Blakely error in North Carolina

2016See State v. Blackwell , 361 N.C. 41 , 46-49, 638 S.E.2d 452 , 456-58 (2006) (encouraging the use of special verdicts in criminal cases where appropriate and recognizing that "special verdicts are a widely accepted method of preventing Blakely error"); State v. Sargeant , 206 N.C.App. 1 , 10, 696 S.E.2d 786 , 793 (2010) ("[A] jury's specification of its theory ... is for purposes of sentencing proceedings."), writ allowed , 364 N.C. 331 , 700 S.E.2d 743 (2010), and aff'd as modified , 365 N.C. 58 , 707 S.E.2d 192 (2011).

2016See State v. Blackwell , 361 N.C. 41 , 46-49, 638 S.E.2d 452 , 456-58 (2006) (encouraging the use of special verdicts in criminal cases where appropriate and recognizing that "special verdicts are a widely accepted method of preventing Blakely error"); State v. Sargeant , 206 N.C.App. 1 , 10, 696 S.E.2d 786 , 793 (2010) ("[A] jury's specification of its theory ... is for purposes of sentencing proceedings."), writ allowed , 364 N.C. 331 , 700 S.E.2d 743 (2010), and aff'd as modified , 365 N.C. 58 , 707 S.E.2d 192 (2011).

2007According to Blackwell, Blakely error is subject to the harmless error analysis set forth in Neder v. United States, 527 U.S. 1, 9 , 119 S. Ct. 1827, 1834 , 144 L.

2007According to Blackwell, Blakely error is subject to the harmless error analysis set forth in Neder v. United States, 527 U.S. 1, 9 , 119 S. Ct. 1827, 1834 , 144 L.

2019The 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 , 124 S.Ct. at 2534 , 159 L.Ed.2d at 410 .

2019The 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 , 124 S.Ct. at 2534 , 159 L.Ed.2d at 410 .

2010Issuance of the mandate was stayed, Hurt, 359 N.C. 846 , 620 S.E.2d 528 , and upon reconsideration, our Supreme *3 Court vacated its earlier opinion in part and remanded the case with instructions to remand to the trial court for a new sentencing hearing, see Hurt, 361 N.C. at 332 , 643 S.E.2d at 919 (vacating the portion that remanded due to structural error and, instead, remanding “because the trial court’s Blakely error was not harmless beyond a reasonable doubt,” but leaving its aggravating factor analysis undisturbed).

2010Issuance of the mandate was stayed, Hurt, 359 N.C. 846 , 620 S.E.2d 528 , and upon reconsideration, our Supreme *3 Court vacated its earlier opinion in part and remanded the case with instructions to remand to the trial court for a new sentencing hearing, see Hurt, 361 N.C. at 332 , 643 S.E.2d at 919 (vacating the portion that remanded due to structural error and, instead, remanding “because the trial court’s Blakely error was not harmless beyond a reasonable doubt,” but leaving its aggravating factor analysis undisturbed).

2006This Court first applied Blakely in State v. Allen, concluding therein that Blakely errors entail mandatory resentencing. 2 359 N.C. at 449 , 615 S.E.2d at 272 (“We further hold that the harmless-error rule does not apply to sentencing errors which violate a defendant’s Sixth Amendment right to jury trial pursuant to Blakely . [These] errors are structural and, therefore, reversible per se.”). *510 In response to Blakely , defendant argued on appeal that the trial court erred by not submitting the aggravating factor to the jury. 3 On 16 August 2005, a divided Court of Appeals agreed and charac

2006This Court first applied Blakely in State v. Allen, concluding therein that Blakely errors entail mandatory resentencing. 2 359 N.C. at 449 , 615 S.E.2d at 272 (“We further hold that the harmless-error rule does not apply to sentencing errors which violate a defendant’s Sixth Amendment right to jury trial pursuant to Blakely . [These] errors are structural and, therefore, reversible per se.”). *510 In response to Blakely , defendant argued on appeal that the trial court erred by not submitting the aggravating factor to the jury. 3 On 16 August 2005, a divided Court of Appeals agreed and charac

2024State v. Norris, 360 N.C. 507, 516 (2006).

2014Our Supreme Court has held that, in the context of a defendant sentenced under the Structured Sentencing Act, Blakely is not implicated when a trial court improperly finds aggravating factors, rather than submitting those factors to the jury, so long as the defendant is sentenced within the presumptive range, reasoning that a trial judge “does not exceed his proper authority until he inflicts [enhanced] punishment. . . the jury’s verdict alone does not allow.” State v. Norris, 360 N.C. 507, 514, 517 , 630 S.E.2d 915, 919, 921 , cert. denied, 549 U.S. 1064 , 166 L.

2021See State v. Oglesby, 361 N.C. 550 , 648 S.E.2d 819 (2007).

2021See State v. Oglesby, 361 N.C. 550 , 648 S.E.2d 819 (2007).

2021See State v. Oglesby, 174 N.C.

2021See State v. Oglesby, 174 N.C.

2005See United States v. Riccardi, 405 F.3d 852 , 875 (10th Cir. 2005) (concluding that Sixth Amendment Blakely/Booker error was harmless in light of "overwhelming" evidence supporting the sentencing judge's fact-finding); United States v. Paz, 405 F.3d 946 (11th Cir. 2005) (per curiam) (applying harmless-error doctrine to Blakely error); United States v. Ameline, 400 F.3d 646 , 652 (9th Cir.) (noting that under Booker "not all cases would warrant a new sentencing hearing because any error might be harmless"), vacated and reh'g en banc granted, 401 F.3d 1007 (9th Cir. 2005); United States v. Couma

2005See id. at 579 , 106 S.Ct. at 3106-07, 92 L.Ed.2d at 471 (discussing the "strong presumption" that a federal constitutional error is subject to harmless-error analysis). [13] See United States v. Riccardi, 405 F.3d 852, 875 (10th Cir.2005) (concluding that Sixth Amendment Blakely/Booker error was harmless in light of "overwhelming" evidence supporting the sentencing judge's fact-finding); United States v. Paz, 405 F.3d 946 (11th Cir.2005) (per curiam) (applying harmless-error doctrine to Blakely error); United States v. Ameline, 400 F.3d 646, 652 (9th Cir.) (noting that under Booker "not all c

2005See id. at 579 , 106 S.Ct. at 3106-07, 92 L.Ed.2d at 471 (discussing the "strong presumption" that a federal constitutional error is subject to harmless-error analysis). [13] See United States v. Riccardi, 405 F.3d 852, 875 (10th Cir.2005) (concluding that Sixth Amendment Blakely/Booker error was harmless in light of "overwhelming" evidence supporting the sentencing judge's fact-finding); United States v. Paz, 405 F.3d 946 (11th Cir.2005) (per curiam) (applying harmless-error doctrine to Blakely error); United States v. Ameline, 400 F.3d 646, 652 (9th Cir.) (noting that under Booker "not all c

2005See id. at 579 , 106 S.Ct. at 3106-07, 92 L.Ed.2d at 471 (discussing the "strong presumption" that a federal constitutional error is subject to harmless-error analysis). [13] See United States v. Riccardi, 405 F.3d 852, 875 (10th Cir.2005) (concluding that Sixth Amendment Blakely/Booker error was harmless in light of "overwhelming" evidence supporting the sentencing judge's fact-finding); United States v. Paz, 405 F.3d 946 (11th Cir.2005) (per curiam) (applying harmless-error doctrine to Blakely error); United States v. Ameline, 400 F.3d 646, 652 (9th Cir.) (noting that under Booker "not all c

2015The decision in Allen was withdrawn based on the United States Supreme Court's holding in Washington v. Recuenco, 548 U.S. 212 , 165 L.Ed.2d 466 (2006) (holding that an alleged Blakely error was subject to harmless error analysis, rather than as a structural error).

2015The decision in Allen was withdrawn based on the United States Supreme Court's holding in Washington v. Recuenco, 548 U.S. 212 , 165 L.Ed.2d 466 (2006) (holding that an alleged Blakely error was subject to harmless error analysis, rather than as a structural error).

2007However, we vacate the portion of the Court of Appeals decision in which that court found Blakely error in defendant's aggravated sentences for robbery with a dangerous weapon, which it treated as structural error, and remand to the Court of Appeals for harmless error review pursuant to State v. Blackwell, 361 N.C. 41, 42, 49-51 , 638 S.E.2d 452, 453, 458-59 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2281 , 167 L.Ed.2d 1114 (2007).

2007However, we vacate the portion of the Court of Appeals decision in which that court found Blakely error in defendant's aggravated sentences for robbery with a dangerous weapon, which it treated as structural error, and remand to the Court of Appeals for harmless error review pursuant to State v. Blackwell, 361 N.C. 41, 42, 49-51 , 638 S.E.2d 452, 453, 458-59 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2281 , 167 L.Ed.2d 1114 (2007).

2007Our Supreme Court issued an order on 29 December 2006 “(1) vacating that portion of the Court of Appeals opinion ordering remand to the trial court for resentencing and (2) remanding to the Court of Appeals for reconsideration in light of. . . ,Blackwell[.]” The 29 December 2006 order also stated that “[t]he Court of Appeals opinion remains undisturbed in all other respects.” We now determine whether the Blakely error in Defendant’s resen-tencing, as determined in our previous opinion, was harmless beyond a reasonable doubt, or whether Defendant is entitled to a new sentencing hearing. *287 In

2007Our Supreme Court issued an order on 29 December 2006 “(1) vacating that portion of the Court of Appeals opinion ordering remand to the trial court for resentencing and (2) remanding to the Court of Appeals for reconsideration in light of. . . ,Blackwell[.]” The 29 December 2006 order also stated that “[t]he Court of Appeals opinion remains undisturbed in all other respects.” We now determine whether the Blakely error in Defendant’s resen-tencing, as determined in our previous opinion, was harmless beyond a reasonable doubt, or whether Defendant is entitled to a new sentencing hearing. *287 In

2005Id. at 579 , 106 S.Ct. at 3106-07, 92 L.Ed.2d at 471 ("Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed."). *279 Applying these principles, it is clear that Blakely error is more analogous to the larger class of "trial errors" than it is to the limited class of "structural defects." First, it can hardly be said that a judge "is so likely" to find facts a jury would not find that "case-by-case inquiry" into harmlessness "is not worth the cost." Strickla

2005Id. at 579 , 106 S.Ct. at 3106-07, 92 L.Ed.2d at 471 ("Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed."). *279 Applying these principles, it is clear that Blakely error is more analogous to the larger class of "trial errors" than it is to the limited class of "structural defects." First, it can hardly be said that a judge "is so likely" to find facts a jury would not find that "case-by-case inquiry" into harmlessness "is not worth the cost." Strickla

2005See 5 Am.Jur.2d Appellate Review ง 559 (1995) (stating that "the standard of review is the keystone of appellate decisionmaking"). [9] What is now referred to as the Blakely rule had its genesis in Jones v. United States, 526 U.S. 227 , 119 S.Ct. 1215 , 143 L.Ed.2d 311 (1999), was first articulated in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and has been applied in Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002) and United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005).

2005See 5 Am.Jur.2d Appellate Review ง 559 (1995) (stating that "the standard of review is the keystone of appellate decisionmaking"). [9] What is now referred to as the Blakely rule had its genesis in Jones v. United States, 526 U.S. 227 , 119 S.Ct. 1215 , 143 L.Ed.2d 311 (1999), was first articulated in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and has been applied in Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002) and United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005).

2005See United States v. Riccardi, 405 F.3d 852 , 875 (10th Cir. 2005) (concluding that Sixth Amendment Blakely/Booker error was harmless in light of "overwhelming" evidence supporting the sentencing judge's fact-finding); United States v. Paz, 405 F.3d 946 (11th Cir. 2005) (per curiam) (applying harmless-error doctrine to Blakely error); United States v. Ameline, 400 F.3d 646 , 652 (9th Cir.) (noting that under Booker "not all cases would warrant a new sentencing hearing because any error might be harmless"), vacated and reh'g en banc granted, 401 F.3d 1007 (9th Cir. 2005); United States v. Couma

2005See id. at 579 , 106 S.Ct. at 3106-07, 92 L.Ed.2d at 471 (discussing the "strong presumption" that a federal constitutional error is subject to harmless-error analysis). [13] See United States v. Riccardi, 405 F.3d 852, 875 (10th Cir.2005) (concluding that Sixth Amendment Blakely/Booker error was harmless in light of "overwhelming" evidence supporting the sentencing judge's fact-finding); United States v. Paz, 405 F.3d 946 (11th Cir.2005) (per curiam) (applying harmless-error doctrine to Blakely error); United States v. Ameline, 400 F.3d 646, 652 (9th Cir.) (noting that under Booker "not all c

2005See id. at 579 , 106 S.Ct. at 3106-07, 92 L.Ed.2d at 471 (discussing the "strong presumption" that a federal constitutional error is subject to harmless-error analysis). [13] See United States v. Riccardi, 405 F.3d 852, 875 (10th Cir.2005) (concluding that Sixth Amendment Blakely/Booker error was harmless in light of "overwhelming" evidence supporting the sentencing judge's fact-finding); United States v. Paz, 405 F.3d 946 (11th Cir.2005) (per curiam) (applying harmless-error doctrine to Blakely error); United States v. Ameline, 400 F.3d 646, 652 (9th Cir.) (noting that under Booker "not all c

2005See id. at 579 , 106 S.Ct. at 3106-07, 92 L.Ed.2d at 471 (discussing the "strong presumption" that a federal constitutional error is subject to harmless-error analysis). [13] See United States v. Riccardi, 405 F.3d 852, 875 (10th Cir.2005) (concluding that Sixth Amendment Blakely/Booker error was harmless in light of "overwhelming" evidence supporting the sentencing judge's fact-finding); United States v. Paz, 405 F.3d 946 (11th Cir.2005) (per curiam) (applying harmless-error doctrine to Blakely error); United States v. Ameline, 400 F.3d 646, 652 (9th Cir.) (noting that under Booker "not all c

2005Ed. 2d 1053 (2005); State v. Henderson, 209 Ariz. 300 , ___, 100 P.3d 911 , 920-22 (Ct. App. 2004) (holding that Blakely errors are subject to harmless-error analysis and citing other cases in support of that proposition), disc. rev. granted in part, 2005 Ariz. LEXIS 36 (Mar. 23, 2005) (No. 1 CA-CR-03-0920); State v. Martinez, 209 Ariz. 280 , ___, 100 P.3d 30 , 32 (Ct. App. 2004) ("Further, we hold that Blakely error is subject to harmless error or fundamental error analysis and may or may not require reversal based on the facts of a particular case."), disc. rev. granted, 2005 Ariz. LEXIS 16

2005See id. at 579 , 106 S.Ct. at 3106-07, 92 L.Ed.2d at 471 (discussing the "strong presumption" that a federal constitutional error is subject to harmless-error analysis). [13] See United States v. Riccardi, 405 F.3d 852, 875 (10th Cir.2005) (concluding that Sixth Amendment Blakely/Booker error was harmless in light of "overwhelming" evidence supporting the sentencing judge's fact-finding); United States v. Paz, 405 F.3d 946 (11th Cir.2005) (per curiam) (applying harmless-error doctrine to Blakely error); United States v. Ameline, 400 F.3d 646, 652 (9th Cir.) (noting that under Booker "not all c

2005Ed. 2d 764 (2005); United States v. Mincey, 380 F.3d 102 , 105 (2d Cir. 2004) (per curiam) (reviewing a "Blakely-type claim" for harmless error), vacated and cert. granted by Ferrell v. United States, ___ U.S. ___, 160 L.

2005See id. at 579 , 106 S.Ct. at 3106-07, 92 L.Ed.2d at 471 (discussing the "strong presumption" that a federal constitutional error is subject to harmless-error analysis). [13] See United States v. Riccardi, 405 F.3d 852, 875 (10th Cir.2005) (concluding that Sixth Amendment Blakely/Booker error was harmless in light of "overwhelming" evidence supporting the sentencing judge's fact-finding); United States v. Paz, 405 F.3d 946 (11th Cir.2005) (per curiam) (applying harmless-error doctrine to Blakely error); United States v. Ameline, 400 F.3d 646, 652 (9th Cir.) (noting that under Booker "not all c

2005Cir. 2005) (stating that Booker challenge was "governed by the harmless error standard appropriate for constitutional error"); United States v. Sharpley, 399 F.3d 123 , 127 (2d Cir. 2005) (describing Blakely and Booker error as a "prototypical example of harmless error" where defendant received a "statutory mandatory minimum" sentence); United States v. Pittman, 388 F.3d 1104 , 1109 (7th Cir. 2004) (analyzing Blakely claim for plain error and adding in dictum that the claim "would fall short under harmless error review as well"), vacated on other grounds and cert. granted by ___ U.S. ___, 161

2005See id. at 579 , 106 S.Ct. at 3106-07, 92 L.Ed.2d at 471 (discussing the "strong presumption" that a federal constitutional error is subject to harmless-error analysis). [13] See United States v. Riccardi, 405 F.3d 852, 875 (10th Cir.2005) (concluding that Sixth Amendment Blakely/Booker error was harmless in light of "overwhelming" evidence supporting the sentencing judge's fact-finding); United States v. Paz, 405 F.3d 946 (11th Cir.2005) (per curiam) (applying harmless-error doctrine to Blakely error); United States v. Ameline, 400 F.3d 646, 652 (9th Cir.) (noting that under Booker "not all c

2005Cir. 2005) (stating that Booker challenge was "governed by the harmless error standard appropriate for constitutional error"); United States v. Sharpley, 399 F.3d 123 , 127 (2d Cir. 2005) (describing Blakely and Booker error as a "prototypical example of harmless error" where defendant received a "statutory mandatory minimum" sentence); United States v. Pittman, 388 F.3d 1104 , 1109 (7th Cir. 2004) (analyzing Blakely claim for plain error and adding in dictum that the claim "would fall short under harmless error review as well"), vacated on other grounds and cert. granted by ___ U.S. ___, 161

2005See id. at 579 , 106 S.Ct. at 3106-07, 92 L.Ed.2d at 471 (discussing the "strong presumption" that a federal constitutional error is subject to harmless-error analysis). [13] See United States v. Riccardi, 405 F.3d 852, 875 (10th Cir.2005) (concluding that Sixth Amendment Blakely/Booker error was harmless in light of "overwhelming" evidence supporting the sentencing judge's fact-finding); United States v. Paz, 405 F.3d 946 (11th Cir.2005) (per curiam) (applying harmless-error doctrine to Blakely error); United States v. Ameline, 400 F.3d 646, 652 (9th Cir.) (noting that under Booker "not all c

2005See United States v. Riccardi, 405 F.3d 852 , 875 (10th Cir. 2005) (concluding that Sixth Amendment Blakely/Booker error was harmless in light of "overwhelming" evidence supporting the sentencing judge's fact-finding); United States v. Paz, 405 F.3d 946 (11th Cir. 2005) (per curiam) (applying harmless-error doctrine to Blakely error); United States v. Ameline, 400 F.3d 646 , 652 (9th Cir.) (noting that under Booker "not all cases would warrant a new sentencing hearing because any error might be harmless"), vacated and reh'g en banc granted, 401 F.3d 1007 (9th Cir. 2005); United States v. Couma

2005See id. at 579 , 106 S.Ct. at 3106-07, 92 L.Ed.2d at 471 (discussing the "strong presumption" that a federal constitutional error is subject to harmless-error analysis). [13] See United States v. Riccardi, 405 F.3d 852, 875 (10th Cir.2005) (concluding that Sixth Amendment Blakely/Booker error was harmless in light of "overwhelming" evidence supporting the sentencing judge's fact-finding); United States v. Paz, 405 F.3d 946 (11th Cir.2005) (per curiam) (applying harmless-error doctrine to Blakely error); United States v. Ameline, 400 F.3d 646, 652 (9th Cir.) (noting that under Booker "not all c

2005As the Arizona Court of Appeals aptly stated in a recent opinion, " Blakely error is much more akin to the error in Neder than the error in Sullivan , " because a defendant alleging Blakely error "has already had a trial in which a jury has determined beyond a reasonable doubt that he or she is guilty." State v. Henderson, 209 Ariz. 300, 309 , 100 P.3d 911, 920 (Ct.App.2004) (relying on Mitchell in holding that Neder , not Sullivan , applies to Blakely errors).

2005As the Arizona Court of Appeals aptly stated in a recent opinion, " Blakely error is much more akin to the error in Neder than the error in Sullivan , " because a defendant alleging Blakely error "has already had a trial in which a jury has determined beyond a reasonable doubt that he or she is guilty." State v. Henderson, 209 Ariz. 300, 309 , 100 P.3d 911, 920 (Ct.App.2004) (relying on Mitchell in holding that Neder , not Sullivan , applies to Blakely errors).