{ "id": 3796256, "name": "STATE OF NORTH CAROLINA v. LEVAR JAMEL ALLEN", "name_abbreviation": "State v. Allen", "decision_date": "2005-07-01", "docket_number": "No. 485PA04", "first_page": "425", "last_page": "473", "citations": [ { "type": "official", "cite": "359 N.C. 425" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "601 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": -1 }, { "cite": "166 N.C. App. 139", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410876 ], "year": 2004, "opinion_index": -1, "case_paths": [ "/nc-app/166/0139-01" ] }, { "cite": "353 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135574 ], "opinion_index": -1, "case_paths": [ "/nc/353/0568-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "opinion_index": -1, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "opinion_index": -1, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "532 U.S. 949", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9326336, 9326689, 9326628, 9326533, 9326246, 9326181, 9326218, 9326379, 9326476, 9326286, 9326072, 9326585, 9326427, 9326141, 9326110 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/532/0949-08", "/us/532/0949-15", "/us/532/0949-14", "/us/532/0949-12", "/us/532/0949-06", "/us/532/0949-04", "/us/532/0949-05", "/us/532/0949-09", "/us/532/0949-11", "/us/532/0949-07", "/us/532/0949-01", "/us/532/0949-13", "/us/532/0949-10", "/us/532/0949-03", "/us/532/0949-02" ] }, { "cite": "113 P.3d 713", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 8962317 ], "year": 2005, "pin_cites": [ { "page": "726, 730" } ], "opinion_index": 0, "case_paths": [ "/p3d/113/0713-01" ] }, { "cite": "113 P.3d 534", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2005, "pin_cites": [ { "page": "536", "parenthetical": "concluding that \"the judicial fact finding that occurs when a judge exercises discretion to impose an upper term sentence under California law does not implicate a defendant's Sixth Amendment right to a jury trial\"" } ], "opinion_index": 0 }, { "cite": "35 Cal.4th 1238", "category": "reporters:state", "reporter": "Cal. 4th", "case_ids": [ 873206 ], "year": 2005, "pin_cites": [ { "page": "1244", "parenthetical": "concluding that \"the judicial fact finding that occurs when a judge exercises discretion to impose an upper term sentence under California law does not implicate a defendant's Sixth Amendment right to a jury trial\"" } ], "opinion_index": 0, "case_paths": [ "/cal-4th/35/1238-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "62" }, { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "2003 N.C. Sess. Laws 1078", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "2004 N.C. Sess. Laws 161", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "weight": 2, "opinion_index": 0 }, { "cite": "149 L. Ed. 2d 360", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "405 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "130" } ], "opinion_index": 0 }, { "cite": "329 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553368 ], "year": 1991, "pin_cites": [ { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0084-01" ] }, { "cite": "115 S.E. 336", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1922, "pin_cites": [ { "page": "339" } ], "opinion_index": 0 }, { "cite": "184 N.C. 499", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271250 ], "year": 1922, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/nc/184/0499-01" ] }, { "cite": "532 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "787", "parenthetical": "quoting Person v. Bd. of State Tax Comm'rs, 184 N.C. 499, 503, 115 S.E. 336, 339 (1922), quoted in In re Alamance Cty. Court Facils., 329 N.C. 84, 95, 405 S.E.2d 125, 130 (1991)" } ], "opinion_index": 0 }, { "cite": "352 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685072 ], "year": 2000, "pin_cites": [ { "page": "553", "parenthetical": "quoting Person v. Bd. of State Tax Comm'rs, 184 N.C. 499, 503, 115 S.E. 336, 339 (1922), quoted in In re Alamance Cty. Court Facils., 329 N.C. 84, 95, 405 S.E.2d 125, 130 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0531-01" ] }, { "cite": "51 S.E. 66", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1905, "pin_cites": [ { "page": "68" } ], "opinion_index": 0 }, { "cite": "138 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270413 ], "year": 1905, "pin_cites": [ { "page": "743" } ], "opinion_index": 0, "case_paths": [ "/nc/138/0738-01" ] }, { "cite": "535 U.S. 625", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 353467 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/us/535/0625-01" ] }, { "cite": "110 P.3d 192", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 6, "year": 2005, "pin_cites": [ { "page": "207" }, { "page": "207-08" } ], "opinion_index": 0 }, { "cite": "154 Wash. 2d 118", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 5628941 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/wash-2d/154/0118-01" ] }, { "cite": "18 U.S.C. \u00a7 3553", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "page": "(b)(1)" } ], "opinion_index": 0 }, { "cite": "160 L. Ed. 2d 621", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 5925862 ], "weight": 16, "year": 2005, "pin_cites": [ { "page": "639, 659" }, { "page": "659-60" }, { "page": "643, 659", "parenthetical": "\"[E]veryone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [Sentencing Reform Act] the provisions that make the [Federal Sentencing] Guidelines binding on district judges.\"" }, { "page": "663" }, { "page": "665" }, { "page": "639" }, { "page": "639" }, { "page": "665", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/us/543/0220-01" ] }, { "cite": "326 U.S. 607", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6158185 ], "weight": 2, "year": 1946, "pin_cites": [ { "page": "615" }, { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/us/326/0607-01" ] }, { "cite": "232 S.E.2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "686", "parenthetical": "\" 'In view of the place of importance that trial by jury has in our Bill of Rights, it is not to be supposed that Congress intended to substitute the belief of appellate judges in the guilt of an accused . . . for ascertainment of guilt by a jury.' \"" } ], "opinion_index": 0 }, { "cite": "292 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567711 ], "year": 1977, "pin_cites": [ { "page": "169-70", "parenthetical": "\" 'In view of the place of importance that trial by jury has in our Bill of Rights, it is not to be supposed that Congress intended to substitute the belief of appellate judges in the guilt of an accused . . . for ascertainment of guilt by a jury.' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0160-01" ] }, { "cite": "430 U.S. 564", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12126181 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "572-73", "parenthetical": "emphasis added" }, { "page": "652", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/us/430/0564-01" ] }, { "cite": "357 U.S. 513", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164109 ], "weight": 2, "year": 1958, "pin_cites": [ { "page": "525" }, { "page": "1472" } ], "opinion_index": 0, "case_paths": [ "/us/357/0513-01" ] }, { "cite": "397 U.S. 358", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054393 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "364", "parenthetical": "\" 'There is always in litigation a margin of error, representing error in factfinding,' \" which the beyond a reasonable doubt standard is designed to \" 'reduce.' \"" }, { "page": "375", "parenthetical": "\" 'There is always in litigation a margin of error, representing error in factfinding,' \" which the beyond a reasonable doubt standard is designed to \" 'reduce.' \"" } ], "opinion_index": 0, "case_paths": [ "/us/397/0358-01" ] }, { "cite": "395 U.S. 250", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771609 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "254" }, { "page": "287-88" } ], "opinion_index": 0, "case_paths": [ "/us/395/0250-01" ] }, { "cite": "328 U.S. 750", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 377132 ], "weight": 2, "year": 1946, "pin_cites": [ { "page": "764" }, { "page": "1566" } ], "opinion_index": 0, "case_paths": [ "/us/328/0750-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 7, "year": 1967, "pin_cites": [ { "page": "24" }, { "page": "710-11" }, { "page": "24, 26" }, { "page": "710-11" }, { "page": "24" }, { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "467 U.S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6193857 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/467/0039-01" ] }, { "cite": "465 U.S. 168", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11335001 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/465/0168-01" ] }, { "cite": "474 U.S. 254", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6203718 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/us/474/0254-01" ] }, { "cite": "273 U.S. 510", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6142780 ], "weight": 2, "year": 1927, "opinion_index": 0, "case_paths": [ "/us/273/0510-01" ] }, { "cite": "372 U.S. 335", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765333 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/372/0335-01" ] }, { "cite": "520 U.S. 461", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11652245 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "468", "parenthetical": "citing Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799 (1963)" }, { "page": "728", "parenthetical": "citing Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799 (1963)" }, { "page": "468-69" }, { "page": "728", "parenthetical": "identifying the six cases in which the United States Supreme Court has found structural error" } ], "opinion_index": 0, "case_paths": [ "/us/520/0461-01" ] }, { "cite": "478 U.S. 570", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6210041 ], "weight": 10, "year": 1986, "pin_cites": [ { "page": "577-78" }, { "page": "470" }, { "page": "578" }, { "page": "471" }, { "page": "578" }, { "page": "471", "parenthetical": "\"[H]armless-error analysis presumably would not apply if a court directed a verdict for the prosecution in a criminal trial by jury.\"" }, { "page": "578" }, { "page": "471" }, { "page": "578" }, { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/us/478/0570-01" ] }, { "cite": "499 U.S. 279", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11318776 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "310" }, { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/us/499/0279-01" ] }, { "cite": "508 U.S. 275", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12227 ], "weight": 22, "year": 1993, "pin_cites": [ { "page": "279, 280-82" }, { "page": "189, 190-91" }, { "page": "276-77" }, { "page": "187" }, { "page": "276" }, { "page": "187" }, { "page": "276-77" }, { "page": "187" }, { "page": "277" }, { "page": "187" }, { "page": "279-80" }, { "page": "189-90" }, { "page": "280" }, { "page": "189-90" }, { "page": "280" }, { "page": "190" }, { "page": "281-82" }, { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/us/508/0275-01" ] }, { "cite": "527 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248184 ], "weight": 31, "year": 1999, "pin_cites": [ { "page": "8-9" }, { "page": "46-47" }, { "page": "7" }, { "page": "46" }, { "page": "16-17" }, { "page": "51-52" }, { "page": "6, 25" }, { "page": "45, 57" }, { "page": "15" }, { "page": "51" }, { "page": "16-17" }, { "page": "52" }, { "page": "16" }, { "page": "51-52" }, { "page": "9" }, { "page": "47" }, { "page": "11" }, { "page": "48" }, { "page": "25" }, { "page": "57" }, { "page": "30" }, { "page": "60", "parenthetical": "Scalia, J., dissenting" }, { "page": "30-34" }, { "page": "60-62" }, { "page": "34" }, { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/us/527/0001-01" ] }, { "cite": "556 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "268", "parenthetical": "\"The test for severability is whether the remaining portion of the legislation can stand on its own and whether the General Assembly would have enacted the remainder absent the offending portion.\"" } ], "opinion_index": 0 }, { "cite": "354 N.C. 544", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138302 ], "year": 2001, "pin_cites": [ { "page": "548", "parenthetical": "\"The test for severability is whether the remaining portion of the legislation can stand on its own and whether the General Assembly would have enacted the remainder absent the offending portion.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0544-01" ] }, { "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": "582 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "603-04" }, { "page": "603" } ], "opinion_index": 0 }, { "cite": "357 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491439 ], "year": 2003, "pin_cites": [ { "page": "272-73" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0257-01" ] }, { "cite": "536 U.S. 584", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1254507 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "597, 609" }, { "page": "569, 576-77" } ], "opinion_index": 0, "case_paths": [ "/us/536/0584-01" ] }, { "cite": "526 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11133049 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/us/526/0227-01" ] }, { "cite": "391 U.S. 145", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767723 ], "weight": 6, "year": 1968, "pin_cites": [ { "page": "152-53" }, { "page": "498" }, { "page": "151-52" }, { "page": "497" }, { "page": "153, 157-58" }, { "page": "498, 501" } ], "opinion_index": 0, "case_paths": [ "/us/391/0145-01" ] }, { "cite": "1993 N.C. Sess. Laws 2299", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "1979 N.C. Sess. Laws 850", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "215 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "594" } ], "opinion_index": 0 }, { "cite": "288 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564626 ], "year": 1975, "pin_cites": [ { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0019-01" ] }, { "cite": "272 S.E.2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "870" } ], "opinion_index": 0 }, { "cite": "301 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569752 ], "year": 1981, "pin_cites": [ { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0532-01" ] }, { "cite": "302 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "dismissing the defendant's appeal of the Court of Appeals decision denying his motion for appropriate relief" } ], "opinion_index": 0 }, { "cite": "307 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560860 ], "year": 1982, "pin_cites": [ { "parenthetical": "dismissing the defendant's appeal of the Court of Appeals decision denying his motion for appropriate relief" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0126-01" ] }, { "cite": "300 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1983, "pin_cites": [ { "page": "695" }, { "page": "698-701" }, { "page": "690-91" }, { "page": "694-95" }, { "page": "690-91, 694" }, { "page": "698" }, { "page": "700, 704" }, { "page": "700-01" } ], "opinion_index": 0 }, { "cite": "307 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565300 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0584-01" ] }, { "cite": "479 U.S. 314", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6215700 ], "weight": 4, "year": 1987, "opinion_index": 0, "case_paths": [ "/us/479/0314-01" ] }, { "cite": "523 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155670 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0277-01" ] }, { "cite": "548 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 18, "year": 2001, "pin_cites": [ { "page": "732" }, { "page": "728" }, { "page": "728-29" }, { "page": "729" }, { "page": "730-31" }, { "page": "731" }, { "parenthetical": "emphasis added" }, { "page": "731" }, { "page": "731" }, { "page": "732" }, { "page": "732" }, { "page": "731" }, { "page": "732" } ], "opinion_index": 0 }, { "cite": "601 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "306" } ], "opinion_index": 0 }, { "cite": "166 N.C. 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Ed. 2d", "case_ids": [ 5925862 ], "weight": 2, "year": 2005, "opinion_index": 1, "case_paths": [ "/us/543/0220-01" ] }, { "cite": "430 U.S. 564", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12126181 ], "weight": 4, "year": 1977, "pin_cites": [ { "page": "572-73" }, { "page": "652" } ], "opinion_index": 1, "case_paths": [ "/us/430/0564-01" ] }, { "cite": "395 U.S. 250", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771609 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "254" }, { "page": "287-88" } ], "opinion_index": 1, "case_paths": [ "/us/395/0250-01" ] }, { "cite": "328 U.S. 750", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 377132 ], "weight": 2, "year": 1946, "pin_cites": [ { "page": "759" }, { "page": "1563" } ], "opinion_index": 1, "case_paths": [ "/us/328/0750-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 4, "year": 1967, "pin_cites": [ { "page": "24" }, { "page": "710-11" }, { "page": "22" }, { "page": "709", "parenthetical": "stating that the doctrine \"block[s] setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial\"" } ], "opinion_index": 1, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "520 U.S. 461", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11652245 ], "weight": 6, "year": 1997, "pin_cites": [ { "page": "470", "parenthetical": "\" 'Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.' \" (quoting Traynor, Harmless Error, at 50" }, { "page": "729", "parenthetical": "\" 'Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.' \" (quoting Traynor, Harmless Error, at 50); Arizona v. Fulminante, 499 U.S. 279, 308, 113 L. Ed. 2d 302, 330 (1991" }, { "page": "470" }, { "page": "729" } ], "opinion_index": 1, "case_paths": [ "/us/520/0461-01" ] }, { "cite": "478 U.S. 570", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6210041 ], "weight": 26, "year": 1986, "pin_cites": [ { "page": "577", "parenthetical": "alteration in original" }, { "page": "470", "parenthetical": "alteration in original" }, { "page": "578" }, { "page": "471" }, { "page": "579" }, { "page": "471", "parenthetical": "emphasis added" }, { "page": "577-78" }, { "page": "470", "parenthetical": "citation omitted" }, { "page": "579" }, { "page": "471" }, { "page": "577-79" }, { "page": "470-71" }, { "page": "579-80" }, { "page": "471-72", "parenthetical": "noting that unconstitutional burden-shifting, unlike the denial of counsel or judicial bias, does not affect composition of the record and thus is amenable to harmless-error review" }, { "page": "579" }, { "page": "471" }, { "page": "578" }, { "page": "471" }, { "page": "577" }, { "page": "470" }, { "page": "578" }, { "page": "471", "parenthetical": "emphasis added" }, { "page": "579" }, { "page": "471", "parenthetical": "discussing the \"strong presumption\" that a federal constitutional error is subject to harmless-error analysis" } ], "opinion_index": 1, "case_paths": [ "/us/478/0570-01" ] }, { "cite": "499 U.S. 279", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11318776 ], "weight": 18, "year": 1991, "pin_cites": [ { "page": "308", "parenthetical": "stating that the doctrine \" 'promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error' \"" }, { "page": "330", "parenthetical": "stating that the doctrine \" 'promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error' \"" }, { "page": "308" }, { "page": "330", "parenthetical": "stating that \"the harmless-error doctrine is essential to preserve the 'principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence' \"" }, { "page": "306" }, { "page": "329" }, { "page": "307-08" }, { "page": "330" }, { "page": "306-07" }, { "page": "329-30", "parenthetical": "citations and parentheses omitted" }, { "page": "309-10" }, { "page": "331" }, { "page": "310" }, { "page": "331" }, { "page": "310" }, { "page": "331" }, { "page": "310" }, { "page": "331", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/us/499/0279-01" ] }, { "cite": "508 U.S. 275", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12227 ], "weight": 27, "year": 1993, "pin_cites": [ { "page": "279" }, { "page": "189" }, { "page": "282" }, { "page": "191" }, { "page": "282" }, { "page": "191" }, { "page": "281-82" }, { "page": "190-91" }, { "page": "279, 281" }, { "page": "189, 190" }, { "page": "281" }, { "page": "190" }, { "page": "279" }, { "page": "189" }, { "page": "281" }, { "page": "190" }, { "page": "284" }, { "page": "192", "parenthetical": "Rehnquist, C.J., concurring" }, { "page": "280" }, { "page": "189-90" }, { "page": "280" }, { "page": "189-90" }, { "page": "281" }, { "page": "190" } ], "opinion_index": 1, "case_paths": [ "/us/508/0275-01" ] }, { "cite": "527 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248184 ], "weight": 58, "year": 1999, "pin_cites": [ { "page": "18" }, { "page": "53" }, { "page": "17" }, { "page": "52" }, { "page": "17" }, { "page": "52" }, { "page": "17-18" }, { "page": "52-53" }, { "page": "19" }, { "page": "53" }, { "page": "53" }, { "page": "53" }, { "page": "8" }, { "page": "46" }, { "page": "9, 18" }, { "page": "47, 53" }, { "page": "4" }, { "page": "44" }, { "page": "18" }, { "page": "52" }, { "page": "9" }, { "page": "47" }, { "page": "15-20" }, { "page": "51-53" }, { "page": "17" }, { "page": "52" }, { "page": "17" }, { "page": "52" }, { "page": "11" }, { "page": "48" }, { "parenthetical": "quoting Brief for Petitioner at 7" }, { "page": "12" }, { "page": "49" }, { "page": "15" }, { "page": "50-51" }, { "page": "9" }, { "page": "47" }, { "page": "19" }, { "page": "53" }, { "page": "17" }, { "page": "52", "parenthetical": "rejecting the defendant's argument that application of harmless-error analysis to the trial court's erroneous reasonable-doubt instruction would \"dispense with trial by jury and allow judges to direct a guilty verdict\"" }, { "page": "19" }, { "page": "53", "parenthetical": "quoting Traynor, Harmless Error, at 21" }, { "page": "19" }, { "page": "53" }, { "page": "11" }, { "page": "48" }, { "page": "11-13" }, { "page": "48-49" }, { "page": "8-9" }, { "page": "46-47" }, { "page": "36" }, { "page": "64", "parenthetical": "Scalia, J., dissenting" } ], "opinion_index": 1, "case_paths": [ "/us/527/0001-01" ] }, { "cite": "536 U.S. 584", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1254507 ], "weight": 9, "year": 2002, "pin_cites": [ { "page": "602" }, { "page": "572" }, { "page": "602" }, { "page": "572", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/us/536/0584-01" ] }, { "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": "300 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "698", "parenthetical": "evidence that baby had been struck on at least three occasions, tied to his crib, and placed under a mattress factually supported defendant's guilty plea of felonious child abuse, but \"f[ell] short of supporting a finding that the offense was especially heinous, atrocious or cruel\"" } ], "opinion_index": 1 }, { "cite": "307 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565300 ], "year": 1983, "pin_cites": [ { "page": "599" } ], "opinion_index": 1, "case_paths": [ "/nc/307/0584-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "pin_cites": [ { "page": "415" } ], "opinion_index": 1, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 6, "pin_cites": [ { "parenthetical": "\"[W]hen the term 'sentence enhancement' is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict.\"" }, { "parenthetical": "\"[W]hen the term 'sentence enhancement' is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict.\"" }, { "page": "494" }, { "page": "457" } ], "opinion_index": 1, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "150 L. Ed. 2d 705", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 1 }, { "cite": "240 F.3d 1300", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11142073 ], "pin_cites": [ { "page": "1307" } ], "opinion_index": 1, "case_paths": [ "/f3d/240/1300-01" ] }, { "cite": "270 F.3d 83", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9462574 ], "year": 2001, "pin_cites": [ { "page": "88-90" } ], "opinion_index": 1, "case_paths": [ "/f3d/270/0083-01" ] }, { "cite": "153 L. Ed. 2d 845", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 1 }, { "cite": "271 F.3d 93", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9462308 ], "year": 2001, "pin_cites": [ { "page": "103" } ], "opinion_index": 1, "case_paths": [ "/f3d/271/0093-01" ] }, { "cite": "273 F.3d 1277", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9459981 ], "year": 2001, "pin_cites": [ { "page": "1278-79" } ], "opinion_index": 1, "case_paths": [ "/f3d/273/1277-01" ] }, { "cite": "154 L. Ed. 2d 81", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 1 }, { "cite": "278 F.3d 722", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9399217 ], "year": 2001, "pin_cites": [ { "page": "739-42", "parenthetical": "applying harmless-error principles in the context of plain-error review and concluding that \"any Apprendi error is harmless\"" } ], "opinion_index": 1, "case_paths": [ "/f3d/278/0722-01" ] }, { "cite": "282 F.3d 242", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9473319 ], "year": 2002, "pin_cites": [ { "page": "251-52" } ], "opinion_index": 1, "case_paths": [ "/f3d/282/0242-01" ] }, { "cite": "154 L. Ed. 2d 243", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 1 }, { "cite": "282 F.3d 664", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9474174 ], "pin_cites": [ { "page": "670" } ], "opinion_index": 1, "case_paths": [ "/f3d/282/0664-01" ] }, { "cite": "154 L. Ed. 2d 578", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 1 }, { "cite": "537 U.S. 1078", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9318912, 9319364, 9319269, 9319110, 9319015, 9319177, 9318731, 9318860, 9318766, 9319151, 9319222, 9319064, 9319322, 9318814, 9318975 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/us/537/1078-05", "/us/537/1078-15", "/us/537/1078-13", "/us/537/1078-09", "/us/537/1078-07", "/us/537/1078-11", "/us/537/1078-01", "/us/537/1078-04", "/us/537/1078-02", "/us/537/1078-10", "/us/537/1078-12", "/us/537/1078-08", "/us/537/1078-14", "/us/537/1078-03", "/us/537/1078-06" ] }, { "cite": "296 F.3d 1169", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9406740, 3700862 ], "pin_cites": [ { "page": "1171-72" } ], "opinion_index": 1, "case_paths": [ "/f3d/296/1169-01", "/us-app-dc/353/0162-01" ] }, { "cite": "155 L. Ed. 2d 672", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 1 }, { "cite": "300 F.3d 111", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11419208 ], "year": 2002, "pin_cites": [ { "page": "127-28" } ], "opinion_index": 1, "case_paths": [ "/f3d/300/0111-01" ] }, { "cite": "306 F.3d 295", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11438697 ], "year": 2002, "pin_cites": [ { "page": "322-23" } ], "opinion_index": 1, "case_paths": [ "/f3d/306/0295-01" ] }, { "cite": "155 L. Ed. 2d 341", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 1 }, { "cite": "312 F.3d 652", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9320166 ], "year": 2002, "pin_cites": [ { "page": "665" } ], "opinion_index": 1, "case_paths": [ "/f3d/312/0652-01" ] }, { "cite": "157 L. Ed. 2d 46", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 1 }, { "cite": "323 F.3d 412", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9345329 ], "pin_cites": [ { "page": "433-34" } ], "opinion_index": 1, "case_paths": [ "/f3d/323/0412-01" ] }, { "cite": "337 F.3d 1043", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3703218, 9108204 ], "year": 2003, "pin_cites": [ { "page": "1052" } ], "opinion_index": 1, "case_paths": [ "/us-app-dc/358/0001-01", "/f3d/337/1043-01" ] }, { "cite": "158 L. Ed. 2d 522", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2004, "opinion_index": 1 }, { "cite": "353 F.3d 1", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9292999 ], "year": 2003, "pin_cites": [ { "page": "17" } ], "opinion_index": 1, "case_paths": [ "/f3d/353/0001-01" ] }, { "cite": "160 L. Ed. 2d 456", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2004, "opinion_index": 1 }, { "cite": "353 F.3d 281", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9294621 ], "year": 2003, "pin_cites": [ { "page": "304-06" } ], "opinion_index": 1, "case_paths": [ "/f3d/353/0281-01" ] }, { "cite": "55 Baylor L. Rev. 889", "category": "journals:journal", "reporter": "Baylor L. Rev.", "year": 2003, "pin_cites": [ { "page": "953", "parenthetical": "following a discussion of Cotton, concluding that \"in both the harmless error and plain error settings, there is no reason to treat the failure to present an element of a crime to a grand jury any differently than a failure to present an element of a crime to a petit jury\"" } ], "opinion_index": 1 }, { "cite": "206 Ariz. 321", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 248169 ], "weight": 2, "year": 2003, "pin_cites": [ { "parenthetical": "relying on Cotton in determining that Apprendi error is subject to harmless-error review" }, { "parenthetical": "relying on Cotton in determining that Apprendi error is subject to harmless-error review" } ], "opinion_index": 1, "case_paths": [ "/ariz/206/0321-01" ] }, { "cite": "826 N.E.2d 340", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "352-53", "parenthetical": "applying harmless-error analysis to Blakely claim" } ], "opinion_index": 1 }, { "cite": "160 Ohio App. 3d 138", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 1174399 ], "year": 2005, "pin_cites": [ { "page": "154", "parenthetical": "applying harmless-error analysis to Blakely claim" } ], "opinion_index": 1, "case_paths": [ "/ohio-app-3d/160/0138-01" ] }, { "cite": "815 N.E.2d 1049", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 9163212 ], "year": 2004, "pin_cites": [ { "page": "1059-60", "parenthetical": "applying harmless-error analysis to Blakely claim" } ], "opinion_index": 1, "case_paths": [ "/ne2d/815/1049-01" ] }, { "cite": "822 N.E.2d 288", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 9010867 ], "year": 2005, "pin_cites": [ { "page": "291", "parenthetical": "applying harmless error analysis to Blakely claim" } ], "opinion_index": 1, "case_paths": [ "/ne2d/822/0288-01" ] }, { "cite": "125 Cal. App. 4th 855", "category": "reporters:state", "reporter": "Cal. App. 4th", "case_ids": [ 1237803 ], "year": 2005, "pin_cites": [ { "page": "867-68", "parenthetical": "holding that Blakely errors are subject to harmless-error analysis and citing numerous cases" } ], "opinion_index": 1, "case_paths": [ "/cal-app-4th/125/0855-01" ] }, { "cite": "22 Cal. Rptr. 3d 908", "category": "reporters:state", "reporter": "Cal. Rptr. 3d", "year": 2005, "pin_cites": [ { "page": "916-17", "parenthetical": "holding that Blakely errors are subject to harmless-error analysis and citing numerous cases" } ], "opinion_index": 1 }, { "cite": "209 Ariz. 280", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1357257 ], "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "\"Further, we hold that Blakely error is subject to harmless error or fundamental error analysis and may or may not require reversal based on the facts of a particular case.\"" }, { "page": "32", "parenthetical": "\"Further, we hold that Blakely error is subject to harmless error or fundamental error analysis and may or may not require reversal based on the facts of a particular case.\"" } ], "opinion_index": 1, "case_paths": [ "/ariz/209/0280-01" ] }, { "cite": "160 L. Ed. 2d 1053", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2005, "opinion_index": 1 }, { "cite": "380 F.3d 102", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9208113 ], "year": 2004, "pin_cites": [ { "page": "105", "parenthetical": "per curiam" } ], "opinion_index": 1, "case_paths": [ "/f3d/380/0102-01" ] }, { "cite": "161 L. Ed. 2d 764", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2005, "opinion_index": 1 }, { "cite": "388 F.3d 1104", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9152319 ], "year": 2004, "pin_cites": [ { "page": "1109", "parenthetical": "analyzing Blakely claim for plain error and adding in dictum that the claim \"would fall short under harmless error review as well\"" } ], "opinion_index": 1, "case_paths": [ "/f3d/388/1104-01" ] }, { "cite": "399 F.3d 123", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1547136 ], "year": 2005, "pin_cites": [ { "page": "127", "parenthetical": "describing Blakely and Booker error as a \"prototypical example of harmless error\" where defendant received a \"statutory mandatory minimum\" sentence" } ], "opinion_index": 1, "case_paths": [ "/f3d/399/0123-01" ] }, { "cite": "399 F.3d 343", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1546928, 3440114 ], "year": 2005, "pin_cites": [ { "page": "351", "parenthetical": "stating that Booker challenge was \"governed by the harmless error standard appropriate for constitutional error\"" } ], "opinion_index": 1, "case_paths": [ "/f3d/399/0343-01", "/us-app-dc/365/0104-01" ] }, { "cite": "401 F.3d 1007", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9175815 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/f3d/401/1007-01" ] }, { "cite": "400 F.3d 646", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9174148 ], "pin_cites": [ { "page": "652" } ], "opinion_index": 1, "case_paths": [ "/f3d/400/0646-01" ] }, { "cite": "405 F.3d 946", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9012443 ], "year": 2005, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 1, "case_paths": [ "/f3d/405/0946-01" ] }, { "cite": "405 F.3d 852", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9012051 ], "year": 2005, "pin_cites": [ { "page": "875", "parenthetical": "concluding that Sixth Amendment Blakely/Booker error was harmless in light of \"overwhelming\" evidence supporting the sentencing judge's fact-finding" } ], "opinion_index": 1, "case_paths": [ "/f3d/405/0852-01" ] }, { "cite": "2004 WL 2726034", "category": "reporters:specialty_west", "reporter": "WL", "year": 2004, "pin_cites": [ { "page": "**22-24", "parenthetical": "No. M2003-03019-CCA-R3CD" } ], "opinion_index": 1 }, { "cite": "136 N.M. 417", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1224623 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "669-70" } ], "opinion_index": 1, "case_paths": [ "/nm/136/0417-01" ] }, { "cite": "351 S.E.2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 1 }, { "cite": "318 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736376, 4735620, 4734452, 4737103 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/nc/318/0699-02", "/nc/318/0699-04", "/nc/318/0699-03", "/nc/318/0699-01" ] }, { "cite": "347 S.E.2d 81", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "84-85" } ], "opinion_index": 1 }, { "cite": "82 N.C. App. 555", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359355 ], "year": 1986, "pin_cites": [ { "page": "560" } ], "opinion_index": 1, "case_paths": [ "/nc-app/82/0555-01" ] }, { "cite": "306 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "786" } ], "opinion_index": 1 }, { "cite": "309 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761533 ], "year": 1983, "pin_cites": [ { "page": "414" } ], "opinion_index": 1, "case_paths": [ "/nc/309/0410-01" ] }, { "cite": "154 L. Ed. 2d 823", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 1 }, { "cite": "566 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "77" } ], "opinion_index": 1 }, { "cite": "355 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220086 ], "year": 2002, "pin_cites": [ { "page": "666" } ], "opinion_index": 1, "case_paths": [ "/nc/355/0642-01" ] }, { "cite": "154 L. Ed. 2d 73", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 1 }, { "cite": "555 S.E.2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "551", "parenthetical": "rejecting argument that counsel's admission of the (d)(7" } ], "opinion_index": 1 }, { "cite": "354 N.C. 455", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138528 ], "year": 2001, "pin_cites": [ { "page": "482", "parenthetical": "rejecting argument that counsel's admission of the (d)(7" } ], "opinion_index": 1, "case_paths": [ "/nc/354/0455-01" ] }, { "cite": "134 L. Ed. 2d 526", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 1 }, { "cite": "517 U.S. 1123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11768993, 11768609, 11768259, 11768294, 11768199, 11768841, 11768523, 11768781, 11768078, 11768143, 11768690, 11768915, 11768376, 11768027, 11768447 ], "year": 1996, "opinion_index": 1, "case_paths": [ "/us/517/1123-15", "/us/517/1123-10", "/us/517/1123-05", "/us/517/1123-06", "/us/517/1123-04", "/us/517/1123-13", "/us/517/1123-09", "/us/517/1123-12", "/us/517/1123-02", "/us/517/1123-03", "/us/517/1123-11", "/us/517/1123-14", "/us/517/1123-07", "/us/517/1123-01", "/us/517/1123-08" ] }, { "cite": "461 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "627", "parenthetical": "\"Based on the overwhelming amount of evidence that the killing was especially heinous, atrocious, or cruel, assuming arguendo the admission of this statement was error, any such error was necessarily harmless beyond a reasonable doubt.\"" } ], "opinion_index": 1 }, { "cite": "341 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793195 ], "year": 1995, "pin_cites": [ { "page": "309", "parenthetical": "\"Based on the overwhelming amount of evidence that the killing was especially heinous, atrocious, or cruel, assuming arguendo the admission of this statement was error, any such error was necessarily harmless beyond a reasonable doubt.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/341/0263-01" ] }, { "cite": "139 L. Ed. 2d 64", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 1 }, { "cite": "522 U.S. 837", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11495974, 11495911, 11495847, 11495882, 11496107, 11496076, 11496173, 11496145, 11496210, 11495859, 11496049, 11496027, 11495934, 11495999 ], "year": 1997, "opinion_index": 1, "case_paths": [ "/us/522/0837-06", "/us/522/0837-04", "/us/522/0837-01", "/us/522/0837-03", "/us/522/0837-11", "/us/522/0837-10", "/us/522/0837-13", "/us/522/0837-12", "/us/522/0837-14", "/us/522/0837-02", "/us/522/0837-09", "/us/522/0837-08", "/us/522/0837-05", "/us/522/0837-07" ] }, { "cite": "481 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "40-41" } ], "opinion_index": 1 }, { "cite": "345 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53888 ], "pin_cites": [ { "page": "288-89" } ], "opinion_index": 1, "case_paths": [ "/nc/345/0254-01" ] }, { "cite": "307 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "316-20" } ], "opinion_index": 1 }, { "cite": "309 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760257 ], "year": 1983, "pin_cites": [ { "page": "342-49" } ], "opinion_index": 1, "case_paths": [ "/nc/309/0326-01" ] }, { "cite": "85 L. Ed. 2d 169", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 1 }, { "cite": "471 U.S. 1009", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6232119 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/us/471/1009-01" ] }, { "cite": "322 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "124-25" } ], "opinion_index": 1 }, { "cite": "312 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4759870 ], "year": 1984, "pin_cites": [ { "page": "115-16" } ], "opinion_index": 1, "case_paths": [ "/nc/312/0092-01" ] }, { "cite": "149 L. Ed. 2d 305", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 1 }, { "cite": "533 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "242-43" } ], "opinion_index": 1 }, { "cite": "352 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684963 ], "year": 2000, "pin_cites": [ { "page": "479-81" } ], "opinion_index": 1, "case_paths": [ "/nc/352/0364-01" ] }, { "cite": "130 L. Ed. 2d 72", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 1 }, { "cite": "14 F.3d 956", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10530041 ], "weight": 2, "pin_cites": [ { "page": "978" }, { "page": "981", "parenthetical": "holding that an unconstitutionally vague jury instruction on the \"especially heinous, atrocious, or cruel\" (e)(9) aggravator was harmless in light of the \"overwhelming force of the evidence\"" } ], "opinion_index": 1, "case_paths": [ "/f3d/14/0956-01" ] }, { "cite": "209 Ariz. 300", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1357279 ], "weight": 8, "year": 2004, "pin_cites": [ { "parenthetical": "relying on Mitchell in holding that Neder, not Sullivan, applies to Blakely errors" }, { "page": "920", "parenthetical": "relying on Mitchell in holding that Neder, not Sullivan, applies to Blakely errors" }, { "page": "917" }, { "page": "917-21" }, { "parenthetical": "holding that Blakely errors are subject to harmless-error analysis and citing other cases in support of that proposition" }, { "page": "920-22", "parenthetical": "holding that Blakely errors are subject to harmless-error analysis and citing other cases in support of that proposition" } ], "opinion_index": 1, "case_paths": [ "/ariz/209/0300-01" ] }, { "cite": "540 U.S. 12", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8896714 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "16", "parenthetical": "per curiam" }, { "page": "270", "parenthetical": "per curiam" } ], "opinion_index": 1, "case_paths": [ "/us/540/0012-01" ] }, { "cite": "159 L. Ed. 2d 442", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 2528610 ], "year": 2004, "pin_cites": [ { "page": "451", "parenthetical": "alteration in original" } ], "opinion_index": 1, "case_paths": [ "/us/542/0348-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "692" }, { "page": "696" }, { "page": "692" }, { "page": "696" }, { "page": "692" }, { "page": "696" } ], "opinion_index": 1, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "515 U.S. 506", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1564227 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "510-11" }, { "page": "450" } ], "opinion_index": 1, "case_paths": [ "/us/515/0506-01" ] }, { "cite": "70 N.Y.U. L. Rev. 1167", "category": "journals:journal", "reporter": "N.Y.U. L. Rev.", "year": 1995, "pin_cites": [ { "page": "1174", "parenthetical": "noting that without harmless-error review, numerous cases were decided on the basis of trivial technical errors" } ], "opinion_index": 1 }, { "cite": "460 U.S. 73", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6189447 ], "weight": 8, "year": 1983, "pin_cites": [ { "parenthetical": "stating that \"whether a federal constitutional error can be harmless is a federal question\"" }, { "parenthetical": "stating that \"whether a federal constitutional error can be harmless is a federal question\"" }, { "page": "82" }, { "page": "831", "parenthetical": "plurality opinion" }, { "page": "86" }, { "page": "834", "parenthetical": "plurality opinion" } ], "opinion_index": 1, "case_paths": [ "/us/460/0073-01" ] } ], "analysis": { "cardinality": 3057, "char_count": 128043, "ocr_confidence": 0.745, "pagerank": { "raw": 2.3895054291067235e-06, "percentile": 0.9962812503740566 }, "sha256": "258426c042cf0a5faeabd001b3139438042af9da4a558af7d0dff3e156d30f67", "simhash": "1:eacc132e2f1e8f87", "word_count": 20477 }, "last_updated": "2023-07-14T16:11:02.499353+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Justice LAKE and Justice NEWBY join in this concurring and dissenting opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. LEVAR JAMEL ALLEN" ], "opinions": [ { "text": "BRADY, Justice.\nThe primary question presented for review is whether sentencing errors which violate a defendant\u2019s Sixth Amendment right to jury trial pursuant to the recent United States Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), may be deemed harmless. We conclude that Blakely errors are structural and modify and affirm the decision of the Court of Appeals remanding defendant\u2019s case to Gaston County Superior Court for resentencing.\nPreliminarily, this Court must also examine the effect of Blakely on criminal sentencing in North Carolina. We conclude that Blakely applies to North Carolina\u2019s Structured Sentencing Act and that N.C.G.S. \u00a7 15A-1340.16, which is a part of that Act, violates the Sixth Amendment as interpreted in Blakely.\nThese holdings apply to cases \u201cin 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 State v. Lucas, 353 N.C. 568, 598, 548 S.E.2d 712, 732 (2001). See State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663 (2000); Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649 (1987).\nFACTUAL BACKGROUND\nOn 3 December 2001, defendant Levar Jamel Allen was indicted for child abuse inflicting serious bodily injury, a Class C felony. The indictment alleged that on 7 November 2001, defendant intentionally and severely burned his nine month old son, thereby causing serious injury to the child. Defendant pleaded not guilty to the offense and was tried by jury at the 28 January 2003 term of Gaston County Superior Court before Judge J. Gentry Caudill. On 31 January 2003, the jury unanimously found defendant guilty of felony child abuse inflicting serious bodily injury.\nDuring the sentencing proceeding, Judge Caudill calculated that defendant had a prior record level of II, based upon one previous Class 1 misdemeanor conviction and one previous Class A1 misdemeanor conviction. Judge Caudill made additional findings of aggravating and mitigating factors. In aggravation, Judge Caudill found by a preponderance of the evidence that defendant\u2019s abuse of his son was especially heinous, atrocious, or cruel. In mitigation, Judge Caudill found three factors by a preponderance of the evidence: (1) \u201cthe defendant has been a person of good character or has had a good reputation in the community,\u201d (2) \u201cthe defendant has a support system in the community,\u201d and (3) \u201cthe defendant was punished emotionally.\u201d Judge Caudill determined that \u201cfactors in aggravation outweigh the factors in mitigation and that an aggravated sentence is justified.\u201d Finally, Judge Caudill imposed an aggravated sentence of 115 months minimum to 147 months maximum imprisonment. Defendant\u2019s maximum aggravated sentence is eighteen months longer than the maximum presumptive sentence permitted by statute for a Class C felony, prior record level II.\nDefendant appealed to the North Carolina Court of Appeals, contesting, among other assignments of error, the sufficiency of evidence supporting Judge Caudill\u2019s finding of the especially heinous, atrocious, or cruel aggravating factor. On 29 June 2004, while his direct appeal was pending in the Court of Appeals, defendant filed a motion for appropriate relief in that Court. In his motion, defendant argued that the Sixth Amendment to the United States Constitution required the especially heinous, atrocious, or cruel aggravating factor to be proved to a jury beyond a reasonable doubt. Because Judge Caudill found that aggravating factor by a preponderance of the evidence, defendant requested a new sentencing proceeding. In support of his motion, defendant cited the United States Supreme Court\u2019s decision in Blakely v. Washington, -U.S.-, 159 L. Ed. 2d 403 (2004), which applied the Court\u2019s earlier holding in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000), to invalidate Washington State\u2019s \u201cexceptional\u201d sentencing system. On 7 September 2004, a unanimous panel of the Court of Appeals issued an opinion finding no error in defendant\u2019s trial, but remanded defendant\u2019s case for resentencing pursuant to Blakely and this Court\u2019s 1983 decision in State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).\nPROCEDURAL POSTURE\nThis matter is before the Court on the State\u2019s petition for discretionary review, allowed 23 September 2004. Defendant contends that this Court lacks subject matter jurisdiction to review the Court of Appeals\u2019 decision because he raised the question of Blakely error in the Court of Appeals by a motion for appropriate relief. In support of his argument, defendant cites N.C.G.S. \u00a7 15A-1422(f), which states that \u201c[d]ecisions of the Court of Appeals on motions for appropriate relief that [are made more than ten days after entry of judgment] are final and not subject to further review by appeal, certification, writ, motion, or otherwise.\u201d\nWe agree that N.C.G.S. \u00a7 15A-1422(f) bars this Court\u2019s review of Court of Appeals\u2019 decisions on most motions for appropriate relief from noncapital judgments and convictions. See State v. Barrett, 307 N.C. 126, 302 S.E.2d 632 (1982) (dismissing the defendant\u2019s appeal of the Court of Appeals decision denying his motion for appropriate relief). This restriction has the desirable effect of imparting finality to post-conviction proceedings and freeing limited judicial resources for attention to cases on direct review, which involve capital or constitutional questions, and questions in dispute among the members of the Court of Appeals as reflected by a dissenting opinion. N.C.G.S. \u00a7\u00a7 7A-27(a), 30 (2003). Collateral review of noncapital judgmerits and convictions is, in general, not a core function of the Supreme Court of North Carolina.\nHowever, collateral review is proper in certain rare circumstances, as when the Court of Appeals applies a new federal constitutional rule of widespread effect on the administration of justice throughout the state. Cf. In re Brownlee, 301 N.C. 532, 548, 272 S.E.2d 861, 870 (1981) (\u201cUnder exceptional circumstances this [C]ourt will exercise power under [Article IV, Section 12, Clause 1 of the North Carolina Constitution] in order to consider questions which are not presented according to our rules of procedure; and this [C]ourt will not hesitate to exercise its general supervisory authority when necessary to promote the expeditious administration of justice.\u201d) (citations omitted); State v. Stanley, 288 N.C. 19, 26, 215 S.E.2d 589, 594 (1975) (\u201cThis Court will not hesitate to exercise its rarely used general supervisory authority when necessary to promote the expeditious administration of justice. Under unusual and exceptional circumstances [the Court] will exercise this power to consider questions which are not properly presented according to [its] rules.\u201d) (citations omitted). Read broadly, the Court of Appeals\u2019 decision in Allen, applying Blakely, calls into question the constitutionality of North Carolina\u2019s Structured Sentencing Act and identifies a new type of structural error which is reversible per se. For these reasons Allen and Blakely have the potential to affect a significant number of criminal sentences in North Carolina.\nBecause a prompt and definitive resolution of this issue is necessary to ensure the continued fair and effective administration of North Carolina\u2019s criminal courts, we exercise the supervisory authority of this Court, which is embodied in Article IV, Section 12, Clause 1 of the North Carolina Constitution, and review the opinion of the Court of Appeals. In so doing, we note that N.C.G.S. \u00a7 15A-1422(f) cannot restrict this Court\u2019s constitutionally granted power to \u201cissue any remedial writs necessary to give it general supervision and control over the proceedings of the other courts.\u201d N.C. Const. art. IV, \u00a7 12, cl. 1; see also id. art. IV, \u00a7 1 (\u201cThe General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a co-ordinate department of the government. . . .\u201d).\nFor the reasons stated above, we determine that the State\u2019s petition for discretionary review of the decision of the Court of Appeals resolving defendant\u2019s motion for appropriate relief is properly before this Court. We now consider the effect of Blakely v. Washington on North Carolina\u2019s Structured Sentencing Act and the proper standard of review to be applied when Blakely error is identified in a defendant\u2019s case.\nNORTH CAROLINA STRUCTURED SENTENCING\nIn 1979 the North Carolina General Assembly enacted presumptive sentencing legislation, commonly known as the \u201cFair Sentencing Act,\u201d in \u201cresponse to a perceived need for certainty in sentencing, to a perceived evil of disparate sentencing, and to a perceived problem in affording trial judges and parole authorities unbridled discretion in imposing sentences.\u201d Ahearn, 307 N.C. at 594, 300 S.E.2d at 695; An Act to Establish a Fair Sentencing System in North Carolina Criminal Courts, ch. 760, 1979 N.C. Sess. Laws 850. Before enactment of this legislation, North Carolina, like most other states, utilized \u201ctypical indeterminate sentencing law.\u201d Stevens H. Clarke, Law of Sentencing, Probation and Parole in North Carolina 39-40 (Inst. of Gov\u2019t, Univ. of N.C. at Chapel Hill 1991) [hereinafter, Clarke, Sentencing]. \u201cRanges of prison terms were wide for broadly defined crimes,\u201d and \u201c[n]o criteria for sentencing were set by statute, court decision, or court rules.\u201d Id. at 40.\nNorth Carolina\u2019s Fair Sentencing Act was revised several times before it went into effect on 1 July 1981. See N.C.G.S. \u00a7 15A-1340.1 (1995). The act stated that\n[t]he primary purposes of sentencing a person convicted of a crime are to impose a punishment commensurate with the injury the offense has caused, taking into account factors that may diminish or increase the offender\u2019s culpability; to protect the public by restraining offenders; to assist the offender toward rehabilitation and restoration to the community as a lawful citizen; and to provide a general deterrent to criminal behavior.\nId. \u00a7 15A-1340.3 (Supp. 1981).\nIn 1993 the General Assembly further reformed North Carolina\u2019s criminal sentencing system, enacting legislation commonly known as the \u201cStructured Sentencing Act\u201d in response to rising prison populations. Clarke, Sentencing 1-4 (Supp. 1994). Structured sentencing, which classifies convicted criminal defendants for sentencing purposes based upon the severity of their crime (offense class) and gravity of their prior criminal record (prior record level), became effective on 1 October 1994 and is still in effect today. An Act To Provide for Structured Sentencing in North Carolina Consistent with the Standard Operating Capacity of the Department of Correction and Local Confinement Facilities and To Redefine State and County Responsibilities for the Confinement of Misdemeanants, ch. 538, 1993 N.C. Sess. Laws 2299-2313 (codified as amended at N.C.G.S. ch. 15A, art. 81B (2003) (effective date Oct. 1, 1994)). The Structured Sentencing Act repealed the Fair Sentencing Act and remedied many of the perceived weaknesses of that earlier legislation, including that the Fair Sentencing Act \u201capplied only to felonies, did not control the sentence disposition (leaving judges free to impose probation unless forbidden by other statutes), and set only a presumptive prison/jail term.\u201d Clarke, Sentencing 9 (Supp. 1994). Repealing Chapter 15A, Article 85A of the North Carolina General Statutes, the Structured Sentencing Act abolished parole for certain convicted felons and ensured that new felony offenders serve their entire sentence. Ch. 538, sec. 24, 1993 N.C. Sess. Laws at 2341.\nPursuant to the Structured Sentencing Act, sentencing judges must impose both a minimum and maximum active, intermediate, or community punishment for felony convictions. N.C.G.S. \u00a7 15A-1340.13 (2003). Separate statutory punishment charts dictate a defendant\u2019s minimum and maximum sentence. See id. \u00a7 15A-1340.17 (2003). The length of term imposed depends upon the offense class, the defendant\u2019s prior record level, and the presence of aggravating or mitigating factors. Id. at \u00a7\u00a7 15A-1340.13, -1340.14, -1340.16, -1340.17 (2003).\nThe statutory punishment chart for minimum sentences consists of a grid on which offense classes and prior record levels are the axes. Id. \u00a7 15A-1340.17(c). Ranges of possible minimum sentences, which are set forth for every combination of offense class and prior record level, are either presumptive, as in a typical case; mitigated, as in less severe cases; or aggravated, as in the worst cases. Id. Maximum sentences corresponding to every possible minimum sentence are listed in separate tables. Id. \u00a7 15A-1340.17(d), (e), (e1).\nBefore selecting a convicted criminal defendant\u2019s minimum sentence, the sentencing judge must consider whether aggravating and mitigating factors are present, weigh any existing factors, and decide upon a mitigated, presumptive, or aggravated punishment range. Id. \u00a7 15A-1340.16(a)-(c). The State carries the burden of proving by a preponderance of the evidence that an aggravating factor exists and the defendant carries a corresponding burden to prove that a mitigating factor exists. Id. \u00a7 15A-1340.16(a). Statutory aggravating and mitigating factors are enumerated in section 15A-1340.16(d) and (e); however, this list is not exclusive and both the prosecutor and defendant are entitled to present evidence of any other \u201cfactor reasonably related to the purposes of sentencing.\u201d Id. \u00a7 15A-1340.16(d)(20), (e)(21). The judge may impose an aggravated or mitigated sentence whenever he finds aggravating or mitigating factors to exist, but the decision to depart from the presumptive range is wholly within the trial court\u2019s discretion. Id. \u00a7 15A-1340.16 (a), (b).\nRIGHT TO JURY TRIAL\nThe right to jury trial is the only constitutional guarantee preserved both in the body of the Constitution and the Bill of Rights. U.S. Const. art. III, \u00a7 2, cl. 3; id. amend. VI; Duncan v. Louisiana, 391 U.S. 145, 152-53, 20 L. Ed. 2d 491, 498 (1968). Article III, Section 2, Clause 3 of the United States Constitution states that \u201c[t]he trial of all crimes, except in cases of impeachment, shall be by jury.\u201d The Sixth Amendment to the Constitution of the United States further provides that \u201c[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.\u201d As observed by Sir William Blackstone, the right to jury trial instills public trust in determinations of a defendant\u2019s guilt or innocence because \u201cthe truth of every accusation . . . [must] be confirmed by the unanimous suffrage of twelve of his equals and neighbours.\u201d 4 William Blackstone, Commentaries *349-50, quoted in Duncan, 391 U.S. at 151-52, 20 L. Ed. 2d at 497, and Blakely, 542 U.S. at-, 159 L. Ed. 2d at 412 (alterations in original).\nIn 2000, however, the United States Supreme Court held that the right to jury trial also requires that jurors find sentencing facts which increase the penalty for a crime \u201cbeyond the prescribed statutory maximum.\u201d Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000). Four years later, the Court defined \u201cstatutory maximum\u201d as the maximum sentence permitted by the jury\u2019s verdict or admitted by the defendant, without additional judge-made findings of fact. Blakely, 542 U.S. at-, 159 L. Ed. 2d at 413-14.\nThis Court must now determine whether North Carolina\u2019s Structured Sentencing Act is Blakely compliant. After thorough review of United States Supreme Court precedent, including Apprendi v. New Jersey and Blakely v. Washington, and this Court\u2019s intervening opinion in State v. Lucas, we conclude that those portions of N.C.G.S. \u00a7 15A-1340.16 which require trial judges to consider evidence of aggravating factors not found by a jury or admitted by the defendant and which permit imposition of an aggravated sentence upon judicial findings of such aggravating factors by a preponderance of the evidence are unconstitutional.\nIn Apprendi v. New Jersey, the United States Supreme Court granted certiorari to review a New Jersey law which authorized an \u201cextended term\u201d of imprisonment for defendants whose crimes were classified as \u201chate crimes.\u201d 530 U.S. at 468-69, 147 L. Ed. 2d at 442. This \u201chate crime\u201d enhancement, which did not criminalize conduct in and of itself, was designed to augment the maximum sentence imposed for any separate complete offense. Id. Under the New Jersey statute, a trial judge was permitted to impose a longer sentence than the sentence set forth in the provision defining an underlying offense if the judge found by a preponderance of the evidence that \u201c[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.\u201d Id.\n,The defendant in Apprendi pleaded guilty to second-degree possession of a firearm for an \u201cunlawful purpose,\u201d an offense punishable in New Jersey by five to ten years imprisonment. Id. at 469-70, 147 L. Ed. 2d at 442-43. During sentencing, the State requested, and the trial judge conducted, an evidentiary hearing on the defendant\u2019s \u201cpurpose\u201d for unlawful possession. Id. at 470, 147 L. Ed. 2d at 443. Following the hearing, the judge found by a preponderance of the evidence that the defendant\u2019s actions were \u201c \u2018motivated by racial bias\u2019 \u201d and committed \u201c \u2018with a purpose to intimidate.\u2019 \u201d Id. at 471, 147 L. Ed. 2d at 443. Thereafter, the judge sentenced the defendant to a twelve-year \u201cextended term\u201d of imprisonment. Id.\nOn appeal, the defendant argued that the Due Process Clause of the United States Constitution requires that findings of \u201cbias\u201d and \u201cpurpose to intimidate\u201d \u2014 the two factors upon which his \u201cextended term\u201d was based \u2014 must be proved to a jury beyond a reasonable doubt. Id. The United States Supreme Court agreed, holding that \u201c[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.\u201d Id. at 490, 147 L. Ed. 2d at 455. The Court concluded: \u201cThe New Jersey procedure challenged in this case is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.\u201d Id. at 497, 147 L. Ed. 2d at 459 (emphasis added). Granting relief to the defendant, the United States Supreme Court reversed the judgment of the Supreme Court of New Jersey and remanded the case for further proceedings not inconsistent with its opinion. Id.\nThe following year, in State v. Lucas, this Court applied Apprendi to the sentencing of a defendant whose first-degree burglary and second-degree kidnapping sentences were enhanced pursuant to N.C.G.S. \u00a7 15A-1340.16A, which required that sixty months be added to a defendant\u2019s minimum sentence upon a judicial finding that the defendant \u201cused, displayed, or threatened to use or display a firearm.\u201d 353 N.C. at 592-93, 548 S.E.2d at 728. Section 15A-1340.16A applied to defendants convicted of Class A, B1, B2, C, D, or E felonies. Id. Like the New Jersey statute challenged in Apprendi, section 15A-1340.16A lengthened the actual sentence imposed for an underlying offense, but did not criminalize the conduct itself. Id. at 592-93, 548 S.E.2d at 728-29.\nIn Lucas, a jury convicted the defendant of first-degree burglary, a Class D felony, and second-degree kidnapping, a Class E felony. Id. at 593, 548 S.E.2d at 729. During sentencing, the trial court determined that the defendant had a prior record level of I. Id. Referring to the appropriate statutory punishment chart, the sentencing judge selected minimum sentences at the high end of the presumptive range: sixty-four months minimum imprisonment for first-degree burglary and twenty-five months minimum imprisonment for second-degree kidnapping. Id. Thereafter, the judge added sixty months to each minimum sentence in accordance with section 15A-1340.16A, before determining the corresponding maximum sentences. Id.\nReviewing the defendant\u2019s motion for appropriate relief, this Court considered the meaning of \u201cstatutory maximum\u201d as employed by Apprendi. Id. at 596, 548 S.E.2d at 730-31. The Court defined \u201cstatutory maximum\u201d for Apprendi purposes as the maximum sentence that a trial judge could properly impose by reference to the statutory punishment charts, including an aggravated sentence. Id. at 596, 548 S.E.2d at 731. The Court explained that the maximum sentence authorized by the North Carolina Structured Sentencing Act results from:\n(1) findings that the defendant falls into the highest criminal history category for the applicable class offense and that the offense was aggravated, followed by (2) a decision by the sentencing court to impose the highest possible corresponding minimum sentence from the ranges presented in the chart found in N.C.G.S. \u00a7 15A-1340.17(c).\nId. (emphasis added).\nThis holding appeared consistent with Apprendi, in which, following a historical discussion of common law sentencing jurisprudence, the United States Supreme Court cautioned:\nWe should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion \u2014 taking into consideration various factors relating both to offense and offender \u2014 in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence[s] within statutory limits in the individual case.\n530 U.S. at 481, 147 L. Ed. 2d at 449.\nUnder the straightforward approach developed by Lucas, most criminal sentences in North Carolina were considered Apprendi compliant. In a small number of cases, as in Lucas, separate statutory enhancement provisions had the potential to increase a defendant\u2019s actual sentence beyond the statutory maximum.\nAs calculated in Lucas, the maximum enhanced sentence for a Class D felony pursuant to N.C.G.S. \u00a7 15A-1340.16A was 301 months \u2014 seventy-two months longer than the authorized statutory maximum sentence defined by this Court. 353 N.C. at 597, 548 S.E.2d at 731. Applying Apprendi, this Court held that facts supporting such an enhanced sentence under N.C.G.S. \u00a7 15A-1340.16A must be submitted to a jury and proved beyond a reasonable doubt. Id. at 597-98, 548 S.E.2d at 731. The Court further held that \u201cin 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 Id. For the reasons stated above, this Court found that the State must \u201cmeet the requirements set out in . . . Apprendi in order to apply the enhancement provisions of the statute.\u201d Id. at 598, 548 S.E.2d at 732. Granting relief, the Court vacated the defendant\u2019s enhanced sentences and remanded his case to the trial court for further proceedings consistent with its opinion. Id. at 599, 548 S.E.2d at 732.\nIn Blakely v. Washington, the United States Supreme Court addressed the meaning of \u201cstatutory maximum\u201d with respect to an \u201cexceptional\u201d sentence imposed on a criminal defendant pursuant to Washington State\u2019s Sentencing Reform Act. 542 U.S. at-,-, 159 L. Ed. 2d at 410, 413. The defendant pleaded guilty to second-degree kidnapping involving domestic violence and use of a firearm, an offense punishable by imprisonment within a \u201cstandard range\u201d of forty-nine to fifty-three months under Washington state law. Id. at -, 159 L. Ed. 2d at 410-11. Washington statutes provided, however, that a judge may impose a sentence above the \u201cstandard range\u201d upon finding \u201csubstantial and compelling reasons justifying an exceptional sentence.\u201d Id. at \u2014, 159 L. Ed. 2d at 411. \u201cSubstantial and compelling reasons\u201d deemed to support an exceptional sentence were listed in Washington\u2019s Sentencing Reform Act. Id. at-, 159 L. Ed. 2d at 411. The trial judge found as an aggravating factor that defendant had acted with \u201cdeliberate cruelty\u201d in kidnapping his wife. Id. at-, 159 L. Ed. 2d at 411. The judge then sentenced the defendant to an exceptional sentence of ninety months \u2014 thirty-seven months longer than the maximum sentence recommended by prosecutors and authorized by Washington\u2019s kidnapping statute. Id. at-, 159 L. Ed. 2d at 411.\nOn appeal, the defendant argued that Washington\u2019s Sentencing Reform Act, which permits judges to impose \u201cexceptional sentences\u201d based upon judicial findings of aggravating sentencing factors, \u201cdeprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence.\u201d Id. at-, 159 L. Ed. 2d at 412. The United States Supreme Court agreed, reaffirming the Apprendi rule. Id. at-, 159 L. Ed. 2d at 412, 415-16. The Court further clarified that the \u201cstatutory maximum\u201d referred to by Apprendi is not the maximum sentence authorized by statute, but \u201cthe maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.\u201d Id. at-, 159 L. Ed. 2d at 413. The jury\u2019s verdict or the defendant\u2019s admissions, standing alone, must authorize the sentence imposed. Id. at-, 159 L. Ed. 2d at 413-14.\nApplying this definition to the defendant, the United States Supreme Court concluded that the ninety month \u201cexceptional sentence\u201d imposed under Washington\u2019s Sentencing Reform Act exceeded the \u201cstatutory maximum\u201d by more than three years. Id. at \u2014 , 159 L. Ed. 2d at 413-14, 420. Accordingly, the Court held that the Sixth Amendment required the facts supporting the defendant\u2019s \u201cexceptional sentence,\u201d specifically that the defendant acted with \u201cdeliberate cruelty,\u201d to be proved to a jury beyond a reasonable doubt. Id. at - \u2014 , 159 L. Ed. 2d at 420. Granting the defendant relief, the United States Supreme Court reversed the judgment of the Washington Court of Appeals and remanded his case for further proceedings not inconsistent with its opinion. Id.\nThe United States Supreme Court decision in Blakely and the North Carolina Court of Appeals decision in Allen prompt this Court to revisit its prior holding in Lucas defining \u201cstatutory maximum.\u201d After Blakely, it is clear that the \u201cstatutory maximum\u201d to which Apprendi applies is not the maximum sentence authorized by statute; rather, for Apprendi purposes, \u201cstatutory maximum\u201d means the maximum sentence authorized by the jury verdict or the defendant\u2019s admissions. Applied to North Carolina\u2019s structured sentencing scheme, the rule of Apprendi and Blakely is: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt. See Blakely, -U.S. at-, 159 L. Ed. 2d at 413-14; Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455; N.C.G.S. \u00a7\u00a7 15A-1340.13, -15A-1340.14, -15A-1340.16; -15A-1340.17. Accordingly, we overrule that language of State v. Lucas which defines \u201cstatutory maximum\u201d in a manner inconsistent with this opinion.\nOn 8 February 2005, defendant filed a motion for appropriate relief in this Court, arguing that \u201cBlakely and the surviving portion of Lucas\u201d require \u201caggravating factors that are used to increase a sentence beyond the top of the presumptive range ... be alleged in an indictment.\u201d As indicated in Lucas, 353 N.C. at 597-98, 548 S.E.2d at 731, a requirement that the State \u201callege the statutory factors supporting the [N.C.G.S. \u00a7 15A-1340.16A] enhancement in an indictment\u201d might be inferred from the United States Supreme Court\u2019s statement in Apprendi that\n\u2018under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.\u2019 The Fourteenth Amendment commands the same answer in this case involving a state statute.\n530 U.S. at 476, 147 L. Ed. 2d at 446 (quoting Jones v. United States, 526 U.S. 227, 243 n.6, 143 L. Ed. 2d 311, 326 n.6 (1999)).\nHowever, in footnote three of the Apprendi opinion, the Court clarified that \u201c[the defendant] has not here asserted a constitutional claim based on the omission of any reference to sentence enhancement or racial bias in the indictment. . . . We thus do not address the indictment question separately today.\u201d Subsequent United States Supreme Court decisions in Ring v. Arizona and Blakely, which applied Apprendi to aggravating factors supporting capital and non-capital sentences respectively, were based solely on the Sixth Amendment right to jury trial, without reference to the Fifth Amendment\u2019s indictment guarantee. Ring v. Arizona, 536 U.S. 584, 597, 609, 153 L. Ed. 2d 556, 569, 576-77 (2002); Blakely, 542 U.S. at \u2014, 159 L. Ed. 2d at 415-16. Although \u201c[d]ue process and notice requirements under the Sixth Amendment inure[] to state prosecutions,\u201d this Court recently recognized \u201cto this date, the United States Supreme Court has not applied the Fifth Amendment indictment requirements to the states.\u201d State v. Hunt, 357 N.C. 257, 272-73, 582 S.E.2d 593, 603-04, cert. denied, 539 U.S. 985, 156 L. Ed. 2d 702 (2003). Indeed, in Hunt this Court concluded that \u201cthe Fifth Amendment would not require aggravators, even if they were fundamental equivalents of elements of an offense, to be pled in a state-court indictment.\u201d Id. at 272, 582 S.E.2d at 603. Accordingly, we also overrule that language of Lucas, requiring sentencing factors which might lead to a sentencing enhancement to be alleged in an indictment.\nFor the reasons stated above, we determine that those portions of N.C.G.S. \u00a7 15A-1340.16 (a), (b), and (c) which require trial judges to consider evidence of aggravating factors not found by a jury or admitted by the defendant and which permit imposition of an aggravated sentence upon judicial findings of such aggravating factors by a preponderance of the evidence violate the Sixth Amendment to the United States Constitution. Standing alone, N.C.G.S. \u00a7 15A-1340.16(d), which lists statutory aggravating factors, can be given effect as if the unconstitutional provisions had not been enacted. See, e.g., Pope v. Easley, 354 N.C. 544, 548, 556 S.E.2d 265, 268 (2001) (\u201cThe test for severability is whether the remaining portion of the legislation can stand on its own and whether the General Assembly would have enacted the remainder absent the offending portion.\u201d). For example, under Blakely the judge may still sentence a defendant in the aggravated range based upon the defendant\u2019s admission to an aggravating factor enumerated in N.C.G.S. \u00a7 15A-1340.16(d).\nWe emphasize that Blakely, which is grounded in the Sixth Amendment right to jury trial, affects only those portions of the Structured Sentencing Act which require the sentencing judge to consider the existence of aggravating factors not admitted to by a defendant or found by a jury and which permit the judge to impose an aggravated sentence after finding such aggravating factors by a preponderance of the evidence. Those portions of N.C.G.S. \u00a7 15A-1340.16 which govern a sentencing judge\u2019s finding of mitigating factors and which permit the judge to balance aggravating and mitigating factors otherwise found to exist are not implicated by Blakely and remain unaffected by our decision in this case.\nCOURT OF APPEALS OPINION BELOW\nHaving identified error in defendant\u2019s sentence, this Court must now determine whether that error is subject to harmless error review, and if so, whether harmless error exists in this case. The Court of Appeals concluded that the harmless-error rule does not apply, citing State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689, which held that a defendant\u2019s case must be remanded for resentencing whenever the trial judge has imposed an aggravated sentence based upon a sentencing factor which is not supported by the evidence. Allen, 166 N.C. App. at 149-50, 601 S.E.2d at 306. The State argues, and we agree, that Aheam is not controlling.\nIn State v. Ahearn, this Court considered the effect of one aggravating factor, which was later determined to be unsupported by the evidence, on a sentencing judge\u2019s balancing of all sentencing factors present in the case. 307 N.C. at 599-602, 300 S.E.2d at 698-701. The defendant in Aheam was convicted of felonious child abuse and voluntary manslaughter in connection with the death of his girlfriend\u2019s two-year old son. Id. at 585-87, 300 S.E.2d at 690-91. During sentencing, the trial judge found three aggravating factors and five mitigating factors. Id. at 592-93, 300 S.E.2d at 694-95. The judge weighed the aggravating and mitigating factors, determined that \u201c \u2018the aggravating factors although few in number are substantially more dominant than the mitigating factors,\u2019 \u201d and imposed aggravated sentences of sixteen years for voluntary manslaughter and five years for felonious child abuse. Id. at 585, 592, 300 S.E.2d at 690-91, 694. On appeal, the Court of Appeals and this Court determined that the trial judge\u2019s finding of the aggravating factor that the defendant\u2019s crime was especially heinous, atrocious or cruel was based upon insufficient evidence. Id. at 599, 300 S.E.2d at 698. Because \u201c[r]eliance on a factor in aggravation determined to be erroneous may or may not have affected the balancing process which resulted in the decision to deviate from the presumptive sentence,\u201d this Court remanded the defendant\u2019s case for resentencing. Id. at 602, 608, 300 S.E.2d at 700, 704.\nThis Court\u2019s holding in Aheam rested on the inability of an appellate court to determine how removing one aggravating factor would affect the sentencing judge\u2019s balancing of the remaining aggravating and mitigating factors present in the defendant\u2019s case. Id. at 602, 300 S.E.2d at 700-01. Ahearn did not address whether the finding of an aggravating factor by the wrong entity is subject to harmless error review. Because Blakely does not concern the actual combination of aggravating and mitigating factors found by a jury, but instead safeguards the participation of jurors in sentencing, Aheam does not control the case sub judice. Our analysis of this separate question is guided by the reasoning of Blakely v. Washington, the evolution of harmless error review, and United States Supreme Court case law defining structural error.\nSTRUCTURAL ERROR\nThe State argues that for purposes of Apprendi and Blakely, sentencing factors are functionally equivalent to the elements of a criminal offense. Citing Neder v. United States, 527 U.S. 1, 144 L. Ed. 2d 35 (1999), the State reasons that failure to submit sentencing factors to a jury should receive the same degree of scrutiny as failure to submit an element of a criminal offense to the jury \u2014 harmless error review. We disagree, concluding instead that complete removal of aggravating factors from jury consideration during sentencing is structural error similar to the structural error identified by the United States Supreme Court in Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182 (1993).\nStructural error is a rare form of constitutional error resulting from a \u201cdefect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.\u201d Arizona v. Fulminante, 499 U.S. 279, 310, 113 L. Ed. 2d 302, 337 (1991). Such errors \u201cdeprive defendants of \u2018basic protections,\u2019 without which . . . \u2018no criminal punishment may be regarded as fundamentally fair.\u2019 Neder, 527 U.S. at 8-9, 144 L. Ed. 2d at 46-47 (quoting Rose v. Clark, 478 U.S. 570, 577-78, 92 L. Ed. 2d 460, 470 (1986)). The United States Supreme Court first defined structural error in 1991 and has identified six instances of structural error to date: (1) complete deprivation of right to counsel, Johnson v. United States, 520 U.S. 461, 468, 137 L. Ed. 2d 718, 728 (1997) (citing Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799 (1963)); (2) a biased trial judge, Turney v. Ohio, 273 U.S. 510, 71 L. Ed. 749 (1927); (3) the unlawful exclusion of grand jurors of the defendant\u2019s race, Vasquez v. Hillery, 474 U.S. 254, 88 L. Ed. 2d 598 (1986); (4) denial of the right to self-representation, McKaskle v. Wiggins, 465 U.S. 168, 79 L. Ed. 2d 122 (1984); (5) denial of the right to a public trial, Waller v. Georgia, 467 U.S. 39, 81 L. Ed. 2d 31 (1984); and (6) constitutionally deficient jury instructions on reasonable doubt, Sullivan, 508 U.S. 275, 124 L. Ed. 2d 182. See Johnson, 520 U.S. at 468-69, 137 L. Ed. 2d at 728 (identifying the six cases in which the United States Supreme Court has found structural error).\nStructural errors are said to \u201cdefy\u201d harmless error review because they are \u201cso intrinsically harmful as to require automatic reversal (i.e., \u2018affect substantial rights\u2019) without regard to their effect on the outcome.\u201d Neder, 527 U.S. at 7, 144 L. Ed. 2d at 46. For this reason, a defendant\u2019s remedy for structural error is not depend-ant upon harmless error analysis; rather, structural errors are reversible per se. Id.\nMost constitutional errors are not structural. Rose, 478 U.S. at 578, 92 L. Ed. 2d at 471. On appeal, a reviewing court applies the harmless-error rule to determine whether these nonstructural errors were prejudicial to the defendant or harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11 (1967). Errors that have prejudiced a defendant will be remedied by the appellate court, id. at 24, 26, 17 L. Ed. 2d at 710-11; N.C.G.S. \u00a7 15A-1442, -1443, -1447 (2003), and a constitutional error is presumed to be prejudicial unless the State can show that the error was harmless beyond a reasonable doubt, meaning that \u201cthe error complained of did not contribute to the verdict obtained,\u201d Chapman, 386 U.S. at 24, 17 L. Ed. 2d at 710.\nSince the United States Supreme Court first introduced harmless error review in 1946, that Court has employed one of two tests to determine whether an error \u201c contribute [d] to the verdict obtained.\u201d Id. First, the Court has considered the \u201cimpact of the thing done wrong on the minds of [the jury].\u201d Kotteakos v. United States, 328 U.S. 750, 764, 90 L. Ed. 1557, 1566 (1946). The Court applied this test, which evaluates the \u201ceffect [the error] had upon the guilty verdict in the case at hand,\u201d in Sullivan v. Louisiana, 508 U.S. at 279, 280-82, 124 L. Ed. 2d at 189, 190-91. Second, the United States Supreme Court has applied harmless error review after determining that evidence of the defendant\u2019s guilt presented at trial was \u201coverwhelming.\u201d Harrington v. California, 395 U.S. 250, 254, 23 L. Ed. 2d 284, 287-88 (1969). The Court applied the \u201coverwhelming\u201d evidence standard in Neder v. United States, 527 U.S. at 16-17, 144 L. Ed. 2d at 51-52.\nSullivan, in which the United States Supreme Court found structural error, and Neder, in which the Court found error to be harmless beyond a reasonable doubt, guide this Court\u2019s decision in the case sub judiee. Both Sullivan and Neder address the proper appellate court response to constitutional errors made during the guilt-innocence portion of a trial. The United States Supreme Court has not defined which standard, harmless or structural error, should be applied to state sentencing errors pursuant to Blakely, however, the imposition of a constitutional punishment is just as important to a criminal defendant and to society as is a constitutional determination of the defendant\u2019s guilt or innocence.\nIn Sullivan v. Louisiana, the United States Supreme Court considered whether harmless error review applied to constitutionally deficient jury instructions on reasonable doubt, which were submitted to the jury in a defendant\u2019s first-degree murder trial. 508 U.S. at 276-77, 124 L. Ed. 2d at 187. Except for the testimony of one eyewitness (who identified the defendant on direct examination, but was unable to identify either the defendant or his accomplice during a physical lineup), the State\u2019s evidence at trial was circumstantial. Id. at 276, 124 L. Ed. 2d at 187. Although defense counsel contended during closing argument that reasonable doubt existed as to whether the defendant was the shooter, the defendant was convicted of first-degree murder. Id. at 276-77, 124 L. Ed. 2d at 187. On appeal, the State conceded that the trial judge had improperly defined \u201creasonable doubt\u201d while instructing the jury, but argued that the error was harmless. Id. at 277, 124 L. Ed. 2d at 187.\nApplying the \u201ceffect on the jury\u201d standard, the United States Supreme Court considered \u201cthe basis on which \u2018the jury actually rested its verdict.\u2019 \u201d Id. at 279-80, 124 L. Ed. 2d at 189-90. Because the jury had not returned a \u201cverdict of guilty-beyond-a-reasonable-doubt,\u201d the Court reasoned that the harmless-error inquiry \u201cwhether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless.\u201d Id. at 280, 124 L. Ed. 2d at 189-90. The Court explained that there was \u201cno object, so to speak, upon which harmless-error scrutiny can operate.\u201d Id. at 280, 124 L. Ed. 2d at 190. Stating that consequences of the defective verdict were \u201cnecessarily unquantifiable and indeterminate,\u201d the Court declared the error to be \u201cstructural\u201d and remanded the defendant\u2019s case for further proceedings not inconsistent with its opinion. Id. at 281-82, 124 L. Ed. 2d at 191.\nSix years later in Neder v. United States, the United States Supreme Court affirmed the conviction of a defendant who filed a false tax return even though the trial court erred in refusing to submit to the jury the question of whether defendant\u2019s false statements were material. 527 U.S. at 6, 25, 144 L. Ed. 2d at 45, 57. The Court found that harmless error is the proper standard of review when a single element of a criminal offense is omitted from the jury instructions. Id. at 15, 144 L. Ed. 2d at 51.\nla. Neder, the United States Supreme Court noted that evidence of the materiality of the defendant\u2019s false statements was \u201coverwhelming.\u201d Id. at 16-17, 144 L. Ed. 2d at 52. In fact, the defendant did not even argue at trial that his false statements could be found immaterial. Id. at 16, 144 L. Ed. 2d at 51-52. Because the question of materiality was not in dispute at trial, the jury considered \u201call of the evidence and argument in respect to [the defendant\u2019s] defense against the tax charges,\u201d notwithstanding the trial judge\u2019s failure to instruct on that element of the offense. Id. at 9, 144 L. Ed. 2d at 47. Moreover, the defendant\u2019s guilt or innocence was \u201ctried before an impartial judge, under the correct standard of proof and with the assistance of counsel.\u201d Id. On these facts, the United States Supreme Court reasoned that \u201can instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.\u201d Id. Distinguishing Sullivan, the United States Supreme Court emphasized that omission of one element, materiality, from the jury instructions cannot be said to \u201cvitiate[] all the jury\u2019s findings,\u201d id. at 11, 144 L. Ed. 2d at 48; thus, the Court concluded that the harmless-error rule applied and remanded the defendant\u2019s case for a determination of whether the instructional error was, in fact, harmless. Id. at 25, 144 L. Ed. 2d at 57.\nThe United States Supreme Court has made clear that the Sixth Amendment requires aggravating sentencing factors, like elements, to be found by a jury beyond a reasonable doubt. Blakely,-U.S. at -, -, 159 L. Ed. 2d at 413-14, 420. However, under North Carolina\u2019s current structured sentencing scheme, aggravating factors are completely withheld from jury review and are determined by a judge by a preponderance of the evidence. N.C.G.S. \u00a7 15A-1340.16. No impartial jury considers a defendant\u2019s evidence, arguments, and defenses during sentencing, id., even when the aggravating factors advanced by the State are highly subjective in nature or disputed by the defendant. Moreover, aggravating factors are found to exist by a low standard of proof: a preponderance of the evidence. Id.; see In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375 (1970) (\u201c \u2018There is always in litigation a margin of error, representing error in factfinding,\u2019 \u201d which the beyond a reasonable doubt standard is designed to \u201c \u2018reduce.\u2019 \u201d) (quoting Speiser v. Randall, 357 U.S. 513, 525, 2 L. Ed. 2d 1460, 1472 (1958)). For these reasons, we cannot agree with the State that the logic of Neder applies to defendant\u2019s case. Because, as in Sullivan, the jury\u2019s findings have been vitiated in total, the harmless-error rule does not apply. We hold that Blakely errors arising under North Carolina\u2019s Structured Sentencing Act are structural and, therefore, reversible per se.\nThis conclusion is supported by the strong language of Blakely itself. Writing for the majority, Justice Scalia explained that Blakely \u201creflects . . . the need to give intelligible content to the right of jury trial.\u201d 542 U.S. at-, 159 L. Ed. 2d at 415. Justice Scalia emphasized that the Sixth Amendment right to jury trial is\nno mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people\u2019s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.\nId. at-, 159 L. Ed. 2d at 415 (emphasis added).\nMoreover, the Sixth Amendment expressly secures the participation of an impartial jury in all criminal prosecutions; thus, a trial judge is prohibited from entering a judgment of conviction or directing a guilty verdict against a defendant \u201cregardless of how overwhelmingly the evidence may point in that direction.\u201d United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 51 L. Ed. 2d 642, 652 (1977) (emphasis added); see also Rose, 478 U.S. at 578, 92 L. Ed. 2d at 471 (\u201c[H]armless-error analysis presumably would not apply if a court directed a verdict for the prosecution in a criminal trial by jury.\u201d). The error resulting from a directed verdict is that \u201cthe wrong entity judged the defendant guilty.\u201d Rose, 478 U.S. at 578, 92 L. Ed. 2d at 471; see also State v. Staley, 292 N.C. 160, 169-70, 232 S.E.2d 680, 686 (1977) (\u201c \u2018In view of the place of importance that trial by jury has in our Bill of Rights, it is not to be supposed that Congress intended to substitute the belief of appellate judges in the guilt of an accused . . . for ascertainment of guilt by a jury.\u2019 \u201d) (quoting Bollenbach v. United States, 326 U.S. 607, 615, 90 L. Ed. 350, 356 (1946)). Without trial by jury, the \u201cstrong . . . barrier . . . between the liberties of the people and the prerogative of the crown\u201d is compromised. 4 William Blackstone, Commentaries *349.\nThrough Apprendi wad Blakely, the United States Supreme Court has extended the Sixth Amendment right to jury trial to mandatory fact-finding proceedings which result in a criminal sentence above the statutory maximum. When a trial judge, not an impartial jury, finds the existence of all aggravating factors, the resulting sentence shares the same defect as a directed verdict on the defendant\u2019s guilt or innocence. \u201c[T]he wrong entity has judged the defendant guilty.\u201d Rose, 478 U.S. at 578, 92 L. Ed. 2d at 471.\nIn United States v. Booker, the United States Supreme Court considered the constitutionality of the Federal Sentencing Guidelines with respect to Apprendi and Blakely. \u2014 U.S.-, 160 L. Ed. 2d 621 (2005). The Court determined that \u201cthe Sixth Amendment as construed in Blakely does apply to the Sentencing Guidelines,\u201d but the Court created a statutory remedy for the violation by invalidating 18 U.S.C. \u00a7 3553(b)(1), a section of the Sentencing Reform Act of 1984 which made \u201c \u2018the [Federal Sentencing Guidelines]... mandatory and impose[d] binding requirements on all sentencing judges.\u2019 \u201d Id. at-, 160 L. Ed. 2d at 639, 659. Determining that one additional statutory provision was inseparable from section 3553(b)(1), the Court also severed this provision from the Sentencing Reform Act. Id. at-, 160 L. Ed. 2d at 659-60. Because federal trial judges were no longer obligated to adhere to Federal Sentencing Guidelines during sentencing, the Court reasoned that Blakely did not apply to the remaining Sentencing Reform Act provisions. Id. at-, 160 L. Ed. 2d at 643, 659 (\u201c[E]veryone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [Sentencing Reform Act] the provisions that make the [Federal Sentencing] Guidelines binding on district judges.\u201d). In conclusion, the Court acknowledged,\nOurs, of course, is not the last word: The ball now lies in Congress\u2019 court. The National Legislature is equipped to devise and install, long-term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.\nId. at-\u25a0, 160 L. Ed. 2d at 663.\nWe recognize that dicta in Justice Breyer\u2019s \u201cremedial\u201d opinion in Booker suggests that lower federal courts may \u201capply ordinary prudential doctrines,\u201d such as plain and harmless error, when a defendant challenges on direct review a sentence imposed under the Federal Sentencing Guidelines, id. at \u2014, 160 L. Ed. 2d at 665; however, we conclude from context that Justice Breyer\u2019s comment refers to appellate review of statutory error, which results when a sentencing judge applies the Federal Sentencing Guidelines as mandatory, rather than advisory as required by the Court\u2019s severability holding. Constitutional error arising from a Sixth Amendment violation is not the subject of Justice Breyer\u2019s remark. For these reasons, Booker does not control the standard of review applied by North Carolina appellate courts to constitutional Blakely errors arising under North Carolina\u2019s Structured Sentencing Act.\nOur interpretation is supported by the parallel structure of Booker itself, through which constitutional error and statutory error are identified in two separate majority opinions. Justice Stevens\u2019 majority opinion identifies constitutional error, concluding that \u201cthe Sixth Amendment as construed in Blakely does apply to the [Federal] Sentencing Guidelines.\u201d Id. at \u2014\u2022, 160 L. Ed. 2d at 639. Justice Breyer\u2019s separate majority opinion, which contains the dicta in question, identifies statutory error, concluding that \u201ctwo provisions of the Sentencing Reform Act of 1984 (SRA) that have the effect of making the Guidelines mandatory must be invalidated in order to allow the statute to operate in a manner consistent with congressional intent.\u201d Id. at \u2014\u2022, 160 L. Ed. 2d at 639. Justice Breyer\u2019s suggestion that \u201capplication of the harmless-error doctrine\u201d may determine \u201cwhether resentencing is warranted\u201d is expressly limited to \u201ccases not involving a Sixth Amendment violation.\u201d Id. at-, 160 L. Ed. 2d at 665 (emphasis added). Thus, the United States Supreme Court has not yet established a remedy for Sixth Amendment Blakely error in the state courts.\nThis Court is not the first state supreme court to order resentencing in response to Blakely error. Most recently, in State v. Hughes, the Supreme Court of Washington held that Blakely sentencing errors are structural errors. State v. Hughes, 154 Wash. 2d 118, 110 P.3d 192 (2005). That court based its holding on an exhaustive review of the harmless error doctrine, noting that many harmless error proponents misconstrue United States v. Cotton, 535 U.S. 625, 152 L. Ed. 2d 860 (2002), which applied plain, not harmless, error to Apprendi violations. Id. at 145, 110 P.3d at 206 *5. The Washington Supreme Court further observed that, at present, the federal circuits \u201cappear inconsistent in whether they will apply harmless error analysis to Apprendi/Blakely violations.\u201d Id. at *9 147, 110 P.3d at 207.\nDistinguishing Neder, the court stated,\nAlthough Neder involved the situation where a jury did not find facts supporting every element of the crime, it still returned a guilty verdict. Like traditional harmless error analysis cases, the reviewing court could ask whether but for the omission in the jury instruction, the jury would have returned the same verdict. Where Blakely violations are at issue, however, the jury necessarily did not return a special verdict or explicit findings on the aggravating factors supporting the exceptional sentence. The reviewing court asks whether but for the error, the jury would have made different or new findings. This situation is analogous to Sullivan \u2014 there is no basis upon which to conduct a harmless error analysis.\nId. at *1148, 110 P.3d at 207-08. Because \u201cspeculation] on what juries would have done if they had been asked to find different facts\u201d is impermissible, the Washington Supreme Court concluded, as do we, that \u201c[h] armless error analysis cannot be conducted on Blakely Sixth Amendment violations.\u201d Id.\nCONCLUSION\nAlthough this Court might envision several measures which would cure the constitutional defect present in N.C.G.S. \u00a7 15A-1340.16, we are in agreement that the choice of remedy is properly within the province of the General Assembly. \u201cThe punishment to be inflicted for any crime is left entirely to the General Assembly.\u201d State v. Lytle, 138 N.C. 738, 743, 51 S.E. 66, 68 (1905). And this Court has \u201c \u2018absolutely no authority to control or supervise the power vested by the Constitution in the General Assembly as a coordinate branch of the government.\u2019 \u201d State v. Smith, 352 N.C. 531, 553, 532 S.E.2d 773, 787 (2000) (quoting Person v. Bd. of State Tax Comm\u2019rs, 184 N.C. 499, 503, 115 S.E. 336, 339 (1922), quoted in In re Alamance Cty. Court Facils., 329 N.C. 84, 95, 405 S.E.2d 125, 130 (1991)), cert. denied, 532 U.S. 949, 149 L. Ed. 2d 360 (2001).\nHaving identified the source and nature of the constitutional defect present in N.C.G.S. \u00a7 15A-1340.16, we refrain from unwarranted interference in the legislative revision of North Carolina\u2019s structured sentencing scheme. In so doing, we note that the General Assembly has mandated that the North Carolina Sentencing and Policy Advisory Commission \u201cstudy the North Carolina Structured Sentencing Act in light of the United States Supreme Court\u2019s decision in Blakely\u201d and \u201creport its findings and recommendations, including any proposed legislation, to the 2005 General Assembly upon its convening.\u201d The Studies Act of 2004, ch. 161, sec. 44.1, 2004 N.C. Sess. Laws 161, 195. The Commission submitted its report, including draft legislation, to the General Assembly in January 2005. N.C. Sentencing & Policy Advisory Comm\u2019n, Rep. on Study of Structured Sentencing Act in Light of Blakelv v. Washington Pursuant to Sess. Law 2004-161, Sec. 44.1 (2005). On 21 June 2005 the General Assembly ratified An Act to Amend State Law Regarding the Determination of the Aggravating Factors in a Criminal Case to Conform with the United States Supreme Court Decision in Blakely v. Washington. H. 822, 146th Gen. Assem., 2005 Sess. (N.C. 2005) (ratified), available at http://www.ncga.state.nc.us/Sessions/2005/Bills/ House/HTML/H822v3.html. This legislation was submitted to the Governor for his signature on 22 June 2005. Id.\nFor the reasons stated above, we deny defendant\u2019s motion for appropriate relief filed in this Court 8 February 2005. We affirm the decision of the Court of Appeals remanding defendant\u2019s case for resentencing and hold that, to the extent N.C.G.S. \u00a7 15A-1340.16 (a), (b), and (c) require trial judges to find aggravating factors by a preponderance of the evidence section 15A-1340.16 violates Blakely. We further hold that the harmless-error rule does not apply to sentencing errors which violate a defendant\u2019s Sixth Amendment right to jury trial pursuant to Blakely. Such errors are structural and, therefore, reversible per se.\nAs stated at the outset, these holdings apply to cases \u201cin 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 Lucas, 353 N.C. at 598, 548 S.E.2d at 732; see Hinnant, 351 N.C. 277, 523 S.E.2d 663; Griffith, 479 U.S. 314, 93 L. Ed. 2d 649. Accordingly, we modify and affirm the decision of the Court of Appeals and remand defendant\u2019s case to that Court for further remand to Gaston County Superior Court for imposition of a sentence consistent with this opinion.\nMODIFIED AND AFFIRMED.\n. See Figure 1; N.C.G.S. \u00a7 15A-1340.17(c).\n. See Figure 2; N.C.G.S. \u00a7 15A-1340.17(d), (e), (e1).\n. The right to jury trial, which has been classified as a \u201cfundamental right\u201d by the United States Supreme Court was also secured by the constitutions of the original thirteen states, including North Carolina, and the constitution of every state subsequently entering the Union. Duncan, 391 U.S. at 153, 157-58, 20 L. Ed. 2d at 498, 501. See N.C. Const. of 1776, A Declaration of Eights, \u00a7 9 (right of jury trial in criminal cases).\n. In 2003, the North Carolina General Assembly revised N.C.G.S. \u00a7 15A-1340.16A by An Act to Amend the Law Regarding Enhanced Sentences as Recommended by the Sentencing Commission and to Make Conforming Changes. Ch. 378, sec. 2, 2003 N.C. Sess. Laws 1078, 1078. Applicable to all offenses occurring on or after 1 August 2003, revised section 15A-1340.16A corrects the constitutional defect identified by this Court in Lucas and complies with this Court\u2019s holdings in that case. As amended, section 15A-1340.16A requires that facts supporting an enhanced sentence for firearm use be alleged in the indictment and proved to a jury beyond a reasonable doubt. Trial judges are no longer permitted to find facts supporting an enhanced sentence pursuant to section 15A-1340.16A.\n. As stated above, this condition applies only when the defendant is sentenced beyond the statutory maximum defined by Blakely and does not implicate facts to which a defendant has admitted or the fact of a prior conviction. For purposes of structured sentencing in North Carolina, the statutory maximum is the highest presumptive sentence imposed pursuant to N.C.G.S. \u00a7\u00a7 15A-1340.16 and -1340.17.\n. Interestingly, this language underpinning the United States Supreme Court\u2019s holding in Blakely is strikingly similar in tone and content to Justice Scalia\u2019s dissent in Neder, in which Justice Scalia describes the right to jury trial as the \u201cspinal column of American democracy.\u201d Neder, 527 U.S. at 30, 144 L. Ed. 2d at 60 (Scalia, J., dissenting). In that dissent, Justice Scalia strongly disagreed with the logic and constitutional soundness of applying an \u201coverwhelming evidence\u201d harmless error standard to the defendant\u2019s conviction, arguing that no matter how great the evidence against a criminal defendant, he is entitled to the benefit of certain basic constitutional rights including the right to counsel, the right to an impartial judge, and the right \u201cto have the jury determine his guilt of the crime charged.\u201d Id. at 30-34, 144 L. Ed. 2d at 60-62. Justice Scalia concluded, \u201cThe very premise of structural-error review is that even convictions reflecting the \u2018right\u2019 result are reversed for the sake of protecting a basic right.\u201d Id. at 34, 144 L. Ed. 2d at 62. Similarly, writing for the majority in Crawford v. Washington, Justice Scalia recently stated that \u201c[dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.\u201d 541 U.S. 36, 62, 158 L. Ed. 2d 177, 199 (2004).\n. However, until this Court\u2019s decision in Allen today, no two state supreme courts have resolved Blakely issues in the same manner. See People v. Black, 35 Cal.4th 1238, 1244, 113 P.3d 534, 536 (2005) (concluding that \u201cthe judicial fact finding that occurs when a judge exercises discretion to impose an upper term sentence under California law does not implicate a defendant\u2019s Sixth Amendment right to a jury trial\u201d); Lopez v. Colorado, 113 P.3d 713, 726, 730, 2005 Colo. LEXIS 504 at **41-42, 55 (Colo. May 23, 2005) (stating \u201cwe need not find [Colorado\u2019s aggravated sentencing statute] is unconstitutional because aggravated sentences can be based on Blakelycompliant or Blakely-exempt facts,\u201d and concluding that the facts in the case sub judice were Blakely compliant); Smylie v. State, 823 N.E.2d 679, 685-86 (Ind. 2005) (severing only those \u201cminimal portions\u201d of Indiana\u2019s sentencing system, which mandated a fixed term and permitted judicial discretion in finding aggravating or mitigating circumstances to deviate from the fixed term, from the statute and holding that \u201cthe sort of facts envisioned by Blakely as necessitating a jury finding must be found by a jury under Indiana\u2019s existing sentencing laws\u201d); State v. Dilts, 337 Or. 645, 654-56, 103 P.3d 95, 100-01 (2004) (holding that the Oregon sentencing guidelines are not facially unconstitutional; thus severability is inapplicable, and remanding to the trial court for implementation of the sentencing guidelines consistent with Blakely); State v. Gomez, 163 S.E.3d 632, 648, 661, 2005 Tenn. LEXIS 350 at **1, 49-50, 66 (Tenn. Apr. 15, 2005) (applying plain error review in determining that Tennessee\u2019s statutory sentencing procedures do not violate Blakely, in spite of the State\u2019s concession that such violations had occurred, because the Tennessee Criminal Sentencing Reform Act of 1989 is \u201c \u2018an indeterminate,\u2019 non-mandatory, advisory sentencing scheme which merely requires judges to consider enhancement factors, along with other information, when exercising their discretion to select an appropriate sentence within the statutory range\u201d).", "type": "majority", "author": "BRADY, Justice." }, { "text": "Justice MARTIN,\nconcurring in part and dissenting in part.\nThe issue of whether Blakely errors are subject to harmless-error analysis is governed by federal law. See Connecticut v. Johnson, 460 U.S. 73, 81 n.9, 74 L. Ed. 2d 823, 830 n.9 (1983) (stating that \u201cwhether a federal constitutional error can be harmless is a federal question\u201d). Accordingly, this Court should follow controlling precedents of the United States Supreme Court to hold that Blakely errors, like most other errors that may occur during a state criminal trial, should be analyzed for harmlessness on direct review. Nonetheless, because the Blakely error in the present case is not harmless beyond a reasonable doubt, I agree that defendant\u2019s case should be remanded for a new sentencing hearing at which a jury determines whether the offense in question was \u201cespecially heinous, atrocious, or cruel.\u201d\nI.\nTo fully appreciate the importance of the harmless-error doctrine in American criminal jurisprudence, it is necessary to understand the historical evolution of the doctrine. Harmless-error review first appeared in Anglo-American jurisprudence with the passage of England\u2019s Judicature Act of 1873, which sought to mitigate the excesses of that country\u2019s Exchequer Rule. Wayne R. LaFave & Jerold H. Israel, Criminal Procedure \u00a7 27.6(a), at 1160 (2d ed. 1992) [hereinafter LaFave & Israel, Criminal Procedure]. Over the course of the nineteenth century, the Exchequer Rule had evolved into a rule of nearly automatic reversal of convictions for even the most technical trial errors. Id. Recognizing the inefficiency and impracticability of such a rule, the Judicature Act instructed appellate courts \u201cto look to the actual impact of the error upon the outcome of the proceeding, and not simply . . . assume that every error . . . was per se prejudicial.\u201d Id.\nThroughout the late nineteenth and early twentieth centuries, American courts lagged behind their English counterparts and continued to apply \u2014 and even expand \u2014 a version of England\u2019s Exchequer Rule. Id.; Roger J. Traynor, The Riddle of Harmless Error 13 (1970) [hereinafter Traynor, Harmless Error], Numerous cases were decided on the basis of trivial technical errors, and pointless new trials with predetermined outcomes became a staple of the criminal law. Harry T. Edwards, To Err Is Human, But Not Always Harmless: When Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167, 1174 (1995) (noting that without harmless-error review, numerous cases were decided on the basis of trivial technical errors).\nEventually, the harmless-error doctrine took root in America, bom \u201cout of widespread and deep [public concern] over the general course of appellate review in . . . criminal causes.\u201d Kotteakos v. United States, 328 U.S. 750, 759, 90 L. Ed. 1557, 1563 (1946). In response to this perception, the federal government and all fifty states adopted some form of statutory harmless-error rule by the mid-1960s. LaFave & Israel, Criminal Procedure \u00a7 27.6, at 1161; Traynor, Harmless Error, at 14. North Carolina adopted its statutory harmless-error rule for civil cases in 1967, and its corresponding rule for criminal cases in 1977. N.C.G.S. \u00a7 1A-1, Rule 61 (2003) (civil), N.C.G.S. \u00a7 15A-1443 (2003) (criminal).\nFor many years, it was presumed that harmless-error analysis could not be applied to constitutional errors. Johnson, 460 U.S. at 82, 74 L. Ed. 2d at 831 (plurality opinion). In Chapman v. California, however, the United States Supreme Court held that a federal constitutional error could be harmless, provided an appellate court could \u201cdeclare a belief that [the error] was harmless beyond a reasonable doubt.\u201d Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11 (1967); cf. N.C.G.S. \u00a7 15A-1443(b) (2003) (providing that constitutional error \u201cis prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt\u201d). Following Chapman, as the majority notes, the United States Supreme Court appeared to apply two \u201ctests\u201d for analyzing whether a constitutional error was harmless. See, e.g., Jeffrey O. Cooper, Searching for Harmlessness: Method and Madness in the Supreme Court\u2019s Harmless Constitutional Error Doctrine, 50 Kan. L. Rev. 309, 311-12 (2002) [hereinafter Cooper, Searching for Harmlessness]. Under one test, most recently applied in Sullivan v. Louisiana, an appellate court is to focus on the \u201ceffect [the error] had upon the guilty verdict in the case at hand.\u201d Sullivan v. Louisiana, 508 U.S. 275, 279, 124 L. Ed. 2d 182, 189 (1993). As articulated in Sullivan, this test asks \u201cnot whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.\u201d Id. Under the other test, most recently articulated in Neder v. United States, an appellate court is to engage in a counter-factual inquiry, asking whether, in light of all the evidence properly presented at trial, it is \u201cclear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.\u201d Neder v. United States, 527 U.S. 1, 18, 144 L. Ed. 2d 35, 53 (1999); see also Harrington v. California, 395 U.S. 250, 254, 23 L. Ed. 2d 284, 287-88 (1969). In applying this standard, a court must consider, in part, whether the jury verdict was supported by \u201coverwhelming evidence, such that the jury verdict would have been the same\u201d had the error not occurred. Neder, 527 U.S. at 17, 144 L. Ed. 2d at 52.\nThe majority treats these two distinct approaches to harmless-error analysis as equally viable alternatives between which this Court may freely choose. In Neder, however, the United States Supreme Court expressly rejected the Sullivan test in favor of the counter-factual \u201coverwhelming evidence\u201d formulation for constitutional harmless-error analysis. Id. at 17, 144 L. Ed. 2d at 52. Specifically, the Court rejected the defendant\u2019s argument that Sullivan precluded a court applying harmless-error analysis from considering \u201coverwhelming record evidence of [his] guilt,\u201d stating that the \u201cproper mode of analysis\u201d was to ask whether it was \u201cclear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.\u201d Id. at 17-18, 144 L. Ed. 2d at 52-53. There is, therefore, only one test at this juncture to determine whether a federal constitutional error is harmless \u2014 the test set forth in Neder.\nII.\nNow an anchor of our appellate jurisprudence, harmless-error review effectuates several important public policies. First, the doctrine conserves judicial resources by preventing costly, time-consuming, and unnecessary new trials. See Chapman, 386 U.S. at 22, 17 L. Ed. 2d at 709 (stating that the doctrine \u201cblock[s] setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial\u201d); Traynor, Harmless Error, at 14. Second, it promotes public confidence in the criminal justice system by reducing the risk that guilty defendants may go free. See Johnson v. United States, 520 U.S. 461, 470, 137 L. Ed. 2d 718, 729 (1997) (\u201c \u2018Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.\u2019 \u201d (quoting Traynor, Harmless Error, at 50); Arizona v. Fulminante, 499 U.S. 279, 308, 113 L. Ed. 2d 302, 330 (1991) (stating that the doctrine \u201c \u2018promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error\u2019 \u201d). Third, it reduces delays in the criminal process resulting from unnecessary remands, thus promoting the constitutional right to a \u201cspeedy trial.\u201d Traynor, Harmless Error, at 51. Fourth, it promotes fundamental fairness in criminal proceedings by helping to ensure that criminal cases are decided on the merits, and not on the basis of minor technical defects that have no bearing on guilt or innocence. See, e.g., Fulminante, 499 U.S. at 308, 113 L. Ed. 2d at 330 (stating that \u201cthe harmless-error doctrine is essential to preserve the \u2018principle that the central purpose of a criminal trial is to decide the factual question of the defendant\u2019s guilt or innocence\u2019 \u201d). And fifth, it promotes stability in the criminal law by reducing the risk that judges may bend or adapt substantive and procedural rules in order to avoid unwarranted reversals. See Cooper, Searching for Harmlessness, at 314.\nThe majority correctly notes that the right to jury trial in criminal cases is \u201cno mere procedural formality, but a fundamental reservation of power in our constitutional structure.\u201d Blakely v. Washington, \u2014 U.S.-,-, 159 L. Ed. 2d 403, 415 (2004). It \u201c \u2018was designed \u201cto guard against a spirit of oppression and tyranny on the part of rulers,\u201d and \u201cwas from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties.\u201d \u2019 \u201d Neder, 527 U.S. at 19, 144 L. Ed. 2d at 53 (quoting United States v. Gaudin, 515 U.S. 506, 510-11, 132 L. Ed. 2d 444, 450 (1995)). I agree wholeheartedly with this description of the vital role played by the jury in our constitutional system of government. Nonetheless, deciding whether a particular type of Sixth Amendment violation may be reviewed for harmlessness requires courts to strike a \u201cbalance between \u2018society\u2019s interest in punishing the guilty [and] the method by which decisions of guilt are to be made.\u2019 \u201d Id. at 18, 144 L. Ed. 2d at 53 (quoting Connecticut v. Johnson, 460 U.S. at 86, 74 L. Ed. 2d at 834 (plurality opinion) (alterations in original)). In Neder v. United States, for example, the United States Supreme Court conducted just such a balancing of interests, concluding that when a trial court erroneously fails to instruct the jury on an essential element of the crime, harmless-error review \u201cdoes not fundamentally undermine the purposes of the jury trial guarantee.\u201d Id. at 19, 144 L. Ed. 2d at 53. The Court concluded that when an appellate court can readily discern from a \u201cthorough examination of the record\u201d that a jury would surely have found the fact in question based on the evidence presented at trial, \u201cholding the error harmless does not \u2018reflec[t] a denigration of the constitutional rights involved.\u2019 \u201d Id. (quoting Rose v. Clark, 478 U.S. 570, 577, 92 L. Ed. 2d 460, 470 (1986) (alteration in original)).\nIII.\nBut determining whether a particular type of constitutional error is subject to harmless-error analysis is not simply a matter of balancing interests or assessing the importance of any particular constitutional provision. All constitutional rights are important; none should be denied or abridged. Yet the United States Supreme Court has recognized that those constitutional errors that defy harmless-error review \u201care the exception and not the rule,\u201d Rose v. Clark, 478 U.S. at 578, 92 L. Ed. 2d at 471, and that \u201cmost constitutional errors can be harmless,\u201d Arizona v. Fulminante, 499 U.S. at 306, 113 L. Ed. 2d at 329. Significantly, the Supreme Court has declared that if a criminal defendant is represented by competent counsel before an impartial judge, there is a \u201cstrong presumption\u201d that any error that occurs in the course of the trial is subject to harmless-error analysis. Rose, 478 U.S. at 579, 92 L. Ed. 2d at 471 (emphasis added). Indeed, even the majority in the present appeal concedes, as it must, that exceptions to harmless error review in federal constitutional law are \u201crare.\u201d\nThe test for determining whether an error may be reviewed for harmlessness is set forth in Arizona v. Fulminante. In Fulminante, the United States Supreme Court surveyed its prior cases in which constitutional errors were reviewed for harmlessness, concluding that \u201c[t]he common thread connecting these cases is that each involved \u2018trial error\u2019 \u2014 error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless.\u201d 499 U.S. at 307-08, 113 L. Ed. 2d at 330. The Fulminante Court identified at least sixteen such \u201ctrial errors,\u201d including:\nunconstitutionally overbroad jury instructions at the sentencing stage of a capital case; admission of evidence at the sentencing stage of a capital case in violation of the Sixth Amendment Counsel Clause; jury instruction containing an erroneous conclusive presumption; jury instruction misstating an element of the offense; jury instruction containing an erroneous rebuttable presumption; erroneous exclusion of defendant\u2019s testimony regarding the circumstances of his confession; restriction on a defendant\u2019s right to cross-examine a witness for bias in violation of the Sixth Amendment Confrontation Clause; denial of a defendant\u2019s right to be present at trial; improper comment on defendant\u2019s silence at trial, in violation of the Fifth Amendment Self-Incrimination Clause; [a] statute improperly forbidding [the] trial court\u2019s giving a jury instruction on a lesser included offense in a capital case in violation of the Due Process Clause; failure to instruct the jury on the presumption of innocence; admission of identification evidence in violation of the Sixth Amendment Confrontation Clause; admission of the out-of-court statement of a nontestifying codefendant in violation of the Sixth Amendment Confrontation Clause; confession obtained in violation of Massiah v. United States; admission of evidence obtained in violation of the Fourth Amendment; [and] denial of counsel at a preliminary hearing in violation of the Sixth Amendment Counsel Clause.\nId. at 306-07, 113 L. Ed. 2d at 329-30 (citations and parentheses omitted).\nIn contrast, the limited class of cases in which harmless-error analysis does not apply involve rare \u201cstructural defects in the constitution of the trial mechanism\u201d by which the \u201centire conduct of the trial from beginning to end [was] obviously affected.\u201d Id. at 309-10, 113 L. Ed. 2d at 331. As distinguished from mere \u201ctrial errors,\u201d each of these constitutional violations \u201cis a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.\u201d Id. at 310, 113 L. Ed. 2d at 331. To date, only six constitutional errors have been deemed \u201cstructural defects\u201d.: (1) complete denial of the right to counsel, (2) denial of the right to an impartial judge, (3) racial discrimination in grand jury selection (4) denial of the right to self-representation at trial, (5) denial of the right to a public trial, and (6) defective reasonable-doubt instructions. Neder, 527 U.S. at 8, 144 L. Ed. 2d at 46.\nOn a theoretical level, there are at least three reasons why such \u201cstructural defects\u201d require automatic reversal. First, in each of the examples listed above, a case-by-case assessment of harmlessness would be grossly inefficient because it \u201cis so likely\u201d that any particular error had a prejudicial effect in any individual case \u201cthat case-by-case inquiry into prejudice is not worth the cost.\u201d Strickland v. Washington, 466 U.S. 668, 692, 80 L. Ed. 2d 674, 696 (1984). Second, the effect of each of these errors on the outcome of the trial is inherently \u201cunquantifiable and indeterminate,\u201d such that an appellate court could not readily discern from the record whether any individual error caused actual prejudice. Sullivan, 508 U.S. at 282, 124 L. Ed. 2d at 191. Finally, and most importantly, when any of these constitutional rights are denied, \u201c \u2018a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.\u2019 \u201d Fulminante, 499 U.S. at 310, 113 L. Ed. 2d at 331 (quoting Rose, 478 U.S. at 577-78, 92 L. Ed. 2d at 470 (citation omitted)).\nTogether, these reasons inform the federal constitutional rule that so long as a criminal defendant was represented by counsel before an impartial judge, there is a \u201cstrong presumption\u201d that any other error is subject to harmless-error analysis. Rose, 478 U.S. at 579, 92 L. Ed. 2d at 471. When a criminal defendant is tried without counsel or before a biased judge, it is almost impossible to gauge the effect of the error on the outcome of the trial, and the likelihood of prejudice is so high that a rule of automatic reversal is more efficient than a case-by-case inquiry into harmlessness. Id. at 577-79, 92 L. Ed. 2d at 470-71. But when a defendant is competently represented before an impartial tribunal, the adversarial process will generally provide a record from which an appellate court can adequately gauge the prejudicial effect of any errors. Id. at 579-80, 92 L. Ed. 2d at 471-72 (noting that unconstitutional burden-shifting, unlike the denial of counsel or judicial bias, does not affect composition of the record and thus is amenable to harmless-error review). Under such circumstances, appellate review will adequately ensure that criminal convictions are factually accurate and that criminal punishments are fundamentally fair. Id. at 579, 92 L. Ed. 2d at 471 (\u201cWhere a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.\u201d).\nApplying these principles, it is clear that Blakely error is more analogous to the larger class of \u201ctrial errors\u201d than it is to the limited class of \u201cstructural defects.\u201d First, it can hardly be said that a judge \u201cis so likely\u201d to find facts a jury would not find that \u201ccase-by-case inquiry\u201d into harmlessness \u201cis not worth the cost.\u201d Strickland, 466 U.S. at 692, 80 L. Ed. 2d at 696. Although there may be individual cases in which a judge finds facts a jury would not, there is no reason to presume that such a discrepancy would be so common that harmless-error review is inefficient as a general rule. To the contrary, it can be expected that in most cases, a rational jury will reach the same factual determinations as a rational judge, based on the evidence presented and arguments of adversarial counsel. As the United States Supreme Court stated in Schriro v. Summerlin, a case decided the same day as Blakely, it is \u201cimplausible\u201d to suggest \u201cthat judicial factfinding so \u2018seriously diminishe[s]\u2019 accuracy as to produce an \u2018 \u201cimpermissibly large risk\u201d \u2019 of injustice.\u201d Schriro v. Summerlin, \u2014 U.S. \u2014 , - \u2014 , 159 L. Ed. 2d 442, 451 (2004) (alteration in original) (citation omitted). Second, the effect of a Blakely error is not inherently \u201cunquantifiable and indeterminate,\u201d Sullivan, 508 U.S. at 282, 124 L. Ed. 2d at 191, as an appellate court can ordinarily discern from the record whether the evidence against the defendant was so \u201coverwhelming\u201d and \u201cuncontroverted\u201d that any rational fact-finder would have found the disputed aggravating factors beyond a reasonable doubt, Neder, 527 U.S. at 9, 18, 144 L. Ed. 2d at 47, 53. Third, when an appellate court can readily determine that a jury would have found an aggravating factor beyond a reasonable doubt, the criminal process has served its primary function \u201c \u2018as a vehicle for determination of guilt or innocence,\u2019 \u201d and the phnishment imposed in light of the aggravating factors must be considered \u201c \u2018fundamentally fair.\u2019 \u201d Fulminante, 499 U.S. at 310, 113 L. Ed. 2d at 331 (citations omitted).\nIV.\nThe foregoing analysis demonstrates that application of the harmless-error doctrine to Blakely errors comports with the theoretical contours of that doctrine. But determining whether Blakely error is a \u201ctrial error\u201d or a \u201cstructural defect\u201d does not depend entirely on the application of presumptions, policy considerations, or abstract principles. Rather, clearly established precedent of the United States Supreme Court mandates the inescapable conclusion that Blakely errors are \u201ctrial errors\u201d subject to harmless-error review.\nIn Neder v. United States, the United States Supreme Court held that the trial court\u2019s unconstitutional failure to submit an essential element of the crime to the jury was subject to harmless-error analysis. 527 U.S. at 4, 144 L. Ed. 2d at 44. Although the omission of the element from the jury instructions impermissibly \u201cinfringe[d] upon the jury\u2019s factfinding role\u201d in violation of the Sixth Amendment\u2019s jury trial guarantee, id. at 18, 144 L. Ed. 2d at 52, the Court held that the error was not a \u201cstructural\u201d one that \u201cnecessarily rendered] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.\u201d Id. at 9, 144 L. Ed. 2d at 47. Accordingly, the Court reviewed the Sixth Amendment violation in Neder\u2019s case for harmlessness. Id. at 15-20, 144 L. Ed. 2d at 51-53. The Court con-eluded \u201cthat the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error.\u201d Id. at 17, 144 L. Ed. 2d at 52. Thus, the Court concluded, the constitutional error was \u201cproperly found to be harmless.\u201d Id. at 17, 144 L. Ed. 2d at 52.\nAdmittedly, the instant case deals with the failure to submit an aggravating factor, as opposed to an essential element, for jury determination. But this distinction provides no viable basis for distinguishing Neder, as the Blakely line of cases firmly establishes the principle that aggravating factors are the \u201cfunctional equivalent\u201d of essential elements of the crime for purposes of the Sixth Amendment right to jury trial. Apprendi v. New Jersey, 530 U.S. 466, 494 n.19, 147 L. Ed. 2d 435, 457 n.19 (2000) (\u201c[W]hen the term \u2018sentence enhancement\u2019 is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury\u2019s guilty verdict.\u201d) (emphasis added); see also Blakely,-U.S. at \u2014 , 159 L. Ed. 2d at 415-16; Ring v. Arizona, 536 U.S. 584, 602, 153 L. Ed. 2d 556, 572 (2002). Neder, therefore, is controlling here, and Blakely errors are subject to harmless-error analysis.\nThe majority contends that Sullivan v. Louisiana, rather than Neder, controls our disposition of the harmless-error issue. I acknowledge that there is language in Sullivan that appears to support the majority\u2019s position. But subsequent decisions of the United States Supreme Court establish that the holding of Sullivan is more limited than some of its language suggests, and that Neder, not Sullivan, is dispositive here.\nIn Sullivan, the United States Supreme Court held that the trial court\u2019s defective reasonable-doubt instruction was a \u201cstructural defect\u201d not subject to harmless-error inquiry. 508 U.S. at 281-82, 124 L. Ed. 2d at 190-91. The Court emphasized that the trial court\u2019s \u201cmisdescription of the burden of proof\u2019 had \u201cvitiate [d] all the jury\u2019s findings,\u201d such that a properjury verdict \u201cwas never in fact rendered.\u201d Id. at 279, 281, 124 L. Ed. 2d at 189, 190. Because there was no jury finding of guilty-beyond-a-reasonable-doubt of any fact essential to the defendant\u2019s punishment, an appellate court could \u201conly engage in pure speculation\u201d as to \u201cwhat a reasonable jury would have done.\u201d Id. at 281, 124 L. Ed. 2d at 190. Under such circumstances, the Court concluded, \u201cto hypothesize [on appellate review] a guilty verdict that was never in fact rendered . . . would violate the jury-trial guarantee.\u201d Id. at 279, 124 L. Ed. 2d at 189.\nIn the instant case, the majority reasons that harmless-error analysis does not apply to Blakely errors \u201c[b]ecause, as in Sullivan, the jury\u2019s findings have been vitiated in total,\u201d as \u201caggravating factors are completely withdrawn from jury review\u201d by our structured sentencing system. This analysis, however, misapprehends the holding of Sullivan, ignores subsequent opinions clarifying that holding, and essentially recapitulates an argument expressly rejected by the United States Supreme Court in Neder.\nThe defendant in Neder cited Sullivan in support of his argument that the failure to submit one essential element of the crime for jury determination was not subject to harmless-error review. Neder, 527 U.S. at 11, 144 L. Ed. 2d at 48. Specifically, the defendant argued that \u201cwhere the constitutional error . . . prevents the jury from rendering a \u2018complete verdict\u2019 on every element of the offense. . . . the basis for harmless-error review\u2019 \u201d is simply absent.\u201d \u2019 \u201d Id. (quoting Brief for Petitioner at 7). The United States Supreme Court rejected this argument and distinguished Sullivan, stating that \u201cthe absence of a \u2018complete verdict\u2019 on every element of the offense\u201d establishes a violation of the Sixth Amendment right to jury trial, but does not address \u201cwhether the error is subject to harmless-error analysis.\u201d Id. at 12, 144 L. Ed. 2d at 49. Although it acknowledged that it \u201cwould not be illogical to extend the reasoning of Sullivan ... to a failure to instruct on an element of the crime,\u201d the Court declined to \u201cveer away from settled precedent to reach such a result.\u201d Id. at 15, 144 L. Ed. 2d at 50-51.\nIn Mitchell v. Esparza, the Court further clarified the jurisprudential relationship between Sullivan and Neder. The Court explained that in Neder it \u201cexplicitly distinguished Sullivan because the error in Sullivan \u2014 the failure to instruct the jury that the State must prove the elements of an offense beyond a reasonable doubt\u2014 \u2018 \u201cvitiate[d] all the jury\u2019s findings,\u201d \u2019 whereas, the trial court\u2019s failure to instruct the jury on one element of an offense did not.\u201d Mitchell v. Esparza, 540 U.S. 12, 16, 157 L. Ed. 2d 263, 270 (2003) (per curiam) (citations omitted). Thus, in Neder, \u201c[w]here the jury was precluded from determining only one element of an offense, [the Court] held that harmless-error review is feasible.\u201d Id.\nIn light of Mitchell, it is clear that Neder, not Sullivan, controls with respect to the application of harmless-error doctrine to Blakely errors. Here, as in Neder, the constitutional error consisted in the partial infringement of the right to jury trial. Like the constitutional error in Neder, the failure to submit one aggravating factor to the jury for determination did not \u201cvitiate[] all the jury\u2019s findings,\u201d and thus does not constitute a structural defect requiring automatic reversal under Sullivan. Sullivan, 508 U.S. at 281, 124 L. Ed. 2d at 190.\nBy unanimous jury verdict, the defendant in the instant case was convicted of felonious child abuse inflicting serious bodily injury under N.C.G.S. \u00a7 14-318.4. Thus, the following essential elements were necessarily found by a jury beyond a reasonable doubt: (1) that defendant was a \u201cparent or any other person providing care to or supervision of [the victim],\u201d (2) that the victim was a \u201cchild less than 16 years of age\u201d at the time of the assault, (3) that the defendant \u201cinflict[ed] serious bodily injury\u201d on the child, and (4) that the defendant did so \u201cintentionally.\u201d N.C.G.S. \u00a7 14-318.4(a3) (2003). It makes no sense to maintain that these jury findings were \u201cvitiated in total\u201d by the trial court\u2019s failure to submit the one aggravating factor in this case for jury determination. Although that failure undoubtedly infringed upon defendant\u2019s Sixth Amendment right to jury trial, four of the five facts essential to the punishment he received (the four elements of the crime) were found by a jury beyond a reasonable doubt. Like the defendant in Neder, the defendant in the instant case \u201cwas tried before an impartial judge, under the correct standard of proof and with the assistance of counsel,\u201d and \u201ca fairly selected, impartial jury was instructed to consider all of the evidence and argument in respect to [his] defense\u201d against the charges presented. 527 U.S. at 9, 144 L. Ed. 2d at 47. Thus, as in Neder, the unconstitutional failure to submit one factual issue to the jury \u2014 in this case, the aggravating factor \u2014 \u201cdid not render [the defendant\u2019s] trial \u2018fundamentally unfair.\u2019 \u201d Id.\nAs a general matter, a defendant alleging Blakely error has ordinarily received a jury trial in which a jury found most of the facts essential to punishment \u2014 the designated \u201celements\u201d of the crime. As the Arizona Court of Appeals aptly stated in a recent opinion, \u201cBlakely error is much more akin to the error in Neder than the error in Sullivan,\u201d because a defendant alleging Blakely error \u201chas already had a trial in which a jury has determined beyond a reasonable doubt that he or she is guilty.\u201d State v. Henderson, 209 Ariz. 300,-, 100 P.3d 911, 920 (Ct. App. 2004) (relying on Mitchell in holding that Neder, not Sullivan, applies to Blakely errors). Blakely error is \u201ccloser to failing to properly instruct on one element of an offense (which casts doubt on that one element) than it is to failing to properly instruct on the burden of proof as to every element of the offense (which casts doubt on the entire verdict).\u201d Id. Accordingly, the failure to submit an aggravating factor for jury determination, like the failure to submit an essential element for jury determination, is subject to harmless-error review.\nV.\nThe majority\u2019s reluctance to apply the harmless-error doctrine to Blakely errors, apparently born out of a healthy respect for the role of the jury, is understandable but ultimately misguided. First, contrary to the majority\u2019s opinion, the application of harmless-error principles to Blakely errors does not constitute impermissible \u201cspeculation\u201d as to what a jury might have done. To be sure, \u201cany time an appellate court conducts harmless-error review it necessarily engages in some speculation as to the jury\u2019s decisionmaking process; for in the end no judge can know for certain what factors led to the jury\u2019s verdict.\u201d Sullivan, 508 U.S. at 284, 124 L. Ed. 2d at 192 (Rehnquist, C.J., concurring). But this \u201cspeculation\u201d is restrained by rigorous judicial standards and an exacting burden of proof: an appellate court reviewing for harmless error must \u201cconduct a thorough examination of the record\u201d to determine whether a constitutional error was harmless \u201cbeyond a reasonable doubt.\u201d Neder, 527 U.S. at 19, 144 L. Ed. 2d at 53. If the reviewing court \u201ccannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error \u2014 for example, where the defendant contested the [factual determination at issue] and raised evidence sufficient to support a contrary finding \u2014 it should not find the error harmless.\u201d Id.\nSecond, neither Blakely error itself nor the application of the harmless-error doctrine to Blakely errors presents, in the majority\u2019s words, \u201cthe same defect as a directed verdict on the defendant\u2019s guilt or innocence.\u201d It is well settled that a trial court may not direct a verdict against a criminal defendant, \u201c \u2018regardless of how overwhelming[] the evidence\u2019 \u201d against him, and that such an error may not be reviewed for harmlessness. Rose, 478 U.S. at 578, 92 L. Ed. 2d at 471 (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 51 L. Ed. 2d 642, 652 (1977)). As the United States Supreme Court explained in Rose, when the right to a jury trial is \u201caltogether denied, the State cannot contend that the deprivation was harmless because . . . the error in such a case is that the wrong entity judged the defendant guilty.\u201d Id. Thus, the Sixth Amendment does not permit a judge to completely usurp the role of the jury by directing a verdict for the state. Id. As the United States Supreme Court later clarified in Neder, however, the partial deprivation of the right to jury trial does not implicate the rule set out in Rose and is subject to harmless-error analysis. Neder, 527 U.S. at 17 n.2, 144 L. Ed. 2d at 52 n.2. Because Blakely errors, like Neder errors, do not involve total deprivation of the right to a jury trial, they are not tantamount to directed verdicts for the state.\nNor is the application of harmless-error review particularly problematic in the context of Blakely errors. In Neder, the United States Supreme Court noted that an appellate court\u2019s application of harmless-error review does not implicate the same Sixth Amendment concerns as a trial judge\u2019s usurpation of the jury\u2019s role in the first instance. Id. at 17, 144 L. Ed. 2d at 52 (rejecting the defendant\u2019s argument that application of harmless-error analysis to the trial court\u2019s erroneous reasonable-doubt instruction would \u201cdispense with trial by jury and allow judges to direct a guilty verdict\u201d). The Court explained that a court applying the harmless-error doctrine does not \u201c \u2018become in effect a second jury to determine whether the defendant is guilty.\u2019 \u201d Id. at 19, 144 L. Ed. 2d at 53 (quoting Traynor, Harmless Error, at 21); of. Smith v. Dixon, 14 F.3d 956, 978. (4th Cir.) (\u201cNo authority relied on by [the defendant] supplies support for the proposition that harmless-error analysis involves a weighing of factual evidence that this court is not authorized to conduct.\u201d), cert. denied, 513 U.S. 841, 130 L. Ed. 2d 72 (1994). Rather, an appellate court, \u201cin typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the [factual determination at issue]. If the answer to that question is \u2018no,\u2019 holding the error harmless does not \u2018reflect a denigration of the constitutional rights involved.\u2019 \u201d Neder, 527 U.S. at 19, 144 L. Ed. 2d at 53 (quoting Rose, 478 U.S. at 577, 92 L. Ed. 2d at 470). In short, when an appellate court engages in harmless-error review, it does not unconstitutionally usurp the role of the jury or otherwise undermine the spirit of the Sixth Amendment.\nVI.\nThe majority relies heavily on State v. Hughes, -Wash. 2d -, 110 P.3d 192 (2005), a recent case in which the Washington Supreme Court held that Blakely errors are not subject to harmless-error review. As noted in the majority\u2019s opinion, the Hughes court relied on Sullivan to reach its holding that Blakely errors cannot be reviewed for harmlessness. Hughes, - Wash. 2d at -, 110 P.3d at-. Specifically, Hughes relied on Sullivan\u2019s reasoning that harmless-error review cannot be applied to any constitutional error that prevents the jury from returning a verdict of guilty-beyond-a-reasonable-doubt, since the inquiry \u201c \u2018whether the same verdict of guilty-beyond-a-reasonable doubt would have been rendered absent the constitutional error is utterly meaningless.\u2019 \u201d Id. at \u2014, 110 P.3d at \u2014 (quoting Sullivan, 508 U.S. at 280, 124 L. Ed. 2d at 189-90). Quoting extensively from Sullivan, the Hughes court further stated that the \u201c \u2018illogic\u2019 \u201d of applying harmless-error analysis in the absence of an \u201c \u2018actual finding of guilty beyond a reasonable doubt\u2019 \u201d was evident: \u201c \u2018[tjhere is no object, so to speak, upon which harmless-error scrutiny can operate.\u2019 \u201d Id. at-, 110 P.3d at-(quoting Sullivan, 508 U.S. at 280, 124 L. Ed. 2d at 189-90). Applying these principles, the court concluded that it would be equally \u201cillogical\u201d to apply the harmless-error doctrine to Blakely errors. Id. at-, 110 P.3d at-.\nAdmittedly, the above-quoted language from Sullivan lends logical support for the Hughes court\u2019s holding on the harmless-error issue. That language, however, was specifically disavowed in Neder. In Neder, the United States Supreme Court unequivocally stated that this \u201cstrand of the reasoning in Sullivan . . . cannot be squared with [the Court\u2019s] harmless-error cases.\u201d 527 U.S. at 11, 144 L. Ed. 2d at 48. Noting that the Court had previously applied harmless-error review in at least three cases \u201cwhere the jury did not render a \u2018complete verdict\u2019 on every element of the offense,\u201d the Court repudiated the \u201calternative reasoning\u201d in Sullivan that precludes application of harmless-error analysis where there has not been an \u201cactual\u201d jury verdict on every element of the crime. Id. at 11-13, 144 L. Ed. 2d at 48-49. It is now settled, under Neder, that a partial deprivation of the right to jury trial may be reviewed for harmlessness. Id. at 8-9, 144 L. Ed. 2d at 46-47; see also id. at 36, 144 L. Ed. 2d at 64 (Scalia, J., dissenting) (accusing the majority of \u201ccasting Sullivan aside\u201d). And Sullivan has been limited to its primary rationale: that defective reasonable-doubt instructions cannot be reviewed for harmlessness because they \u201cvitiate[] all the jury\u2019s findings.\u201d Sullivan, 508 U.S. at 281, 124 L. Ed. 2d at 190.\nPerhaps for this reason, Hughes appears to be an outlier among appellate court decisions addressing the Blakely/harmlesserror issue. My research reveals that the majority of courts to have considered this issue have agreed that Blakely errors are subject to harmless-error review.\nMoreover, in United States v. Cotton, the United States Supreme Court expressly rejected the argument that unpreserved Apprendi errors are \u201cstructural errors\u201d requiring automatic reversal. United States v. Cotton, 535 U.S. 625, 632-34, 152 L. Ed. 2d 860, 868-69 (2002). Similarly, every federal circuit, along with many state appellate courts, has held that Apprendi errors are subject to harmless-error review. Given that Blakely was at most an extension, if not merely a direct application of Apprendi, see Blakely v. Washington, \u2014 U.S. at-, 159 L. Ed. 2d at 412, the only logical conclusion is that Blakely errors, like Apprendi errors, are also subject to both plain-error and harmless-error review. See State v. Henderson, 209 Ariz. at-, 100 P.3d at 917.\nVII.\nAlthough I disagree with the majority\u2019s reasoning, I agree with its ultimate disposition in this particular case: defendant is entitled to a new sentencing hearing in which a jury, not a judge, must make a factual determination as to whether the offense was \u201cespecially heinous, atrocious, or cruel.\u201d I reach this result because, applying the harmless-error standard of Neder to the facts presented, I conclude that the Blakely violation in the instant case was not harmless beyond a reasonable doubt.\nAs an initial matter, the somewhat subjective nature of the N.C.G.S. \u00a7 15A-1340.16(d)(7) \u201cheinous, atrocious, or cruel\u201d aggravating factor may, depending on the specific facts of each case, render application of the harmless-error standard problematic. Plainly, it is more difficult for an appellate court, reviewing a cold record, to determine beyond a reasonable doubt that a jury would have found an offense \u201cespecially heinous\u201d than it is for an appellate court to determine that the defendant \u201cknowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person,\u201d N.C.G.S. \u00a7 15A-1340.16(d)(8) (2003), or \u201ccommitted the offense while on pretrial release on another charge,\u201d N.C.G.S. \u00a7 15A-1340.16(d)(12). This is not to say, however, that a judicial finding that an offense was \u201cheinous, atrocious, or cruel\u201d can never be harmless beyond a reasonable doubt. Even in the context of capital sentencing proceedings, we have never held that the subjectivity of the \u201cheinous, atrocious, or cruel\u201d aggravator precluded appellate courts from considering whether the evidence was sufficient to support findings of that factor. See, e.g., State v. Golphin, 352 N.C. 364, 479-81, 533 S.E.2d 168, 242-43 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001); State v. Huffstetler, 312 N.C. 92, 115-16, 322 S.E.2d 110, 124-25 (1984), cert. denied, 471 U.S. 1009, 85 L. Ed. 2d 169 (1985); State v. Oliver, 309 N.C. 326, 342-49, 307 S.E.2d 304, 316-20 (1983). Certainly in some cases the facts speak for themselves, such that no rational juror would fail to find the offense was \u201cespecially heinous, atrocious, or cruel.\u201d Cf. State v. Perkins, 345 N.C. 254, 288-89, 481 S.E.2d 25, 40-41 (defendant raped and murdered a seven-year-old girl in front of the girl\u2019s grandmother and three-year-old brother; no plain error in trial court\u2019s failure to give a limiting instruction on the \u201cheinous, atrocious, or cruel\u201d aggravator), cert. denied, 522 U.S. 837, 139 L. Ed. 2d 64 (1997). Indeed, this Court and the United States Court of Appeals for the Fourth Circuit have both previously applied harmless-error analysis to uphold the \u201cheinous, atrocious, or cruel\u201d aggravator in capital sentencing proceedings. Smith v. Dixon, 14 F.3d at 981 (holding that an unconstitutionally vague jury instruction on the \u201cespecially heinous, atrocious, or cruel\u201d (e)(9) aggravator was harmless in light of the \u201coverwhelming force of the evidence\u201d); State v. Burr, 341 N.C. 263, 309, 461 S.E.2d 602, 627 (1995) (\u201cBased on the overwhelming amount of evidence that the killing was especially heinous, atrocious, or cruel, assuming arguendo the admission of this statement was error, any such error was necessarily harmless beyond a reasonable doubt.\u201d), cert. denied, 517 U.S. 1123, 134 L. Ed. 2d 526 (1996); cf. State v. Fletcher, 354 N.C. 455, 482, 555 S.E.2d 534, 551 (2001) (rejecting argument that counsel\u2019s admission of the (d)(7) aggravator rendered his performance deficient because \u201c[g]iven the overwhelming evidence that this murder was especially heinous, atrocious, or cruel, counsel could reasonably have decided upon a strategy of conceding this aggravating circumstance to gain credibility with the jury\u201d), cert. denied, 537 U.S. 846, 154 L. Ed. 2d 73 (2002). Accordingly, I believe that the \u201cespecially heinous, atrocious, or cruel\u201d (d)(7) aggravator is, as a general proposition, subject to harmless-error review.\nReviewing this particular aggravating factor for harmlessness, however, I believe that the evidence presented was neither \u201cuncontroverted\u201d nor \u201coverwhelming\u201d and thus that the Blakely error in the instant case was not harmless beyond a reasonable doubt. First, the evidence presented by the state in support of its contention that defendant intentionally burned his child \u2014 the basis for the \u201cheinous, atrocious, or cruel\u201d aggravator \u2014 was far from \u201cuncontroverted.\u201d There were no eyewitnesses to the events in question, and the state\u2019s evidence consisted mainly of testimony from a physician assistant that the burns did not appear to be accidental. Defendant, however, strenuously maintained his innocence throughout his arrest, interrogation, and every stage of these proceedings. A jury was certainly entitled to disregard defendant\u2019s testimony. But as we have often stated, issues of witness credibility are uniquely the province of the jury. See, e.g., State v. Hyatt, 355 N.C. 642, 666, 566 S.E.2d 61, 77 (2002), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003).\nSecond, the state\u2019s evidence in support of the (d)(7) aggravator, while sufficient to sustain a guilty verdict, was far from \u201coverwhelming.\u201d The evidence against the defendant consisted primarily of the testimony of Thomas McLaughlin, P.A. (McLaughlin), the physician assistant who treated the victim\u2019s bums. McLaughlin had approximately twenty-seven years of experience as a physician assistant and had worked at the hospital emergency room for six years. He did not possess a license to practice medicine or a medical degree. Although he had no specialized bum training, McLaughlin found that the child had either second- or third-degree burns on his hand, wrist, stomach, and knee. Based on the severity of the bums and his belief that a person would not hold on to a hot object long enough to cause bums that deep, McLaughlin opined that the burns were caused by someone holding an object against the child\u2019s skin. He also opined that the shapes of the bums were not consistent with a burn suffered from grabbing a curling iron. Because the burns were round and not linear in shape, McLaughlin concluded that they were most likely caused by a round object.\nWhile this testimony certainly supports the inference that defendant intentionally inflicted multiple bums on his child \u2014 the factual predicate for the (d)(7) aggravator in this case \u2014 the evidence in support of that factor is far from \u201coverwhelming.\u201d Had the Blakely error not occurred, a jury could certainly have decided to reject all or part of McLaughlin\u2019s testimony in light of (1) his relative inexperience with bums, (2) his lack of a medical degree or license to practice medicine, and (3) defendant\u2019s consistent and strenuous testimony that he did not harm the child. In addition, a jury could rationally have determined that defendant\u2019s bandaging of the child\u2019s hand suggested he was unaware of the other bums on the child\u2019s body and that he acted compassionately, not in an \u201cespecially heinous, atrocious, or cruel\u201d manner.\nMoreover, the \u201cheinous, atrocious, or cruel\u201d aggravator is complicated by the requirement that the offense be \u201cespecially\u201d heinous, atrocious, or cruel. N.C.G.S. \u00a7 15A-1340.16(d)(7) (2003) (emphasis added). As we have previously explained, the aggravator applies only if \u201cthe facts of the case disclose excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present in [the] offense.\u201d State v. Blackwelder, 309 N.C. 410, 414, 306 S.E.2d 783, 786 (1983). Because the offense of felonious child abuse inflicting serious injury inherently involves \u201cbrutality, . . . physical pain, . . . [and] dehumanizing aspects,\u201d it is particularly difficult to apply this standard in the instant case. Indeed, a comparison of this state\u2019s appellate precedents demonstrates that application of the Blackwelder standard often requires fine distinctions that do not readily lend themselves to harmless-error analysis. See, e.g., State v. Ahearn, 307 N.C. 584, 599, 300 S.E.2d 689, 698 (1983) (evidence that baby had been struck on at least three occasions, tied to his crib, and placed under a mattress factually supported defendant\u2019s guilty plea of felonious child abuse, but \u201cf[ell] short of supporting a finding that the offense was especially heinous, atrocious or cruel\u201d); State v. Newton, 82 N.C. App. 555, 560, 347 S.E.2d 81, 84-85 (1986) (defendant\u2019s repeatedly striking his wife in the presence of their child and refusal to get her medical attention supported his conviction for assault with a deadly weapon with intent to kill inflicting serious injury, but did not \u201crepresent brutality beyond that found in other [such] assaults\u201d), disc. rev. denied, 318 N.C. 699, 351 S.E.2d 756 (1987).\nBased upon the evidence of record, the (d)(7) aggravator could be found in the instant case by a rational jury applying the beyond-a-reasonable-doubt standard. However, on the facts presented here, I cannot conclude that this particular Blakely error was harmless beyond a reasonable doubt. Therefore, and on these grounds only, I agree that the instant case should be remanded to the Court of Appeals for further remand to the trial court with instructions to submit the (d)(7) aggravating factor for determination by a jury.\nAlthough, undoubtedly, judicial fact-finding of aggravating factors violates the federal constitutional rule enunciated in Blakely v. Washington, United States Supreme Court precedent also compels application of the harmless-error doctrine to Blakely violations. I have no doubt that my colleagues in the majority are motivated by the noblest of intentions. Nevertheless, the majority\u2019s invocation of \u201cstructural error\u201d to Blakely violations is erroneous under federal constitutional principles which govern Blakely violations.\nMoreover, the public record reflects that 75 \u201cBlakely cases\u201d are now pending for disposition in our 15-member intermediate appellate court, the North Carolina Court of Appeals. To put this in perspective, the Court of Appeals has issued a total of 738 opinions so far in 2005. And the burden on our legal and judicial system does not end there. Each improvident \u201cBlakely remand\u201d to the trial court, in North Carolina and every other state, necessarily entails the application of additional prosecutorial, legal, and other \u201cjustice system\u201d resources. Where the Blakely error in any such case is \u201charmless beyond a reasonable doubt,\u201d these resources are, in turn, potentially unavailable to redress prejudicial legal error.\nWith that said, I fully concur in our remand order based on the particular facts of the instant case. But taxing our already overburdened judicial and legal resources through indiscriminate application of a categorical rule accomplishes nothing from a practical perspective, elevates form over substance, and unnecessarily undermines the salutary objectives that are undeniably effectuated by application of harmless-error review. Accordingly, I dissent from the majority\u2019s holding that Blakely errors are categorically unamenable to harmless-error review. In all other respects, I concur in the majority opinion.\nChief Justice LAKE and Justice NEWBY join in this concurring and dissenting opinion.\n. Of course, any fact-finder \u2014 -judge or jury \u2014 is more likely to find a given sentencing factor when applying the \u201cpreponderance\u201d standard than when applying the \u201cbeyond a reasonable doubt\u201d standard as required by Blakely. But there is no empirical evidence to suggest that it is \u201cso likely\u201d that Blakely violations result in sentencing enhancements that would not otherwise be found that \u201ccase-by-case inquiry\u201d into harmlessness \u201cis not worth the cost.\u201d Strickland, 466 U.S. at 692, 80 L. Ed. 2d at 696. Nor is there any reason to presume that appellate courts would, as a general matter, have difficulty reviewing the record evidence under a more stringent, Blakelycompliant burden of proof. After all, careful application of the correct standard of review is a hallmark of appellate adjudication. See 5 Am. Jur. 2d Appellate Review \u00a7 559 (1995) (stating that \u201cthe standard of review is the keystone of appellate decisionmaking\u201d).\n. What is now referred to as the Blakely rule had its genesis in Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999), was first articulated in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000), and has been applied in Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556 (2002) and United States v. Booker,-U.S.-, 160 L. Ed. 2d 621 (2005). Succinctly stated, the Blakely rule provides that a criminal defendant has a constitutional \u201cright to have the jury find the existence of \u2018 \u201cany particular fact\u201d \u2019 that the law makes essential to his punishment.\u201d Booker,-U.S. at-, 160 L. Ed. 2d at 642 (citing Apprendi, Bing, and Blakely (internal citations omitted)); see also Blakely, \u2014 U.S. at \u2014, 159 L. Ed. 2d at 420 (\u201cAs Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.\u201d). In examining a criminal sentence for a Blakely violation, the dis-positive question \u201cis one not of form, but of effect.\u201d Apprendi, 530 U.S. at 494, 147 L. Ed. 2d at 457. Thus, \u201c[i]f a State makes an increase in a defendant\u2019s authorized punishment contingent on the finding of a fact, that fact \u2014 no matter how the State labels it \u2014 must be found by a jury beyond a reasonable doubt.\u201d Ring, 536 U.S. at 602, 153 L. Ed. 2d at 572 (emphasis added); see also Blakely,-U.S. at-, 159 L. Ed. 2d at 415 (rejecting the argument that \u201cthe jury need only find whatever facts the legislature chooses to label elements of the crime, and that those it labels sentencing factors \u2014 no matter how much they may increase the punishment \u2014 may be found by the judge\u201d).\n. This application of Neder may be summarized by the following syllogism: (1) Under Neder, the failure to submit an essential element of the crime to the jury, though violative of the Sixth Amendment right to jury trial, is subject to harmless-error analysis; (2) The Blakely line of cases establishes that aggravating factors are the \u201cfunctional equivalent\u201d of essential elements for purposes of the right to jury trial; (3) Therefore, the failure to submit an aggravating factor for jury determination is also subject to harmless-error inquiry. At least three of the appellate courts to have directly considered application of the harmless-error doctrine to Blakely errors have followed this reasoning in holding that Blakely errors may be reviewed for harmlessness. See, e.g., State v. Henderson, 209 Ariz. 300, \u2014, 100 P.3d 911, 917-21 (Ct. App. 2004), disc. rev. granted in part, 2005 Ariz. LEXIS 36 (Mar. 23, 2005) (No. 1 CA-CR 03-0920); State v. McDonald, 136 N.M. 417,-, 99 P.3d 667, 669-70 (2004); State v. Walters, 2004 WL 2726034, at **22-24 (Tenn. Crim. App. Nov. 30, 2004) (No. M2003-03019-CCA-R3CD) (unpublished). If there is a flaw in this rather straight-forward analysis, I would expect the majority to shed some light on it. But nowhere in its opinion does the majority respond directly to this argument, which is clearly and forcefully articulated in the state\u2019s brief. Rather, the majority summarily \u201cdisagreefs]\u201d with the state\u2019s argument before embarking on its own independent analysis of the question presented.\n. \u201cSerious bodily injury\u201d is defined as \u201cbodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization.\u201d N.C.G.S. \u00a7 14-318.4(a3) (2003).\n. This analysis is entirely consistent with the United States Supreme Court\u2019s decision in Rose v. Clark, 478 U.S. 570, 92 L. Ed. 2d 460 (1986), which is cited several times by the majority. In Rose, the Court stated that when the Sixth Amendment right to jury trial is \u201caltogether denied, the State cannot contend that the deprivation was harmless because the evidence established the defendant\u2019s guilt; the error in such a case is that the wrong entity judged the defendant guilty.\u201d 478 U.S. at 578, 92 L. Ed. 2d at 471 (emphasis added). As noted above, however, in a typical Blakely case, the jury has already determined most, if not all, of the facts essential to punishment. Hence, the Sixth Amendment right to jury trial has not been \u201caltogether\u201d denied, and harmless-error analysis is presumptively applicable under Rose itself. See id. at 579, 92 L. Ed. 2d at 471 (discussing the \u201cstrong presumption\u201d that a federal constitutional error is subject to harmless-error analysis).\n. See United States v. Riccardi, 405 F.3d 852, 875 (10th Cir. 2005) (concluding that Sixth Amendment Blakely/Booker error was harmless in light of \u201coverwhelming\u201d evidence supporting the sentencing judge\u2019s fact-finding); United States v. Paz, 405 F.3d 946 (11th Cir. 2005) (per curiam) (applying harmless-error doctrine to Blakely error); United States v. Ameline, 400 F.3d 646, 652 (9th Cir.) (noting that under Booker \u201cnot all cases would warrant a new sentencing hearing because any error might be harmless\u201d), vacated and reh\u2019g en banc granted, 401 F.3d 1007 (9th Cir. 2005); United States v. Coumaris, 399 F.3d 343, 351 (D.C. Cir. 2005) (stating that Booker challenge was \u201cgoverned by the harmless error standard appropriate for constitutional error\u201d); United States v. Sharpley, 399 F.3d 123, 127 (2d Cir. 2005) (describing Blakely and Booker error as a \u201cprototypical example of harmless error\u201d where defendant received a \u201cstatutory mandatory minimum\u201d sentence); United States v. Pittman, 388 F.3d 1104, 1109 (7th Cir. 2004) (analyzing Blakely claim for plain error and adding in dictum that the claim \u201cwould fall short under harmless error review as well\u201d), vacated on other grounds and cert. granted by-U.S.-, 161 L. Ed. 2d 764 (2005); United States v. Mincey, 380 F.3d 102, 105 (2d Cir. 2004) (per curiam) (reviewing a \u201cBlakely-type claim\u201d for harmless error), vacated and cert, granted by Ferrell v. United States,-U.S. -, 160 L. Ed. 2d 1053 (2005); State v. Henderson, 209 Ariz. 300,-, 100 P.3d 911, 920-22 (Ct. App. 2004) (holding that Blakely errors are subject to harmless-error analysis and citing other cases in support of that proposition), disc. rev. granted in part, 2005 Ariz. LEXIS 36 (Mar. 23, 2005) (No. 1 CA-CR-03-0920); State v. Martinez, 209 Ariz. 280,-, 100 P.3d 30, 32 (Ct. App. 2004) (\u201cFurther, we hold that Blakely error is subject to harmless error or fundamental error analysis and may or may not require reversal based on the facts of a particular case.\u201d), disc. rev. granted, 2005 Ariz. LEXIS 16 (Feb. 8, 2005) (No. 1 CA-CR-03-0728); People v. Amons, 22 Cal. Rptr. 3d 908, 916-17, 125 Cal. App. 4th 855, 867-68 (Ct. App. 2005) (holding that Blakely errors are subject to harmless-error analysis and citing numerous cases), disc. rev. denied, 2005 Cal. LEXIS 4345 (Apr. 20, 2005) (No. A105374); Padilla v. State, 822 N.E.2d 288, 291 (Ind. Ct. App. 2005) (applying harmless error analysis to Blakely claim); Holden v. State, 815 N.E.2d 1049, 1059-60 (Ind. Ct. App. 2004) (applying harmless-error analysis to Blakely claim); State v. Lowery, 160 Ohio App. 3d 138, 154, 826 N.E.2d 340, 352-53 (2005) (applying harmless-error analysis to Blakely claim); State v. Ginn, 2005 Tenn. Crim. App. LEXIS 313, at **24, 32-33 (Mar. 31, 2005) (No. M2003-02330-CCA-R3-CD) (unpublished) (stating that Blakely error is subject to harmless-error review); State v. Walters, 2004 Tenn. Crim. App. LEXIS 1053, at *62 (Nov. 30, 2004) (No. M2003-03019-CCA-R3-CD) (unpublished) (holding that Blakely error is subject to harmless-error review), appeal denied, 2005 Tenn. LEXIS 264 (Mar. 21, 2005).\n. The Court in Cotton went on to apply harmless-error principles in the course of its plain-error review, noting that even though the grand jury\u2019s indictment did not allege the amount of drugs involved in the crimes charged, \u201c[t]he evidence that the conspiracy involved at least 50 grams of cocaine base was \u2018overwhelming\u2019 and \u2018essentially uncontroverted.\u2019 \u201d 535 U.S. at 633, 152 L. Ed. 2d at 869 (quoting Johnson, 520 U.S. at 470, 137 L. Ed. 2d at 729). In light of the overwhelming evidence presented at trial, the Court concluded that \u201c[s]urely the grand jury, having found that the conspiracy existed, would have also found that the conspiracy involved at least 50 grams of cocaine base.\u201d Id. Admittedly, Cotton applied harmless-error principles to the grand jury\u2019s failure to find facts belonging in an indictment. Id. It is not much of a stretch, however, to extend Cotton to the situation where a petit jury has not found facts essential to the punishment. See State v. Sepahi, 206 Ariz. 321, 324 n.3, 78 P.3d 732, 735 n.3 (2003) (relying on Cotton in determining that Apprendi error is subject to harmless-error review). See generally Joshua A.T. Fairfield, To Err is Human: The Judicial Conundrum of Curing Apprendi Error, 55 Baylor L. Rev. 889, 953 (2003) (following a discussion of Cotton, concluding that \u201cin both the harmless error and plain error settings, there is no reason to treat the failure to present an element of a crime to a grand jury any differently than a failure to present an element of a crime to a petit jury\u201d).\n. See, e.g., United States v. Higgs, 353 F.3d 281, 304-06 (4th Cir. 2003), cert. denied, -U.S. -, 160 L. Ed. 2d 456 (2004); United States v. Perez-Ruiz, 353 F.3d 1, 17 (1st Cir. 2003), cert. denied, 541 U.S. 1005, 158 L. Ed. 2d 522 (2004); United States v. Lafayette, 337 F.3d 1043, 1052 (D.C. Cir. 2003); United States v. Zidell, 323 F.3d 412, 433-34 (6th. Cir.), cert. denied, 540 U.S. 824, 157 L. Ed. 2d 46 (2003); United States v. Matthews, 312 F.3d 652, 665 (5th Cir. 2002), cert. denied, 538 U.S. 938, 155 L. Ed. 2d 341 (2003); United States v. Stewart, 306 F.3d 295, 322-23 (6th Cir. 2002); United States v. Friedman, 300 F.3d 111, 127-28 (2d Cir. 2002), cert. denied, 538 U.S. 981, 155 L. Ed. 2d 672 (2003); United States v. Samuel, 296 F.3d 1169, 1171-72 (D.C. Cir.), cert. denied, 537 U.S. 1078, 154 L. Ed. 2d 578 (2002); United States v. Sanchez-Cervantes, 282 F.3d 664, 670 (9th Cir.), cert. denied, 537 U.S. 939, 154 L. Ed. 2d 243 (2002); United States v. Henry, 282 F.3d 242, 251-52 (3d Cir. 2002); United States v. Wheat, 278 F.3d 722, 739-42 (8th Cir. 2001) (applying harmless-error principles in the context of plain-error review and concluding that \u201cany Apprendi error is harmless\u201d), cert. denied, 537 U.S. 850, 154 L. Ed. 2d 81 (2002); United States v. Prentiss, 273 F.3d 1277, 1278-79 (10th Cir. 2001); United States v. Vazquez, 271 F.3d 93, 103 (3d Cir. 2001), cert. denied, 536 U.S. 963, 153 L. Ed. 2d 845 (2002); United States v. Bailey, 270 F.3d 83, 88-90 (1st Cir. 2001); United States v. Candelario, 240 F.3d 1300, 1307 (11th Cir.), cert. denied, 533 U.S. 922, 150 L. Ed. 2d 705 (2001), overruled in part on other grounds by United States v. Sanchez, 269 F.3d 1250, 1277-80 (11th Cir. 2001), cert. denied, 535 U.S. 942, 152 L. Ed. 2d 234 (2002); United States v. Anderson, 236 F.3d 427, 429 (8th Cir.), cert., denied, 534 U.S. 956, 151 L. Ed. 2d 270 (2001); United States v. Nance, 236 F.3d 820, 825 (7th Cir. 2000), cert. denied, 534 U.S. 832, 151 L. Ed. 2d 43 (2001); United States v. Garcia-Guizar, 234 F.3d 483, 488-89 (9th Cir. 2000), cert. denied, 532 U.S. 984, 149 L. Ed. 2d 490 (2001); United States v. Nealy, 232 F.3d 825, 829-30 (11th Cir. 2000), cert. denied, 534 U.S. 1023, 151 L. Ed. 2d 428 (2001); State v. Garcia, 200 Ariz. 471, 475, 28 P.3d 327, 331 (Ct. App. 2001); People v. Sengpadychith, 26 Cal. 4th 316, 327, 27 P.3d 739, 746 (2001); State v. Davis, 255 Conn. 782, 796 & n.14, 772 A.2d 559, 568 & n.14 (2001); State v. Price, 61 Conn. App. 417, 423-25, 767 A.2d 107, 112-13, appeal denied, 255 Conn. 947, 769 A.2d 64 (2001); People v. Thurow, 203 Ill. 2d 352, 368, 786 N.E.2d 1019, 1028 (2003); State v. Burdick, 2001 ME 143, \u00b6\u00b622-34, 782 A.2d 319, 326-29 (2001), cert. denied, 534 U.S. 1145, 151 L. Ed. 2d 998 (2002).\n. Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556 (2002), a precursor to Blakely that applied the Apprendi rule in the context of capital sentencing, lends further support to this position. In a footnote in Ring, the United States Supreme Court declined to reach \u201cthe [s]tate\u2019s assertion that any error was harmless\u201d because \u201cthis Court ordinarily leaves it to lower courts to pass on the harmlessness of error in the first instance.\u201d Id. at 609 n.7, 153 L. Ed. 2d at 577 n.7. If the Court did not agree that Ring (or Apprendi) errors were generally subject to harmless-error review, it would not have directed the lower federal courts to pass on such matters \u201cin the first instance.\u201d In addition, the Arizona Supreme Court held on remand in Ring III that the failure to submit aggravating factors to the jury in capital cases was subject to harmless-error review. State v. Ring, 204 Ariz. 534, 65 P.3d 915, 933 (2003).\n. Defendant did, however, accept responsibility for the accidental burning, acknowledging that if he had been more vigilant in watching the child, the injury would not have occurred.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Justice MARTIN," } ], "attorneys": [ "Roy Cooper, Attorney General, by Robert C. Montgomery, Assistant Attorney General, for the State-appellant.", "Richard E. Jester for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LEVAR JAMEL ALLEN\nNo. 485PA04\n(Filed 1 July 2005)\n1. Appeal and Error\u2014 general supervisory authority \u2014 review of Court of Appeals\u2019 decision on motion for appropriate relief\nThe Supreme Court exercised its general supervisory authority and accepted the State\u2019s petition for discretionary review of a Court of Appeals decision resolving a motion for appropriate relief in the Court of Appeals, despite N.C.G.S. \u00a7 15A-1422(f), because a prompt and definitive resolution of the constitutionality of North Carolina Structured Sentencing Act was necessary to the fair and effective administration of North Carolina\u2019s criminal courts.\n2. Sentencing\u2014 structured \u2014 facts increasing punishment\u2014 jury finding beyond a reasonable doubt \u2014 indictment allegation not required\nApplied to North Carolina\u2019s structured sentencing scheme, the rule of Apprendi v. New Jersey, 530 U.S. 466, and Blakely v. Washington, 542 U.S. 296, is that any fact other than a prior conviction that increases the penalty beyond the presumptive range must be submitted to a jury and proved beyond a reasonable doubt. The language of State v. Lucas, 353 N.C. 568, which defines \u201cstatutory maximum\u201d in a manner inconsistent with this opinion is overruled, along with language requiring sentencing factors which might lead to a sentencing enhancement to be alleged in an indictment.\n3. Sentencing\u2014 aggravating factors \u2014 jury finding beyond a reasonable doubt\nThe Sixth Amendment of the U.S. Constitution is violated by those portions of N.C.G.S. \u00a7 15A-1340.16(a), (b), and (c) which require trial judges to consider evidence of aggravating factors not found by a jury or admitted by the defendant and which permit imposition of an aggravated sentence upon judicial findings of such aggravating factors by a preponderance of the evidence. However, this ruling affects only those portions of the Structured Sentencing Act which require the sentencing judge to consider aggravating factors not admitted by defendant or found by a jury; those portions of N.C.G.S. \u00a7 15A-1340.16 which govern a sentencing judge\u2019s finding of mitigating factors and which permit the judge to balance aggravating factors otherwise found to exist are not implicated and remain unaffected.\n4. Sentencing\u2014 Blakely errors \u2014 structural\u2014reversible per se\nBlakely v. Washington errors arising under North Carolina\u2019s Structured Sentencing Act are structural and therefore reversible per se. The harmless error rule does not apply because the jury\u2019s findings have been vitiated in total. This holding applies to cases in 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.\nJustice Martin concurring in part and dissenting in part.\nChief Justice Lake and Justice Newby join in the concurring and dissenting opinion.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 166 N.C. App. 139, 601 S.E.2d 299 (2004), finding no error in trial but remanding for resentencing after consideration of defendant\u2019s motion for appropriate relief from a judgment entered 31 January 2003 by Judge J. Gentry Caudill in Superior Court, Gaston County. On 8 February 2005, defendant filed a motion for appropriate relief in this Court. Heard in the Supreme Court 15 March 2005.\nRoy Cooper, Attorney General, by Robert C. Montgomery, Assistant Attorney General, for the State-appellant.\nRichard E. Jester for defendant-appellee." }, "file_name": "0425-01", "first_page_order": 463, "last_page_order": 511 }