Summary
In State v. Wissink, 361 N.C. 418, 645 S.E.2d 761 (2007) (per curiam), our Supreme Court reversed our decision to remand the case for resentencing and remanded the case to this Court for reconsideration in light of Hurt and Blackwell.
Summary of this case from State v. WissinkOpinion
No. 484PA05.
June 29, 2007.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 172 N.C. App. 829, 617 S.E.2d 319 (2005), finding no error in part in judgments entered 1 April 2004 by Judge Knox V. Jenkins in Superior Court, Cumberland County, but remanding for resentencing on defendant's conviction for discharging a firearm into occupied property. Heard in the Supreme Court 7 May 2007.
Roy Cooper, Attorney General, by Daniel P. O'Brien, Assistant Attorney General, for the State-appellant. M. Alexander Charns for defendant-appellee.
Although the Court of Appeals addressed several issues in its opinion, we allowed review solely for consideration of whether the trial court's finding of defendant's probationary status constituted error under Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), and whether defendant had knowingly and voluntarily stipulated to his probationary status. The decision of the Court of Appeals to remand for resentencing is reversed, and we remand this case to that court for reconsideration of these two issues in light of our decisions in State v. Hurt, 361 N.C. 325, 330, 643 S.E.2d 915, 918 (2007) (holding "a judge may not find an aggravating factor on the basis of a defendant's admission unless that defendant personally or through counsel admits the necessary facts or admits that the aggravating factor is applicable") and State v. Blackwell, 361 N.C. 41, 44, 49-51, 638 S.E.2d 452, 455, 458-59 (2006) (explaining that Blakely error is subject to harmless error review), cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___, 75 U.S.L.W. 3609 (2007). The Court of Appeals opinion remains undisturbed in all other respects.
REVERSED IN PART AND REMANDED.