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State v. Hinton

Court of Appeals of North Carolina

January 15, 2019

STATE OF NORTH CAROLINA
v.
CAMERON LEE HINTON

          Heard in the Court of Appeals 13 November 2018.

          Appeal 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 & Irons, P.A., by Ben G. Irons II, for defendant-appellant.

          ZACHARY, JUDGE.

         Defendant 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 was harmless.

         Background

         A jury 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, [1] 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. § 15A-1340.16(d)(12a) (2017).

         The 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. § 15A-1340.16(d)(12a).

         On the 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.

         Although 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.

         On 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.

         Discussion

         The 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. ยง 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. ...


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