State v. Allen

Decision Date01 July 2005
Docket NumberNo. 485PA04,485PA04
Citation599 SE 2d 557
CourtNorth Carolina Supreme Court

Roy Cooper, Attorney General, by Robert C. Montgomery, Assistant Attorney General, for the State-appellant.

Richard E. Jester for defendant-appellee.

BRADY, Justice.

The primary question presented for review is whether sentencing errors which violate a defendant's Sixth Amendment right to jury trial pursuant to the recent United States Supreme Court decision in Blakely v. Washington, ___ U.S. ___, 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's case to Gaston County Superior Court for resentencing. Preliminarily, this Court must also examine the effect of Blakely on criminal sentencing in North Carolina. We conclude that Blakely applies to North Carolina's Structured Sentencing Act and that N.C.G.S. ? 15A-1340.16, which is a part of that Act, violates the Sixth Amendment as interpreted in Blakely.

These holdings apply 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." 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).


On 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.

During 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's abuse of his son was especially heinous, atrocious, or cruel. In mitigation, Judge Caudill found three factors by a preponderance of the evidence: (1) "the defendant has been a person of good character or has had a good reputation in the community," (2) "the defendant has a support system in the community," and (3) "the defendant was punished emotionally." Judge Caudill determined that "factors in aggravation outweigh the factors in mitigation and that an aggravated sentence is justified." Finally, Judge Caudill imposed an aggravated sentence of 115 months minimum to 147 months maximum imprisonment. Defendant's maximum aggravated sentence is eighteen months longer than the maximum presumptive sentence permitted by statute for a Class C felony, prior record level II.

Defendant appealed to the North Carolina Court of Appeals, contesting, among other assignments of error, the sufficiency of evidence supporting Judge Caudill's 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's decision in Blakely v. Washington, ___ U.S. ___, 159 L. Ed. 2d 403 (2004), which applied the Court's earlier holding in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000), to invalidate Washington State's "exceptional" sentencing system. On 7 September 2004, a unanimous panel of the Court of Appeals issued an opinion finding no error in defendant's trial, but remanded defendant's case for resentencing pursuant to Blakely and this Court's 1983 decision in State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).


This matter is before the Court on the State's petition for discretionary review, allowed 23 September 2004. Defendant contends that this Court lacks subject matter jurisdiction to review the Court of Appeals' 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. ? 15A-1422(f), which states that "[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."

We agree that N.C.G.S. ? 15A-1422(f) bars this Court's review of Court of Appeals' 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's 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. ?? 7A-27(a), 30 (2003). Collateral review of non-capital judgments and convictions is, in general, not a core function of the Supreme Court of North Carolina.

However, 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) ("Under 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.") (citations omitted); State v. Stanley, 288 N.C. 19, 26, 215 S.E.2d 589, 594 (1975) ("This 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.") (citations omitted). Read broadly, the Court of Appeals' decision in Allen, applying Blakely, calls into question the constitutionality of North Carolina's 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.

Because a prompt and definitive resolution of this issue is necessary to ensure the continued fair and effective administration of North Carolina's 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. ? 15A-1422(f) cannot restrict this Court's constitutionally granted power to "issue any remedial writs necessary to give it general supervision and control over the proceedings of the other courts." N.C. Const. art. IV, ? 12, cl. 1; see also id. art. IV, ? 1 ("The 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 . . . .").

For the reasons stated above, we determine that the State's petition for discretionary review of the decision of the Court of Appeals resolving defendant's motion for appropriate relief is properly before this Court. We now consider the effect of Blakely v. Washington on North Carolina's Structured Sentencing Act and the proper standard of review to be applied when Blakely error is identified in a defendant's case.


In 1979 the North Carolina General Assembly enacted presumptive sentencing legislation, commonly known as the "Fair Sentencing Act," in "response 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." 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 "typical indeterminate sentencing law." Stevens H. Clarke, Law of Sentencing, Probation and Parole in North Carolina 39-40 (Inst. Of Gov't, Univ. Of N.C. at Chapel Hill 1991) [hereinafter, Clarke, Sentencing]. "Ranges of prison terms were wide for broadly defined crimes," and "[n]o criteria for sentencing were set by statute, court decision, or court rules." Id. at 40.

North Carolina's Fair Sentencing Act was revised several times before it went into effect on 1 July 1981. See N.C.G.S. ? 15A-1340.1 (1995). The act stated that

[t]he primary purposes of sentencing a person convicted of a crime

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