in the Court of Appeals 13 November 2018.
by defendant by petition for writ of certiorari from
judgments entered 20 November 2017 by Judge Paul C. Ridgeway
in Wake County Nos. 16 CRS 207849-50 Superior Court.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General M. Lynne Weaver, Assistant Attorney General Daniel T.
Wilkes, and Assistant Attorney General Kimberly N. Callahan,
for the State.
& Irons, P.A., by Ben G. Irons II, for
Cameron Lee Hinton appeals by petition for writ of certiorari
from judgments entered upon his two convictions for common
law robbery. Defendant argues that the trial court
erroneously sentenced him in the aggravated range because the
jury did not find the existence of the aggravating factor
beyond a reasonable doubt, in violation of Blakely v.
Washington, 542 U.S. 296, 159 L.Ed.2d 403 (2004), and
that his sentence should therefore be vacated and the matter
remanded for resentencing. We conclude that any such error
found Defendant guilty of two counts of common law robbery on
17 November 2017. Following the verdicts, the trial court
dismissed the jury and held a sentencing hearing. The State
had given timely notice of its intent to prove the existence
of an aggravating factor in order to increase Defendant's
sentences beyond the maximum statutory presumptive range of
25 to 39 months,  namely: that "during the 10-year
period prior to the commission of the offense for which . . .
[D]efendant is being sentenced," Defendant had been
found in willful violation of the conditions of his
probation, pursuant to N.C. Gen. Stat. §
State offered evidence in support of the aggravating factor
at Defendant's sentencing hearing. State's Exhibit 31
established that Defendant was placed on probation in October
2013 pursuant to a suspended sentence following his
conviction for assault on a female. The next month,
Defendant's probation officer filed a probation violation
report alleging that Defendant had willfully violated two
conditions of his probation, in that he (1) "failed to
make himself available for the mandatory initial home
visit," and (2) "failed to provide the probation
officer with documentation of enrollment in any abuser
treatment program." Defendant's probation violation
hearing was scheduled for 12 December 2013. That day,
Defendant's probation officer amended the violation
report to include a third probation violation, alleging that
Defendant had been convicted the previous day of possession
with intent to sell or distribute cocaine, with an offense
date of 15 November 2013. State's Exhibit 31 also
revealed that Defendant "waived a violation hearing and
admitted that he . . . violated each of the conditions of his
. . . probation as set forth" in the violation report.
Accordingly, on 12 December 2013, the trial court entered
judgment revoking Defendant's probation due to willful
violations of the conditions thereof and activated his
suspended sentence. Thus, in the instant case, State's
Exhibit 31 demonstrated that Defendant had, "during the
10-year period prior to the commission of the [common law
robbery] offense[s] for which [he was] being sentenced, been
found by a court of this State to be in willful violation of
the conditions of probation." N.C. Gen. Stat. §
basis of this aggravating factor, the State requested that
the trial court sentence Defendant in the aggravated range of
31 to 47 months' imprisonment for his two common law
robbery convictions. Defendant, however, citing N.C. Gen.
Stat. § 15A-1340.16(a1) and Blakely, argued
that the existence of the aggravating factor must be found by
the jury, rather than the sentencing judge. After
some discussion, the trial court ultimately found the
existence of the aggravating factor, "as evidenced by
State's Exhibit 31." The trial court thereafter
sentenced Defendant in the aggravated range to two
consecutive sentences of 31 to 47 months' imprisonment.
Defendant had given oral notice of appeal following the
jury's guilty verdicts, he did not expressly give notice
of appeal after sentencing because the trial court
interjected, "I will allow-notice of appeal has been
previously given in this case. We'll accept that notice
of appeal. . . . I am going to appoint the appellate defender
to represent [Defendant] from this point forward." An
outburst by Defendant thereafter disrupted the proceedings.
Nevertheless, Defendant filed a Petition for Writ of
Certiorari with this Court, which we allowed by order entered
25 October 2018.
appeal, Defendant argues that because the jury did not find
the existence of the aggravating factor beyond a reasonable
doubt, the trial court was not authorized to sentence him in
the aggravated range. Defendant maintains that the matter
should therefore be remanded for resentencing.
presumptive sentencing range by which trial courts are to
sentence defendants is established by statute, based upon the
classification of the offense of which the defendant was
convicted and the defendant's prior record level.
See N.C. Gen. Stat. § 15A-1340.17.
Nevertheless, a sentencing judge may deviate from the
presumptive range and impose a sentence in the aggravated
range pursuant to N.C. Gen. Stat. ...