{ "id": 3739670, "name": "STATE OF NORTH CAROLINA v. DAVID FRANKLIN HURT", "name_abbreviation": "State v. Hurt", "decision_date": "2007-05-04", "docket_number": "No. 192A04-2", "first_page": "325", "last_page": "333", "citations": [ { "type": "official", "cite": "361 N.C. 325" } ], "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": "616 S.E.2d 910", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633664 ], "year": 2005, "opinion_index": -1, "case_paths": [ "/se2d/616/0910-01" ] }, { "cite": "126 S. Ct. 2546", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 3500415 ], "weight": 2, "year": 2006, "opinion_index": -1, "case_paths": [ "/us/548/0212-01" ] }, { "cite": "165 L. Ed. 2d 983", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2006, "opinion_index": -1 }, { "cite": "126 S. Ct. 2977", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2006, "opinion_index": -1 }, { "cite": "359 N.C. 840", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796233 ], "year": 2005, "opinion_index": -1, "case_paths": [ "/nc/359/0840-01" ] }, { "cite": "361 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3736985 ], "opinion_index": -1, "case_paths": [ "/nc/361/0041-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "opinion_index": -1, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "638 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637356 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/638/0452-01" ] }, { "cite": "636 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636960, 12636961, 12636959 ], "year": 2006, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0188-02", "/se2d/636/0188-03", "/se2d/636/0188-01" ] }, { "cite": "620 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634170, 12634171, 12634172, 12634173 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/620/0528-01", "/se2d/620/0528-02", "/se2d/620/0528-03", "/se2d/620/0528-04" ] }, { "cite": "635 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636933, 12636934, 12636935 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/635/0899-01", "/se2d/635/0899-02", "/se2d/635/0899-03" ] }, { "cite": "615 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633238 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/615/0256-01" ] }, { "cite": "616 S.E.2d 910", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633664 ], "weight": 6, "year": 2005, "pin_cites": [ { "page": "912" }, { "page": "912-13" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0910-01" ] }, { "cite": "308 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "652" } ], "opinion_index": 0 }, { "cite": "309 N.C. 538", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4766182 ], "year": 1983, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0538-01" ] }, { "cite": "203 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "829" } ], "opinion_index": 0 }, { "cite": "285 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562672 ], "year": 1974, "pin_cites": [ { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0167-01" ] }, { "cite": "527 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248184 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "9" }, { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/us/527/0001-01" ] }, { "cite": "306 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "786" } ], "opinion_index": 0 }, { "cite": "309 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761533 ], "year": 1983, "pin_cites": [ { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0410-01" ] }, { "cite": "75 U.S.L.W. 3609", "category": "reporters:specialty", "reporter": "U.S.L.W.", "year": 2007, "opinion_index": 0 }, { "cite": "406 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "855", "parenthetical": "holding that when the prosecutor said he summarized the State's evidence \"with the permission of the defendant,\" the defendant's failure to object was a factor supporting the finding of a stipulation" } ], "opinion_index": 0 }, { "cite": "329 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554860 ], "year": 1991, "pin_cites": [ { "page": "686", "parenthetical": "holding that when the prosecutor said he summarized the State's evidence \"with the permission of the defendant,\" the defendant's failure to object was a factor supporting the finding of a stipulation" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0683-01" ] }, { "cite": "342 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697700 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0523-01" ] }, { "cite": "118 S.E.2d 617", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "619-20", "parenthetical": "explaining the trial court erred \"by not insisting upon a full, complete, definite and solemn admission and stipulation\"" } ], "opinion_index": 0 }, { "cite": "254 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625597 ], "year": 1961, "pin_cites": [ { "page": "234-35", "parenthetical": "explaining the trial court erred \"by not insisting upon a full, complete, definite and solemn admission and stipulation\"" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0231-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "490" }, { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "360 N.C. 572", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789376 ], "year": 2006, "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0572-01" ] }, { "cite": "359 N.C. 846", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798513 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0846-01" ] }, { "cite": "360 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3792959 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0569-01" ] }, { "cite": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0425-01" ] }, { "cite": "594 S.E.2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "56" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 429", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8918253 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0429-01" ] }, { "cite": "126 S. Ct. 2546", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 3500415 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/us/548/0212-01" ] }, { "cite": "359 N.C. 840", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796233 ], "weight": 6, "year": 2005, "pin_cites": [ { "page": "842" }, { "page": "845-46" }, { "page": "843-45" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0840-01" ] }, { "cite": "361 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3736985 ], "weight": 2, "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0041-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 6, "pin_cites": [ { "page": "303" }, { "page": "413" }, { "page": "303" }, { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] } ], "analysis": { "cardinality": 782, "char_count": 18450, "ocr_confidence": 0.753, "pagerank": { "raw": 8.509968312314528e-07, "percentile": 0.976448047743324 }, "sha256": "47d63985b01c4a71dc7b5f8cad858948af3b006576babaf106a014d36007443c", "simhash": "1:4a686842876cbf76", "word_count": 2990 }, "last_updated": "2023-07-14T16:19:48.141297+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices TIMMONS-GOODSON and HUDSON did not participate in the consideration or decision in this case." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID FRANKLIN HURT" ], "opinions": [ { "text": "EDMUNDS, Justice.\nIn our reconsideration of this matter, we limit our review to the sentencing procedure followed by the trial court. When defendant entered a plea of guilty to second-degree murder, his attorney argued that the court should find certain mitigating factors and reject aggravating factors proposed by the State. The trial court imposed an aggravated sentence without submitting the aggravating factors to the jury. Because we hold that the arguments of defendant\u2019s counsel in mitigation did not constitute an admission that the offense was especially heinous, atrocious, or cruel, the trial court\u2019s sentencing procedure was erroneous under Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). The United States Supreme Court has held that Blakely error is subject to harmless error analysis. Washington v. Recuenco, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006). Conflicting evidence as to defendant\u2019s role in the offense precludes a finding that the trial court\u2019s error was harmless beyond a reasonable doubt. Accordingly, we remand this case for a new sentencing hearing.\nOn 26 February 1999, police officers found Howard Cook, the victim in this case, dead in his home. He had suffered both blunt force injuries and multiple stab wounds. Shortly after discovering the victim\u2019s body, officers questioned his nephew, William Parlier, whom they found intoxicated and lying in a ditch. The jailer observed blood on Parlier and on money taken from him. After he sobered up, Parlier gave several statements implicating defendant as the murderer. Police next questioned defendant, who denied being at the victim\u2019s home or participating in the murder. When the police later arrested defendant, he stated, \u201c[Parlier] was the one with blood all over him, and he had the money. What does that tell you?\u201d, then invoked his right to counsel.\nDefendant was indicted for first-degree murder, first-degree burglary, and'common law robbery. Parlier pleaded guilty to first-degree murder and was sentenced to life imprisonment in exchange for a promise to testify against defendant. However, a few days before trial, Parlier reneged on his agreement and refused to testify. Because the State\u2019s case against defendant hinged on Parlier\u2019s testimony, the State agreed to accept defendant\u2019s plea of guilty to second-degree murder in exchange for dismissal of the remaining charges. A more complete recitation of the facts in this case is set out in State v. Hurt, 163 N.C. App. 429, 594 S.E.2d 51 (2004), rev\u2019d, 359 N.C. 840, 616 S.E.2d 910 (2005).\nThe trial court found two statutory aggravating factors: that the offense was especially heinous, atrocious, or cruel (HAC), pursuant to N.C.G.S. \u00a7 15A-1340.16(d)(7); and that \u201cdefendant joined with his co-defendant, William Wayne Parlier, in committing an offense of robbery from the person of the victim, Mr. Cook, and was not charged with committing conspiracy,\u201d pursuant to N.C.G.S. \u00a7 15A-1340.16(d)(2). In addition, the trial court found as a non-statutory aggravating factor that \u201cdefendant acting in concert with his co-defendant, William Wayne Parlier, took and carried away from the person of Howard Nelson Cook property, to wit, $4 in U.S. currency, by force and placing the victim in fear of bodily harm or threats of bodily harm.\u201d The court also found several mitigating factors, determined that the aggravating factors outweighed the mitigating factors, and sentenced defendant to a minimum of 276 months and a maximum of 341 months incarceration.\nDefendant appealed to the Court of Appeals, which, in a divided opinion, vacated the sentence and remanded for resentencing on grounds that the trial court erred in treating as a statutory aggravating factor its finding that defendant \u201cjoined with one other person, Parlier, in committing the offense of robbery and was not charged with conspiracy.\u201d Hurt, 163 N.C. App. at 435, 594 S.E.2d at 56. After the State filed its appeal of right to this Court, defendant filed a motion for appropriate relief (MAR), alleging that the trial court committed Blakely error when it failed \u201cto empanel a jury to consider potential aggravating factors or secure a stipulation from [defendant] as to factors supporting aggravated range sentencing.\u201d\nUpon consideration of defendant\u2019s appeal and his MAR, we reversed the Court of Appeals holding as to the aggravating factor at issue, finding that the facts cited by the trial court constituted a non-statutory aggravator. State v. Hurt, 359 N.C. at 842, 616 S.E.2d at 912. However, we remanded for resentencing consistent with Blakely and this Court\u2019s opinion in State v. Allen, which held that a trial court committed structural error when it imposed an aggravated sentence based upon findings of fact made by a judge. Hurt, 359 N.C. at 845-46, 616 S.E.2d at 913-14 (citing Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), withdrawn, 360 N.C. 569, 635 S.E.2d 899 (2006)). Thereafter, we allowed the State\u2019s motion to stay issuance of the mandate. Hurt, 359 N.C. 846, 620 S.E.2d 528 (2005).\nOn 26 June 2006, the United States Supreme Court issued its decision in Recuenco, holding that \u201c[f]ailure to submit a sentencing factor to the jury ... is not structural error.\u201d 126 S. Ct. at 2553, 165 L. Ed. 2d at 477. On 21 August 2006, we ordered the State \u201cto file and serve a supplemental brief with this Court, limited to the questions of whether there was error in this case pursuant to Washington v. Recuenco and, if so, whether any error can be found to be harmless beyond a reasonable doubt.\u201d Hurt, 360 N.C. 572, 572, 636 S.E.2d 188, 189 (2006).\nThe United States Supreme Court has held 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 Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000). The Supreme Court later refined this holding by clarifying that \u201cthe \u2018statutory maximum\u2019 for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.\u201d Blakely, 542 U.S. at 303, 159 L. Ed. 2d at 413. Thus, while a trial court may impose an aggravated sentence on the basis of admissions made by a defendant, error occurs when a judge aggravates a criminal sentence on the basis of findings made by the judge that are in addition to or in lieu of findings made by a jury.\nThe State first contends that no Blakely error occurred and harmless error analysis is not necessary because, according to the State, defendant admitted to the facts supporting all three of the aggravating factors found. The State asserts the admissions occurred when defendant failed to challenge the facts presented by the prosecutor during the sentencing hearing and when defendant\u2019s counsel argued that the aggravating factors should not apply to defendant. Specifically, as to the nonstatutory aggravating factor that defendant and Parlier took four dollars from the victim by force, the State argues that defendant\u2019s counsel did not dispute facts found by the trial court supporting this factor. The State similarly contends that, by arguing that defendant\u2019s role was minimal, defendant\u2019s counsel admitted to facts supporting the aggravating factor that defendant joined with another to commit the offense but was not charged with conspiracy. Finally, the State notes that when it urged the trial court to find the HAC aggravating factor, defendant\u2019s counsel again responded by arguing that defendant\u2019s role in the offense was minor because he only aided and abetted the principal perpetrator. The State asks us to interpret the arguments of defendant\u2019s counsel as tacit admissions of facts supporting the aggravating factors found by the trial court. Defendant responds that he did not personally admit to any aggravating factor in the case, and that defense counsel\u2019s arguments opposing a finding of the aggravating factors were neither admissions nor stipulations.\nA stipulation must be \u201cdefinite and certain in order to afford a basis for judicial decision.\u201d State v. Powell, 254 N.C. 231, 234-35, 118 S.E.2d 617, 619-20 (1961) (explaining the trial court erred \u201cby not insisting upon a full, complete, definite and solemn admission and stipulation\u201d) (citation omitted), superseded on other grounds by statute, Safe Roads Act, N.C.G.S. \u00a7 20-138.1 and -179 (1989), as recognized in State v. Denning, 316 N.C. 523, 342 S.E.2d 855 (1986). While we have recognized that stipulations and admissions may take a variety of forms and may be found by implication, see, e.g., State v. Mullican, 329 N.C. 683, 686, 406 S.E.2d 854, 855 (1991) (holding that when the prosecutor said he summarized the State\u2019s evidence \u201cwith the permission of the defendant,\u201d the defendant\u2019s failure to object was a factor supporting the finding of a stipulation), after reviewing the arguments made at sentencing, we are satisfied that, at most, defendant\u2019s attorney was acknowledging that the aggravating factors might apply as he asked the trial court not to accept the State\u2019s argument. We do not believe defense counsel\u2019s argument opposing imposition of an aggravating factor can be construed as an admission that the very same aggravating factor did apply to defendant. To the contrary, we hold that a judge may not find an aggravating factor on the basis of a defendant\u2019s admission unless that defendant personally or through counsel admits the necessary facts or admits that the aggravating factor is applicable. See Blakely, 542 U.S. at 303, 159 L. Ed. 2d at 413.\nHere, our review of the record reveals that while defendant admitted to the underlying facts supporting the second-degree murder charge, nowhere did he admit that those facts supported the existence of the HAC aggravator as to him. Consequently, the trial court committed Blakely error when it found this aggravating factor without submitting it to the jury.\nNext, defendant contends the Blakely error in this case was structural error because North Carolina allegedly lacked a procedural mechanism by which judges could submit aggravating factors to the jury, and because Blakely error allegedly violates Article I, Section 24 of the North Carolina Constitution. For the reasons set out in State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006), cert. denied, -U.S.-,-L. Ed. 2d-, 75 U.S.L.W. 3609 (2007), we hold these arguments to be without merit.\nFinally, the State argues that, in light of the overwhelming evidence against defendant, any Blakely error in this case was harmless beyond a reasonable doubt. Defendant responds that, because there is no credible evidence that he, rather than Parlier, killed the victim, a jury could have declined to apply any aggravating factor to him.\nWe begin by considering the HAC aggravator, which 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). The State has the burden of proving that the judge\u2019s finding of the HAC aggravating factor was harmless beyond a reasonable doubt. See N.C.G.S. \u00a7 15A-1443(b) (2005) (\u201cA violation of the defendant\u2019s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.\u201d). If this Court concludes that the HAC aggravating factor was \u201cso \u2018overwhelming\u2019 and \u2018uncontroverted\u2019 that any rational fact-finder would have found the disputed aggravating factor beyond a reasonable doubt,\u201d then the Blakely error in finding this aggravating factor would be harmless beyond a reasonable doubt. Blackwell, 361 N.C. at 49, 638 S.E.2d at 458 (citing N.C.G.S. \u00a7 15A-1443(b); Neder v. United States, 527 U.S. 1, 9, 144 L. Ed. 2d 35, 47 (1999); State v. Heard, 285 N.C. 167, 172, 203 S.E.2d 826, 829 (1974)).\nThe State\u2019s evidence that the victim asked to be allowed to say a prayer before he was killed; that he begged for his life and tried to run away; that he was stabbed twelve times; that he suffered blunt force trauma to his head, neck, chest, abdomen, and extremities; and that he \u201cprobably suffered quite severely while the wounds were being inflicted,\u201d could have led the jury to find that the offense itself was especially heinous, atrocious, or cruel. However, the fact that the jury could have found the HAC aggravator does not mean that the jury necessarily would have found it beyond a reasonable doubt. \u201cIt is . . . proper at sentencing to consider the defendant\u2019s actual role in the offense as opposed to his legal liability for the acts of others.\u201d State v. Benbow, 309 N.C. 538, 546, 308 S.E.2d 647, 652 (1983). The State conceded that its case was stronger against Parlier than against defendant. The DNA evidence did no more than place defendant at the front door of the victim\u2019s house, while much of the remaining evidence against defendant established only that he helped dispose of evidence after the murder. Parlier\u2019s statements implicating defendant, though damning, were also self-serving and, had Parlier testified at trial, would have been subject to impeachment through cross-examination. In addition, evidence presented by defendant\u2019s niece corroborated defendant\u2019s claim that Parlier had motive to kill the victim. She testified that the victim had given loans to Parlier, who wanted even more money. She added that a couple of weeks before the murder, the victim told her Parlier was threatening him and if anything ever happened to him, Parlier would be the one who did it.\nUnder these circumstances, the evidence supporting the HAC aggravator was neither overwhelming nor uncontradicted. Accordingly, we hold that the evidence was insufficient to establish that the trial court\u2019s Blakely error in finding the HAC aggravating factor was harmless beyond a reasonable doubt. We note, however, that our review of the evidence for the purpose of harmless error review and our subsequent holding that the judge\u2019s decision to apply the aggravating factor was error does not preclude the State from submitting evidence of the factor to a jury on resentencing.\nHaving concluded that the trial court\u2019s finding of the HAC aggravating factor was not harmless error, we need not consider the other two aggravating factors. If the State seeks an aggravated sentence upon remand, the trial court can consider the evidence then presented to determine which aggravating factors may be submitted to the jury.\nIn light of Recuenco, we vacate the portion of our previous opinion in this case, reported at 359 N.C. 840, 616 S.E.2d 910, that remands this case due to structural error and instead remand to the Court of Appeals because the trial court\u2019s Blakely error was not harmless beyond a reasonable doubt. We leave undisturbed our analysis of the aggravating factor at issue in that opinion, which reversed the decision of the Court of Appeals, reported at 163 N.C. App. 429, 594 S.E.2d 51. See Hurt, 359 N.C. 840, 843-45, 616 S.E.2d 910, 912-13. The stay entered in this case by this Court on 2 September 2005 is dissolved. We remand to the Court of Appeals with instructions to remand to the trial court for a new sentencing hearing.\nThe decision of the Court of Appeals, reported at 163 N.C. App. 429, 594 S.E.2d 51, is\nREVERSED IN PART AND AFFIRMED IN PART AS MODIFIED.\nThe decision of this Court, reported at 359 N.C. 840, 616 S.E.2d 910, is\nVACATED IN PART AND AFFIRMED IN PART.\nJustices TIMMONS-GOODSON and HUDSON did not participate in the consideration or decision in this case.\n. The General Assembly has codified the procedure to be used when a defendant admits the existence of an aggravating factor at sentencing for all offenses committed after 30 June 2005. N.C.G.S. \u00a7 15A-1022.1 (2005). Because the offense here occurred in 1999, this statute does not apply to the case at bar.", "type": "majority", "author": "EDMUNDS, Justice." } ], "attorneys": [ "Roy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy Attorney General, for the State-appellant.", "Staples S. Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID FRANKLIN HURT\nNo. 192A04-2\n(Filed 4 May 2007)\n1. Sentencing\u2014 aggravating factors \u2014 heinous, atrocious, or cruel murder \u2014 failure to submit to jury \u2014 counsel\u2019s argument not admission \u2014 Blakely error\nThe trial court erred under Blakely v. Washington, 542 U.S. 296, when it found the especially heinous, atrocious, or cruel aggravating factor without submitting it to the jury in a second-degree murder sentencing hearing where defendant admitted to the underlying facts supporting the second-degree murder charge but did not admit that those facts supported the existence of such aggravating factor as to him. A judge may not find an aggravating factor on the basis of a defendant\u2019s admission unless that defendant personally or through counsel admits the necessary facts or admits that the aggravating factor is applicable, and defense counsel\u2019s argument opposing imposition of the aggravating factor could not be construed as an admission that the aggravating factor did apply to defendant.\n2. Sentencing\u2014 aggravating factors \u2014 Blakely error \u2014 not structural\nThe North Carolina Supreme Court relied on State v. ' Blackwell, 361 N.C. 41, in rejecting arguments that Blakely error was structural and violated Article I, \u00a7 24 of the North Carolina Constitution.\n3. Sentencing\u2014 aggravating factors \u2014 Blakely error \u2014 not harmless\nThe trial court\u2019s Blakely error in finding the especially heinous, atrocious, or cruel aggravating factor without submitting it to the jury in a second-degree murder sentencing hearing was not harmless beyond a reasonable doubt in light of the conflicting evidence as to defendant\u2019s role in the offense.\nUpon reconsideration of this Court\u2019s opinion in State v. Hurt, 359 N.C. 840, 616 S.E.2d 910 (2005), pursuant to the order of the United States Supreme Court entered 30 June 2006 vacating the judgment of this Court in North Carolina v. Speight, 126 S. Ct. 2977, 165 L. Ed. 2d 983 (2006) and remanding that case to this Court for further consideration in light of Washington v. Recuenco, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006). Heard in the Supreme Court 17 October 2006.\nRoy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy Attorney General, for the State-appellant.\nStaples S. Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellee." }, "file_name": "0325-01", "first_page_order": 383, "last_page_order": 391 }