{ "id": 8352395, "name": "STATE OF NORTH CAROLINA v. ERNEST KEITH JORDAN, Defendant", "name_abbreviation": "State v. Jordan", "decision_date": "2005-11-15", "docket_number": "No. COA04-1380", "first_page": "479", "last_page": "489", "citations": [ { "type": "official", "cite": "174 N.C. App. 479" } ], "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 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "325" }, { "page": "325", "parenthetical": "\"In this case, a fact other than a prior conviction, defendant's probationary status, that increased defendant's sentence was not submitted to a jury and proved beyond a reasonable doubt.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0319-01" ] }, { "cite": "615 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633238 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "264-65" }, { "page": "266" }, { "page": "266" }, { "page": "265" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0256-01" ] }, { "cite": "548 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135574 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0568-01" ] }, { "cite": "2005 U.S. App. LEXIS 21484", "category": "reporters:specialty_lexis", "reporter": "U.S. App. LEXIS", "year": 2005, "pin_cites": [ { "page": "*4-5", "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "421 F.3d 278", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 8929206 ], "year": 2005, "pin_cites": [ { "page": "281-82", "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/f3d/421/0278-01" ] }, { "cite": "18 U.S.C. \u00a7 924", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "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 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "837" }, { "page": "837" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0829-01" ] }, { "cite": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "437" }, { "page": "439" }, { "page": "439" }, { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0425-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 6, "year": 2004, "pin_cites": [ { "page": "303" }, { "page": "413" }, { "page": "2537", "parenthetical": "holding that a jury must find any facts necessary to impose a sentence greater than that which \"a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant\" (emphasis omitted)" } ], "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 6, "year": 2000, "pin_cites": [ { "page": "490" }, { "page": "455" }, { "page": "2362-63" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "544 U.S. 13", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5879404 ], "weight": 22, "year": 2005, "pin_cites": [ { "page": "15" }, { "page": "211" }, { "page": "1257" }, { "page": "17" }, { "page": "212" }, { "page": "1258" }, { "page": "23" }, { "page": "216" }, { "page": "1261" }, { "page": "25" }, { "page": "217" }, { "page": "1262" }, { "page": "25" }, { "page": "217" }, { "page": "1262", "parenthetical": "emphasis added" }, { "page": "25" }, { "page": "217" }, { "page": "1262" } ], "opinion_index": 0, "case_paths": [ "/us/544/0013-01" ] }, { "cite": "506 U.S. 20", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11924885 ], "weight": 20, "year": 1992, "pin_cites": [ { "page": "22-23" }, { "page": "399" }, { "page": "519" }, { "page": "23" }, { "page": "400" }, { "page": "520" }, { "page": "22-23" }, { "page": "400" }, { "page": "520" }, { "page": "29-30" }, { "page": "403-04" }, { "page": "523", "parenthetical": "internal citations omitted" }, { "page": "30" }, { "page": "404" }, { "page": "523" }, { "page": "524" }, { "page": "31" }, { "page": "405" }, { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/us/506/0020-01" ] }, { "cite": "369 U.S. 506", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6169152 ], "weight": 3, "year": 1962, "pin_cites": [ { "page": "516" }, { "page": "77" }, { "page": "890" } ], "opinion_index": 0, "case_paths": [ "/us/369/0506-01" ] }, { "cite": "395 U.S. 238", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771759 ], "weight": 8, "year": 1969, "pin_cites": [ { "page": "242" }, { "page": "279" }, { "page": "1711" } ], "opinion_index": 0, "case_paths": [ "/us/395/0238-01" ] }, { "cite": "359 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "270-71", "parenthetical": "upholding denial of motion to suppress when the sole evidence of indigency was the defendant's testimony that he could not afford an attorney" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 13", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357792 ], "year": 1987, "pin_cites": [ { "page": "22-24", "parenthetical": "upholding denial of motion to suppress when the sole evidence of indigency was the defendant's testimony that he could not afford an attorney" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0013-01" ] }, { "cite": "581 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491396, 491839, 491752, 491593, 491723, 491412, 491485, 491647 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0168-04", "/nc/357/0168-02", "/nc/357/0168-08", "/nc/357/0168-01", "/nc/357/0168-07", "/nc/357/0168-05", "/nc/357/0168-03", "/nc/357/0168-06" ] }, { "cite": "569 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "666" }, { "page": "666" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249135 ], "year": 2002, "pin_cites": [ { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0203-01" ] } ], "analysis": { "cardinality": 992, "char_count": 25412, "ocr_confidence": 0.735, "pagerank": { "raw": 2.533002620098173e-07, "percentile": 0.8126690011657051 }, "sha256": "8b1b347905a91320c5ab460461ceb484fe8eb745c472a500262dab447d0afdc0", "simhash": "1:ca68d70c773ed4c5", "word_count": 4202 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ERNEST KEITH JORDAN, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Ernest Keith Jordan appeals from his conviction and sentence for assault with a deadly weapon inflicting, serious injury. He challenges only the trial court\u2019s calculation of his prior record level, contending (1) that the court should have granted his motion to suppress use of certain prior convictions on the grounds that they were obtained in violation of his right to counsel and (2) that a jury rather than the trial judge should have determined defendant\u2019s prior record level. We hold that the Sixth Amendment did not require that a jury determine defendant\u2019s prior record level. Further, the trial court properly applied N.C. Gen. Stat. \u00a7 15A-980 (2003) in determining that defendant failed to meet his burden of proving that prior convictions were obtained in violation of his right to counsel.\nFacts\nDefendant and Michael Lindley lived in the same apartment complex. On 19 October 2003, Lindley went to defendant\u2019s apartment; both men had consumed significant quantities of alcohol. Defendant began talking about fighting and, according to Lindley, announced, \u201c[C]an\u2019t nobody whoop me. I\u2019m the baddest man that ever was.\u201d Lindley got up' to leave, but defendant got \u201cup right there in [his] space,\u201d leading Lindley to strike defendant on the side of the head.\nLindley then went to a local store. Upon returning to his own apartment, Lindley saw defendant in the building stairwell with a shotgun. Lindley apologized for hitting defendant and asked him to put the gun away. Instead, defendant shot Lindley in the left arm. Lindley, as a result, spent six weeks in the hospital.\nDefendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury. The jury found him guilty of assault with a deadly weapon inflicting serious injury. The trial judge determined that defendant had a prior record level of III, based on eight prior class Al or 1 misdemeanor convictions. He then sentenced defendant in the presumptive range to 34 to 50 months imprisonment.\nDiscussion\nPrior to trial, defendant filed a motion to suppress his prior convictions under N.C. Gen. Stat. \u00a7 15A-980, alleging that all nine prior misdemeanor convictions listed on the State\u2019s sentencing worksheet were obtained in violation of defendant\u2019s right to counsel. At trial, the State withdrew one conviction because it was not a prior conviction of defendant and defendant did not pursue suppression for three others.\nWith respect to the remaining five convictions \u2014 the most recent of which occurred in 1987 \u2014 the trial court found that defendant failed to meet his burden of proving that they were obtained in violation of his right to counsel. When these five convictions were included in the calculation, defendant had a prior record level of III rather than II.\nDefendant argues that the trial court erred in finding that he failed to meet the requirements of N.C. Gen. Stat. \u00a7 15A-980 for suppressing his prior convictions. N.C. Gen. Stat. \u00a7 15A-980(a) provides that \u201c[a] defendant has the right to suppress the use of a prior conviction that was obtained in violation of his right to counsel\u201d if the State intends to use it to impeach the defendant or if its use will result in a lengthened sentence or a sentence that would not otherwise be imposed.\nN.C. Gen. Stat. \u00a7 15A-980(c) provides further:\nWhen a defendant has moved to suppress use of a prior conviction under the terms of subsection (a), he has the burden of proving by the preponderance of the evidence that the conviction was obtained in violation of his right to counsel. To prevail, he must prove that at the time of the conviction he was indigent, had no counsel, and had not waived his right to counsel. If the defendant proves that a prior conviction was obtained in violation of his right to counsel, the judge must suppress use of the conviction at trial or in any other proceeding if its use will contravene the provisions of subsection (a).\nThis Court has held that N.C. Gen. Stat. \u00a7 15A-980(c) requires that a defendant prove all three of the following facts: (1) he was indigent, (2) he had no counsel, and (3) he did not waive his right to counsel. State v. Rogers, 153 N.C. App. 203, 216, 569 S.E.2d 657, 666 (2002), disc. review denied, 357 N.C. 168, 581 S.E.2d 442 (2003).\nThe only evidence offered by defendant to meet his burden was his own testimony that he did not have an attorney for each conviction and that he was not able to afford one at that time. In Rogers, this Court held that testimony by a defendant, standing alone, \u201cthat he could not afford an attorney at the time of a prior conviction does not prove by a preponderance of the evidence that the defendant was indigent, as required under N.C.G.S. \u00a7 15A-980.\u201d Id. at 217, 569 S.E.2d at 666. The Court then held: \u201cHaving concluded defendant failed to prove by a preponderance of the evidence that he was indigent at the time of the prior convictions, we need not consider whether defendant had waived his right to counsel.\u201d Id. See also State v. Brown, 87 N.C. App. 13, 22-24, 359 S.E.2d 265, 270-71 (1987) (upholding denial of motion to suppress when the sole evidence of indigency was the defendant\u2019s testimony that he could not afford an attorney).\nHere, defendant contends that a finding of indigency is supported not only by his own testimony, but also by the trial court\u2019s finding in this case that defendant was indigent both at the trial and at the appellate level. The fact that defendant may presently be indigent is not, however, relevant to whether defendant was indigent when convicted during the period 1981 through 1987, the time frame of the prior convictions at issue. Rogers and Brown, therefore, establish that the trial court did not err in determining that defendant failed to meet his burden of proving that he was indigent at the time of the prior convictions.\nDefendant next argues that by placing the burden of proof on defendant, the trial court violated Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969). Defendant states in his brief that he \u201cstrenuously contends that under Boykin the burden is on the state to show the presence of an attorney or lack of indigency, rather [than] the burden being on the Defendant to show the absence of an attorney or the fact of indigency.\u201d Defendant notes that the trial court expressed concerns about Boykin in light of the fact that because of the age of defendant\u2019s prior convictions, most of the documentation regarding those convictions had been destroyed.\nIn Boykin, the United States Supreme Court found reversible error when a trial judge accepted a defendant\u2019s guilty plea without creating a record affirmatively showing that the plea was knowing and voluntary. Id. at 242, 23 L. Ed. 2d at 279, 89 S. Ct. at 1711. The Court held that a waiver of rights resulting from a guilty plea will not be inferred \u201cfrom a silent record.\u201d Id. Defendant also points to language in Boykin stating that \u201c \u2018[t]he record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.\u2019 \u201d Id. (quoting Carnley v. Cochran, 369 U.S. 506, 516, 8 L. Ed. 2d 70, 77, 82 S. Ct. 884, 890 (1962)).\nIn Parke v. Raley, 506 U.S. 20, 22-23, 121 L. Ed. 2d 391, 399, 113 S. Ct. 517, 519 (1992), however, the Supreme Court revisited and clarified Boykin, la Raley, the Court considered Kentucky\u2019s recidivist sentencing statute. Id. at 23, 121 L. Ed. 2d at 400, 113 S. Ct. at 520. As defendant does here, the defendant in Raley challenged the constitutionality of the Kentucky statute under Boykin on the grounds that it did not require the prosecution to bear the burden of proving the validity of prior convictions. Id. at 22-23, 121 L. Ed. 2d at 400, 113 S. Ct. at 520. In rejecting the defendant\u2019s argument, the Court explained:\nWe see no tension between the Kentucky scheme and Boykin. Boykin involved direct review of a conviction allegedly based upon an uninformed guilty plea. Respondent, however, never appealed his earlier convictions. They became final years ago, and he now seeks to revisit the question of their validity in a separate recidivism proceeding. To import Boykin\u2019s presumption of invalidity into this very different context would, in our view, improperly ignore another presumption deeply rooted in our jurisprudence: the \u201cpresumption of regularity\u201d that attaches to final judgments, even when the question is waiver of constitutional rights. Although we are perhaps most familiar with this principle in habeas corpus actions, it has long been applied equally to other forms of collateral attack. Respondent, by definition, collaterally attacked his previous convictions; he sought to deprive them of their normal force and effect in a proceeding that had an independent purpose other than to overturn the prior judgments.\nId. at 29-30, 121 L. Ed. 2d at 403-04, 113 S. Ct. at 523 (internal citations omitted).\nThe Court then observed that \u201c[tjhere is no good reason to suspend the presumption of regularity\u201d when a defendant collaterally attacks a prior conviction being used to enhance a sentence. Id. at 30, 121 L. Ed. 2d at 404, 113 S. Ct. at 523. The Court wrote:\nThis is not a case in which an extant transcript is suspiciously \u201csilent\u201d on the question whether the defendant waived constitutional rights. Evidently, no transcripts or other records of the earlier plea colloquies exist at all. . . . The circumstance of a missing or nonexistent record is, we suspect, not atypical, particularly when the prior conviction is several years old. But Boykin colloquies have been required for nearly a quarter century. On collateral review, we think it defies logic to presume from the mere unavailability of a transcript (assuming no allegation that the unavailability is due to governmental misconduct) that the defendant was not advised of his rights. In this situation, Boykin does not prohibit a state court from presuming, at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained.\nId., 113 S. Ct. at 524. The Court then concluded: \u201cOur precedents make clear . . . that even when a collateral attack on a final conviction rests on constitutional grounds, the presumption of regularity that attaches to final judgments makes it appropriate to assign a proof burden to the defendant.\u201d Id. at 31, 121 L. Ed. 2d at 405, 113 S. Ct. at 524.\nIn this case, defendant is collaterally attacking his prior convictions on the ground that they were obtained in violation of his constitutional right to counsel. Under Raley, those prior convictions are entitled to a \u201cpresumption of regularity.\u201d Defendant offers no reason why that presumption should not apply to challenges under N.C. Gen. Stat. \u00a7 15A-980; indeed, defendant fails to acknowledge Raley at all. Like Raley, the record in this case is not suspiciously silent; the 20-year-old records had been, according to the parties, routinely destroyed. Also as in Raley, at the time of the prior convictions, defendant\u2019s right to counsel had been long recognized. We can perceive no reasoned basis upon which to distinguish Raley. Based on Raley, we hold that defendant\u2019s argument that Boykin precluded placing the burden of proof on defendant is without merit.\nDefendant has also filed a motion for appropriate relief based on Shepard v. United States, 544 U.S. 13, 161 L. Ed. 2d 205, 125 S. Ct. 1254 (2005), which was decided after defendant filed his brief on appeal. Defendant contends that Shepard requires that a jury decide whether his prior convictions were obtained in violation of his constitutional right to counsel.\nWe first note that defendant\u2019s argument is actually based on Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000) and \u2014 although unmentioned in defendant\u2019s brief \u2014 on Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), in which the Supreme Court held that the principles of Apprendi applied with respect to sentencing. Defendant\u2019s counsel was aware of Blakely, as indicated by defendant\u2019s abandoned fifth assignment of error, which states that the trial court erred under Blakely in failing to find a specified mitigating factor. At the time of the filing of his initial brief, defendant was in a position to make the arguments raised in his motion for appropriate relief, but failed to do so. Nevertheless, because this Court previously allowed defendant\u2019s request to file a supplemental brief addressing Shepard, we exercise our discretion to consider defendant\u2019s arguments.\nIn Apprendi, the United States Supreme Court held that the Sixth Amendment requires that \u201c[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.\u201d Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. Subsequently, our Supreme Court held that the \u201cstatutory maximum\u201d in North Carolina is the top of the presumptive range: State v. Allen, 359 N.C. 425, 437, 615 S.E.2d 256, 264-65 (2005). As set out in Allen, therefore, the Apprendi and Blakely requirement of a jury applies in sentencing when (1) the fact results in a sentence in excess of the presumptive range, and (2) the fact is other than that of a prior conviction.\nApplied 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.\nWe first note that defendant was sentenced within the presumptive range. The trial court\u2019s findings regarding defendant\u2019s prior convictions did not increase the penalty imposed on defendant beyond the presumptive range. Accordingly, Allen suggests that neither Apprendi nor Blakely should apply. See also Allen, 359 N.C. at 439, 615 S.E.2d at 266 (\u201cWe emphasize that Blakely, which is grounded in the Sixth Amendment right to jury trial, affects only those portions of the Structured Sentencing Act which require the sentencing judge to consider the existence of aggravating factors not admitted to by a defendant or found by a jury and which permit the judge to impose an aggravated sentence after finding such aggravating factors by a preponderance of the evidence.\u201d). In State v. Wissink, 172 N.C. App. 829, 837, 617 S.E.2d 319, 325 (2005), however, this Court held \u201cthat the trial court erred by adding a point to defendant\u2019s prior record level [because the crime was committed while the defendant was on probation] without first submitting the issue to a jury to find beyond a reasonable doubt.\u201d Although the Court did not address the requirement in Allen that the fact at issue must cause the defendant\u2019s sentence to be increased above the presumptive range, we are not free to revisit the decision in Wissink. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).\nThe parties debate whether this case involves the other predicate set out in Allen and Apprendi: that the disputed fact be other than the fact of a prior conviction. While the State contends that the issues involved fall squarely within the exception to Apprendi, defendant urges that a jury must resolve all factual disputes relating to a prior conviction.\nIn Shepard, the United States Supreme Court considered the ability of a trial judge to resolve disputed factual issues about a prior conviction. Shepard involved the Armed Career Criminal Act (\u201cACCA\u201d), 18 U.S.C. \u00a7 924(e) (2000), which mandates a 15-year minimum prison sentence for anyone possessing a firearm after three prior convictions for serious drug offenses or violent felonies. Shepard, 544 U.S. at 15, 161 L. Ed. 2d at 211, 125 S. Ct. at 1257. ACCA considers burglary a violent felony if committed in a building or enclosed space, but not if committed in a boat or motor vehicle. Id. Because the Shepard defendant\u2019s prior state convictions were obtained under a statute that did not limit burglary in that manner, the question arose regarding what information a trial court could consider in deciding whether the state convictions fell within the scope of ACCA. In deciding to enhance the defendant\u2019s sentence, the trial court considered police reports and complaint applications that contained details suggesting the defendant\u2019s prior burglaries were committed within a building or enclosed space. Id. at 17, 161 L. Ed. 2d at 212, 125 S. Ct. at 1258.\nWhile the Supreme Court did not question the trial court\u2019s ability to resolve this factual dispute without a jury, the Court limited the scope of material that the trial court could consider under ACCA to \u201crecords of the convicting court approaching the certainty of the record of conviction.\u201d Id. at 23, 161 L. Ed. 2d at 216, 125 S. Ct. at 1261. The plurality concluded that this limitation was necessary to avoid the Sixth Amendment concerns underlying Apprendi. Id. at 25, 161 L. Ed. 2d at 217, 125 S. Ct. at 1262.\nThe Fourth Circuit has recently succinctly summarized the Supreme Court\u2019s analysis and conclusion in Shepard:\n[The Supreme Court] prohibited judges from resolving a \u201cdisputed fact. . . about a prior conviction,\u201d id. at 1262, if doing so required data \u2014 like that found in police reports \u2014 that was not inherent in that prior conviction. At the same time, however, Shepard explicitly affirmed that the prior conviction exception remained good law. Id. at 1262. To this end, the Court authorized judges to rely on a variety of conclusive court documents when determining the nature of a prior conviction. Approved sources include, for instance, the prior court\u2019s jury instructions or the \u201ccharging documents filed in the court of conviction.\u201d Id. at 1259. When there was no jury in the prior case, judges may use not only charging documents but \u201ca bench-trial judge\u2019s formal rulings of law and findings of fact.\u201d Id. For prior guilty pleas, \u201cthe terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or [] some comparable judicial record of this information,\u201d are all also available for use. Id. at 1263 n.3.\nUnited States v. Thompson, 421 F.3d 278, 281-82 (4th Cir. 2005) (alteration in original).\nWith respect to the application of the Shepard analysis to this case, the parties have overlooked a fundamental distinction. The Shepard Court recognized that \u201cthe Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the state, and they guarantee a jury\u2019s finding of any disputed fact essential to increase the ceiling of a potential sentence.\u201d Shepard, 544 U.S. at 25, 161 L. Ed. 2d at 217, 125 S. Ct. at 1262 (emphasis added). In Shepard, the trial court could not impose the sentence unless the prosecution proved that the defendant was previously convicted of a violent felony. It squarely fell within Apprendi and Blakely because it required proof by the Government of facts beyond those found by the jury. See Blakely, 542 U.S. at 303, 159 L. Ed. 2d at 413, 124 S. Ct. at 2537 (holding that a jury must find any facts necessary to impose a sentence greater than that which \u201ca judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant\u201d (emphasis omitted)).\nIn this case, however, the trial court was entitled to impose the sentence at issue based on the jury\u2019s findings and the State\u2019s proof of defendant\u2019s prior convictions. The State met its burden of proving the prior convictions by presenting a certified Division of Criminal Information printout and a certified Division of Motor Vehicles driving history. N.C. Gen. Stat. \u00a7 15A-1340.14(f) (2003) (allowing proof of prior convictions by a copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts). Defendant does not argue that the State failed to meet the requirements of N.C. Gen. Stat. \u00a7 15A-1340.14. As explained above, the State had no further burden and the trial court was entitled to sentence defendant to the presumptive range sentence without proof of any further facts. Apprendi and Blakely are, therefore, not implicated.\nDefendant\u2019s argument regarding the validity of his prior convictions^ \u2014 an issue upon which he bore the burden of proof \u2014 is an effort to decrease the sentence that he would otherwise receive. Thus, the disputed fact is not \u201cessential to increase the ceiling of a potential sentence,\u201d Shepard, 544 U.S. at 25, 161 L. Ed. 2d at 217, 125 S. Ct. at 1262, but rather is essential to decrease the potential sentence. Defendant\u2019s collateral attack on his prior convictions is analogous to a defendant\u2019s seeking to prove mitigating circumstances. Our Supreme Court confirmed in Allen that Blakely does not require that a jury make findings with respect to mitigating factors. Allen, 359 N.C. at 439, 615 S.E.2d at 266 (\u201cThose portions of N.C.G.S. \u00a7 15A-1340.16 which govern a sentencing judge\u2019s finding of mitigating factors and which permit the judge to balance aggravating and mitigating factors otherwise found to exist are not implicated by Blakely....\u201d).\nWe have found no authority in any jurisdiction suggesting that a jury must decide issues \u2014 upon which a defendant has the burden of proof \u2014 that would decrease a defendant\u2019s sentence. The Fourth Circuit has, however, held in an unpublished opinion that neither Blakely nor Shepard required reversal when a trial court rejected the defendant\u2019s contention that one of the convictions used in determining his sentence was obtained in violation of his right to counsel. United States v. Jones, Nos. 04-4179, 04-4183, 2005 U.S. App. LEXIS 21484, at *4-5 (4th Cir. Oct. 4, 2005) (per curiam). We similarly hold that the trial judge did not err in resolving the factual issues underlying defendant\u2019s motion to suppress his prior convictions.\nFinally, defendant\u2019s motion for appropriate relief also argues that under State v. Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001), the trial court was without jurisdiction to impose a sentence above a prior record level I because defendant\u2019s prior convictions were not alleged in his indictment. Our Supreme Court has, however, recently overruled Lucas to the extent it required that sentencing factors be alleged in an indictment. Allen, 359 N.C. at 438, 615 S.E.2d at 265. We, therefore, affirm the sentence imposed by the trial court.\nNo error.\nJudges CALABRIA and ELMORE concur.\n. As an initial matter, defendant argues that this Court should remand his case to the trial court because the basis upon which the trial court denied his motion to suppress is unclear. Based upon our review of the transcript, it is apparent that the trial court denied the motion because it determined that defendant had failed to meet his burden of proving that he was improperly denied counsel in connection with the prior convictions.\n. As to one of these convictions, defendant simply testified that he had \u201cno idea\u201d about the case, suggesting that it was not actually his conviction. Defendant does not, however, argue on appeal that the State failed to meet its burden of proving that defendant was the perpetrator with respect to each of the convictions.\n. See Wissink, 172 N.C. App. at 837, 617 S.E.2d at 325 (\u201cIn this case, a fact other than a prior conviction, defendant\u2019s probationary status, that increased defendant\u2019s sentence was not submitted to a jury and proved beyond a reasonable doubt.\u201d). The Court did not distinguish between facts that increased a sentence within the presumptive range and facts that caused the sentence to exceed the presumptive range.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Marc X. Sneed, for the State.", "Bruce T. Cunningham, Jr. for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ERNEST KEITH JORDAN, Defendant\nNo. COA04-1380\n(Filed 15 November 2005)\n1. Sentencing\u2014 prior convictions \u2014 indigency\u2014insufficient evidence\nA defendant being sentenced failed to meet his burden of proving that he was indigent at the time of challenged prior convictions. N.C.G.S. \u00a7 15A-980.\n2. Sentencing\u2014 prior convictions \u2014 presumption of regularity \u2014 right to counsel\nPrior convictions were entitled to a presumption of regularity in a sentencing proceeding where the convictions were 20 years old and the records had been routinely destroyed. The trial court did not err by placing the burden of proof on defendant, who offered no reason that the presumption of regularity should not apply.\n3. Sentencing\u2014 prior convictions \u2014 jury findings \u2014 not required\nJury findings were not required where a defendant sentenced within the presumptive range challenged his prior convictions. The State met its burden by presenting certified records, and the trial court was entitled to sentence defendant in the presumptive range without further proof.\n4. Indictment and Information\u2014 sentencing factors \u2014 not required\nSentencing factors are not required to be alleged in the indictment.\nAppeal by defendant from judgment entered 19 May 2004 by Judge Kenneth C. Titus in Alamance County Superior Court. Heard in the Court of Appeals 17 August 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Marc X. Sneed, for the State.\nBruce T. Cunningham, Jr. for defendant-appellant." }, "file_name": "0479-01", "first_page_order": 509, "last_page_order": 519 }