concurring in part and dissenting in part.
I concur with the majority’s determination of the second and third issues, but respectfully dissent as to the first issue because I disagree with the majority’s overly broad conclusion that “whether an out-of-state offense is substantially similar to a North Carolina offense is a question of law that must be determined by the trial court, not a jury.” (emphasis added).
In the present case, it appears from the record that the trial court solely conducted a comparison of the elements of the two statutes and did not appear to undertake any type of factual analysis of the circumstances underlying defendant’s prior conviction. The trial court relied only on the statutes in making its determination, and therefore was within the bounds of Shepard. However, the majority’s conclusion that substantial similarity is a question of law that a trial court, and not a jury, must determine may lead a trial court into an inherent *261factual analysis that Shepard and Blakely require be determined by a jury. Absent guidance by N.C. Gen. Stat. § 15A-1340.14(e) (2003) on how a trial court should determine substantial similarity, a trial court may undertake an inherent factual inquiry into a defendant’s conduct to resolve whether the defendant would have been convicted under a similar North Carolina law.
Under Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), “ ‘[o]ther 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.’ ” Blakely, 542 U.S. at 301, 159 L. Ed. 2d at 412 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000)). The rule of Blakely, as applied to North Carolina’s structured sentencing scheme through State v. Allen, is: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt.” Allen, 359 N.C. 425, 437, 615 S.E.2d 256, 265 (2005). After Blakely, the North Carolina General Assembly enacted Session Law 2005-145 (the Blakely bill), which revised the Structured Sentencing Act to conform with the Sixth Amendment protections afforded a defendant at sentencing by Blakely. See 2005 N.C. Sess. Laws ch. 145. However, the Blakely bill did not amend N.C.G.S. § 15A-1340.14(e), thus leaving trial courts without guidance as to how Blakely might affect a determination of substantial similarity under that statute. See 2005 N.C. Sess. Laws ch. 145.
Defendant contends that a determination of substantial similarity under N.C.G.S. § 15A-1340.14(e) involves a fact other than that of a prior conviction, and thereby meets the first part of the Blakely/Allen guarantee of the right to a jury trial. The majority overrules defendant’s argument by holding that the determination of substantial similarity involves statutory interpretation, which is a question of law, and that the “comparison of the elements of an out-of-state criminal offense to those of a North Carolina criminal offense ‘does not require the resolution of disputed facts.’ ” (quoting State v. Van Buren, 98 P.3d 1235, 1241 (Wash. Ct. App. 2004)). I cannot agree that this is always the case.
In Shepard, the Supreme Court reasoned that, while the disputed fact of whether a prior conviction was violent could “be described as a fact about a prior conviction, it [was] too far removed from the conclusive significance of a prior judicial record, and too much like the *262findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorize^] a [trial court] to resolve the dispute.” Shepard v. United States, 544 U.S. -,-, 161 L. Ed. 2d 205, 217. In light of Shepard, the question for our Court is whether a finding of substantial similarity under N.C.G.S. § 15A-1340.14(e) is “too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almandarez-Torres clearly authorizes a [trial court] to resolve the dispute.” Id. Findings of fact subject to Jones and Apprendi are those findings “[o]ther than the fact of a prior conviction.” Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455; see also Blakely, 542 U.S. at 301, 159 L. Ed. 2d at 412; Allen, 359 N.C. at 437, 615 S.E.2d at 265. I conclude that a finding of substantial similarity is not close enough to the fact of a prior conviction to say that a trial court must always make the determination.
In deciding Shepard, the Supreme Court built upon the rationale of its earlier Sixth Amendment case, Taylor v. United States, 495 U.S. 575, 109 L. Ed. 2d 607 (1990), in which the Court interpreted ACCA to require a trial court to examine “only [] the fact of conviction and the statutory definition of the prior offense” to determine whether a defendant’s prior conviction could be characterized as a “burglary” under the enhancement statute. Taylor, 495 U.S. at 602, 109 L. Ed. 2d at 629. In so holding, the Court anticipated that allowing a broader evidentiary inquiry by a trial court might raise issues of violation of a defendant’s right to a jury trial. Id. at 601, 109 L. Ed. 2d at 629. Following this concern, the Supreme Court later imposed the rule, in Jones and Apprendi, that any fact other than a prior conviction must be found by the jury. See Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455; see also Jones, 526 U.S. 227, 243 n.6, 143 L. Ed. 2d 311, 326 n.6 (1999).
The Supreme Court in both Taylor and Shepard read the ACCA recidivism statute as a categorical approach to establishing the fact of a prior conviction. “[T]he enhancement provision always has embodied a categorical approach to the designation of predicate offenses. . . . Congress intended that the enhancement provision be triggered by crimes having certain specified elements[.]” Taylor, 495 U.S. at 588, 109 L. Ed. 2d at 620-21; see also Shepard, 544 U.S. at -, 161 L. Ed. 2d at 213-14. The Supreme Court explained that ACCA referred to predicate offenses “in terms not of prior conduct but of prior ‘convictions.’ ” Shepard, 544 U.S. at — , 161 L. Ed. 2d at 213-14 (quoting Taylor, 495 U.S. at 600-01, 109 L. Ed. 2d 607, 628). Like *263ACCA, N.C.G.S. § 15A-1340.14(e) purports to rely on prior convictions, not on the precise conduct that led to the convictions. However, unlike ACCA, our sentencing statute does not define which categories of crimes trigger enhancement. As such, a trial court’s determination under N.C.G.S. § 15A-1340.14(e) is not necessarily one of mere statutory interpretation. Rather, a trial court might actually be undertaking a determination of the disputed fact of whether conduct underlying a conviction for an out-of-state crime renders the offense similar to a North Carolina crime.
In State v. Poore, 172 N.C. App. 839, 616 S.E.2d 639 (2005), our Court recently decided that a determination by a trial court, rather than a jury, that all elements of a defendant’s current offense were included in a prior offense, for purposes of determining a defendant’s prior record levél, did not violate Blakely. We held that “neither Blakely nor Allen preclude the trial court from assigning a point in the calculation of one’s prior record level where ‘all the elements of the present offense are included in [a] prior offense.’ ” Poore, 172 N.C. App. at 840, 616 S.E.2d at 642 (quoting N.C. Gen. Stat. § 15A-1340.14(b)(6) (2003)). “The exercise of assigning a point for the reason set forth in G.S. § 15A-1340.14(b)(6) is akin to the trial court’s determination that [the] defendant had in fact been convicted of certain prior offenses, and is not something that increases the ‘statutory maximum’ within the meaning of Blakely or Allen.” Poore, 172 N.C. App. at 843, 616 S.E.2d at 642; see also State v. Jordan, 174 N.C. App. 479, 621 S.E.2d 229 (2005) (holding that Blakely and Allen were not implicated where a trial court determined that the defendant had prior North Carolina convictions, raising the defendant from Level I to Level II). However, a determination of substantial similarity under N.C.G.S. § 15A-1340.14(e) is not as akin to the fact of a prior conviction, nor is it always necessarily a question of law. Rather, a determination under N.C.G.S. § 15A-1340.14(e) has the potential to lead a trial court beyond the statutory elements of a crime and into fact-finding that is the proper province of a jury. See Blakely, 542 U.S. at 308, 159 L. Ed. 2d at 417 (“[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.”); see also State v. Wissink, 172 N.C. App. 829, 837, 617 S.E.2d 319, 325 (2005) (recognizing that while “the fact of a defendant’s probationary status is analagous to and not far-removed from the fact of a prior conviction[,]” our Court was “bound by the language in Blakely, Apprendi and Allen that states that only *264the fact of a prior conviction is exempt from being proven to a jury beyond a reasonable doubt”).
The Fourth Circuit Court of Appeals recently considered Shepard in the case of United States v. Washington, 404 F.3d 834 (4th Cir. 2005). Although the Fourth Circuit’s decision rests on federal law rather than state law, its analysis is instructive. In Washington, the trial court concluded, after fact-finding, that the defendant’s prior conviction of breaking and entering was a “violent” offense under the federal sentencing guidelines, because the trial court found that the prior offense “ ‘otherwise involvefd] conduct that presents a serious potential risk of physical injury to another.’ ” Washington at 838 (quoting USSG § 4B1.2(a)(2)). In making its determination, the trial court relied on extra-indictment evidence, namely a memorandum prepared by the State and the questioning of counsel about the specifics of the prior offense. The Fourth Circuit held that under the line of cases following Apprendi, the trial court’s determination that the defendant’s prior conviction presented a serious potential risk of physical injury “involved more than the ‘fact of a prior conviction’ exempted by Apprendi from Sixth Amendment protection.” Washington, 404 F.3d at 841. The Fourth Circuit held that the determination was a disputed fact “ ‘about a prior conviction’ ” to which Sixth Amendment protections apply. Washington at 842 (quoting Shepard, 544 U.S. at -, 161 L. Ed. 2d at 217) (emphasis in Washington). The Fourth Circuit continued:
In these circumstances, the sentencing court relied on facts outside of the prior indictment and resolved a disputed fact “about a prior conviction,” - namely, that the prior conviction was one which “otherwise involve [d] conduct that presents a serious potential risk of physical injury to another.” These findings are “too far removed from the conclusive significance of a prior judicial record,” and “too much like the findings subject to Jones and Apprendi[] to say that Almandarez-Torres clearly authorizes a judge to resolve the dispute[.]” This process and its results thus raise the very “risk” identified in Shepard, that Sixth Amendment error occurred.
Washington, 404 F.3d at 842 (internal citations omitted).
Particularly where, as in the present case, the elements of a foreign conviction are broader than those of a North Carolina offense, a trial court may very well undertake an inherent factual inquiry into defendant’s conduct to resolve whether defendant would *265have been convicted under a similar North Carolina law. Such an inquiry is not merely a question of law, as determined by the majority opinion, and is “ ‘too far removed from the conclusive significance of a prior judicial record,’ and ‘too much like the findings subject to Jones and Apprendi[] to say that Almandarez-Torres clearly authorizes a judge to resolve the dispute[.]’ ” Id. Such an inquiry and its results thus present the risk identified in Shepard, a violation of a defendant’s Sixth Amendment right to a jury trial under Blakely, and would require the jury, not the trial court, to determine substantial similarity.