, and the case is remanded for a new sentencing hearing.\nJudge Timmons-Goodson concurring in a separate opinion.\nAppeal by defendant from judgment entered 4 May 2004 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 22 April 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.\nGeoffrey W. Hosford for defendant-appellant." }, "file_name": "0165-01", "first_page_order": 195, "last_page_order": 201 }