{ "id": 8352711, "name": "STATE OF NORTH CAROLINA v. ELIZABETH PAIGE McMAHAN", "name_abbreviation": "State v. McMahan", "decision_date": "2005-11-15", "docket_number": "No. COA05-211", "first_page": "586", "last_page": "591", "citations": [ { "type": "official", "cite": "174 N.C. App. 586" } ], "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": "614 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633103 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "264" }, { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0262-01" ] }, { "cite": "615 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633238 ], "weight": 6, "year": 2005, "pin_cites": [ { "page": "269" }, { "page": "267" }, { "page": "265" }, { "page": "272", "parenthetical": "emphasis supplied" }, { "page": "265" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0256-01" ] }, { "cite": "359 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799620 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0602-01" ] }, { "cite": "548 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "732" } ], "opinion_index": 0 }, { "cite": "353 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135574 ], "year": 2001, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0568-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "476" }, { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "274 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "223", "parenthetical": "The device of judicial notice is available to an appellate court \"on any occasion where the existence of a particular fact is important.\"" } ], "opinion_index": 0 }, { "cite": "302 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564415 ], "year": 1981, "pin_cites": [ { "page": "203", "parenthetical": "The device of judicial notice is available to an appellate court \"on any occasion where the existence of a particular fact is important.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0201-01" ] }, { "cite": "587 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "460" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8955879 ], "year": 2003, "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0144-01" ] }, { "cite": "595 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "358 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987693 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0243-01" ] }, { "cite": "597 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "745", "parenthetical": "citing State v. Roache, 358 N.C. 243, 595 S.E.2d 381 (2004)" } ], "opinion_index": 0 }, { "cite": "358 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986879 ], "year": 2004, "pin_cites": [ { "page": "410", "parenthetical": "citing State v. Roache, 358 N.C. 243, 595 S.E.2d 381 (2004)" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0382-01" ] }, { "cite": "158 L. Ed. 2d 370", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2004, "opinion_index": 0 }, { "cite": "541 U.S. 944", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5878913, 5918562, 5913478, 5872903, 5871369, 3634891, 5895147, 5905774, 5887894, 3634328, 5890777, 5872730, 5910715, 5924797 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/us/541/0944-02", "/us/541/0944-14", "/us/541/0944-05", "/us/541/0944-03", "/us/541/0944-07", "/us/541/0944-12", "/us/541/0944-01", "/us/541/0944-09", "/us/541/0944-10", "/us/541/0944-04", "/us/541/0944-11", "/us/541/0944-06", "/us/541/0944-13", "/us/541/0944-08" ] }, { "cite": "584 S.E.2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "745" } ], "opinion_index": 0 }, { "cite": "357 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491669 ], "year": 2003, "pin_cites": [ { "page": "372" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0366-01" ] }, { "cite": "527 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248184 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "7" }, { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/us/527/0001-01" ] }, { "cite": "499 U.S. 279", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11318776 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "310" }, { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/us/499/0279-01" ] }, { "cite": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "weight": 5, "year": 2005, "pin_cites": [ { "page": "444" }, { "page": "438-39" }, { "page": "450" }, { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0425-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 8, "year": 2004, "pin_cites": [ { "page": "310" }, { "page": "417-18" }, { "page": "303" }, { "page": "413-14", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] } ], "analysis": { "cardinality": 602, "char_count": 11309, "ocr_confidence": 0.749, "pagerank": { "raw": 6.296342754593538e-07, "percentile": 0.9581672522220408 }, "sha256": "de3626f090632a74b356a31f13b4d54ac757e37acb606ed18176285c40d1f988", "simhash": "1:9a69730e370e5bce", "word_count": 1816 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JACKSON and JOHN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ELIZABETH PAIGE McMAHAN" ], "opinions": [ { "text": "TYSON, Judge.\nElizabeth Paige McMahan (\u201cdefendant\u201d) appeals from judgments entered revoking her probation and activating her suspended sentences. We vacate and remand for a new sentencing hearing.\nI. Background\nDefendant was originally charged with twenty-eight counts of embezzlement. On 8 August 2003, defendant pled guilty to four consolidated counts of embezzlement, a Class H felony, pursuant to a plea agreement with the State in Guilford County.\nThe trial court sentenced defendant in the aggravated range to ten to twelve months incarceration on each of the four counts to run consecutively. The trial court found as an aggravating factor that \u201cthe offense involved the actual taking of property of great monetary value.\u201d This factor was not submitted to or found by a jury. The trial court also found as a mitigating factor that defendant had \u201caccepted responsibility for the defendant\u2019s criminal conduct.\u201d The trial court suspended each active prison sentence and imposed thirty-six months intensive supervised probation.\nOn 8 March 2004, Probation Officer John L. Andrews issued probation violation reports alleging defendant: (1) had not completed her community service and failed to report to her community service supervisor; (2) had been away from home at times she was required to be home; (3) had failed to make some restitution payments; (4) was $210.00 in arrears on her supervision fee; and (5) had failed to obtain and retain employment.\nA probation revocation hearing was held on 2 August 2004. Defendant admitted violating the terms of her probation but denied and contested the willfulness of the violations. The trial court found that defendant had willfully violated the terms and conditions of her probation, revoked defendant\u2019s probation, and activated her suspended sentences. Defendant appeals.\nII. Issue\nThe issue on appeal is whether the trial court erred by activating defendant\u2019s suspended sentences where those sentences were unconstitutionally aggravated in violation of the United States Supreme Court\u2019s decision Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004).\nTTT- Failure to Preserve and Waiver\nThe State contends defendant failed to preserve this issue for our review by her failure to object to the trial court\u2019s judgments imposing an aggravated sentence upon the revocation of her probation. N.C.R. App. P. 10(b)(1) (2004) (\u201cIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion . . . .\u201d).\n\u201cBlakely errors arising under North Carolina\u2019s Structured Sentencing Act are structural and, therefore, reversible per se.\u201d State v. Allen, 359 N.C. 425, 444, 615 S.E.2d 256, 269 (2005). \u201cStructural error is a rare form of constitutional error resulting from a \u2018defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.\u2019 \u201d Id. at 441, 615 S.E.2d at 267 (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 113 L. Ed. 2d 302, 337 (1991)). \u201cStructural errors are said to \u2018defy\u2019 harmless error review because they are \u2018so intrinsically harmful as to require automatic reversal (i.e., \u2018affect substantial rights\u2019) without regard to their effect on the outcome.\u2019 \u201d Id. (quoting Neder v. United States, 527 U.S. 1, 7, 144 L. Ed. 2d 35, 46 (1999)). Generally, constitutional errors must be \u201craised and passed upon\u201d at trial to be preserved for appellate review. State v. Watts, 357 N.C. 366, 372, 584 S.E.2d 740, 745 (2003), cert. denied, 541 U.S. 944, 158 L. Ed. 2d 370 (2004). Our Supreme Court has held that \u201c[structural error, no less than other constitutional error, should be preserved at trial.\u201d State v. Garcia, 358 N.C. 382, 410, 597 S.E.2d 724, 745 (2004) (citing State v. Roache, 358 N.C. 243, 595 S.E.2d 381 (2004)).\nWe consider defendant\u2019s assignment of error under N.C. Gen. Stat. \u00a7 15A-1446, which provides:\n(d) Errors based upon any of the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection, exception or motion has been made in the trial division.\n(18) The sentence imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law.\nN.C. Gen. Stat. \u00a7 15A-1446(d)(18) (2003) (emphasis supplied). This statute permits a review of sentencing errors even though the defendant failed to object at trial. State v. Reynolds, 161 N.C. App. 144, 149, 587 S.E.2d 456, 460 (2003). This argument is overruled.\nIV. Consent\nThe State also contends defendant consented to the entry of the enhanced sentences. We disagree.\n\u201c[N]othing prevents a defendant from waiving- his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts' or consents to judicial fact finding.\u201d Blakely, 542 U.S. at 310, 159 L. Ed. 2d at 417-18. The record filed in this appeal contains neither the plea transcript nor the trial court\u2019s findings of aggravation and mitigation on file with the Guilford County Clerk of Superior Court. We take judicial notice of the plea transcript and the trial court\u2019s findings of aggravation and mitigation and amend the record to include these documents ex mero moto. West v. G. D. Reddick, Inc., 302 N.C. 201, 203, 274 S.E.2d 221, 223 (1981) (The device of judicial notice is available to an appellate court \u201con any occasion where the existence of a particular fact is important.\u201d); N.C.R. App. P. 9(b)(5) (2004) (\u201cOn motion of any party or on its own initiative, the appellate court may order additional portions of a trial court record or transcript sent up and added to the record on appeal.\u201d). The plea transcript states as follows:\nDefendant\u2019s 28 counts of embezzlement will be consolidated for judgment into four class \u201cH\u201d felonies, to run consecutively. The sentences will be suspended on the condition that she will be placed on intensive supervised probation with the further special condition that she will pay restitution in the total amount of $15,000.00. $1,500.00 of this should be paid by bank check up [sic] the acceptance of this plea and the balance of $13,500.00 will be paid un [sic] supervision of probation.\nThe record as amended does not indicate defendant stipulated to the relevant facts or consented to judicial fact finding of aggravating factors. This argument is overruled.\nV. Activation of Defendant\u2019s Suspended Sentences\nDefendant argues that the trial erred in activating her suspended sentences where those sentences were unconstitutionally aggravated. We agree.\nIn Apprendi v. New Jersey, the United States Supreme Court ruled that a sentence enhancement imposed by the trial court violated the Fourteenth Amendment to the United States Constitution. 530 U.S. 466, 147 L. Ed. 2d 435 (2000). The Court held that the Fourteenth Amendment requires states to submit to a jury and prove beyond a reasonable doubt any fact, other than a prior conviction, which increases the maximum penalty for the crime charged. Id. at 476, 147 L. Ed. 2d at 446.\nIn June 2004, the United States Supreme Court reaffirmed Apprendi in Blakely, 542 U.S. 296, 159 L. Ed. 2d 403, and defined \u201cstatutory maximum.\u201d\n[T]he \u201cstatutory maximum\u201d 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 ... In other words, the relevant \u201cstatutory maximum\u201d is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.\nId. at 303, 159 L. Ed. 2d at 413-14 (citations omitted). In Allen, our Supreme Court applied the United States Supreme Court\u2019s decision in Blakely to the North Carolina Structured Sentencing Act. 359 N.C. at 438-39, 615 S.E.2d at 265.\nHere, the trial court sentenced defendant to four consecutive aggravated terms of ten to twelve months incarceration on 8 August 2003. The aggravating factors were not submitted to or found by a jury, and were not stipulated to by defendant in her plea agreement. The trial court suspended defendant\u2019s sentences and imposed thirty-six months intensive supervised probation. At the probation revocation hearing, the trial court revoked defendant\u2019s probation and activated the aggravated sentences as \u201coriginally ordered.\u201d Defendant filed her notice of appeal in August 2004.\nOur Supreme Court\u2019s opinions in Allen and Speight were certified on 1 July 2005. In Allen, our Supreme Court stated its holding applies to cases \u201c \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.' \u201d Allen, 359 N.C. at 450, 615 S.E.2d at 272 (emphasis supplied) (quoting State v. Lucas, 353 N.C. 568, 598, 548 S.E.2d 712, 732 (2001)). Our Supreme Court later stated in State v. Speight, that the \u201crationale in Allen applies to all cases in which (1) a defendant is constitutionally entitled to a jury trial, and (2) a trial court has found one or more aggravating factors and increased a defendant\u2019s sentence beyond the presumptive range without submitting the aggravating factors to a jury.\u201d 359 N.C. 602, 606, 614 S.E.2d 262, 264 (2005). The holdings in Allen and Speight apply here because defendant\u2019s assignment of sentencing error was pending on appeal on the date the Allen and Speight opinions were certified.\nThe trial court erred in activating sentences in the aggravated range without defendant\u2019s stipulation or submission of the aggravating factors to a jury to be proven beyond a reasonable doubt. Allen, 359 N.C. at 437, 615 S.E.2d at 265; Speight, 359 N.C. at 606, 614 S.E.2d at 264.\nVI. Conclusion\nThe trial court erred in activating defendant\u2019s aggravated sentences that were imposed without defendant\u2019s stipulation or submission to and finding by the jury beyond a reasonable doubt. We vacate the trial court\u2019s judgments and remand for a new sentencing hearing consistent with our Supreme Court\u2019s decision in Allen, 359 N.C. 425, 615 S.E.2d 256, and Speight, 359 N.C. 602, 614 S.E.2d 262.\nVacated and Remanded for New Sentencing Hearing.\nJudges JACKSON and JOHN concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Diane Martin Pomper, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ELIZABETH PAIGE McMAHAN\nNo. COA05-211\n(Filed 15 November 2005)\nSentencing\u2014 aggravating factors \u2014 failure to submit to jury\u2014 Blakely error\nThe trial court erred by activating defendant\u2019s suspended sentences arising from embezzlement convictions when those sentences were unconstitutionally aggravated in violation of Blakely v. Washington, U.S. (2004), without defendant\u2019s stipulation or submission to and finding by the jury beyond a reasonable doubt, and the case is remanded for a new sentencing hearing. N.C. Gen. Stat. \u00a7 15A-1446(d)(18) permits a review of sentencing errors even though the defendant failed to object at trial.\nAppeal by defendant from judgments entered 6 August 2004 by Judge Susan C. Taylor in Cabarrus County Superior Court. Heard in the Court of Appeals 19 October 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Diane Martin Pomper, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for defendant-appellant." }, "file_name": "0586-01", "first_page_order": 616, "last_page_order": 621 }