{ "id": 8352051, "name": "STATE OF NORTH CAROLINA v. SONYA CASE HARRIS", "name_abbreviation": "State v. Harris", "decision_date": "2006-01-03", "docket_number": "No. COA05-111", "first_page": "360", "last_page": "369", "citations": [ { "type": "official", "cite": "175 N.C. App. 360" } ], "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": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "opinion_index": -1, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "opinion_index": -1, "case_paths": [ "/nc/359/0425-01" ] }, { "cite": "353 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135574 ], "opinion_index": -1, "case_paths": [ "/nc/353/0568-01" ] }, { "cite": "616 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633477 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/616/0237-01" ] }, { "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" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0319-01" ] }, { "cite": "620 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634106 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/620/0272-01" ] }, { "cite": "616 S.E.2d 21", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633460 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0021-01" ] }, { "cite": "615 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633238 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/615/0256-01" ] }, { "cite": "615 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633277 ], "year": 2005, "pin_cites": [ { "page": "422", "parenthetical": "quoting State v. Hargett, 157 N.C. App. 90, 93, 577 S.E.2d 703, 705 (2003)" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0417-01" ] }, { "cite": "335 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1985, "pin_cites": [ { "page": "545" }, { "page": "521" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 540", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524061 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/77/0540-01" ] }, { "cite": "466 U.S. 648", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204502 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "658" }, { "page": "667" } ], "opinion_index": 0, "case_paths": [ "/us/466/0648-01" ] }, { "cite": "559 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138464, 138433, 138340, 138503, 138381 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0579-02", "/nc/354/0579-05", "/nc/354/0579-03", "/nc/354/0579-04", "/nc/354/0579-01" ] }, { "cite": "139 L. Ed. 2d 757", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "522 U.S. 1078", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11601344, 11601924, 11601414, 11601018, 11601319, 11601258, 11600907, 11601841, 11601466, 11601497, 11601210, 11601659, 11601756, 11601565 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/522/1078-06", "/us/522/1078-14", "/us/522/1078-07", "/us/522/1078-02", "/us/522/1078-05", "/us/522/1078-04", "/us/522/1078-01", "/us/522/1078-13", "/us/522/1078-08", "/us/522/1078-09", "/us/522/1078-03", "/us/522/1078-11", "/us/522/1078-12", "/us/522/1078-10" ] }, { "cite": "488 S.E.2d 194", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "201" } ], "opinion_index": 0 }, { "cite": "346 N.C. 443", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139431 ], "year": 1997, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0443-01" ] }, { "cite": "562 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "878", "parenthetical": "quoting State v. Strickland, 346 N.C. 443, 455, 488 S.E.2d 194, 201 (1997), cert. denied, 522 U.S. 1078, 139 L. Ed. 2d 757 (1998), and cert. denied, 354 N.C. 579, 559 S.E.2d 551 (2001)" } ], "opinion_index": 0 }, { "cite": "355 N.C. 420", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220022 ], "year": 2002, "pin_cites": [ { "page": "449-50", "parenthetical": "quoting State v. Strickland, 346 N.C. 443, 455, 488 S.E.2d 194, 201 (1997), cert. denied, 522 U.S. 1078, 139 L. Ed. 2d 757 (1998), and cert. denied, 354 N.C. 579, 559 S.E.2d 551 (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0420-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 7, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" }, { "page": "688" }, { "page": "693" }, { "page": "687" }, { "page": "693" }, { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "337 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "507" } ], "opinion_index": 0 }, { "cite": "315 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716847 ], "year": 1985, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0175-01" ] }, { "cite": "458 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "holding that a defense counsel's statements at a pretrial hearing amounted to an admission of prior convictions as an aggravating factor" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 285", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914636 ], "year": 1995, "pin_cites": [ { "parenthetical": "holding that a defense counsel's statements at a pretrial hearing amounted to an admission of prior convictions as an aggravating factor" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0285-01" ] }, { "cite": "463 S.E.2d 307", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "310" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 597", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916934 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/120/0597-01" ] }, { "cite": "406 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "855-56" } ], "opinion_index": 0 }, { "cite": "329 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554860 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "686" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0683-01" ] }, { "cite": "172 N.C. App. 237", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8319355 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0237-01" ] }, { "cite": "172 N.C. App. 829", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8321682 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "838" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0829-01" ] }, { "cite": "174 N.C. App. 165", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8350914 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/174/0165-01" ] }, { "cite": "397 U.S. 742", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12058257 ], "weight": 5, "year": 1970, "pin_cites": [ { "page": "748" }, { "page": "756" }, { "page": "456" }, { "page": "748" }, { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/us/397/0742-01" ] }, { "cite": "172 N.C. App. 127", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8319002 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0127-01" ] }, { "cite": "548 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "410 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "330 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512114 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/330/0398-01" ] }, { "cite": "605 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "167 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412328 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc-app/167/0575-01" ] }, { "cite": "577 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "705" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 90", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185131 ], "year": 2003, "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0090-01" ] }, { "cite": "171 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8439228 ], "year": 2005, "pin_cites": [ { "page": "703", "parenthetical": "quoting State v. Hargett, 157 N.C. App. 90, 93, 577 S.E.2d 703, 705 (2003)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0697-01" ] }, { "cite": "594 S.E.2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "163 N.C. App. 613", "category": "reporters:state", "reporter": "N.C. App.", "year": 2004, "opinion_index": 0 }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "weight": 3, "pin_cites": [ { "page": "438" }, { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0425-01" ] }, { "cite": "353 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135574 ], "opinion_index": 0, "case_paths": [ "/nc/353/0568-01" ] } ], "analysis": { "cardinality": 868, "char_count": 22420, "ocr_confidence": 0.734, "pagerank": { "raw": 3.460562556705247e-07, "percentile": 0.8806689115851928 }, "sha256": "d97bac2005455ca08048434e6f61449f5595d49d83a12c9e8dbc6abd82425325", "simhash": "1:9b62943e5db74bd4", "word_count": 3705 }, "last_updated": "2023-07-14T22:29:36.119960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. SONYA CASE HARRIS" ], "opinions": [ { "text": "McGEE, Judge.\nSonya Case Harris (defendant) was indicted on 8 October 2001 on a charge of second-degree murder of David Boyd (Boyd). Defendant\u2019s case was joined for trial with those of Harlan Ponder and Jason Ponder (collectively, the Ponders). Defendant and the Ponders were convicted by a jury of second-degree murder. The trial court found three aggravating factors and sentenced defendant in the aggravated range to a term of imprisonment of 276 months to 341 months. Defendant appealed the conviction and sentence. In an unpublished opinion, our Court affirmed defendant\u2019s conviction but remanded for resentencing. State v. Ponder, 163 N.C. App. 613, 594 S.E.2d 258 (2004).\n\u25a0 At the resentencing hearing on 6 July 2004, the trial court found two aggravating factors and again sentenced defendant in the aggravated range to a term of imprisonment of 276 months to 341 months. Defendant appeals.\nDefendant, the Ponders, and Boyd were involved in a fight in the presence of Boyd\u2019s girlfriend and Robert Banks (Banks) on 22 July 2001. Banks testified that defendant attempted to kick Boyd in the face, after which the Ponders hit Boyd until he lost consciousness and fell to the ground, hitting his head. Boyd regained consciousness and defendant and the Ponders resumed beating him. After Boyd lost and regained consciousness a second time, defendant and the Ponders kicked and stomped on Boyd\u2019s ribs. The Ponders then dragged Boyd to a nearby field, while defendant grabbed Boyd\u2019s girlfriend and threatened her with a knife. Boyd died as a result of a head injuries that caused bleeding inside Boyd\u2019s skull. Boyd also suffered two fractured ribs, fractured rib cartilage, and cuts on his. back.\nAt the resentencing hearing, defendant testified on her own behalf and admitted that she kicked Boyd, smacked and punched him in the face, and made multiple cuts on Boyd\u2019s back with a knife. Defendant denied asking the Ponders to assault Boyd or to otherwise come to her defense. Defendant also denied that she ever joined the Ponders while they kicked and beat Boyd. The State asked the trial court to find three aggravating factors: (1) that defendant was armed with a deadly weapon at the time of the offense; (2) that defendant joined with more than one other person in committing the offense and was not charged with conspiracy; and (3) that defendant induced the Ponders to participate in the offense or occupied a position of leadership over them. Defense counsel disputed that defendant induced the Ponders to participate or occupied a position of leadership over them. Defense counsel did not dispute the existence of the two other aggravating factors. Defense counsel advised the trial court that none of the statutory mitigating factors applied to defendant, but defense counsel asked the trial court to consider defendant\u2019s children:\nI would just suggest to the Court that [defendant] does have these two kids. And I don\u2019t think that anyone is going to stand up and try to say, and I don\u2019t think she would tell the Court, that she was mother of the year. I mean, she acknowledged that she used drugs, she acknowledged she abused alcohol. Tough \u2014 tough to be a parent under the best of circumstances. Certainly tough if you\u2019re doing that.\nDefense counsel stated that the father of defendant\u2019s children was deceased but was corrected by defendant that he was alive.\nThe trial court found two aggravating factors: (1) that defendant was armed with a deadly weapon at the time of the offense; and (2) that defendant joined with more than one other person in committing the offense and was not charged with conspiracy. The trial court then stated that he \u201cwould not find the existence of any mitigating factors\u201d and that the aggravating factors were sufficient to outweigh any mitigating factors that \u201cmight exist.\u201d\nDefendant argues four assignments of error, which we will address as two issues: (I) whether the trial court erred in imposing a sentence in the aggravated range and (II) whether defendant was deprived of the effective assistance of counsel.\nI.\nDefendant argues that the trial court erred in imposing a sentence in the aggravated range, where that sentence was based on factors neither (1) pled in an indictment, (2) found by a jury beyond a reasonable doubt, nor (3) admitted by defendant.\nThe State contends defendant failed to preserve this issue for our Court\u2019s review because defendant did not object to the trial court\u2019s imposition of an aggravated sentence. N.C.R. App. P. 10(b)(1) (\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). However, our Court has held that \u201c[a]n error at sentencing is not considered an error at trial for the purpose of Rule 10(b)(1) because this rule is \u2018directed to matters which occur at trial and upon which the trial court must be given an opportunity to rule in order to preserve the question for appeal.\u2019 \u201d State v. Curmon, 171 N.C. App. 697, 703, 615 S.E.2d 417, 422 (2005) (quoting State v. Hargett, 157 N.C. App. 90, 93, 577 S.E.2d 703, 705 (2003)); see also State v. Jeffery, 167 N.C. App. 575, 605 S.E.2d 672 (2004); State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991). Accordingly, despite defendant\u2019s failure to object to the sentence, the issue is properly before this Court.\nDefendant argues that in the absence of an indictment alleging the aggravating factors, the trial court lacked jurisdiction to impose a sentence in the aggravated range. Defendant cites State v. Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001), overruled in part by State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), for the rule that any fact that increases the maximum penalty for a crime must be alleged in an indictment. However, our Supreme Court has 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. Therefore, defendant\u2019s argument is without merit.\nDefendant also contends that the aggravating factors used to enhance her sentence must have been submitted to a jury and found beyond a reasonable doubt. The United States Supreme Court held in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), that aggravating factors that would increase a defendant\u2019s sentence above that authorized by a jury verdict must be found beyond a reasonable doubt by a jury. This Sixth Amendment principle was applied to North Carolina\u2019s structured sentencing scheme in Allen. However, Allen provides that a trial court, without a jury, \u201cmay still sentence a defendant in the aggravated range based upon [a] defendant\u2019s admission to an aggravating factor enumerated in N.C.G.S. \u00a7 15A-1340.16(d).\u201d Allen, 359 N.C. at 439, 615 S.E.2d at 265.\nIn the present case, the trial court sentenced defendant in the aggravated range based upon two statutory aggravating factors: (1) defendant was armed with a deadly weapon at the time of the offense; and (2) defendant joined with more than one other person in committing the offense and was not charged with conspiracy. See N.C. Gen. Stat. \u00a7 15A-1340.16(d) (2003). Since the trial court did not submit the issue of aggravating factors to a jury, the query for our Court is whether defendant admitted to the aggravating factors. If defendant did not admit to the aggravating factors, the trial court\u2019s finding of the aggravating factors was error.\nAllen does not provide guidance as to the form a defendant\u2019s admission must take in order to constitute a valid waiver of a defendant\u2019s constitutional right to a jury determination of aggravating factors. However, this Court has stated that a waiver of a constitutional right under Blakely and Allen must be made knowingly and intelligently. In State v. Meynardie, 172 N.C. App. 127, 616 S.E.2d 21 (2005), for example, our Court held:\nSince neither Blakely nor Allen had been decided at the time of defendant\u2019s sentencing hearing, defendant was not aware of his right to have a jury determine the existence of the aggravating factor. Therefore, defendant\u2019s stipulation to the factual basis for his plea was not a \u201cknowing [and] intelligent act[] done with sufficient awareness of the relevant circumstances and likely consequences.\u201d\nMeynardie at 131, 616 S.E.2d at 24 (quoting Brady v. United States, 397 U.S. 742, 748, 25 L. Ed. 2d 747, 756 (1970)); see State v. Whitehead, 174 N.C. App. 165, 620 S.E.2d 272 (2005); State v. Wissink, 172 N.C. App. 829, 617 S.E.2d 319 (2005); State v. Everette, 172 N.C. App. 237, 616 S.E.2d 237 (2005).\nMoreover, in light of Blakely and Allen, the North Carolina General Assembly enacted Session Law 2005-145 (the Blakely bill), which requires that an admission to a statutory aggravating factor take the same form as a defendant\u2019s guilty plea. The Blakely bill requires a trial court to advise a defendant that \u201c[h]e or she is entitled to have a jury determine the existence of any aggravating factors[.]\u201d 2005 N.C. Sess. Laws ch. 145, \u00a7 4. Moreover, \u201c[b]efore accepting an admission to the existence of an aggravating factor . . ., the [trial] court shall determine that there is a factual basis for the admission, and that the admission is the result of an informed choice by the defendant.\u201d Id. Although the Blakely bill is effective only for offenses committed on or after 30 June 2005, and we are not bound by it, we find the General Assembly\u2019s language instructive on this issue.\nThe State argues that defendant admitted to the first aggravating factor, being armed with a deadly weapon at the time of the offense. Defendant testified at the resentencing hearing as follows:\nQ. Did you at any point use the knife or threaten to use the knife regarding Mr. Boyd? Did you threaten him with the knife?\nA. No, I didn\u2019t threaten him with the knife.\nQ. Did you at some point, either before all this took place or after it took place, take that knife that you carried with you and make marks on the back of Mr. Boyd as are shown in this photograph[] that the Judge has?\nA. Yes, I did.\nQ. Okay. Where did you do that?\nA. On his back.\nQ. When did you do that?\nA. After \u2014 when I was fighting with [Boyd\u2019s girlfriend] and I was coming back up the bank, [the Ponders] hollered, let\u2019s go, the police is going to be coming. And they [were] already going through the field and they hollered for me to leave. And [Boyd] was laying there in the field and I done it.\nAs for the second aggravating factor, defendant denied that she joined with more than one other person in committing the offense. The State contends that despite defendant\u2019s denial, defense counsel admitted the existence of both aggravating factors.\nThe State contends that defendant stipulated to the second aggravating factor through a statement made by defense counsel at the sentencing hearing. The relevant portion of the sentencing hearing transpired as follows:\n[State]: Your Honor, the State would like to argue to the Court pursuant to 15A-1340.16, Subpart D, that there are aggravating factors in this case and that those include, Nos. 1, that the person of [defendant] occupied a position of leadership or dominance of the other participants in the commission of this offence.\nWe\u2019d argue that the second aggravating factor concerning joining with more than one other person and not being charged with conspiracy applies in this instant. . . .\nAnd Subpart 10, that the defendant was armed with a deadly weapon at the time of the crime[.] . . .\nThe State would argue that the Court could use any one of those in order to find mitigating \u2014 or the aggravating range appropriate here. And we request that the Court do so.\nThe Court: All right. Mr. Newman.\n[Defense Counsel]: Thank you. Your Honor, really, I don\u2019t think there\u2019s a dispute as to [aggravating factors] Nos. 2 [that defendant joined with more than one other person in committing the offense,] and 10 [that defendant was \u2022 armed with a deadly weapon], I mean, there\u2019s just no reason to say anything about those. That was the finding before [at the first sentencing hearing], And I mean; Mr. Ellis is right, that does reflect the evidence at the trial.\nI would just ask the Court to \u2014 that if you find 2 and 10, that No. 1,1 think, would actually be open to some dispute there.\n[Defense Counsel]: Did you want to say anything, Ms. Harris?\n[Defendant]: I would like to apologize.\n[The Court]: . . . Based on the evidence that I\u2019ve heard, Miss Harris, I would find by the standard of proof required at this sentencing hearing, that you did participate in this crime with the involvement of more than one other person, but were not charged with a conspiracy involved in the commission of this crime[.]\nThe trial court also found that defendant was armed with a deadly weapon.\nThe State contends that defense counsel\u2019s concession that there was no dispute as to two of the aggravating factors amounts to an admission or stipulation of those factors, and therefore Blakely does not apply. The State, citing State v. Mullican, 329 N.C. 683, 406 S.E.2d 854 (1991), argues that North Carolina courts have permitted such concessions by a defense attorney to serve as stipulations to facts necessary to support aggravated sentences. In Mullican, our Supreme Court held that a defendant stipulated to evidence supporting the finding of an aggravating factor where the defendant did not object during the State\u2019s summary of the evidence and defense counsel made a statement consistent with the State\u2019s summary. Mullican, 329 N.C. at 686, 406 S.E.2d at 855-56. Since Mullican, this Court has held that a defendant may impliedly stipulate to the presence of aggravating factors through statements by counsel. In State v. Sammartino, 120 N.C. App. 597, 463 S.E.2d 307 (1995), we held that where the defendants\u2019 attorneys did not rebut the State\u2019s recitation of a codefendant\u2019s statement about an aggravating factor, but instead used the statement to argue against the aggravating factor, we could \u201cinfer that [the] defendants consented to the prosecutor\u2019s recitation of the factual basis and the reading of the codefendant\u2019s statement.\u201d Id. at 601, 463 S.E.2d at 310. See State v. Jackson, 119 N.C. App. 285, 458 S.E.2d 235 (1995) (holding that a defense counsel\u2019s statements at a pretrial hearing amounted to an admission of prior convictions as an aggravating factor).\nHowever, Mullican and the related cases cited by the State are inapplicable to the present case because those cases were decided before Blakely and Allen. In light of Blakely and Allen, the relevant inquiry for this Court is not whether defendant stipulated to the factual basis for a finding of an aggravating factor by the trial court, but rather whether defendant effectively waived her constitutional right to have a jury determine the existence of any aggravating factor. See Meynardie, 172 N.C. App. at 130, 616 S.E.2d at 24; Wissink, 172 N.C. App. at 838, 617 S.E.2d at 325; Everette, 172 N.C. App. at 246, 616 S.E.2d at 243. A valid waiver of the constitutional right to a jury trial must be knowing and intelligent. Brady, 297 U.S. at 748, 25 L. Ed. 2d at 456; see State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985). A defendant must be \u201csufficiently] awaref] of the relevant circumstances and likely consequences\u201d of a waiver. Brady, 397 U.S. at 748, 25 L. Ed. 2d at 756.\nIn the present case, the record is void of any evidence that defendant, defense counsel, or the trial court was aware of the consequences of statements made by defense counsel or defendant at the sentencing hearing. There is no discussion in the record that concessions or stipulations would be tantamount to a waiver of defendant\u2019s right to a jury trial under Blakely, which was decided only six working days prior to defendant\u2019s resentencing hearing.\nWe hold that there is.no factual basis upon which to find that any stipulation by defendant or counsel was a knowing and intelligent waiver of the right to have a jury determine the existence of any aggravating factors. Accordingly, we remand for a second resentenc-ing. At the resentencing hearing, the State bears the burden of proving to a jury, beyond a reasonable doubt, the existence of any aggravating factors unless defendant admits to the existence of any aggravating factors. Any waiver by defendant of the right to a jury trial as to aggravating factors must be a knowing and intelligent surrender of that right under Blakely and Allen.\nII.\nDefendant next argues she was deprived of effective assistance of counsel on two grounds: (1) her attorney was apparently ignorant of the Blakely decision and (2) her attorney failed to make a reasoned argument in support of a mitigated range sentence. However, defendant offers the first ground as an alternative argument: in the event we find an objection was necessary under Rule (10)(b)(l) to preserve defendant\u2019s right to appeal her aggravated sentence, defendant contends that counsel\u2019s failure to object, in ignorance of Blakely, constituted ineffective assistance of counsel. Since we hold that no objection was necessary to preserve defendant\u2019s right to appeal, we need not address defendant\u2019s first ground.\nGenerally, assistance of counsel is deemed ineffective when a defendant shows that \u201ccounsel\u2019s performance was deficient\u201d and that \u201cthe deficient performance prejudiced the defense.\u201d Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). The first part of this standard requires that a defendant show \u201cthat counsel\u2019s representation fell below an objective standard of reasonableness.\u201d Id. at 688, 80 L. Ed. 2d at 693. The second part of the standard \u201crequires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.\u201d Id. at 687, 80 L. Ed. 2d at 693. Our Supreme Court has interpreted this to mean that a defendant must show that \u201c \u2018absent the deficient performance by defense counsel, there would have been a different result at trial.\u2019 \u201d State v. Rogers, 355 N.C. 420, 449-50, 562 S.E.2d 859, 878 (2002) (quoting State v. Strickland, 346 N.C. 443, 455, 488 S.E.2d 194, 201 (1997), cert. denied, 522 U.S. 1078, 139 L. Ed. 2d 757 (1998), and cert. denied, 354 N.C. 579, 559 S.E.2d 551 (2001)).\nDefendant argues her counsel\u2019s failure to advocate for mitigating factors, as well as counsel\u2019s statements about aggravating factors, fell below an objective standard of reasonableness. However, defendant presents no argument that counsel\u2019s deficient performance prejudiced the outcome of the proceeding. We note that in certain circumstances, the deficiency of a counsel\u2019s performance is so great that prejudice need not be argued. United States v. Cronic, 466 U.S. 648, 658, 80 L. Ed. 2d 657, 667 (1984). For example, in State v. Davidson, 77 N.C. App. 540, 335 S.E.2d 518 (1985), this Court found that a defendant received ineffective assistance at sentencing where the defense counsel\u2019s statement to the trial court began, \u201c \u2018Your Honor, every now and then you get appointed in a case where you have very little to say and this is one of them.\u2019 \u201d Id. at 545, 335 S.E.2d at 521. As the defense counsel continued, he implied that the defendant had provided false information, informed the trial court of the defendant\u2019s prior conviction, and disparaged the defendant for refusing a plea bargain. Id. Upon review, our Court found the counsel\u2019s statement was\naltogether lacking in positive advocacy. Counsel offered no argument in defendant\u2019s favor, made no plea for findings of mitigating factors, . . . failed to suggest any favorable or mitigating aspects of defendant\u2019s background, and failed even to advocate leniency. More significant, the representation consisted almost exclusively of commentary entirely negative to defendant.\nId.\nUnlike the facts of Davidson, defense counsel\u2019s performance in the present case is not \u201caltogether lacking in positive advocacy.\u201d Id. Here, defendant\u2019s counsel asked the trial court for a mitigated sentence, contested one of the aggravating factors found at the initial sentencing hearing, and identified mitigating aspects of defendant\u2019s personal history. This performance by defense counsel was not so deficient that prejudice need not be argued. See Conic, 466 U.S. at 658, 80 L. Ed. 2d at 667. With no allegation of prejudice, defendant has failed to meet her burden under the second part of the Strickland standard. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693. This assignment of error is overruled.\nRemanded for resentencing.\nJudges WYNN and GEER concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Joseph Finarelli, for the State.", "Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SONYA CASE HARRIS\nNo. COA05-111\n(Filed 3 January 2006)\n1. Appeal and Error\u2014 sentencing \u2014 failure to object at trial\u2014 Rule 10(b)(1) not applicable\nA sentencing issue was properly before the Court of Appeals, despite defendant\u2019s failure to object, because sentencing errors are not considered an error at trial for the purpose of Rule 10(b)(1).\n2. Sentencing\u2014 factors \u2014 indictment allegations not required\nState v. Lucas, 353 N.C. 568, has been overruled by State v. Allen, 359 N.C. 425, to the extent that it required that sentencing factors be alleged in an indictment.\n3. Sentencing\u2014 concessions or stipulations \u2014 waiver of constitutional right \u2014 not sufficiently considered\nA sentence was remanded where there was no discussion in the record that concessions or stipulations by defendant would be tantamount to a waiver of defendant\u2019s right to a jury trial under Blakely v. Washington, 542 U.S. 296, which was decided only six working days prior to defendant\u2019s resentencing hearing. The relevant inquiry is not whether defendant stipulated to the factual basis for an aggravating factor, but rather whether she effectively waived her constitutional right to a jury determination.\n4. Constitutional Law\u2014 sentencing \u2014 effective representation of counsel\nDefense counsel\u2019s performance at a sentencing hearing was not so deficient that prejudice need not be argued, and, with no allegation of prejudice, defendant failed to meet her burden of showing that defendant was deprived of a fair trial.\nAppeal by defendant from judgment dated 9 July 2004 by Judge E. Penn Dameron in Superior Court, Henderson County. Heard in the Court of Appeals 11 October 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Joseph Finarelli, for the State.\nAppellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellant." }, "file_name": "0360-01", "first_page_order": 394, "last_page_order": 403 }