State v. Boyd
| Decision Date | 15 January 2002 |
| Docket Number | No. COA99-1368-2.,COA99-1368-2. |
| Citation | 148 NC App. 304,559 S.E.2d 1 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Phillip Eugene BOYD. |
Attorney General Michael F. Easley, by Assistant Attorney General Robert C. Montgomery, for the State.
Daniel Shatz, Durham, for defendant-appellant.
This opinion supersedes and replaces our unpublished opinion in this case filed 29 December 2000. The following is a brief recitation of the facts necessary to the issues presented in this appeal.
This case arose from defendant's encounter with his girlfriend, Onjaya Scott, and her friend, Jacqueline Murphy, on 13 May 1995. On the night of 12 May 1995, Ms. Murphy was spending the night with Ms. Scott in Ms. Scott's apartment. The State's evidence tended to show that during the early morning of 13 May 1995, defendant entered the apartment, struck Ms. Scott in the face, pointed a gun at Ms. Murphy, and held the two women in the apartment for approximately two and one-half hours. During this time, he threatened to kill the women if they tried to run, and savagely beat Ms. Murphy with a rolling pin, fracturing both of her hands.
Defendant was convicted of one count of simple assault on Ms. Scott, one count of assault with a deadly weapon with intent to kill inflicting serious bodily injury on Ms. Murphy, two counts of second degree kidnapping, and two counts of being an habitual felon. In defendant's first appeal, another panel of this Court found no error in defendant's trial, but vacated the sentence and awarded him a new sentencing hearing. State v. Boyd (COA96-662, unpublished opinion filed 6 May 1997), 126 N.C.App. 226, 491 S.E.2d 563, disc. review denied, 346 N.C. 550, 488 S.E.2d 811 (1997). In a second appeal, defendant contested his resentencing. Another panel of this Court again vacated his sentences and remanded for still another sentencing hearing. State v. Boyd (COA98-197, unpublished opinion filed 29 December 1998), 131 N.C.App. 879, 516 S.E.2d 652 (1998). In the present appeal, we are asked to review defendant's sentence.
The resentencing at issue here was conducted on 3 May 1999. The court imposed two consecutive sentences on defendant. The first sentence is based on defendant's conviction in 95CRS 14675 of Ms. Murphy, enhanced to a Class C felony by reason of defendant's habitual felon status. As to this offense, defendant received a minimum of 86 and a maximum of 113 months' imprisonment. The second sentence relates to the following consolidated offenses: (1) second degree kidnapping of Ms. Scott in 95CRS 14676, enhanced to a Class C felony by reason of habitual felon status, (2) assault with a deadly weapon inflicting serious injury on Ms. Murphy in 95CRS 14674, a Class E felony, and (3) simple assault on Ms. Scott in 95CRS 13585, a misdemeanor. For these consolidated offenses, defendant received a minimum of 108 and a maximum of 139 months' imprisonment. Pursuant to N.C. Gen.Stat. § 15A-1340.16A, the firearm enhancement section of the Structured Sentencing Act, the sentencing judge enhanced the punishment for these consolidated offenses by sixty months. Defendant's sentence for the consolidated offenses then became a minimum of 168 and a maximum of 211 months' imprisonment.
The firearm enhancement section of the Structured Sentencing Act provides:
N.C. Gen.Stat. § 15A-1340.16A (1999).
At the outset, we address defendant's contention that evidence of the display or threatened use of a firearm in this case was necessary to prove the element of restraint in the underlying felony of second degree kidnapping, in violation N.C. Gen.Stat. § 15A-1340.16A(b)(2). Our own Supreme Court has made clear that even where a defendant displayed a firearm when he kidnapped and raped the victim, "the use or display of a firearm is not an essential element of second-degree kidnapping" and thus, a trial court is "not precluded from relying on evidence of defendant's use of the firearm and enhancing defendant's term of imprisonment pursuant to the firearm enhancement section [in N.C. Gen.Stat. § 15A-1340.16A(b)(2) ]." State v. Ruff, 349 N.C. 213, 216-17, 505 S.E.2d 579, 581 (1998). Defendant's argument is without merit.
Defendant next contends his sentence under the firearm enhancement provision in N.C. Gen Stat. § 15A-1340.16A must be vacated in light of the United States Supreme Court's recent decision in Apprendi v. New Jersey, because it subjected him to increased punishment which was not charged in the indictment, not submitted to a jury and not proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). For the reasons stated in State v. Lucas, 353 N.C. 568, 548 S.E.2d 712, we agree with defendant's contention on this issue. In Lucas, our Supreme Court held that "in every instance where the State seeks an enhanced sentence pursuant to N.C.G.S. § 15A-1340.16A, it must allege the statutory factors supporting the enhancement in an indictment ... and submit those factors to the jury." Id. at 597-98, 548 S.E.2d at 731. Accordingly, since defendant's indictment failed to allege the statutory factors supporting enhancement, the imposition of the firearm enhancement penalty to defendant's sentence in this case is vacated and the case is remanded for resentencing consistent with the Supreme Court's decision in Lucas.
Defendant next contends the trial court erred by using the aggravating factor that Ms. Murphy suffered permanent and debilitating injuries to increase defendant's sentence as to the consolidated judgment. Defendant concedes he raised this issue in his previous appeal. Indeed, a prior panel of this Court addressed defendant's contention and found no error in applying the aggravating factor to the entire consolidated judgment. "According to the doctrine of the law of the case, once an appellate court has ruled on a question, that decision becomes...
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