{ "id": 8351769, "name": "STATE OF NORTH CAROLINA v. LAWRENCE HANTON", "name_abbreviation": "State v. Hanton", "decision_date": "2006-01-03", "docket_number": "No. COA04-1279", "first_page": "250", "last_page": "265", "citations": [ { "type": "official", "cite": "175 N.C. App. 250" } ], "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": "615 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633238 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "262" }, { "page": "265", "parenthetical": "emphasis added" }, { "page": "265" }, { "page": "265", "parenthetical": "overruling the \"language of Lucas, requiring sentencing factors which might lead to a sentencing enhancement to be alleged in an indictment\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0256-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-2.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "502 S.E.2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "117" }, { "page": "52" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11465606 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/130/0113-01" ] }, { "cite": "337 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "681", "parenthetical": "\"[T]he 'rule of lenity' forbids a court to interpret a statute so as to increase the penalty that it places on an individual when the Legislature has not clearly stated such an intention.\"" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 572", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522768 ], "year": 1985, "pin_cites": [ { "page": "577", "parenthetical": "\"[T]he 'rule of lenity' forbids a court to interpret a statute so as to increase the penalty that it places on an individual when the Legislature has not clearly stated such an intention.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0572-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-33", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2003, "pin_cites": [ { "page": "(c)" }, { "page": "(c)" }, { "page": "(c)(l)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "156 L. Ed. 2d 702", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "539 U.S. 985", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8940409, 8940346, 8940372, 8940287 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/539/0985-04", "/us/539/0985-02", "/us/539/0985-03", "/us/539/0985-01" ] }, { "cite": "528 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "343" } ], "opinion_index": 0 }, { "cite": "351 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155877 ], "year": 2000, "pin_cites": [ { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0481-01" ] }, { "cite": "582 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "603" } ], "opinion_index": 0 }, { "cite": "357 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491439 ], "pin_cites": [ { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0257-01" ] }, { "cite": "548 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "353 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135574 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "597-98" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0568-01" ] }, { "cite": "412 F.3d 515", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 8969360 ], "year": 2005, "pin_cites": [ { "page": "521", "parenthetical": "summarizing Shepard" } ], "opinion_index": 0, "case_paths": [ "/f3d/412/0515-01" ] }, { "cite": "18 USC \u00a7 924", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "161 L. Ed. 2d 205", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 5879404 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/us/544/0013-01" ] }, { "cite": "492 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "371", "parenthetical": "\"Statutory interpretation presents a question of law.\"" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 585", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798906 ], "year": 1997, "pin_cites": [ { "page": "588", "parenthetical": "\"Statutory interpretation presents a question of law.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0585-01" ] }, { "cite": "98 P.3d 1235", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "1241" }, { "page": "1241" } ], "opinion_index": 0 }, { "cite": "458 S.E.2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "275" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 326", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915013 ], "year": 1995, "pin_cites": [ { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0326-01" ] }, { "cite": "328 S.E.2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "281" } ], "opinion_index": 0 }, { "cite": "313 N.C. 230", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718465 ], "year": 1985, "pin_cites": [ { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0230-01" ] }, { "cite": "250 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "683" }, { "page": "683", "parenthetical": "\"The due administration of the criminal law cannot be left to the stipulations of the parties.\"" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 470", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553020 ], "weight": 2, "pin_cites": [ { "page": "472" }, { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0470-01" ] }, { "cite": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "432" }, { "page": "437" }, { "page": "437" }, { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0425-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "490" }, { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 12, "year": 2004, "pin_cites": [ { "page": "296" }, { "page": "409" }, { "page": "303" }, { "page": "413-14" }, { "page": "328" }, { "page": "412" }, { "page": "301" }, { "page": "412" }, { "page": "301" }, { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "540 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2000, "pin_cites": [ { "page": "383", "parenthetical": "hereinafter Hanton I" }, { "page": "383" }, { "page": "383" }, { "page": "382-83" }, { "page": "383" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 679", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12133610 ], "weight": 5, "year": 2000, "pin_cites": [ { "page": "690-91", "parenthetical": "hereinafter Hanton I" }, { "page": "690" }, { "page": "690" }, { "page": "689-90" }, { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0679-01" ] }, { "cite": "617 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633713 ], "year": 2005, "pin_cites": [ { "page": "325" } ], "opinion_index": 1, "case_paths": [ "/se2d/617/0319-01" ] }, { "cite": "621 S.E.2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634301 ], "year": 2005, "pin_cites": [ { "parenthetical": "holding that Blakely and Allen were not implicated where a trial court determined that the defendant had prior North Carolina convictions, raising the defendant from Level I to Level II" } ], "opinion_index": 1, "case_paths": [ "/se2d/621/0229-01" ] }, { "cite": "616 S.E.2d 639", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633603 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "642" }, { "page": "642" } ], "opinion_index": 1, "case_paths": [ "/se2d/616/0639-01" ] }, { "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" }, { "page": "265" } ], "opinion_index": 1, "case_paths": [ "/se2d/615/0256-01" ] }, { "cite": "404 F.3d 834", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9015737 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "841" }, { "page": "842", "parenthetical": "internal citations omitted" } ], "opinion_index": 1, "case_paths": [ "/f3d/404/0834-01" ] }, { "cite": "172 N.C. App. 829", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8321682 ], "year": 2005, "pin_cites": [ { "page": "837" } ], "opinion_index": 1, "case_paths": [ "/nc-app/172/0829-01" ] }, { "cite": "174 N.C. App. 479", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352395 ], "year": 2005, "pin_cites": [ { "parenthetical": "holding that Blakely and Allen were not implicated where a trial court determined that the defendant had prior North Carolina convictions, raising the defendant from Level I to Level II" } ], "opinion_index": 1, "case_paths": [ "/nc-app/174/0479-01" ] }, { "cite": "172 N.C. App. 839", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8321723 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "840" }, { "page": "843" } ], "opinion_index": 1, "case_paths": [ "/nc-app/172/0839-01" ] }, { "cite": "526 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11133049 ], "weight": 2, "year": 1999, "opinion_index": 1, "case_paths": [ "/us/526/0227-01" ] }, { "cite": "495 U.S. 575", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 634101 ], "weight": 10, "year": 1990, "pin_cites": [ { "page": "602" }, { "page": "629" }, { "page": "601" }, { "page": "629" }, { "page": "588" }, { "page": "620-21" }, { "page": "600-01" }, { "page": "628" } ], "opinion_index": 1, "case_paths": [ "/us/495/0575-01" ] }, { "cite": "161 L. Ed. 2d 205", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 5879404 ], "weight": 5, "year": 2005, "pin_cites": [ { "page": "217" }, { "page": "213-14" }, { "page": "213-14" }, { "page": "217" } ], "opinion_index": 1, "case_paths": [ "/us/544/0013-01" ] }, { "cite": "98 P.3d 1235", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2004, "pin_cites": [ { "page": "1241" } ], "opinion_index": 1 }, { "cite": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "437" }, { "page": "437" } ], "opinion_index": 1, "case_paths": [ "/nc/359/0425-01" ] }, { "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": "490" }, { "page": "455" }, { "page": "490" }, { "page": "455" } ], "opinion_index": 1, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 8, "year": 2004, "pin_cites": [ { "page": "301" }, { "page": "412" }, { "page": "301" }, { "page": "412" }, { "page": "308" }, { "page": "417", "parenthetical": "\"[T]he Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury.\"" } ], "opinion_index": 1, "case_paths": [ "/us/542/0296-01" ] } ], "analysis": { "cardinality": 1057, "char_count": 38621, "ocr_confidence": 0.758, "pagerank": { "raw": 5.96026489040034e-07, "percentile": 0.9536749053709309 }, "sha256": "993a276b49e40a0a223be44204b84e5588e9ced97558d732f26ce4d35b4d21a2", "simhash": "1:8ee9170f6c6ea4d4", "word_count": 6301 }, "last_updated": "2023-07-14T22:29:36.119960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUNTER concurs.", "Judge McGEE concurs in part and dissents in part." ], "parties": [ "STATE OF NORTH CAROLINA v. LAWRENCE HANTON" ], "opinions": [ { "text": "LEVINSON, Judge.\nLawrence Hanton (defendant) was convicted of second-degree murder on 24 March 1999. The State presented the trial court with a prior record level worksheet that included several prior convictions of defendant in the State of New York. Based on the worksheet, the trial court found that defendant had a prior record Level V. The trial court further found one aggravating factor and one mitigating factor, concluding that the aggravating factor outweighed the mitigating factor. Defendant was sentenced to an aggravated term of 353 to 433 months imprisonment. Defendant appealed to this Court. We remanded defendant\u2019s case for resentencing, concluding that the trial court had erred in sentencing defendant as a Level V offender when the State had not shown by a preponderance of the evidence that the out-of-state convictions were substantially similar to North Carolina offenses. State v. Hanton, 140 N.C. App. 679, 690-91, 540 S.E.2d 376, 383 (2000) (hereinafter Hanton I).\nDefendant was resentenced on 22 June 2004. The State presented a prior record level worksheet in which three prior convictions that occurred in New York were used to calculate defendant\u2019s prior record level: (1) second-degree robbery, (2) third-degree robbery, and (3) attempted assault in the second-degree. The State presented the trial court with certified copies of these three felony convictions and with copies of the New York statutes for \u201crobbery; defined,\u201d \u201crobbery in the third degree,\u201d \u201crobbery in the second degree,\u201d and \u201cassault in the second degree.\u201d\nN.C. Gen. Stat. \u00a7 15A-1340.14(e) (2003) governs the classification of prior convictions from other states for purposes of determining a defendant\u2019s prior record level. Pursuant to this statute, the trial court found defendant\u2019s New York convictions for second-degree robbery on 15 January 1985, and for third-degree robbery on 3 March 1987, to be substantially similar to North Carolina common law robbery. The trial court therefore classified both of these New York robbery convictions as Class G felonies, and assigned four record points to each offense. The trial court further found that defendant\u2019s New York conviction for attempted second-degree assault was substantially similar to North Carolina\u2019s assault inflicting serious injury, which is a Class A1 misdemeanor, carrying one point. Defendant was therefore assigned a total of nine prior record points, which gave him a prior record Level IV. Defendant presented evidence of mitigating factors to the trial court, and the trial court sentenced defendant to 251 to 311 months in prison, the statutory maximum sentence in the presumptive range. Defendant appeals.\nI.\nDefendant first argues that the trial court erred by sentencing defendant to 251 to 311 months in prison where the State did not prove to the jury beyond a reasonable doubt that defendant\u2019s out-of-state convictions were substantially similar to North Carolina offenses. Specifically, defendant asserts that he is entitled to another resentencing in light of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), because the issue as to whether the out-of-state felonies were substantially similar to North Carolina offenses was not submitted to the jury and had the effect of increasing the penalty for defendant\u2019s crime.\nIn Blakely, the United States Supreme Court held that \u201c \u2018[o]ther 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.\u2019 \u201d Blakely, 542 U.S. at 296, 159 L. Ed. 2d at 409 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed, 2d 435, 455 (2000)). The United States Supreme Court further stated that \u201cthe relevant \u2018statutory maximum\u2019 is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.\u201d Blakely, 542 U.S. at 303, 159 L. Ed. 2d at 413-14. In applying Blakely to our structured sentencing scheme, our Supreme Court determined that our \u201cpresumptive range\u201d is the equivalent of \u201cstatutory maximum.\u201d State v. Allen, 359 N.C. 425, 432, 615 S.E.2d 256, 262 (2005). Thus, the rule of Blakely, as applied to North Carolina\u2019s structured sentencing scheme, is: \u201cOther 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 265 (emphasis added).\nAlthough defendant was not sentenced beyond the presumptive range for a Level IV offender, he argues that the trial court\u2019s findings regarding the similarity between the New York offenses and the North Carolina offenses increased defendant\u2019s prior record level from Level III to Level IV. Defendant asserts that \u201c[b]ut for the trial court\u2019s findings that the three out-of-state offenses were to be classified as two Class G felonies and a Class A1 misdemeanor, these three offenses would have been classified as three Class I felonies\u201d under N.C.G.S. \u00a7 15A-1340.14(e). Accordingly, defendant would have had only six prior record points and would have been only a Level III offender. Defendant thereby argues that he was sentenced in violation of Blakely because without these findings by the trial court, the \u201cstatutory maximum\u201d sentence that defendant could have received was 220 to 273 months, which is the maximum presumptive range sentence for a Level III offender. See N.C. Gen. Stat. \u00a7 15A-1340.17(c) and (e) (2003). Because of the trial court\u2019s findings of substantial similarity, defendant was sentenced to an additional 31 to 38 months in prison.\nDefendant concedes that Blakely exempts \u201cthe fact of a prior conviction\u201d from its requirement that facts \u201cthat increase[] the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.\u201d See Blakely, 542 U.S. at 328, 159 L. Ed. 2d at 412. However, defendant does not argue that his convictions in New York for the prior offenses should have been submitted to the jury. Rather, defendant argues that \u201cthe fact that the three New York offenses were substantially similar to two Class G felonies and a Class A1 misdemeanor in North Carolina were facts that increasefd] the penalty for [the] crime beyond the statutory maximum.\u201d Defendant accordingly argues that the question of whether the New York convictions were substantially similar to North Carolina offenses \u201cmust [have been] submitted to a jury, and proved beyond a reasonable doubt.\u201d\nDefendant supports his argument by citing language in Hanton I. In defendant\u2019s first appeal, he argued that \u201cthe question of substantial similarity is a legal issue\u201d that must be decided by the trial court, and that a defendant could not stipulate to whether an out-of-state offense was substantially similar to a North Carolina offense. However, our Court stated: \u201cWhile we agree [with the State] that a defendant might stipulate that out-of-state offenses are substantially similar to corresponding North Carolina felony offenses, we do not agree that defendant did so here.\u201d Hanton I, 140 N.C. App. at 690, 540 S.E.2d at 383. \u201cStipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate.... This rule is more important in criminal cases, where the interests of the public are involved.\u201d State v. Prevette, 39 N.C. App. 470, 472, 250 S.E.2d 682, 683 (citations omitted). Defendant argues that because our Court stated in Hanton I that a \u201cdefendant may stipulate to the question of substantial similarity between out-of-state and in-state offenses, the question must be one of fact and not of law.\u201d Defendant further asserts that if the question of substantial similarity \u201cwere a question of law, then it would violate public policy to allow a defendant to stipulate to it.\u201d See Prevette, 39 N.C. App. at 472, 250 S.E.2d at 683 (\u201cThe due administration of the criminal law cannot be left to the stipulations of the parties.\u201d).\nHowever, contrary to defendant\u2019s argument, the language cited by defendant that \u201ca defendant might stipulate that out-of-state offenses are substantially similar to corresponding North Carolina felony offenses,\u201d see Hanton I, 140 N.C. App. at 690, 540 S.E.2d at 383, is not controlling. In Hanton I, our Court addressed defendant\u2019s contention that the State had not met its burden under N.C.G.S. \u00a7 15A-1340.14(e) to show that defendant\u2019s New York convictions should be classified as a higher class felony than Class I. Hanton I, 140 N.C. App. at 689-90, 540 S.E.2d at 382-83. The State had argued that defendant had stipulated to the fact that the New York offenses were substantially similar to the North Carolina offenses, but we found that defendant had not so stipulated, and thus that the State had not met its burden under N.C.G.S. \u00a7 15A-1340.14(e). Hanton I, 140 N.C. App. at 690, 540 S.E.2d at 383. Our statement that \u201ca defendant might stipulate that out-of-state offenses are substantially similar to corresponding North Carolina felony offenses\u201d was not necessary to our decision to remand for resentencing. See id. \u201cLanguage in an opinion not necessary to the decision is obiter dictum and later decisions are not bound thereby.\u201d Trustees of Rowan Tech. v. Hammond Assoc., 313 N.C. 230, 242, 328 S.E.2d 274, 281 (1985); see also Kornegay v. Broadrick, 119 N.C. App. 326, 327, 458 S.E.2d 274, 275 (1995). In Hanton I, we did not consider the issue before us in the present case, as to whether or not the question of substantial similarity between out-of-state and in-state offenses was a question of law. Therefore, our Court\u2019s statement in Hanton I, that a defendant might stipulate to this question, is non-binding dicta.\nUpon examination of the issue, we conclude that whether an out-of-state offense is substantially similar to a North Carolina offense is a question of law that must be determined by the trial court, not the jury. Determining a defendant\u2019s prior record involves \u201ca complicated calculation of rules and statutory applications].]\u201d State v. Van Buren, 98 P.3d 1235, 1241 (Wash. Ct. App. 2004). \u201cThis calculation is a mixed question of law and fact. The \u2018fact\u2019 is the fact of the conviction,\u201d id., which under Blakely is not a question for a jury. See Blakely, 542 U.S. at 301, 159 L. Ed. 2d at 412. \u201cThe law is the proper application of the law to the fact of [a] defendant\u2019s criminal record],]\u201d which often involves, as the present case does, comparing \u201cthe elements of a defendant\u2019s prior convictions under the statutes of foreign jurisdictions with the elements of crimes under [North Carolina] statutes.\u201d Van Buren, 98 P.3d at 1241. The comparison of the elements of an out-of-state criminal offense to those of a North Carolina criminal offense \u201cdoes not require the resolution of disputed facts.\u201d Id. Rather, it involves statutory interpretation, which is a question of law. See Dare County Bd. of Educ. v. Sakaria, 127 N.C. App. 585, 588, 492 S.E.2d 369, 371 (1997) (\u201cStatutory interpretation presents a question of law.\u201d).\nDefendant argues that the United States Supreme Court\u2019s recent decision in Shepard v. United States, - U.S. -, 161 L. Ed. 2d 205 (2005), supports defendant\u2019s argument that a jury must decide the question of substantial similarity. However, our review of Shepard shows that it is inapposite to the present case. The issue before the United States Supreme Court in Shepard was the extent of what a sentencing court, in the context of the enhanced sentencing provisions of the Armed Career Criminals Act of 1986, 18 USC \u00a7 924(e), could review in determining whether a guilty plea of an offense defined in a nongeneric statute \u201cnecessarily admitted elements of the generic offense.\u201d Id. at-, 161 L. Ed. 2d at 218. The Supreme Court held that a sentencing court could not, without violating the Sixth Amendment, \u201clook beyond the charging document, the terms of a plea agreement, the plea colloquy, the statutory definition, or any explicit finding of the trial judge to which the defendant assented to determine a disputed fact about a prior conviction.\u201d United States v. Collins, 412 F.3d 515, 521 (4th Cir. 2005) (summarizing Shepard) (emphasis added); see also Shepard, - U.S. at - n.4 & -, 161 L. Ed. 2d at 216 n.4 & 218. Since the trial court in the present case is not looking beyond the statutory definition of the New York offenses, and since the present case does not involve comparing nongeneric statutory offenses with generic offenses, Shepard has no bearing on the issue before us.\nWe conclude that the- question of whether a conviction under an out-of-state statute is substantially similar to an offense under North Carolina statutes is a question of law to be resolved by the trial court. Furthermore, the question is so related to a trial court\u2019s calculation of a prior record that it is covered by the exception to the Blakely rule that \u201cthe fact of a prior conviction\u201d does not need to be proven to a jury beyond a reasonable doubt. See Blakely, 542 U.S. at 301, 159 L. Ed. 2d at 412. The trial court in the present case did not err in not requiring that this issue be proven to the jury beyond a reasonable doubt, and defendant is not entitled to another resentencing in light of Blakely.\nII.\nDefendant similarly argues that the trial court erred by sentencing defendant to 251 to 311 months in prison where the State did not allege in the indictment that defendant\u2019s out-of-state convictions were substantially similar to North Carolina offenses. Defendant asserts that our Supreme Court, in State v. Lucas, held that \u201cany fact that increases the maximum penalty for a crime must be alleged in an indictment.\u201d See Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001), overruled in part by Allen, 359 N.C. at 437, 615 S.E.2d at 265. However, defendant misstates the holding in Lucas, which only referred to facts that would enhance a sentence under N.C. Gen. Stat. \u00a7 15A-1340.16A, which allows for sentence enhancement for carrying a firearm. See Lucas, 353 N.C. at 597-98, 548 S.E.2d at 731 (\u201c[I]n every instance where the State seeks an enhanced sentence pursuant to N.C.G.S. \u00a7 15A-1340.16A, it must allege the statutory factors supporting the enhancement in an indictment[.]\u201d). The evaluation of the elements in defendant\u2019s prior New York convictions fell under N.C.G.S. \u00a7 15A-1340.14(e), and was thus part of traditional sentencing. Defendant\u2019s sentence was enhanced because of his prior felonies, not because of any aggravating factors. Therefore, Lucas is inapplicable to the present case.\nMoreover, the rule in Lucas cited by defendant was recently overruled by our Supreme Court. Allen, 359 N.C. at 438, 615 S.E.2d at 265 (overruling the \u201clanguage of Lucas, requiring sentencing factors which might lead to a sentencing enhancement to be alleged in an indictment\u201d). Furthermore, even before Allen, our Supreme Court, in examining short-form indictments, \u201crecognized that the Fifth Amendment\u2019s guarantee to indictment by a grand jury was not applicable to the states, and [that] as such, \u2018all the elements or facts which might increase the maximum punishment for a crime\u2019 do not necessarily need to be listed in an indictment.\u201d State v. Hunt, 357 N.C. 257, 272, 582 S.E.2d 593, 603 (quoting State v. Wallace, 351 N.C. 481, 508, 528 S.E.2d 326, 343 (2000)), cert. denied, 539 U.S. 985, 156 L. Ed. 2d 702 (2003). As such, defendant\u2019s assignment of error is overruled.\nIII.\nDefendant next argues that the trial court erred by finding that the New York offense of second-degree assault was substantially similar to the North Carolina offense of assault inflicting serious injury, when some of the acts that constitute second-degree assault in New York would only amount to simple assault in North Carolina. At defendant\u2019s resentencing hearing, the State presented the trial court with the 1993 version of the New York statute for second-degree assault. The trial court determined that the statute had not been modified since defendant had been convicted of second-degree assault in 1990. The statute provides that a person is guilty of second-degree assault when:\n1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or\n2. With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or\n3. With intent to prevent a peace officer, police officer, a fireman, including a fireman acting as a paramedic or emergency medical technician administering first aid in the course of performance of duty as such fireman, or an emergency medical service paramedic or emergency medical service technician, from performing a lawful duty, he causes physical injury to such peace officer, police officer, fireman, paramedic or technician; or\n4. He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or\n5. For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical impairment or injury to another person by administering to him, without his consent, a drug, substance or preparation capable of producing the same; or\n6. In the course of and in furtherance of the commission or attempted commission of a felony, other than a felony defined in article one hundred thirty which requires corroboration for conviction, or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of the participants; or\n7. Having been charged with or convicted of a crime and while confined in a correctional facility, as defined in subdivision three of section forty of the correction law, pursuant to such charge or conviction, with intent to cause physical injury to another person, he causes such injury to such person or to a third person; or\n8. Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly causes serious physical injury to such person.\nNY CLS Penal \u00a7 120.05 (1993). The trial court in the present case found that the elements of New York\u2019s second-degree assault were substantially similar to North Carolina\u2019s assault inflicting serious injury, which is an A1 misdemeanor under N.C. Gen. Stat. \u00a7 14-33(c) (2003), because \u201cboth statutes require serious injury.\u201d The trial court assigned defendant one point for the attempted second-degree assault, which raised defendant\u2019s prior record level from Level III to Level IV.\nN.C. Gen. Stat. \u00a7 14-33(c) provides that \u201cany person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray,\u201d that person \u201c[i]nflicts serious injury upon another person or uses a deadly weaponf.]\u201d N.C. Gen. Stat. \u00a7 14-33(c)(l) (2003). Defendant argues that the trial court erred in finding NY CLS Penal \u00a7 120.05 to be substantially similar to N.C.G.S. \u00a7 14-33(c) when \u201cat least two of the acts\u201d described in the New York statute do not require the causation of serious physical injury. Specifically, defendant asserts that paragraphs six and seven of NY CLS Penal \u00a7 120.05 are not analogous to any North Carolina offense, aside from simple assault under N.C. Gen. Stat. \u00a7 14-33(a) (2003), which is a Class 2 misdemeanor.\nUnder paragraph six of NY CLS Penal \u00a7 120.05, a defendant is guilty of second-degree assault if the defendant \u201ccauses physical injury\u201d to a person while committing another felony or while fleeing from the commission of a felony. Because a defendant need not cause \u201cserious injury\u201d under this section of New York\u2019s statute on second-degree assault, this particular act does not correspond with assault inflicting serious injury under N.C.G.S. \u00a7 14-33(c)(l). Similarly, paragraph seven of NY CLS Penal \u00a7 120.05 provides that a defendant is guilty of second-degree assault if the defendant intentionally causes \u201cphysical injury to another person\u201d while confined at a correctional facility. Again, absent the requirement that a defendant cause \u201cserious injury,\u201d this section of the New York offense does not correspond with N.C.G.S. \u00a7 14-33(c).\nDefendant argues, and we agree for the reasons that follow, that because neither paragraphs six nor seven of NY CLS Penal \u00a7 120.05 require \u201cserious injury\u201d, the offense most substantially similar to the New York offense on this record was simple assault.\nN.C.G.S. \u00a7 15A-1340.14(e) provides that either the State or the defendant may prove by a preponderance of evidence whether an out-of-state offense is substantially similar to a North Carolina offense. However, the statute does not instruct the trial, court how to determine which North Carolina offense is most substantially similar to the out-of-state offense when the out-of-state offense has elements that are similar to multiple North Carolina offenses. In light of such an ambiguity in a criminal statute, the rule of lenity requires us to interpret the statute in favor of defendant. See State v. Boykin, 78 N.C. App. 572, 577, 337 S.E.2d 678, 681 (1985) (\u201c[T]he \u2018rule of lenity\u2019 forbids a court to interpret a statute so as to increase the penalty that it places on an individual when the Legislature has not clearly stated such an intention.\u201d). As such, on this record, where the prosecuting authority relied only on the statutory offenses themselves in making its substantial similarity arguments, the New York second-degree assault offense is most substantially similar to North Carolina\u2019s offense of simple assault set forth in N.C.G.S. \u00a7 14-33(a).\nThe State argues that our Court addressed this very issue in State v. Rich, 130 N.C. App. 113, 502 S.E.2d 49 (1998), which the State argues controls the present case. The defendant in Rich argued that \u201chis conviction of \u2018assault with intent to cause serious injury,\u2019 occurring in New York, should have been classified by the trial court as a Class A1 misdemeanor rather than a Class I felony for sentencing purposes.\u201d Id. at 117, 502 S.E.2d at 52. However, we never reached the merits of this issue because the defendant had failed to preserve the issue for appeal pursuant to N.C.R. App. P. 10. Id. Therefore, Rich provides no authority regarding defendant\u2019s assignment of error in the present case.\nThus, we conclude that the trial court erred in finding New York\u2019s second-degree assault to be substantially similar to North Carolina\u2019s assault inflicting serious injury, which is a Class A1 misdemeanor, as opposed to simple assault, which is a Class 2 misdemeanor. See N.C.G.S. \u00a7 14-33(a). Under N.C. Gen. Stat. \u00a7 14-2.5 (2003), \u201can attempt to commit a misdemeanor or a felony is punishable under the next lower classification as the offense the offender attempted to commit.\u201d Therefore, defendant\u2019s prior New York conviction for attempted second-degree assault should have been treated as a Class 3 misdemeanor, which would have not had any point value for prior record purposes. See N.C. Gen. Stat. \u00a7 15A-1340.14(b)(5) (2003). Since the trial court erroneously determined that defendant\u2019s New York conviction for attempted second-degree assault was substantially similar to the North Carolina offense of assault inflicting serious injury, defendant was improperly assigned one prior record point for this offense. This one record point raised defendant\u2019s prior record level from a Level III to a Level IV. As noted above, the \u201cstatutory maximum\u201d sentence that defendant could have received was 220 to 273 months, which is the maximum presumptive range sentence for a Level III offender. See N.C. Gen. Stat. \u00a7 15A-1340.17(c) and (e) (2003). However, defendant was sentenced to the maximum sentence for a Level IV offender, and the trial court\u2019s error was therefore prejudicial.\nWe observe that the following issues are not presented by this appeal: whether (1) G.S. \u00a7 15A-1340.14(e) authorizes a determination of the underlying conduct giving rise to the out-of-state conviction when making a substantial similarity conclusion; and (2) if so, the extent to which Blakely may apply. Here, the State relied only on an evaluation of the statutes in making its substantial similarity arguments before the trial court, and we limit our holding to these circumstances.\nWe reverse the trial court\u2019s order and judgment sentencing defendant to 251 to 311 months imprisonment, and grant defendant a new sentencing hearing.\nAffirmed in part; reversed and remanded for resentencing.\nJudge HUNTER concurs.\nJudge McGEE concurs in part and dissents in part.", "type": "majority", "author": "LEVINSON, Judge." }, { "text": "McGEE, Judge,\nconcurring in part and dissenting in part.\nI concur with the majority\u2019s determination of the second and third issues, but respectfully dissent as to the first issue because I disagree with the majority\u2019s overly broad conclusion that \u201cwhether an out-of-state offense is substantially similar to a North Carolina offense is a question of law that must be determined by the trial court, not a jury.\u201d (emphasis added).\nIn the present case, it appears from the record that the trial court solely conducted a comparison of the elements of the two statutes and did not appear to undertake any type of factual analysis of the circumstances underlying defendant\u2019s prior conviction. The trial court relied only on the statutes in making its determination, and therefore was within the bounds of Shepard. However, the majority\u2019s conclusion that substantial similarity is a question of law that a trial court, and not a jury, must determine may lead a trial court into an inherent factual analysis that Shepard and Blakely require be determined by a jury. Absent guidance by N.C. Gen. Stat. \u00a7 15A-1340.14(e) (2003) on how a trial court should determine substantial similarity, a trial court may undertake an inherent factual inquiry into a defendant\u2019s conduct to resolve whether the defendant would have been convicted under a similar North Carolina law.\nUnder Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), \u201c \u2018[o]ther 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.\u2019 \u201d Blakely, 542 U.S. at 301, 159 L. Ed. 2d at 412 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000)). The rule of Blakely, as applied to North Carolina\u2019s structured sentencing scheme through State v. Allen, is: \u201cOther 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. 425, 437, 615 S.E.2d 256, 265 (2005). After Blakely, the North Carolina General Assembly enacted Session Law 2005-145 (the Blakely bill), which revised the Structured Sentencing Act to conform with the Sixth Amendment protections afforded a defendant at sentencing by Blakely. See 2005 N.C. Sess. Laws ch. 145. However, the Blakely bill did not amend N.C.G.S. \u00a7 15A-1340.14(e), thus leaving trial courts without guidance as to how Blakely might affect a determination of substantial similarity under that statute. See 2005 N.C. Sess. Laws ch. 145.\nDefendant contends that a determination of substantial similarity under N.C.G.S. \u00a7 15A-1340.14(e) involves a fact other than that of a prior conviction, and thereby meets the first part of the Blakely/Allen guarantee of the right to a jury trial. The majority overrules defendant\u2019s argument by holding that the determination of substantial similarity involves statutory interpretation, which is a question of law, and that the \u201ccomparison of the elements of an out-of-state criminal offense to those of a North Carolina criminal offense \u2018does not require the resolution of disputed facts.\u2019 \u201d (quoting State v. Van Buren, 98 P.3d 1235, 1241 (Wash. Ct. App. 2004)). I cannot agree that this is always the case.\nIn Shepard, the Supreme Court reasoned that, while the disputed fact of whether a prior conviction was violent could \u201cbe described as a fact about a prior conviction, it [was] too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorize^] a [trial court] to resolve the dispute.\u201d Shepard v. United States, 544 U.S. -,-, 161 L. Ed. 2d 205, 217. In light of Shepard, the question for our Court is whether a finding of substantial similarity under N.C.G.S. \u00a7 15A-1340.14(e) is \u201ctoo far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almandarez-Torres clearly authorizes a [trial court] to resolve the dispute.\u201d Id. Findings of fact subject to Jones and Apprendi are those findings \u201c[o]ther than the fact of a prior conviction.\u201d Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455; see also Blakely, 542 U.S. at 301, 159 L. Ed. 2d at 412; Allen, 359 N.C. at 437, 615 S.E.2d at 265. I conclude that a finding of substantial similarity is not close enough to the fact of a prior conviction to say that a trial court must always make the determination.\nIn deciding Shepard, the Supreme Court built upon the rationale of its earlier Sixth Amendment case, Taylor v. United States, 495 U.S. 575, 109 L. Ed. 2d 607 (1990), in which the Court interpreted ACCA to require a trial court to examine \u201conly [] the fact of conviction and the statutory definition of the prior offense\u201d to determine whether a defendant\u2019s prior conviction could be characterized as a \u201cburglary\u201d under the enhancement statute. Taylor, 495 U.S. at 602, 109 L. Ed. 2d at 629. In so holding, the Court anticipated that allowing a broader evidentiary inquiry by a trial court might raise issues of violation of a defendant\u2019s right to a jury trial. Id. at 601, 109 L. Ed. 2d at 629. Following this concern, the Supreme Court later imposed the rule, in Jones and Apprendi, that any fact other than a prior conviction must be found by the jury. See Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455; see also Jones, 526 U.S. 227, 243 n.6, 143 L. Ed. 2d 311, 326 n.6 (1999).\nThe Supreme Court in both Taylor and Shepard read the ACCA recidivism statute as a categorical approach to establishing the fact of a prior conviction. \u201c[T]he enhancement provision always has embodied a categorical approach to the designation of predicate offenses. . . . Congress intended that the enhancement provision be triggered by crimes having certain specified elements[.]\u201d Taylor, 495 U.S. at 588, 109 L. Ed. 2d at 620-21; see also Shepard, 544 U.S. at -, 161 L. Ed. 2d at 213-14. The Supreme Court explained that ACCA referred to predicate offenses \u201cin terms not of prior conduct but of prior \u2018convictions.\u2019 \u201d Shepard, 544 U.S. at \u2014 , 161 L. Ed. 2d at 213-14 (quoting Taylor, 495 U.S. at 600-01, 109 L. Ed. 2d 607, 628). Like ACCA, N.C.G.S. \u00a7 15A-1340.14(e) purports to rely on prior convictions, not on the precise conduct that led to the convictions. However, unlike ACCA, our sentencing statute does not define which categories of crimes trigger enhancement. As such, a trial court\u2019s determination under N.C.G.S. \u00a7 15A-1340.14(e) is not necessarily one of mere statutory interpretation. Rather, a trial court might actually be undertaking a determination of the disputed fact of whether conduct underlying a conviction for an out-of-state crime renders the offense similar to a North Carolina crime.\nIn State v. Poore, 172 N.C. App. 839, 616 S.E.2d 639 (2005), our Court recently decided that a determination by a trial court, rather than a jury, that all elements of a defendant\u2019s current offense were included in a prior offense, for purposes of determining a defendant\u2019s prior record lev\u00e9l, did not violate Blakely. We held that \u201cneither Blakely nor Allen preclude the trial court from assigning a point in the calculation of one\u2019s prior record level where \u2018all the elements of the present offense are included in [a] prior offense.\u2019 \u201d Poore, 172 N.C. App. at 840, 616 S.E.2d at 642 (quoting N.C. Gen. Stat. \u00a7 15A-1340.14(b)(6) (2003)). \u201cThe exercise of assigning a point for the reason set forth in G.S. \u00a7 15A-1340.14(b)(6) is akin to the trial court\u2019s determination that [the] defendant had in fact been convicted of certain prior offenses, and is not something that increases the \u2018statutory maximum\u2019 within the meaning of Blakely or Allen.\u201d Poore, 172 N.C. App. at 843, 616 S.E.2d at 642; see also State v. Jordan, 174 N.C. App. 479, 621 S.E.2d 229 (2005) (holding that Blakely and Allen were not implicated where a trial court determined that the defendant had prior North Carolina convictions, raising the defendant from Level I to Level II). However, a determination of substantial similarity under N.C.G.S. \u00a7 15A-1340.14(e) is not as akin to the fact of a prior conviction, nor is it always necessarily a question of law. Rather, a determination under N.C.G.S. \u00a7 15A-1340.14(e) has the potential to lead a trial court beyond the statutory elements of a crime and into fact-finding that is the proper province of a jury. See Blakely, 542 U.S. at 308, 159 L. Ed. 2d at 417 (\u201c[T]he Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury.\u201d); see also State v. Wissink, 172 N.C. App. 829, 837, 617 S.E.2d 319, 325 (2005) (recognizing that while \u201cthe fact of a defendant\u2019s probationary status is analagous to and not far-removed from the fact of a prior conviction[,]\u201d our Court was \u201cbound by the language in Blakely, Apprendi and Allen that states that only the fact of a prior conviction is exempt from being proven to a jury beyond a reasonable doubt\u201d).\nThe Fourth Circuit Court of Appeals recently considered Shepard in the case of United States v. Washington, 404 F.3d 834 (4th Cir. 2005). Although the Fourth Circuit\u2019s decision rests on federal law rather than state law, its analysis is instructive. In Washington, the trial court concluded, after fact-finding, that the defendant\u2019s prior conviction of breaking and entering was a \u201cviolent\u201d offense under the federal sentencing guidelines, because the trial court found that the prior offense \u201c \u2018otherwise involvefd] conduct that presents a serious potential risk of physical injury to another.\u2019 \u201d Washington at 838 (quoting USSG \u00a7 4B1.2(a)(2)). In making its determination, the trial court relied on extra-indictment evidence, namely a memorandum prepared by the State and the questioning of counsel about the specifics of the prior offense. The Fourth Circuit held that under the line of cases following Apprendi, the trial court\u2019s determination that the defendant\u2019s prior conviction presented a serious potential risk of physical injury \u201cinvolved more than the \u2018fact of a prior conviction\u2019 exempted by Apprendi from Sixth Amendment protection.\u201d Washington, 404 F.3d at 841. The Fourth Circuit held that the determination was a disputed fact \u201c \u2018about a prior conviction\u2019 \u201d to which Sixth Amendment protections apply. Washington at 842 (quoting Shepard, 544 U.S. at -, 161 L. Ed. 2d at 217) (emphasis in Washington). The Fourth Circuit continued:\nIn these circumstances, the sentencing court relied on facts outside of the prior indictment and resolved a disputed fact \u201cabout a prior conviction,\u201d - namely, that the prior conviction was one which \u201cotherwise involve [d] conduct that presents a serious potential risk of physical injury to another.\u201d These findings are \u201ctoo far removed from the conclusive significance of a prior judicial record,\u201d and \u201ctoo much like the findings subject to Jones and Apprendi[] to say that Almandarez-Torres clearly authorizes a judge to resolve the dispute[.]\u201d This process and its results thus raise the very \u201crisk\u201d identified in Shepard, that Sixth Amendment error occurred.\nWashington, 404 F.3d at 842 (internal citations omitted).\nParticularly where, as in the present case, the elements of a foreign conviction are broader than those of a North Carolina offense, a trial court may very well undertake an inherent factual inquiry into defendant\u2019s conduct to resolve whether defendant would have been convicted under a similar North Carolina law. Such an inquiry is not merely a question of law, as determined by the majority opinion, and is \u201c \u2018too far removed from the conclusive significance of a prior judicial record,\u2019 and \u2018too much like the findings subject to Jones and Apprendi[] to say that Almandarez-Torres clearly authorizes a judge to resolve the dispute[.]\u2019 \u201d Id. Such an inquiry and its results thus present the risk identified in Shepard, a violation of a defendant\u2019s Sixth Amendment right to a jury trial under Blakely, and would require the jury, not the trial court, to determine substantial similarity.", "type": "concurring-in-part-and-dissenting-in-part", "author": "McGEE, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by William M. Polk, Director, Victims and Citizens Services Section, for the State.", "Appellate Defender Staples\u25a0 Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LAWRENCE HANTON\nNo. COA04-1279\n(Filed 3 January 2006)\n1. Sentencing\u2014 ont-of-state convictions \u2014 similarity to N.C. offenses \u2014 question of law\nThe issue of whether a conviction under an out-of-state statute is substantially similar to an offense under North Carolina statutes is a question of law to be resolved by the trial court, and the court here did not err by not requiring that the issue be proven to the jury beyond a reasonable doubt.\n2. Sentencing\u2014 out-of-state convictions \u2014 not alleged in indictment\nThe trial court did not err when sentencing defendant by considering out-of-state convictions where the State had not alleged in the indictment that those convictions were substantially similar to North Carolina offenses.\n3. Sentencing\u2014 out-of-state conviction \u2014 assault\u2014not similar to N.C. offense\nThe trial court erred by finding that the New York offense of second-degree assault was substantially similar to North Carolina\u2019s assault inflicting serious injury, as opposed to simple assault. The error was prejudicial because it raised defendant\u2019s record level, and he was sentenced at the maximum for that level.\nJudge McGee concurring in part and dissenting in part.\nAppeal by defendant from judgment entered 22 June 2004 by Judge Richard D. Boner in Cleveland County Superior Court. Heard in the Court of Appeals 7 June 2005.\nAttorney General Roy Cooper, by William M. Polk, Director, Victims and Citizens Services Section, for the State.\nAppellate Defender Staples\u25a0 Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant." }, "file_name": "0250-01", "first_page_order": 284, "last_page_order": 299 }