IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-530
Filed: 15 January 2019
Wake County, Nos. 16 CRS 207849-50
STATE OF NORTH CAROLINA
v.
CAMERON LEE HINTON
Appeal by defendant by petition for writ of certiorari from judgments entered
20 November 2017 by Judge Paul C. Ridgeway in Wake County Superior Court.
Heard in the Court of Appeals 13 November 2018.
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
STATE V. HINTON
Opinion of the Court
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
1 Defendant was sentenced as a prior record level VI for the Class G felonies. See N.C. Gen.
Stat. § 15A-1340.17 (2017).
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Opinion of the Court
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
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STATE V. HINTON
Opinion of the Court
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. § 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. § 15A-1340.17(c)(4) if one or more enumerated aggravating factors are
found to exist. Id. § 15A-1340.16(b).
N.C. Gen. Stat. § 15A-1340.16(d) sets forth thirty aggravating factors for
sentencing purposes. For example, a defendant may be sentenced in the aggravated
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STATE V. HINTON
Opinion of the Court
range if the underlying offense was committed “for the benefit of, or at the direction
of, any criminal gang”; while the defendant was on “pretrial release on another
charge”; or with the involvement of “a person under the age of 16.” Id. § 15A-
1340.16(d)(2a), (12), (13).
The aggravating factor at issue in the instant case is subdivision (12a), which
provides that: “The defendant has, during the 10-year period prior to the commission
of the offense for which the defendant is being sentenced, been found by a court of
this State to be in willful violation of the conditions of probation imposed pursuant to
a suspended sentence.” Id. § 15A-1340.16(d)(12a). In other words, a trial court may
impose an aggravated sentence beyond the presumptive range if the defendant has
been found in willful violation of the terms of his probation at any time within the
previous ten years, even if such violation is unrelated to the offense for which the
defendant is currently being sentenced.
The State must provide written notice to a defendant of its intent to prove the
existence of an aggravating factor. Id. § 15A-1340.16(a6). Thereafter, “[t]he
defendant may admit to the existence of [the] aggravating factor.” Id. § 15A-
1340.16(a1). However, “[i]f the defendant does not so admit, only a jury may
determine if an aggravating factor is present in an offense[,]” id., which the State will
bear “the burden of proving beyond a reasonable doubt[.]” Id. § 15A-1340.16(a).
I. Blakely v. Washington
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Opinion of the Court
Before 2005, the State was not required to prove the existence of an
aggravating factor beyond a reasonable doubt, but merely by a preponderance of the
evidence. 2005 N.C. Sess. Laws 253, 253, ch. 145, § 1. In addition, the court, rather
than the jury, determined whether the State had met that burden. Id. In 2005, the
General Assembly revised the governing sentencing statutes in order to “conform
with the United States Supreme Court decision in Blakely v. Washington.” Id.
In Blakely, the United States Supreme Court addressed Washington’s
statutory regime, which allowed a trial judge to sentence a defendant “beyond the
standard maximum” sentencing range upon the trial judge’s finding of one or more
“statutorily enumerated ground[s] for departure” therefrom. Blakely, 542 U.S. at
300, 159 L. Ed. 2d at 411. The Blakely defendant had “pleaded guilty to the
kidnapping of his estranged wife,” and “[t]he facts admitted in his plea, standing
alone, supported a maximum sentence of 53 months.” Id. at 298, 159 L. Ed. 2d at
410. Nevertheless, “[p]ursuant to state law, the court imposed an ‘exceptional’
sentence of 90 months after making a judicial determination that he had acted with
‘deliberate cruelty.’ ” Id. The issue presented to the Supreme Court was “whether
this violated [the defendant’s] Sixth Amendment right to trial by jury.” Id. The
Court concluded that it did.
“Taken together,” the Sixth Amendment and the Due Process Clause of the
Fourteenth Amendment “indisputably entitle a criminal defendant to a jury
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Opinion of the Court
determination that he is guilty of every element of the crime with which he is charged,
beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 477, 147 L. Ed.
2d 435, 447 (2000) (brackets and quotation marks omitted). Apprendi addressed the
definition of an “element of the crime,” id., and established the following rule: “Other
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.” Id. at 490, 147 L. Ed. 2d at 455. In light of this rule, the
Blakely Court thus held “that a trial judge’s sentencing of a defendant beyond the
statutory maximum, based on the trial judge’s finding [of an aggravating factor],
violated the defendant’s right to trial by jury under the Sixth Amendment to the
United States Constitution.” State v. Blackwell, 361 N.C. 41, 44, 638 S.E.2d 452, 455
(2006), cert. denied, 550 U.S. 948, 167 L. Ed. 2d 114 (2007). The Blakely Court further
established that “the ‘statutory maximum’ 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.” Blakely, 542 U.S. at 303, 159 L. Ed. 2d at 413. In
North Carolina, the “statutory maximum” is “the presumptive range for a given
offense and prior record level.” State v. Norris, 360 N.C. 507, 514, 630 S.E.2d 915,
919, cert. denied, 549 U.S. 1064, 166 L. Ed. 2d 535 (2006).
The Blakely and Apprendi rules find their support both in history and in
reason. At the time of our nation’s founding, “[a]ny possible distinction between an
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Opinion of the Court
‘element’ of a felony offense and a ‘sentencing factor’ was unknown.” Apprendi, 530
U.S. at 478, 147 L. Ed. 2d at 448. There was an “invariable linkage of punishment
with crime,” and a defendant was therefore able “to predict with certainty [his]
judgment from the face of the felony indictment[.]” Id. “[T]he judgment, though
pronounced or awarded by the judges, [was] not their determination or sentence, but
the determination and sentence of the law.” Id. at 479-80, 147 L. Ed. 2d at 448-49.
“The judge was meant simply to impose that sentence . . . .” Id. at 479, 147 L. Ed. 2d
at 448.
This history “highlight[s] the novelty of a legislative scheme that removes the
jury from the determination of a fact that, if found, exposes the criminal defendant to
a penalty exceeding the maximum he would receive if punished according to the facts
reflected in the jury verdict alone.” Id. at 482-83, 147 L. Ed. 2d at 450. In other
words, where a defendant will face an aggravated punishment if the “offense is
committed under certain circumstances but not others, . . . it necessarily follows that
the defendant should not—at the moment the State is put to proof of those
circumstances—be deprived of protections that have, until that point, unquestionably
attached.” Id. at 484, 147 L. Ed. 2d at 451. As Justice Scalia explained in Blakely,
[i]n a system that says the judge may punish burglary with
10 to 40 years, every burglar knows he is risking 40 years
in jail. In a system that punishes burglary with a 10-year
sentence, with another 30 added for use of a gun, the
burglar who enters a home unarmed is entitled to no more
than a 10-year sentence—and by reason of the Sixth
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STATE V. HINTON
Opinion of the Court
Amendment the facts bearing upon that entitlement must
be found by a jury.
Blakely, 542 U.S. at 309, 159 L. Ed. 2d at 417.
Quite simply, the United States Constitution provides every defendant with
“the right to insist that the prosecutor prove to a jury all facts legally essential to the
punishment.” Id. at 313, 159 L. Ed. 2d at 420 (original emphasis omitted). “The jury
could not function as circuitbreaker in the State’s machinery of justice if it were
relegated to making a determination that the defendant at some point did something
wrong, a mere preliminary to a judicial inquisition into the facts of the crime the
State actually seeks to punish.” Id. at 306-07, 159 L. Ed. 2d at 415-16. “Just as
suffrage ensures the people’s ultimate control in the legislative and executive
branches, jury trial is meant to ensure their control in the judiciary.” Id. at 306, 159
L. Ed. 2d at 415. The Blakely Court thus explained:
Petitioner was sentenced to prison for more than three
years beyond what the law allowed for the crime to which
he confessed, on the basis of a disputed finding that he had
acted with “deliberate cruelty.” The Framers would not
have thought it too much to demand that, before depriving
a man of three more years of his liberty, the State should
suffer the modest inconvenience of submitting its
accusation to “the unanimous suffrage of twelve of his
equals and neighbours,” rather than a lone employee of the
State.
Id. at 313-14, 159 L. Ed. 2d at 420 (citation omitted).
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STATE V. HINTON
Opinion of the Court
Accordingly, following Blakely, trial judges are no longer authorized to
“enhance criminal sentences beyond the statutory maximum absent a jury finding of
the alleged aggravating factors beyond a reasonable doubt.” Blackwell, 361 N.C. at
45, 638 S.E.2d at 455. Our General Assembly therefore amended N.C. Gen. Stat. §
15A-1340.16 to require (1) that the jury determine whether an aggravating factor
exists, thereby warranting an aggravated sentence, and (2) that the State bear the
burden of proving the same beyond a reasonable doubt. 2005 N.C. Sess. Laws 253,
253, ch. 145, § 1.
II. Factor (12a) and Blakely
Nevertheless, “the Sixth Amendment was not written for the benefit of those
who choose to forgo its protection.” Blakely, 542 U.S. at 312, 159 L. Ed. 2d at 419.
“[T]he Sixth Amendment by its terms is not a limitation on judicial power, but a
reservation of jury power. It limits judicial power only to the extent that the claimed
judicial power infringes on the province of the jury.” Id. at 308, 159 L. Ed. 2d at 417.
Therefore, when the aggravating factor at issue is either admitted by the defendant
or reflects the existence of a prior conviction, the trial court may determine whether
that aggravating factor exists without invading the “province of the jury.” Id.; see
also State v. Everette, 361 N.C. 646, 653, 652 S.E.2d 241, 246 (2007) (“Blakely . . .
specifically excluded several categories of aggravated sentences from the scope of the
right it contemporaneously recognized: (1) those imposed on the basis of a prior
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Opinion of the Court
conviction; (2) those imposed solely on the basis of the facts reflected in the jury
verdict; and (3) those imposed solely on the basis of the facts admitted by the
defendant, or to which the defendant stipulates . . . .” (ellipsis, internal citations, and
quotation marks omitted)).
There are two aggravating factors that implicate the existence of a prior
adjudication in this State. See N.C. Gen. Stat. § 15A-1340.16(d)(12a), (18a). At issue
in the instant case is factor (12a): that Defendant had, within the past ten years,
“been found . . . to be in willful violation of the conditions of probation.” Id. § 15A-
1340.16(d)(12a). Defendant did not admit to the existence of this aggravating factor
at his sentencing hearing. Cf. Everette, 361 N.C. at 652, 652 S.E.2d at 245 (“[The
State] argues . . . that the trial court’s finding that [the] defendant was on pretrial
release at the time he committed the instant offenses comported with Blakely because
[the] defendant admitted to the existence of this aggravating factor.”). The other
factor, (18a), allows for an aggravated sentence if “[t]he defendant has previously
been adjudicated delinquent for an offense that would be a Class A, B1, B2, C, D, or
E felony if committed by an adult.” N.C. Gen. Stat. § 15A-1340.16(d)(18a).
Presumably under the supposition that the existence of a prior adjudication
would satisfy the demands of due process, the General Assembly exempted (12a) and
(18a) from the requirement that aggravating factors must be found by a jury: “If the
jury, or with respect to an aggravating factor under G.S. 15A-1340.16(d)(12a) or (18a),
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STATE V. HINTON
Opinion of the Court
the court, finds that aggravating factors exist . . . , the court may depart from the
presumptive range of sentences specified in G.S. 15A-1340.17(c)(2).” N.C. Gen. Stat.
§ 15A-1340.16(b) (emphasis added).2 As Defendant notes, however, the
constitutionality of this regime warrants further consideration.3
Under factor (12a), it is not for the sentencing judge to decide whether the
defendant committed a willful violation of his probation within the past ten years,
but whether the defendant has already been found to have committed the same. Thus,
under the statutory framework, even if it were the jury’s task to find the existence of
factor (12a) beyond a reasonable doubt, its determination would be limited to finding
the existence of the prior adjudication alone. Whether the jury was satisfied that the
defendant had in fact willfully violated the terms of his probation would be of no
concern.
2 Despite subsection (b)’s explicit exception for the (12a) aggravating factor, Defendant
observes that subsection (d)’s final paragraph provides only that “the determination that an
aggravating factor under G.S. 15A-1340.16(d)(18a) is present in a case shall be made by the court, and
not by the jury.” N.C. Gen. Stat. § 15A-1340.16(d) (emphasis added). Defendant appears to argue that
because this provision does not also include the (12a) aggravating factor, the General Assembly must
not have intended to except it from the jury’s determination at all. However, as the State notes, “[t]o
construe this as meaning that a court cannot make a finding under N.C. Gen. Stat. § 15A-
1340.16(d)(12a) would directly contravene the statute’s plain language and, in effect, delete terms from
it, which is not a proper mode of statutory construction in North Carolina.”
3 Initially, the State argues that “[D]efendant has waived any constitutional arguments”
pursuant to Rule 10(a)(1) of the appellate rules “because his objection in the trial court was premised
upon a violation of N.C. Gen. Stat. § 15A-1340.16 rather than any constitutional violation.” However,
Defendant explicitly cited and relied on Blakely in his argument before the trial court. It was thus
“apparent from the context” that Defendant’s argument was upon constitutional grounds, and this
issue is preserved for appellate review. N.C.R. App. P. 10(a)(1).
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STATE V. HINTON
Opinion of the Court
As Defendant notes, “Blakely allowed courts to make determination[s] of
previous convictions because the defendants in those cases had pled guilty or had
been found guilty by a jury beyond a reasonable doubt. In other words, they would
have already exercised their rights under the Sixth and Fourteenth Amendments or
waived those rights.” (Citation omitted). In North Carolina, however, a probation
violation is found neither by a jury nor by proof beyond a reasonable doubt:
A proceeding to revoke probation [for a willful violation of
the conditions thereof] is often regarded as informal or
summary, and the court is not bound by strict rules of
evidence. An alleged violation by a defendant of a condition
upon which his sentence is suspended need not be proven
beyond a reasonable doubt. All that is required is that the
evidence be such as to reasonably satisfy the judge in the
exercise of his sound discretion that the defendant has
violated a valid condition upon which the sentence was
suspended. The findings of the judge, if supported by
competent evidence, and his judgment based thereon are
not reviewable on appeal, unless there is a manifest abuse
of discretion.
State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000) (emphasis
added) (brackets, internal citations, and quotation marks omitted). Thus, while
Defendant was indeed “found by a court of this State to be in willful violation of the
conditions of probation” in 2013, N.C. Gen. Stat. § 15A-1340.16(d)(12a), that
judgment was entered pursuant to a lesser burden of proof than “beyond a reasonable
doubt.” Tennant, 141 N.C. App. at 526, 540 S.E.2d at 808.
III. Application
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Opinion of the Court
Given the standard of proof that applies in this State, it is arguable whether a
judgment of a willful probation violation—be it by admission or court finding—is
sufficiently tantamount to a “prior conviction” to allow a sentencing judge to use that
previous finding as an aggravating factor justifying an increase in the length of a
defendant’s sentence beyond that authorized by the jury’s verdict alone consonant
with the demands of due process. Compare Almendarez-Torres v. United States, 523
U.S. 224, 240, 140 L. Ed. 2d 350, 366 (1998) (“Read literally, th[e] language [in
Mullaney v. Wilbur], we concede, suggests that Congress cannot permit judges to
increase a sentence in light of recidivism, or any other factor, not . . . proved to a jury
beyond a reasonable doubt. This Court’s later case, Patterson v. New York[], however
makes absolutely clear that such a reading of Mullaney is wrong.” (citing Mullaney v.
Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508 (1975) and Patterson v. New York, 432 U.S.
197, 53 L. Ed. 2d 281 (1977)), and State v. Hunter, 315 N.C. 371, 377, 338 S.E.2d 99,
104 (1986) (“[A] defendant is given the election between imprisonment and probation
in the first instance; and once he chooses probation, the statute guarantees full due
process before there can be a revocation of probation . . . .”), with Apprendi, 530 U.S.
at 489, 490, 495, 147 L. Ed. 2d at 454, 455, 458 (“[I]t is arguable that Almendarez-
Torres was incorrectly decided[.] . . . It is unconstitutional for a legislature to remove
from the jury the assessment of facts that increase the prescribed range of penalties
to which a criminal defendant is exposed. It is equally clear that such facts must be
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Opinion of the Court
established by proof beyond a reasonable doubt. . . . When a judge’s finding based on
a mere preponderance of the evidence authorizes an increase in the maximum
punishment, it is appropriately characterized as ‘a tail which wags the dog of the
substantive offense.’ ”), and Blakely, 542 U.S. at 311-12, 159 L. Ed. 2d at 418-19 (“Any
evaluation of Apprendi’s ‘fairness’ to criminal defendants must compare it with the
regime it replaced, in which a defendant . . . would routinely see his maximum
potential sentence balloon from as little as five years to as much as life imprisonment,
based not on facts proved to his peers beyond a reasonable doubt, but on facts
extracted . . . from a report compiled by a probation officer who the judge thinks more
likely got it right than got it wrong.” (internal citation omitted)).
As the State notes, this question “presents an issue of first impression for
North Carolina’s appellate courts.” However, we need not decide that question today.
Error under Blakely—if error at all—is subject to harmless error review.
Blackwell, 361 N.C. at 42, 638 S.E.2d at 453 (citing Washington v. Recuenco, 548 U.S.
212, 165 L. Ed. 2d 466 (2006)). Under that analysis, “our duty [is] to weigh the
evidence supporting the aggravating factor and determine whether the evidence was
so overwhelming and uncontroverted as to render any error harmless,” id. at 46, 638
S.E.2d at 456 (quotation marks omitted), in that “any rational fact-finder would have
found the disputed aggravating factor beyond a reasonable doubt.” Id. at 49, 638
S.E.2d at 458. “The defendant may not avoid a conclusion that evidence of an
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aggravating factor is uncontroverted by merely raising an objection at trial. Instead,
the defendant must bring forth facts contesting the omitted element, and must have
raised evidence sufficient to support a contrary finding.” Id. at 50, 638 S.E.2d at 458
(internal citation and quotation marks omitted).
In the instant case, although Defendant did not admit to having willfully
violated the conditions of his probation within the past ten years when the State
submitted that as an aggravating factor at his sentencing hearing, Defendant clearly
admitted the allegations contained in his probation violation report in 2013. We note
with emphasis that the diminished standard of proof applicable to Defendant’s
probation violation report might well have induced Defendant’s decision to forgo the
time and expense of adjudicating the same. However, it is significant that
Defendant’s probation violation report alleged him to be in willful violation of the
condition that he “commit no criminal offense” while on probation, pursuant to N.C.
Gen. Stat. § 15A-1343(b)(1). Therefore, even if the aggravating factor were
determined at Defendant’s sentencing hearing as Defendant proposes it should have
been under Blakely, the jury’s task would have been confined to the simple
determination of whether it was convinced—beyond a reasonable doubt—that
Defendant had committed another offense while he was on probation within the past
ten years. Cf. Everette, 361 N.C. at 654, 652 S.E.2d at 246 (“The aggravator at issue
here concerned the objective question of whether ‘the defendant committed the
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Opinion of the Court
offense while on pretrial release on another charge’ under N.C.G.S. § 15A-
1340.16(d)(12).” (brackets omitted)). Defendant was indeed convicted on 11 December
2013 of another offense (possession with intent to sell/distribute cocaine), which
Defendant committed while he was on probation, thus constituting a willful violation
of the conditions thereof. Because Defendant had unquestionably been convicted of
another offense while on probation within the past ten years, we necessarily conclude
that Defendant cannot establish that any alleged Blakely error was not harmless.
NO ERROR.
Judges BRYANT and DILLON concur.
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