{ "id": 3797406, "name": "STATE OF NORTH CAROLINA v. TIMOTHY EARL BLACKWELL", "name_abbreviation": "State v. Blackwell", "decision_date": "2005-08-19", "docket_number": "No. 490PA04", "first_page": "814", "last_page": "823", "citations": [ { "type": "official", "cite": "359 N.C. 814" } ], "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": "603 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631852, 12631853, 12631854, 12631855, 12631856, 12631857, 12631858, 12631859, 12631860, 12631861, 12631862, 12631863, 12631864, 12631865, 12631866, 12631867, 12631868, 12631869, 12631870, 12631871 ], "year": 2004, "opinion_index": -1, "case_paths": [ "/se2d/603/0168-20", "/se2d/603/0168-01", "/se2d/603/0168-02", "/se2d/603/0168-03", "/se2d/603/0168-04", "/se2d/603/0168-05", "/se2d/603/0168-06", "/se2d/603/0168-07", "/se2d/603/0168-08", "/se2d/603/0168-09", "/se2d/603/0168-10", "/se2d/603/0168-12", "/se2d/603/0168-11", "/se2d/603/0168-13", "/se2d/603/0168-14", "/se2d/603/0168-15", "/se2d/603/0168-16", "/se2d/603/0168-17", "/se2d/603/0168-18", "/se2d/603/0168-19" ] }, { "cite": "166 N.C. 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TIMOTHY EARL BLACKWELL" ], "opinions": [ { "text": "EDMUNDS, Justice.\nIn this case, we must determine whether the trial court improperly imposed an aggravated sentence on defendant in violation of the United States Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). Because we conclude that the trial court committed structural error by finding the aggravating factor, we affirm the decision of the Court of Appeals and remand defendant\u2019s case for resentencing.\nOn 27 February 1997, Sherry and Greg Dail made plans to run errands together in Durham with their three young children: Megan, age four; Austin, age two; and Joshua, age one. Because Sherry had to go to work later that afternoon, they drove separate vehicles. Sherry led the way in a 1992 Mercury Sable and Greg followed with the children in a 1989 Dodge Caravan.\nThe Dails drove south on Guess Road. As the two vehicles crossed the Eno River Bridge and approached the intersection of Guess Road and Rose of Sharon Road, defendant Timothy Earl Blackwell, traveling north on Guess Road, crossed the center line, sideswiped Sherry\u2019s car, and collided with Greg\u2019s van. Megan Dail was killed as a result of the collision and the other members of the family all suffered severe injuries.\nDefendant\u2019s erratic and dangerous driving was observed by several witnesses in the moments leading up to the accident. At approximately 11:00 that morning, defendant was seen driving north on Guess Road in his red pickup truck at speeds estimated by an observer to be as high as seventy-five miles per hour. After running a red light and swerving back and forth across the road, defendant\u2019s truck jumped a curb, knocked over several trash cans and a mailbox, then crossed several lanes and headed directly into oncoming traffic. After managing to get back into a northbound lane, defendant repeatedly crossed the center line again, forcing several cars off the road. Defendant hit the Dails\u2019 oncoming vehicles as he approached Rose of Sharon Road.\nDefendant admitted that he had consumed both cocaine and heroin the night before and that he had drunk beer between 9:00 and 10:30 that morning. At the time of the accident, defendant\u2019s blood alcohol content was 0.130 grams of alcohol per one hundred milliliters of whole blood and his blood tested positive for cocaine metabolites and opiates. Police officers found hypodermic needles and beer cans in defendant\u2019s truck.\nDefendant was indicted for first-degree murder, four counts of assault with a deadly weapon inflicting serious injury, habitual impaired driving, driving while license revoked, driving left of center, possession of drug paraphernalia, and possession of an open container. Defendant pleaded not guilty to the murder and assault charges and guilty to the rest. The jury convicted defendant of first-degree murder under the felony murder rule, one count of assault with a deadly weapon inflicting serious injury, and three counts of assault with a deadly weapon. The Court of Appeals ordered a new trial. State v. Blackwell, 135 N.C. App. 729, 522 S.E.2d 313 (1999). The State appealed and this Court remanded the case to the Court of Appeals on the basis of our holding in State v. Jones, 353 N.C. 159, 538 S.E.2d 917 (2000). State v. Blackwell, 353 N.C. 259, 538 S.E.2d 929 (2000) (per curiam). The Court of Appeals then remanded the case to the trial court. State v. Blackwell, 142 N.C. App. 388, 542 S.E.2d 675 (2001).\nDefendant was retried and convicted of second-degree murder, habitual impaired driving, and felonious assault with a deadly weapon inflicting serious injury, along with several misdemeanors not pertinent to this appeal. As to each of these felony convictions, the trial court found the single statutory aggravating factor that \u201cdefendant committed the offense while on pretrial release on another charge.\u201d N.C.G.S. \u00a7 15A-1340.16(d)(12) (2003). The trial court also found as to each conviction the statutory mitigating factors that defendant entered or completed a drug treatment program, id. \u00a7 15A-1340.16(e)(16) (2003), that defendant supports his family, id. \u00a7 1340.16(e) (17) (2003), and that defendant has a community support system, id. \u00a7 1340.16(e)(18) (2003). In addition, the trial court found three nonstatutory mitigating factors, including that defendant has been a model prisoner while in custody, received his GED, and is remorseful. After determining that the aggravating factor outweighed the mitigating factors, the trial court entered separate judgments for each offense and sentenced defendant to consecutive aggravated terms of 353 to 461 months for the second-degree murder conviction, 26 to 32 months for the habitual impaired driving conviction, and 66 to 89 months for the assault with a deadly weapon inflicting serious injury conviction.\nDefendant again appealed to the Court of Appeals. While the case was pending on appeal, defendant filed a motion for appropriate relief (MAR) in that court contending that the trial court\u2019s imposition of an aggravated sentence violated the United States Supreme Court holding in Blakely. Under Blakely, any factors used to aggravate a sentence must be found by a jury beyond a reasonable doubt or admitted by the defendant. 542 U.S. at-, 159 L. Ed. 2d at 413-14. The Court of Appeals found no prejudicial error in defendant\u2019s trial, but granted defendant\u2019s MAR and remanded his case for resentencing consistent with Blakely. State v. Blackwell, 166 N.C. App. 280, 603 S.E.2d 168, 2004 N.C. App. LEXIS 1618 (Sept. 7, 2004) (No. COA03-793) (unpublished).\nOn 2 December 2004, this Court allowed the State\u2019s petitions for writ of supersedeas and for discretionary review of the Court of Appeals decision, but denied defendant\u2019s petition for discretionary review. On 10 February 2005, defendant filed a MAR with this Court alleging that the trial court could not impose an aggravated sentence because the aggravating factor was not alleged in the indictments. We ordered that this MAR be considered along with the other issues on appeal.\nAs a preliminary matter, we consider defendant\u2019s contention that this Court lacks jurisdiction to review the Court of Appeals determination of the MAR he filed in that court. In that MAR, defendant successfully argued pursuant to N.C.G.S. \u00a7 15A-1415(b)(4) that his aggravated sentence was imposed in violation of the United States Constitution. As defendant correctly points out, N.C.G.S. \u00a7 15A-1422(f) provides that \u201c[d]ecisions of the Court of Appeals on motions for appropriate relief that embrace matter set forth in G.S. 15A-1415(b) are final and not subject to further review by appeal, certification, writ, motion, or otherwise.\u201d N.C.G.S. \u00a7 15A-1422(f) (2003). However, we have resolved this issue in our opinion in State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005).\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\nAllen, 359 N.C. at 429, 615 S.E.2d at 260, (quoting N.C. Const. art. IV, \u00a7 12, cl. 1). The case at bar, much like Allen and State v. Speight, 359 N.C. 602, 614 S.E.2d 262 (2005), addresses immediately important aspects of Blakely\u2019s application to North Carolina sentencing law. Accordingly, we conclude that our general supervisory authority permits our review of this matter.\nWe now consider whether the imposition of an aggravated sentence violated defendant\u2019s Sixth Amendment right to a trial by jury as interpreted by the United States Supreme Court in Blakely. In Blakely, the Supreme Court held that the Sixth Amendment prohibits the trial court from finding aggravating factors unilaterally and using them to impose a sentence in excess of the \u201cstatutory maximum.\u201d 542 U.S. at-, 159 L. Ed. 2d at 413-14. The \u201cstatutory maximum\u201d is \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. Accordingly, \u201c[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt.\u201d Allen, 359 N.C. at 437, 615 S.E.2d at 265, (citing Blakely, 542 U.S. at-, 159 L. Ed. 2d at 412-14; Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000)). That holding applies to defendant\u2019s case, which was on direct appeal when Blakely was issued. Griffith v. Kentucky, 479 U.S. 314, 322-23, 93 L. Ed. 2d 649, 658 (1987).\nThe record reveals that the trial court violated Blakely by imposing an aggravated sentence that exceeded the statutory maximum after making a unilateral finding that defendant was on pretrial release for another charge when he committed the instant offense. N.C.G.S. \u00a7 15A-1340.16(d)(12). Although the State argues that defendant\u2019s sentence should nevertheless be upheld under a harmless error analysis, we held in Allen that \u201cBlakely errors arising under North Carolina\u2019s Structured Sentencing Act are structural and, therefore, reversible per se.\u201d Allen, 359 N.C. at 444, 615 S.E.2d at 269. Consequently, defendant\u2019s case must be remanded to the trial court for resentencing consistent with Blakely and Allen.\nFinally, defendant contends that the trial court lacked jurisdiction to sentence him beyond the statutory maximum because the indictments failed to allege the aggravating factor that defendant was on pretrial release for another charge at the time of the offense. Pursuant to this Court\u2019s opinion in Allen, and consistent with our holding in this case, we conclude that aggravating factors need not be alleged in an indictment. Id. at 438, 615 S.E.2d at 265. \u201c[T]his Court [previously has] concluded that \u2018the Fifth Amendment [does] not require aggravators, even if they were fundamental equivalents of elements of an offense, to be pled in a state-court indictment.\u2019 \u201d Id. (quoting State v. Hunt, 357 N.C. 257, 272, 582 S.E.2d 593, 603, cert. denied, 539 U.S. 985, 156 L. Ed. 2d 702 (2003)). Defendant\u2019s motion for appropriate relief is denied.\nMODIFIED AND AFFIRMED.", "type": "majority", "author": "EDMUNDS, Justice." }, { "text": "Justice MARTIN\ndissenting.\nIn State v. Allen, issued last month, this Court held that \u201cBlakely errors arising under North Carolina\u2019s Structured Sentencing Act are structural and, therefore, reversible per se.\u201d 359 N.C. 425, 615 S.E.2d 256, \u2014 (July 1, 2005) (No. 485PA04). Three justices dissented, reasoning that controlling precedents of the United States Supreme Court compel the conclusion that Blakely errors, like the vast majority of both constitutional and non-constitutional errors, are subject to harmless-error analysis. See id. at 452, 615 S.E.2d at-(Martin, J., concurring in part and dissenting in part). A week later, the Arizona Supreme Court, examining the same body of law that we analyzed in Allen, unanimously held that Blakely errors are not structural errors subject to per se reversal. State v. Henderson,-Ariz.-,-P.3d -(No. CR-04-0442-PR) (July 8, 2005). In issuing this opinion, the Arizona Supreme Court joined the growing chorus of state and federal courts to conclude that Blakely errors are subject to harmless-error review. See Allen, 359 N.C. at 467 n.13, 615 S.E.2d at-n.13 (Martin, J., concurring in part and dissenting in part) (citing numerous cases); see also Milligrock v. Alaska, -P.3d-, - (No. 1999) (Alaska Ct. App., July 29, 2005), available at http://www.state.ak.us/courts/ops/ap-1999.Ddf.\nLike State v. Speight, 359 N.C. 602, 614 S.E.2d 262 (July 1, 2005) (No. 491PA04), the instant case perfectly illustrates the deleterious consequences of the majority\u2019s categorical approach to Blakely errors. The sole aggravating factor in the instant case was the statutory (d)(12) aggravator, \u201cdefendant committed the offense while on pretrial release on another charge.\u201d N.C.G.S. \u00a7 15A-1340.16(d)(12) (2004). He did.\nAt no stage of these proceedings has there been any dispute over this simple, incontrovertible fact. At trial, former State Trooper S.D. Davis testified that he arrested defendant on 4 May 1996 in Pender County and charged him with driving while impaired (DWI) and driving while license revoked. On direct examination, the District Attorney elicited the following testimony from Trooper Davis:\nQ: Looking at the front of the citation. Do you see a judgment in the area designated for judgment.\nA: No, I do not.\nQ: And that with respect to the driving while impaired charge, isn\u2019t it?\nA: Yes.\nQ: With respect to the driving while license revoked charge, do you see a judgment?\nA: No, I do not.\nQ: If there is no judgment would it then have been pending at the time of February 27 of 1997?\nA: Yes, sir.\nThe state then entered into evidence the citation completed by Trooper Davis. It is readily apparent from Trooper Davis\u2019s testimony and the physical evidence of the citation itself that defendant\u2019s charges for DWI and driving while license revoked were pending at the time of the fatal collision that gave rise to the instant charges. Defendant failed to object to the colloquy set out above and failed to present any evidence or argument to rebut Trooper Davis\u2019s testimony that defendant was on pretrial release at the time he committed the present offenses.\nMoreover, when asked by the trial court whether he \u201cwishfed] to be heard as to sentencing,\u201d the District Attorney responded as follows:\nYes, sir. I think that with respect to this single aggravating factor, the defendant committed the offense while on pretrial release for another charge, that being another DWI in Pender County as described by Trooper Davis, if the Court looks at this defendant\u2019s history, that\u2019s a pretty typical pattern over the last twenty-five years that this defendant has been involved with driving offenses and other violations.\nNeither during this colloquy nor at any point during sentencing did defendant object to the District Attorney\u2019s assertion that defendant was on pretrial release at the time of the instant offenses. Nor did defendant present any contrary evidence or argue that the (d)(12) aggravator should not be found or that it lacked aggravating value. Indeed, defendant\u2019s only arguments at sentencing related to the presence of various statutory and non-statutory mitigating factors, all of which the trial court found to exist.\nTaken together, Trooper Davis\u2019s testimony, the 4 May 1996 citation, defendant\u2019s failure to object, and defendant\u2019s failure to present any arguments or evidence contesting the sole aggravating factor constitute uncontroverted and overwhelming evidence that defendant committed the crime while on pretrial release for another offense. In addition, the date of defendant\u2019s pretrial release for charges then pending in Pender County is a matter of public record,. There can be no serious question that if the instant case were remanded to the trial court for a jury determination of the sole aggravating factor presented, the state would again offer evidence in support of that aggravator in the form of official state documents and the testimony of state record-keepers.\nDefendant received a fair trial at which a jury of his peers determined beyond a reasonable doubt that he was guilty of habitual impaired driving, driving while license revoked, possession of drug paraphernalia, transporting an open container, driving left of center, driving while impaired, felonious assault with a deadly weapon inflicting serious injury, misdemeanor assault with a deadly weapon, and second-degree murder for recklessly causing the death of a four-year-old girl. All of the facts essential to defendant\u2019s punishment \u2014 save one \u2014 were submitted to a jury and found beyond a reasonable doubt. The only essential fact not found by the jury was the sole aggravating factor, that defendant committed the offense while on pretrial release for another crime, a matter of public record that was found by a judge based on uncontroverted and overwhelming evidence.\nWhile the judicial fact-finding in the instant case undeniably violated the Sixth Amendment rule subsequently established by Blakely v. Washington, it is equally obvious that this particular constitutional error had no effect on the sentence defendant actually received. A central purpose of the harmless-error doctrine is to \u201cblock setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.\u201d Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 709 (1967). To remand for resentencing so that a jury may go through the motions of reconfirming a simple and uncontroverted matter of public record \u201caccomplishes 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.\u201d Allen, 359 N.C. at 473, 615 S.E.2d at-(Martin, J., concurring in part and dissenting in part).\nI respectfully dissent.\nChief Justice LAKE and Justice NEWBY join in this dissenting opinion.\n. Parenthetically, the dates surrounding defendant\u2019s periods of pretrial release are precisely the type of fact of which courts may take judicial notice. Rule 201 of the North Carolina Rules of Evidence permits courts to take judicial notice of facts that are \u201cnot subject to reasonable dispute in that [they] [are] . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.\u201d N.C. R. Evid. 201(b). As a matter of public record, the dates of defendant\u2019s pretrial release are \u201cnot subject to reasonable dispute.\u201d Id. I acknowledge that in criminal cases a jury must be instructed \u201cthat it may, but is not required to, accept as conclusive any fact judicially noticed.\u201d N.C. R. Evid. 201(g). I also acknowledge that our rules of evidence do not trump the requirements of the Sixth Amendment as articulated in Blakely. Nonetheless, it is noteworthy that the aggravating factor at issue here\u2014 whether defendant was on pretrial release at the time of the instant offenses \u2014 is not the sort of factual determination that has traditionally been reserved exclusively for jury determination.", "type": "dissent", "author": "Justice MARTIN" } ], "attorneys": [ "Roy Cooper, Attorney General, by Robert C. Montgomery and Patricia A. Duffy, Assistant Attorneys General, for the State-appellant.", "Staples S. Hughes, Appellate Defender, by Benjamin Dowling-Sendor, Assistant Appellate Defender; and Marilyn G. Ozerfor defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TIMOTHY EARL BLACKWELL\nNo. 490PA04\n(Filed 19 August 2005)\n1. Appeal and Error\u2014 general supervisory authority\u2014 Supreme Court\u2019s authority to review Court of Appeals determination of motion for appropriate relief\nAlthough defendant contends our Supreme Court lacks jurisdiction to review the Court of Appeals determination of his motion for appropriate relief he filed in that court where he successfully argued that his aggravated sentence was imposed in violation of the United States Constitution based on the fact that N.C.G.S. \u00a7 15A-1422(f) provides that decisions of the Court of Appeals on motions for appropriate relief that embrace matters set forth in N.C.G.S. \u00a7 15A-1415(b) are final and not subject to further review by appeal, certification, writ, motion, or otherwise, our Supreme Court\u2019s general supervisory authority under Article IV, Section 12, Clause 1 of the North Carolina Constitution permits review of this matter because a prompt and definitive resolution of this issue is necessary to ensure the continued fair and effective administration of North Carolina\u2019s criminal courts.\n2. Sentencing\u2014 aggravating factors \u2014 unilateral finding by trial court \u2014 structural error\nThe trial court committed structural error in a second-degree murder, habitual impaired driving, and felonious assault with a deadly weapon inflicting serious injury case by finding the aggravating factor under N.C.G.S. \u00a7 15A-1340.16(d)(12) that defendant committed the offense while on pretrial release on another charge even though aggravating factors need not be alleged in an indictment, and the case is remanded for resentencing, because: (1) the trial court violated Blakely, 542 U.S. 296 (2004), by imposing an aggravated sentence that exceeded the statutory maximum after making a unilateral finding that defendant was on pretrial release for another charge; and (2) although the State contends the sentence should be upheld under a harmless error analysis, Blakely errors arising under North Carolina\u2019s Structured Sentencing Act are structural and therefore reversible per se.\nJustice Martin dissenting.\nChief Justice Lake and Justice Newby joining in the dissenting opinion.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of an unpublished decision of the Court of Appeals (Wynn, J., with Hunter, J., concurring, and Tyson, J., concurring in the result), 166 N.C. App. 280, 603 S.E.2d 168 (2004), finding no prejudicial error in defendant\u2019s trial but remanding for resentencing after consideration of defendant\u2019s motion for appropriate relief from judgments entered on 13 November 2002 by Judge Orlando E Hudson, Jr. in Superior Court, Durham County. On 10 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 and Patricia A. Duffy, Assistant Attorneys General, for the State-appellant.\nStaples S. Hughes, Appellate Defender, by Benjamin Dowling-Sendor, Assistant Appellate Defender; and Marilyn G. Ozerfor defendant-appellee." }, "file_name": "0814-01", "first_page_order": 852, "last_page_order": 861 }