bank/briefs/shaw, dennis.doc · web viewone of the two had sulfuric acid and both were burned...
TRANSCRIPT
No. COA09-1096 ELEVEN-B DISTRICT
NORTH CAROLINA COURT OF APPEALS
****************************************************
STATE OF NORTH CAROLINA ))
v. ) From Johnston)
DENNIS SHAW )
****************************************************
DEFENDANT-APPELLANT’S BRIEF
****************************************************
INDEX
TABLE OF AUTHORITIES...................................................................................III
QUESTIONS PRESENTED.....................................................................................1
STATEMENT OF THE CASE.................................................................................2
STATEMENT OF GROUNDS FOR APPELLATE REVIEW................................2
STATEMENT OF THE FACTS...............................................................................2
A. Summary................................................................2
B. Mr. Shaw Pleads Guilty to Second-Degree Murder and Stipulates to an Aggravating Factor................3
C. The Sentencing Hearing.........................................8
ARGUMENT...........................................................................................................22
I. THE TRIAL COURT ERRED WHEN IT TOOK INTO ACCOUNT DURING SENTENCING AN AGGRAVATING FACTOR WHICH WAS NEITHER STIPULATED TO NOR FOUND BY A JURY BEYOND A REASONABLE DOUBT, AND WHICH WAS NOT ALLEGED IN A CHARGING DOCUMENT............................................................................22
CONCLUSION.......................................................................................................34
CERTIFICATION OF COMPLIANCE WITH RULE 28(J)(2)(A)(2)...................36
CERTIFICATE OF FILING AND SERVICE........................................................36
ii
TABLE OF AUTHORITIES
CASES
Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000).......................................................25
Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004).......................................................25
N.C. Department of Environment & Natural Resources v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004)...........................................................23
State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983)...........................................................32
State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985).......................................................23, 34
State v. Barden, 356 N.C. 316, 572 S.E.2d 108 (2002)...........................................................28
State v. Beck, 163 N.C. App. 469, 594 S.E.2d 94 (2004), rev’d in part on other grounds, 359 N.C. 611, 614 S.E.2d 274 (2005)..................................30
State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006).............................................................28
State v. Boone, 293 N.C. 702, 239 S.E.2d 459 (1977)...........................................................25
State v. Byrd, 164 N.C. App. 522, 596 S.E.2d 860 (2004)..................................................27
State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991)...........................................................34
State v. Curmon, 171 N.C. App. 697, 615 S.E.2d 417 (2005)..................................................33
State v. Everette, 361 N.C. 646, 652 S.E.2d 241 (2007)...........................................................31
iii
State v. Hueto, ___ N.C. App. ___, 671 S.E.2d 62 (2009)..............................................26, 27
State v. Hurt, 361 N.C. 325, 643 S.E.2d 915 (2007).....................................................26, 33
State v. McBane, 276 N.C. 60, 170 S.E.2d 913 (1969).............................................................31
State v. Melton, 307 N.C. 370, 298 S.E.2d 673 (1983)...........................................................27
State v. Prevatte, 356 N.C. 178, 570 S.E.2d 440 (2002)...........................................................22
State v. Rollins, 131 N.C. App. 601, 508 S.E.2d 554 (1998)..................................................33
State v. Westbrooks, 345 N.C. 43, 478 S.E.2d 483 (1996).............................................................30
State v. Whitehead, 174 N.C. App. 165, 620 S.E.2d 272 (2005)..................................................33
State v. Williams, 144 N.C. App. 526, 548 S.E.2d 802 (2001)..................................................30
State v. Wilson, 338 N.C. 244, 449 S.E.2d 391 (1994)...........................................................32
Washington v. Recuenco, 548 U.S. 212, 165 L. Ed. 2d 466 (2006).......................................................28
STATUTES
G.S. §15A-1340.16..................................................................................................23
G.S. §15A-1340.16(a).............................................................................................26
G.S. §15A-1340.16(a1)...........................................................................................26
G.S. §15A-1340.16(a3).....................................................................................26, 34
G.S. §15A-1340.16(a4).....................................................................................26, 34
G.S. §15A-1443(a)............................................................................................28, 30
iv
G.S. §7A-27(b)..........................................................................................................2
OTHER AUTHORITI ES
N.C. R. App. P. 10(b)(1).........................................................................................33
CONSTITUTIONAL PROVISIONS
N.C. Const. art. I, § 19.............................................................................................23
N.C. Const. art. I, § 22.............................................................................................23
N.C. Const. art. I, § 23.............................................................................................23
N.C. Const. art. I, § 24.............................................................................................23
U.S. Const. amend. VI.............................................................................................23
U.S. Const. amend. XIV..........................................................................................23
v
No. COA09-1096 ELEVEN-B DISTRICT
NORTH CAROLINA COURT OF APPEALS
****************************************************
STATE OF NORTH CAROLINA ))
v. ) From Johnston)
DENNIS SHAW )
****************************************************
DEFENDANT-APPELLANT’S BRIEF
****************************************************
QUESTIONS PRESENTED
I. WHETHER THE TRIAL COURT ERRED WHEN IT TOOK INTO ACCOUNT DURING SENTENCING AN AGGRAVATING FACTOR WHICH WAS NEITHER STIPULATED TO NOR FOUND BY A JURY BEYOND A REASONABLE DOUBT, AND WHICH WAS NOT ALLEGED IN A CHARGING DOCUMENT?
STATEMENT OF THE CASE
On June 6, 2006, the Johnston County Grand Jury indicted Defendant-
appellant Dennis Shaw for first-degree murder. (Rp. 4) Defendant entered an
Alford plea to second-degree murder at the February 2, 2009 Criminal Session of
Johnston County Superior Court before Judge Henry W. Hight, Jr. (Rpp. 1, 9-12)
On February 3, 2009, Judge Hight entered Judgment and Commitment, and
sentenced Defendant to 196 to 245 months imprisonment. (Rpp. 15-18) Defendant
appealed. (Rpp. 19-20)
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
Defendant appeals pursuant to G.S. §7A-27(b) from a final judgment of
Johnston County Superior Court.
STATEMENT OF THE FACTS
A. Summary.
Dennis Shaw [“Mr. Shaw”] and his former girlfriend, Ronda Barnes
[“Ronda”], had a child together, Myka Shaw [“Myka”]. Mr. Shaw had custody of
Myka during the school year. She lived with him in Washington, D.C., while Ronda
lived in Clayton, North Carolina. Mr. Shaw also sometimes cared for Ronda’s other
two children, Marcus and Trey, although they were not his children. The three
children were the focus of Mr. Shaw’s life and he worked hard to provide for them
and raise them properly, especially Myka. Mr. Shaw and Ronda often disagreed
about the children’s care.
2
On April 18, 2006, Mr. Shaw and Ronda got into a physical altercation at
Ronda’s home in Clayton. One of the two had sulfuric acid and both were burned
during the ensuing physical struggle. Also during the struggle, Mr. Shaw hit
Ronda’s head multiple times with his knee, causing her death.
Mr. Shaw entered an Alford plea to second-degree murder and stipulated to a
nonstatutory aggravating factor, that Ronda suffered greatly prior to her death. In
sentencing Mr. Shaw, the trial court remarked that the State had given Mr. Shaw a
“concession” in allowing him to plead to second-degree murder because the State
could have tried him for first-degree premeditated and deliberate murder. (IIpp.
242, 244)1 The trial court sentenced Mr. Shaw at the top of the aggravated range.
B. Mr. Shaw Pleads Guilty to Second-Degree Murder and Stipulates to an Aggravating Factor.
Mr. Shaw entered into a plea arrangement with the State in which he agreed
to enter an Alford plea to second-degree murder and stipulate to the nonstatutory
aggravating factor that the victim suffered greatly prior to her death. The trial court
was to determine his sentence after the parties presented evidence at a sentencing
hearing. (Rp. 11) With regard to the factual basis of the plea, the defense stated that
it was “prepared to let [the State] state what they contend the evidence would have
been had we went to trial in this case.” (Ip. 12)
1. The State’s Factual Basis.
The State recited the factual basis as follows:
1 For transcript references, the roman numeral refers to the volume of the transcript.
3
Ronda left work early on Tuesday, April 18, 2006. Ronda worked at Talecris
Biotherapeutics in Clayton. (Ip. 14) At 3:48 p.m., she made a transaction at a
convenience store a quarter of a mile from her residence. (Ipp. 25-26)
Ronda was found dead in her home on April 19 by her mother. There was
evidence of “a very large struggle throughout the home”: furniture was overturned
and bloodstains were found in the living room and kitchen, where Ronda’s body lay.
Additionally, a black liquid substance, later found to be sulfuric acid, was in large
quantities on the living room floor and on and around the body. Ronda’s clothing
and body appeared to have been burned by the substance. The sulfuric acid “could
be purchased at most hardware and plumbing supply stores.” There were footprints
and a skid mark in the liquid on the living room floor showing that the liquid was
present during the struggle. A mark on top of an overturned table in the living room
indicated that the container holding the acid may have been on the table and spilled
when the table was overturned. A HASMAT team applied lime to the spilled
substance to soak it up. (Ipp. 12-15, 33)
One of Ronda’ neighbors, Patricia Brown, told police that between 4:00 and
5:00 p.m. on the previous day, she had heard screams and heavy thuds coming from
Ronda’s house. A few minutes later, she saw a black male athletically jump over a
six-foot tall fence into Ronda’s backyard and go to her back door. Brown stated that
the man looked at her, then ran back to the fence, jumped over, and ran into the
woods. A few minutes later, the man got into Ronda’s truck and drove quickly in
4
the direction of a church where the truck was later found, located about 400 yards
from Ronda’s house. Brown said the man had a medium complexion, was about
5’5” tall, and was dressed all in white. He had on a blue baseball cap and white
gloves with blue palms. (Ipp. 16-17)
Ms. Brown’s boyfriend Reggie Barnes told police that after the man jumped
over the fence, he laid down as if to hide. Barnes stated that the man was wearing
white jogging pants and weighed about 160 to 170 pounds. (Ipp. 17-18)
Mr. Shaw lived in Washington, D.C. On April 21, police contacted him and
determined he was not at work on April 18. He told police he was home sick and
had stayed home the next day as well because Myka was sick. (Ip. 19)
On April 24, investigators went back to Ronda’s house. They saw a key on
the living room floor that they had not seen previously. The investigators believed
that the key had been covered with acid, but was revealed because the lime soaked
up the acid. The key fit the back door of the residence. It was unclear where the
key came from because all known keys to Ronda’s house were accounted for.
Investigators speculated that Myka had made or gotten a duplicate key when she had
stayed with her mother a few days before. (Ipp. 20-21)
Also on April 24, SBI Agent Tart interviewed Myka. She told Agent Tart
that her father had been at their home in Washington, D.C. when she got home from
school on April 18. When asked again, Myka became nervous, but still said Mr.
Shaw was at home. She also stated that she was not aware that her father was sick,
5
except that he had burned himself in the shower with drain cleaner on the morning
of April 19. She had seen burns on his face, hands, and feet. (Ipp. 21-22)
On April 25, Agent Tart contacted Mr. Shaw and asked him about the burns.
Mr. Shaw said he had been burned by drain cleaner in the shower. Law
enforcement officers met Mr. Shaw at a relative’s home in Baltimore and confirmed
that he had burns over a large portion of his body. A doctor had treated Mr. Shaw
for the burns on his face, but was unaware that he had burns on the rest of his body.
(Ipp. 22-23)
April 25 was also the day of Ronda’s funeral. Myka was supposed to be
interviewed by law enforcement, but her grandmother called and said Myka was too
upset. Later, an attorney told law enforcement that Myka would give no further
interviews. (Ipp. 23-24)
Investigators showed a single photograph of Mr. Shaw to Patricia Brown.
She said it was the man she had seen jumping over the fence. She also stated that
she had seen a suspicious white Ford Escort in the area earlier in the year and it
appeared to be watching Ronda’s home. Investigators learned that Mr. Shaw owned
a white Ford Escort. (Ipp. 24-25)
On April 28, investigators searched Mr. Shaw’s residence pursuant to a
warrant. They seized white jogging pants with a black stain. The material
“appeared to be eaten through as if exposed to some type of acid.” A computer was
also seized. It showed that the day after Ronda’ death, Mr. Shaw had done a search
6
for acid burns to the body. Mr. Shaw was arrested in May, 2006 for Ronda’s
murder. (Ipp. 25-27; Rp. 2)
The autopsy showed that Ronda had sustained blunt force trauma to the head,
which was the cause of death. There were lacerations to the upper and lower lips, a
fractured nose, extensive subscapular bruising, and a subarachnoid hemorrhage of
the brain. She had extensive chemical burns to the face, head, upper chest, and legs.
(Ipp. 26-27)
Investigators learned that during 2005 and 2006, someone had committed
various malicious acts of vandalism against Ronda, including flattening her tires,
putting an unknown substance in her gas tank, spray painting her car, and leaving
derogatory flyers at her workplace and church. In one instance, on February 28,
2005, someone broke into her house, painted graffiti on the walls, and set her
clothes on fire on her bed. Ronda “felt [Mr.] Shaw was responsible.” He was not
charged in connection with any of the crimes. (Ip. 18-19) A handwriting analyst
compared the handwriting in the February 28, 2005 graffiti with Mr. Shaw’s
handwriting and concluded that Mr. Shaw “probably” wrote the graffiti. (Ip. 32)
The most recent vandalism, spray painting of Ronda’s car and home, was on
April 11, 2006. The next weekend, Ronda left a message for a Clayton Police
officer that she was afraid Mr. Shaw was going to come down and do something
bad. (Ip. 18)
7
Regarding the stipulated aggravating factor – that the victim suffered greatly
prior to her death – the State stated that “both the victim and the Mr. Shaw were
exposed to the acid causing severe burns to both their bodies.” The fact that the acid
appeared to have spread around by the struggle showed that the burns occurred prior
to death. The State also stated that although investigators at some point thought that
the acid had been intentionally poured on Ronda’ body, the crime scene photos and
Dr. Butts’ autopsy results showed that Ronda was only exposed to the acid during
the struggle. (Ipp. 33-34)
2. The Trial Court Accepts the Plea.
The trial court found that there was a factual basis for the plea and for the
stipulated aggravating factor; found that the plea was made freely, voluntarily, and
understandingly; and accepted Mr. Shaw’s Alford plea to second-degree murder.
(Ip. 36)
C. The Sentencing Hearing.
1. The State’s Evidence.
The State presented victim impact evidence from Ronda’s mother, her aunt,
and a childhood friend. (IIpp. 40-65)
8
2. The Mr. Shaw’s Evidence.
a. Defense Contentions.
The trial court allowed the defense to give a summary of what it contended
the evidence would have shown at trial. (IIp. 66) The defense summarized its
contentions as follows:
Mr. Shaw met Ronda, his first serious girlfriend, while working at
McDonald’s while both were in high school in Johnston County. They eventually
moved in with Ronda’s family in Washington, D.C. Within a few years, Myka was
born. Mr. Shaw and Ronda got their own residence in D.C. Mr. Shaw worked two
jobs to provide for the family. Over the years, the couple separated several times
because of financial issues and disagreements about the proper care of Myka. Mr.
Shaw got a degree in computer science while working multiple jobs. Eventually,
the couple separated permanently, and there was a several-year custody battle over
Myka. Mr. Shaw got custody of Myka during the school year, and Myka went to
live with Ronda in Clayton during holidays and summer vacation. (IIpp. 66-69)
Ronda later had two more children, Trey and Marcus, by other men. Mr.
Shaw took a very active part in raising them, and many people believed they were
his children because he treated them like they were his own. Until late 2005 or early
2006, Mr. Shaw saw the boys on a regular basis. Mr. Shaw visited his grandmother
in Kenly, North Carolina, about twice a month to help her with shopping and home
maintainance. As soon as Mr. Shaw arrived in Kenly, Ronda would drop off the
9
boys at Mr. Shaw’s grandmother’s house. Mr. Shaw also often brought the boys to
D.C. with him. (IIpp. 70-72)
Myka was the most important thing in Mr. Shaw’s life. He worked hard to
get Myka into the best magnet schools in the D.C. area and prepare her for college.
(IIpp. 72-73)
Myka visited Ronda a week before her death. At that time there were issues
between Mr. Shaw and Ronda, including whether Ronda should start contributing to
Myka’s support. Ronda had never supported Myka financially except when Myka
was staying in North Carolina. Mr. Shaw also raised concerns about Ronda’s care
of Trey and Marcus. Mr. Shaw believed Ronda was spending too much time with
her boyfriends and not enough time with the boys. (IIpp. 76-77)
When Mr. Shaw dropped Myka off in D.C., Ronda came to the car and said
there were things that they needed to talk about. Mr. Shaw said they would talk
later. Myka stayed a week with Ronda. Mr. Shaw picked her up on April 16. On
the way back to D.C., Mr. Shaw asked Myka what she did during the week. Myka
said she hardly saw Ronda and that she mostly babysat for her brothers and cleaned
the house. (IIpp. 77-78)
Mr. Shaw was upset because he felt that it was important for Myka to have
contact with Ronda. Myka and Mr. Shaw spent the night of April 16 with relatives
in Baltimore. Mr. Shaw spoke to Ronda on the phone on April 17 and said he
would come see her because they needed to talk. (IIp. 78)
10
On April 18, Mr. Shaw took a sick day from work and drove back to Ronda’s
house. Mr. Shaw was wearing khaki pants and a dark long sleeve shirt. Ronda left
work early and was waiting for him. She admitted him to the house. The two soon
got into an argument and then a physical altercation. Mr. Shaw went in the
bathroom because he thought he had gotten cut. When he emerged, Ronda had a
dark glass container in her hand and threw something toward his groin. Mr. Shaw
turned sideways, something hit him in the buttocks, and he felt immediate pain, like
he was on fire. Mr. Shaw grabbed Ronda’s forearms to keep her from getting any
more of the substance on him. Ronda’s head came down toward him and he “lost
it.” Mr. Shaw was in a rage and started striking Ronda’s face with his right knee.
Mr. Shaw was not sure how many times. (IIpp. 79-80)
At this point, Mr. Shaw was in a panic. All he could later remember was
“running after this thing and … very vaguely that they were all over [the] living
room … and … kitchen ….” Although the crime scene photos depicted a scene in
which there was a lot of sliding in the acid, Mr. Shaw could not remember this. As
he was running out of the house he noticed that his clothes had disintegrated and he
grabbed a towel. He couldn’t find his keys and he grabbed Ronda’s keys off the
counter and drove away in her car. He found his keys and parked Ronda’s car and
got into his own car. Mr. Shaw had little memory of the ride back to D.C. He was
in shock and just wanted to get home. (IIpp. 81-82)
11
When Mr. Shaw got back to D.C., he looked on the computer to find out what
to do about his injuries. When he later found out that Ronda was dead, he was
consumed with guilt because he knew his actions led to her death. (IIp. 82)
The defense pointed out that police were unable to link the acid to Mr. Shaw
through his computer or credit card records. Police did not look in Ronda’s home to
determine if she had any household products that contained sulfuric acid. Further, a
Lowe’s bag was found in Ronda’s home, but there was no follow-up to determine
what she bought at Lowe’s. Additionally, Ronda’s employer had sulfuric acid in its
laboratory. (IIpp. 84-86)
The defense further pointed out with regard to the identification of Mr. Shaw
by the neighbors based on the single photo, that Patricia Brown was first unsure if
the photo depicted the same person who had climbed the fence. Brown’s boyfriend
and daughter did not identify Mr. Shaw as the person they saw. The daughter
specifically said that the photo did not depict the man she saw in Ronda’s yard.
Brown then looked at the photo and said, “That’s him, that’s him.” When Brown
brought her daughter to the police station thirty minutes later, the daughter stated
that the man in the photo was the one she saw. (IIpp. 88-90)
Further, because the man was seen after Brown heard screams, the man must
have come to the house after the incident. None of the three witnesses said that the
person’s clothes were burned in any way. They said that the person easily climbed
the six-foot fence. As shown by the evidence at the scene and Mr. Shaw’s extensive
12
burns, Mr. Shaw’s clothes would have been burned and he would not have been able
to easily jump over the fence. Therefore, the defense would have argued at trial that
Mr. Shaw was not the person seen by Brown and the others. (IIpp. 90-92)
The defense additionally noted that the blue and white uniforms worn by
Talecris employees are similar to the clothing described by the witnesses. Further,
the State did not test the black material on the “fringe” of Mr. Shaw’s sweatpants to
determine if it was sulfuric acid. (IIpp. 100-02)
The defense also stated that there were unanswered questions about Ronda’s
movements the night before. Ronda spoke to her boyfriend on the evening of April
17 and the morning of April 18. At 1:30 a.m. on the morning of April 18, Ronda
made a purchase at a convenience store thirty-four miles from her home.
Additionally, during the early morning hours, as shown by a surveillance tape made
by Ronda, it appeared that a woman and a man were together in Ronda’s home.
Ronda’s boyfriend said that he was not there. (IIpp. 92-97)
With regard to the past instances of vandalism, the defense pointed out that
there were many other suspects – including Ronda’s other previous boyfriends.
Further, with regard to the February 2005 arson incident, people noticed that Ronda
still had things that she claimed were destroyed in the fire. Police gave Ronda a
“stress test” and she failed. Additionally, Mr. Shaw’s work records showed that he
was working that day in D.C. (IIpp. 74-76)
13
Finally, the defense stated that Mr. Shaw’s burn injuries to his buttocks and
right leg and Ronda’s burns on the left side of her face were consistent with Mr.
Shaw’s version of events – that Ronda threw the acid toward his groin area, that he
turned and the acid hit his buttocks, and that he hit the left side of Ronda’s head with
his right knee as the acid was being thrown around. (IIpp. 104-05)
b. Sentencing Evidence.
Mr. Shaw worked at Source Media, a daily paper. There were a lot of
“tension and stressors” in the workplace as the afternoon deadlines loomed. Two of
Mr. Shaw’s co-workers, Desiree Mitchell and Elizabeth Washington testified that
Mr. Shaw always knew how to calm everyone down; he was “like Switzerland.” He
stayed away from drama and avoided confrontation. He was always calm and
considerate. He was very helpful to his co-workers and expected nothing in return.
(IIpp. 108-12, 118-20)
Mitchell and Washington also testified as to how much Myka, Trey, and
Marcus meant to Mr. Shaw. Myka would visit the office weekly, and the boys every
other month. The last time the boys were at the office was February, 2006. They
called Mr. Shaw “daddy.” Mr. Shaw appeared to adore them, and they adored him
back. Washington thought the boys were Mr. Shaw’s own children. Mr. Shaw
corrected her, but told her, “[A]s far as I’m concerned, they’re my boys.” (IIpp.
112-15, 118-22)
14
Mr. Shaw made sacrifices for the children in that he did not spend his money
on his own entertainment. If he wanted to watch a movie, he would rent one and
watch it with the kids. If he wanted a meal, he would cook it with the kids. Mr.
Shaw also provided the boys with gifts on holidays, as well as clothes and school
supplies that they needed. Once Washington asked Mr. Shaw why he bought
clothes for the boys and sent them to Ronda; why not just send her the money so she
could buy the clothes? Mr. Shaw said he “didn’t trust money down there.”
Washington once overheard a phone conversation between Mr. Shaw and Ronda.
Mr. Shaw was asking her why she needed money for winter coats when he had just
bought the boys coats. He told Ronda that if they needed coats, he would come
down and buy them. Other conversations Washington overheard between Mr. Shaw
and Ronda also seemed to be about money. (IIpp. 114, 122-25)
Mr. Shaw also spent a lot of time trying to raise Myka properly. He focused
on her welfare and self-esteem as she started to become a young woman, and asked
women in the office for advice on how to help her with teenage problems. Mr.
Shaw worked hard to get Myka into a magnet school and to find scholarships for her
to go to college. Mr. Shaw worried that Ronda was not a good influence on Myka.
(IIpp. 115-16, 125-26)
Mitchell and Mr. Shaw talked about Ronda sometimes. Mr. Shaw said he
would always have feelings of love for Ronda because she is Myka’s mother, but
15
that he couldn’t be with her. Mr. Shaw did not seem jealous or vengeful toward
Ronda. (IIp. 116)
Mr. Shaw’s brother, Andre Shaw, testified that Mr. Shaw was a loving and
concerned father and wanted to provide a stable home for Myka. Mr. Shaw worked
part-time in Andre Shaw’s janitorial business while he was also working at Source
Media. Andre Shaw testified that he did not use dangerous chemicals or drain
cleaner in his business. (IIpp. 127-28, 135-36)
Andre Shaw also testified that Mr. Shaw provided care for Ronda’s other two
children as well as Myka. Andre Shaw reiterated Washington’s and Mitchell’s
testimony that Mr. Shaw bought the boys holiday gifts and things they needed.
Ronda would drop the boys off at Mr. Shaw’s grandmother’s house in Kenly when
Mr. Shaw was going to be there. Mr. Shaw went to his grandmother’s house at least
twice a month to mow the lawn and do routine maintenance. The boys visited with
Mr. Shaw as late as February, 2006. (IIpp. 127-30)
Andre Shaw also testified that on the day of the February 2005 arson, he
stopped by Mr. Shaw’s residence in D.C. Myka was at home and they listened to an
answering machine message from Ronda about the arson. Andre Shaw called his
brother’s landline at work in D.C. and told him what happened. Mr. Shaw came
home in about forty minutes. (IIpp. 132-33)
16
Mr. Shaw told his brother what happened on April 18. Mr. Shaw said that he
and Ronda were arguing about the kids and Ronda threw a chemical at him. (IIp.
134)
Myka Shaw testified as to how good a father Mr. Shaw was to her and the
boys. When she went to live with her mother during school vacations, Ronda was
gone a lot. Myka spent a lot of time doing housework. Ronda wasn’t interested in
talking to Myka about mother/daughter things. (IIpp. 137-44)
Myka further testified that there were issues between Mr. Shaw and Ronda
about money and about the boys. Mr. Shaw told Ronda he didn’t like the way she
cared for the boys. Ronda would “get all in his face” and try to start an argument.
Mr. Shaw would try to walk away and not escalate the argument. Myka never saw
Mr. Shaw confront Ronda physically, threaten Ronda, or say that he wanted to harm
her. Myka believed Mr. Shaw could not hurt Ronda under normal everyday
circumstances. (IIpp. 145-47)
Myka also testified that although she told police that her father was home in
D.C. on April 18, she meant that she saw someone outside walking down the street
that she believed to be her father. (IIp. 154)
Janet Adams, a mitigation specialist with the Capital Defender’s Office,
interviewed some of Mr. Shaw’s relatives and Ronda’s relatives. They all stated
that Mr. Shaw was a loving and devoted grandson to his grandmother in Kenly and a
good father to Myka, and that he cared for Ronda’s boys as if they were his own.
17
They told Adams that Ronda would drop the boys off in Kenly for Mr. Shaw to
watch, sometimes dropping them off before Mr. Shaw even arrived. (IIpp. 164-69)
Ronda’s brother-in-law told Adams that Mr. Shaw always treated Ronda well,
and that he was very surprised when he heard what happened. Trey’s grandmother
said that she had never heard Mr. Shaw say anything negative about Ronda. None
of the others interviewed said anything inconsistent with this. No one said that Mr.
Shaw was jealous of Ronda. Instead, Mr. Shaw was concerned about the effect that
Ronda’s lifestyle would have on Myka and the boys. He didn’t like the idea of
Myka seeing Ronda’s boyfriends coming and going. (IIpp. 169-72)
Adams also interviewed Mr. Shaw’s former jailer Joe Best. Officer Best
described Mr. Shaw as a “superior person” who went out of his way to help other
inmates. Mr. Shaw would clean up after inmates with HIV, and had given up his
bunk for sick inmates numerous times. No one had to ask; he did it on his own.
Once, Officer Best slipped and fell in the jail. Best told Adams that he was in a very
vulnerable position that the other inmates could have taken advantage of. But Mr.
Shaw was the first person who got to him. Mr. Shaw helped him up and asked if he
was okay. (IIpp. 170-71)
Forensic psychiatrist Dr. James Hilkey testified that he interviewed Mr. Shaw
about ten times over two years, for a total of twenty-five hours, that he reviewed
materials related to the case. Mr. Shaw was initially not very forthcoming during
the interviews, but became moreso as time went on. It was important to Mr. Shaw
18
to project himself as a capable, competent person. He kept unacceptable feelings
from other people and from his own awareness. One way he kept his own emotions
out of his awareness was to avoid conflict and to view himself as a peacemaker.
(IIpp. 175-81, 191-92)
Nevertheless, Mr. Shaw became emotional twice during his time with Dr.
Hilkey – when describing how he and Ronda met in high school at McDonald’s and
when talking about what happened on April 18. Mr. Shaw admitted that he
snapped, but had a hard time accepting it. It was difficult for him to accept that he
was responsible for the death of someone he cared for. It was difficult for him to
talk about himself in terms of inadequacies. (IIpp. 181-82, 191-92, 200)
Mr. Shaw was abandoned early by his biological father. His mother married
again, but his stepfather was in the military and often absent. Dr. Hilkey believed
that the absence of father figures had an impact on Mr. Shaw’s early development.
Because his own home was somewhat fractured, providing a stable family became
the driving force in Mr. Shaw’s life. (IIpp. 184, 186-87, 212)
While he was growing up, Mr. Shaw had a thyroid disorder that caused him to
grow large breasts. Until they were removed, this was a source of embarrassment
for him. Other children made fun of him and he couldn’t fit in. He was not a
particularly good student and his intelligence is in the low average range. He felt
inadequate. Dr. Hilkey observed that Mr. Shaw likely had to work very hard to get
his degree in computer science. (IIpp. 184-86, 190, 195)
19
Mr. Shaw told Dr. Hilkey what happened on April 18. Mr. Shaw went to
Ronda’s home to talk about Myka. Their conversation started civilly, but Ronda
became enraged and a fight ensued. Ronda threw a substance on him, they fought
some more, and he grabbed Ronda’s arms and struck her head with his knee many
times. Mr. Shaw’s memory of the incident was not entirely clear. Dr. Hilkey
explained that this is not uncommon for someone under extreme physical or
emotional pain. Mr. Shaw remembered that he completely lost it, became
frightened, and left the scene. Dr. Hilkey explained that when a person feels more
stress than he can bear, he can lose control and behave in ways that are not typical.
Here, not only was there a physical altercation, but Mr. Shaw was in acute pain from
the sulfuric acid burning his body. This created a “perfect storm” and Mr. Shaw lost
control. Mr. Shaw told Dr. Hilkey he wished he had stayed and done something for
Ronda. Dr. Hilkey said that Mr. Shaw’s flight was a result of being overwhelmed
and being in extreme pain. (IIpp. 197-200)
3. Sentencing.
The defense asserted that Mr. Shaw did not come to North Carolina to do any
harm to Ronda. He did not bring any acid. When Ronda threw acid on him, he
became enraged and lost it. There were unanswered questions concerning where the
acid was from, why Ronda left her house in the middle of the night, who was there
with her in the early morning, the identity of the man who climbed the fence, and
who left the key in Ronda’s living room and when it was left there. Allowing Mr.
Shaw to plead to second-degree murder was not a “great concession” for the State.
20
The defense also disputed that Mr. Shaw was responsible for the prior vandalism
incidents, or that Ronda believed that he was involved. Indeed, Ronda had
continued to leave her children with him until February, 2006. (IIpp. 214-25)
The trial court stated that it appeared from viewing photos of the body that
acid was poured on Ronda as she lay on the floor. The defense reiterated the State’s
earlier statement, (Ip. 34), that the autopsy and other evidence showed that acid was
not poured on Ronda. (IIpp. 226-27) The trial court again stated that it looked like
the acid was poured. (IIp. 228)
The State argued that Mr. Shaw did not tell Ronda he was coming to visit.
The State maintained that Mr. Shaw was responsible for the prior acts of vandalism
and that on April 18 he showed up at her house with the acid in order to vandalize it.
The State further maintained that although Mr. Shaw “may not have premeditated”
the killing, (IIp. 234), “there was absolute premeditation and deliberation on
multiple times to vandalize [Ronda’s] house.” (IIp. 236) The State additionally
contended that on April 18, Mr. Shaw entered Ronda’s home with a key. Ronda
came home early, an argument ensued, and eventually there was “a huge struggle”
during which both suffered their injuries. (IIpp. 234-36) The State opined, “We
think second-degree is an appropriate theory in this case, an appropriate charge,” but
that it was “one of the most heinous second-degree cases we’ve seen.” The State
asked for a maximum aggravated range sentence. (IIp. 240)
The trial court stated:
21
I don’t know, but I suspect if this had actually been tried as first-degree murder, the State would have argued under a theory of first-degree murder on the basis of premeditation and deliberation, that those can develop during a very short time even during the assault. I think the instruction would be given to the jury of that being the law. So as it relates to the State giving the Mr. Shaw no concession, I think that had it been tried before a jury, that that would have been an appropriate charge and been submitted to the jury under these facts and with that instruction. (IIp. 242)
The trial court told Mr. Shaw, “I do believe that the State of North Carolina
has made a significant concession for you by allowing you to plead to second-
degree murder.” (IIp. 244)
The trial court found several mitigating factors. The trial court found that the
stipulated aggravating factor outweighed the mitigating factors and that Mr. Shaw
had zero prior record points. The trial court sentenced Mr. Shaw to the maximum
aggravated sentence, 196 to 245 months. (IIpp. 244-46)
ARGUMENT
I. THE TRIAL COURT ERRED WHEN IT TOOK INTO ACCOUNT DURING SENTENCING AN AGGRAVATING FACTOR WHICH WAS NEITHER STIPULATED TO NOR FOUND BY A JURY BEYOND A REASONABLE DOUBT, AND WHICH WAS NOT ALLEGED IN A CHARGING DOCUMENT.
Assignments of Error Nos. 8-10, Rp. 27 & Addendum to Record on Appeal
Standard of Review: De novo review applies to issues concerning the
denial of a constitutional right, State v. Prevatte, 356 N.C. 178, 218, 570 S.E.2d 440,
462 (2002), the trial court’s consideration of an improper factor during sentencing,
22
State v. Person, 187 N.C. App. 512, 525-28, 653 S.E.2d 560, 569 (2007), and the
violation of a statutory mandate. State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985).
Under the de novo standard, the reviewing court considers the matter anew and
freely substitutes its own judgment for that of the lower court. N.C. Department of
Environment & Natural Resources v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888,
895 (2004).
Argument:
In determining Mr. Shaw’s sentence, the trial court took into account that Mr.
Shaw could have been tried for first-degree premeditated murder, but the State made
a “significant concession” by allowing him to plead to second-degree murder. The
trial court erred because this nonstatutory aggravating factor was neither stipulated
to nor found by a jury beyond a reasonable doubt. In addition, the aggravating
factor was not alleged in a charging document. These errors violated Mr. Shaw’s
rights under the Sixth and Fourteenth Amendments to the United States
Constitution, Article I, Sections 19, 22, 23, and 24 of the North Carolina
Constitution, and G.S. §15A-1340.16.
The terms of Mr. Shaw’s plea were as follows:
The defendant will plead guilty to second-degree murder. The Mr. Shaw will also stipulate to the aggravating factor [that the victim suffered greatly prior to her death]. After presentation of evidence to the court at a sentencing hearing, both sides will argue as to the appropriate sentence. (Rpp. 10-11)
23
Mr. Shaw entered an Alford plea to second-degree murder and stipulated to
the aggravating factor. (Rpp. 9-12; Ipp. 4-11) After the presentation of evidence at
the sentencing hearing, the defense asserted that Mr. Shaw did not intend to harm to
Ronda and he did not bring any acid. When Ronda threw acid on him, he became
enraged and lost it. Therefore, allowing Mr. Shaw to plead to second-degree murder
was not a “great concession” for the State. (IIpp. 224-25)
Although the State maintained that Mr. Shaw brought the acid to Ronda’s
home, the State also stated that he brought the acid to vandalize the home, not to
harm her. The State further stated that Ronda’s death occurred during “a huge
struggle” in the living room. The State opined, “We think second-degree is an
appropriate theory in this case, an appropriate charge.” (IIpp. 234-36, 240)
The trial court stated:
I don’t know, but I suspect if this had actually been tried as first-degree murder, the State would have argued under a theory of first-degree murder on the basis of premeditation and deliberation, that those can develop during a very short time even during the assault. I think the instruction would be given to the jury of that being the law. So as it relates to the State giving the defendant no concession, I think that had it been tried before a jury, that that would have been an appropriate charge and been submitted to the jury under these facts and with that instruction. (IIp. 242)
Additionally, the trial court told Mr. Shaw immediately before sentencing
him, “I do believe that the State of North Carolina has made a significant concession
for you by allowing you to plead to second-degree murder.” (IIp. 244)
24
The trial court found the nonstatutory aggravating factor to which Mr. Shaw
stipulated, that the victim suffered greatly prior to her death, and found several
mitigating factors. The trial court found that the aggravating factor outweighed the
mitigating factors and sentenced Mr. Shaw to the maximum aggravated sentence,
196 to 245 months. (IIpp. 244-46)
Even though “[a] sentence within the statutory limit will be presumed regular
and valid[,] . . . such a presumption is not conclusive.” State v. Boone, 293 N.C.
702, 712, 239 S.E.2d 459, 465 (1977). “If the record discloses that the court
considered irrelevant and improper matter in determining the severity of the
sentence, the presumption of regularity is overcome, and the sentence is in violation
of defendant’s rights.” Id.
Under Apprendi v. New Jersey, “[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.”
Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000). “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
Mr. Shaw.” Blakely v. Washington, 542 U.S. 296, 303, 159 L. Ed. 2d 403, 413
(2004). “Thus, while a trial court may impose an aggravated sentence on the basis
of admissions made by a defendant, error occurs when a judge aggravates a criminal
sentence on the basis of findings made by the judge that are in addition to or in lieu
25
of findings made by a jury.” State v. Hurt, 361 N.C. 325, 329, 643 S.E.2d 915, 917
(2007).
In response to the decision in Blakely, our legislature amended our sentencing
statutes. Accordingly, if a defendant does not admit to an aggravating factor, “only
a jury may determine if an aggravating factor is present in an offense,” §15A-
1340.16(a1), and “[t]he State bears the burden of proving beyond a reasonable doubt
that an aggravating factor exists.” §15A-1340.16(a). “If the defendant pleads guilty
to the felony, but contests the existence of one or more aggravating factors, a jury
shall be impaneled to determine if the aggravating factor or factors exist.” §15A-
1340.16(a3). Further, “[a]ny [nonstatutory] aggravating factor … shall be included
in an indictment or other charging instrument ….” §15A-1340.16(a4).
The trial court erred by taking into account the aggravating factor that the
State could have submitted the charge of first-degree premeditated murder to a jury.
Initially, here “it can reasonably be inferred from the trial court’s … remarks” that
in sentencing Mr. Shaw, it took into account the extra aggravating factor. See State
v. Hueto, ___ N.C. App. ___, 671 S.E.2d 62, 68 (2009) (granting new sentencing
hearing where it could reasonably be inferred from trial court’s remarks that court
took improper considerations into account in sentencing). That the trial court took
the extra factor into account is shown by the fact that it stated twice that Mr. Shaw
was being given a concession by being allowed to plead to second-degree murder,
the second time personally addressing the defendant; that the second remark
26
occurred immediately before the trial court pronounced sentence; and that the trial
court seemed to believe that Mr. Shaw poured the acid on Ronda. (IIp. 226-28, 242-
44) These facts lead to “a clear inference that a greater sentence was imposed
because” the trial court believed Mr. Shaw premeditated and deliberated the crime.
See Hueto, ___ N.C. App. at ___, 671 S.E.2d at 69 (2009).
The trial court erred by taking this factor into account. It is true that our
appellate courts have found that it is proper to aggravate the defendant’s sentence
based on a finding of an element or elements not included in the charge to which the
defendant pled guilty. State v. Melton, 307 N.C. 370, 375-77, 298 S.E.2d 673, 677-
78 (1983) (premeditation and deliberation as aggravating factor where defendant
pled guilty to second-degree murder); State v. Byrd, 164 N.C. App. 522, 527-29, 596
S.E.2d 860, 863-65 (2004) (that “the defendant could have been, but was not
charged with shooting into occupied property” as aggravating factor). However,
such an aggravating factor must comport with the requirements of Blakely and our
sentencing statutes – it must be alleged in an indictment, and found by a jury beyond
a reasonable doubt.
Here, the aggravating factor that Mr. Shaw could have been tried for first-
degree premeditated murder was not submitted to a jury and found beyond a
reasonable doubt. Additionally, Mr. Shaw’s indictment did not allege any
aggravating factors. (Rp. 4) Therefore, the trial court erred by taking this
aggravating factor into account in sentencing Mr. Shaw.
27
A violation of the requirements of Apprendi and Blakely that a jury determine
which aggravating factors apply to a particular offense is subject to constitutional
harmless error analysis. Washington v. Recuenco, 548 U.S. 212, 165 L. Ed. 2d 466
(2006). The error is harmless only if the State can show that the evidence was “so
‘overwhelming’ and ‘uncontroverted’ that any rational fact-finder would have found
the disputed aggravating factor beyond a reasonable doubt.” State v. Blackwell, 361
N.C. 41, 49, 638 S.E.2d 452, 458 (2006) (citations omitted). The statutory errors
require reversal if there is a reasonable possibility that, but for the errors, a different
result would have been reached. §15A-1443(a).
Here, the State cannot show that the trial court’s consideration of the
nonstatutory aggravating factor that Mr. Shaw could have been tried for
premeditated murder was harmless beyond a reasonable doubt. Further, but for this
error, there is a reasonable possibility that the trial court would have reached a
different sentencing result.
First, the error requires a new sentencing hearing because it does not appear
that the aggravating factor – that Mr. Shaw could have been tried for first-degree
premeditated murder – is something that a jury could properly determine. Whether
the evidence is sufficient to sustain a charge is a question of law and is only properly
determined by a judge. State v. Barden, 356 N.C. 316, 251, 572 S.E.2d 108, 131
(2002) (citation omitted). The trial court did not determine that Mr. Shaw
28
premeditated and deliberated the crime, only that he could have been tried for doing
so. (IIpp. 241-42)
Second, even if the aggravating factor were that Mr. Shaw premeditated and
deliberated the crime, the State cannot show that the evidence of premeditation was
“so ‘overwhelming’ and ‘uncontroverted’ that any rational fact-finder would have
found the disputed aggravating factor beyond a reasonable doubt.”
As shown above, Mr. Shaw treated Ronda well and had not had any past
physical altercations with her. When they would argue about money or the children,
Mr. Shaw would try to diffuse the argument. According to his coworkers, Mr. Shaw
was nonconfrontational and “a peacemaker.” The State could not show the source
of the acid and the evidence was equivocal as to who brought the acid to Ronda’s
home. Further, even if, as contended by the State (IIp. 235), Mr. Shaw brought the
acid to Ronda’s home in order to vandalize it, Mr. Shaw’s and Ronda’s injuries
match his version of events: that Ronda threw the acid toward his groin, that he
turned and the acid hit his buttocks, and that he hit the left side of Ronda’s head with
his right knee. The evidence showed, and both parties agreed (Ip. 34; IIpp. 227-29),
that Mr. Shaw did not pour the acid on Ronda. Instead, there was a “very large
struggle throughout the home” (Ip. 33), during which both parties were severely
burned. Therefore, the evidence was not “so ‘overwhelming’ and ‘uncontroverted’
that any rational fact-finder would have found [premeditation and deliberation]
beyond a reasonable doubt.” See State v. Beck, 163 N.C. App. 469, 474, 594 S.E.2d
29
94, 97 (2004) (second-degree murder verdict properly submitted based on evidence
that defendant and victim argued and victim assaulted defendant prior to killing),
rev’d in part on other grounds, 359 N.C. 611, 614 S.E.2d 274 (2005). See also
State v. Williams, 144 N.C. App. 526, 531, 548 S.E.2d 802, 805 (2001) (insufficient
evidence of premeditation and deliberation where no evidence of animosity or that
defendant had made threatening remarks to victim, defendant was provoked by
victim’s assault, and defendant’s actions before and after the shooting did not show
planning or forethought on his part).
Even the State was uncertain as to whether the killing was premeditated and
deliberate or not. The State asserted that Mr. Shaw “premeditated” vandalizing
Ronda’s house, (IIp. 236), but that he “may not have premeditated” the killing. (IIp.
234) The State further stated that Ronda’s death occurred during “a huge struggle”
in the living room. (IIp. 236) Accordingly, the State asserted that “second degree is
an appropriate theory in this case.” (IIp. 240)
Therefore, the State cannot show that there was overwhelming evidence of
premeditation and deliberation. Further, because the evidence of premeditation was
so equivocal, there is a reasonable possibility that a jury would not have found this
fact beyond a reasonable doubt. §15A-1443(a). Additionally, because the extra
aggravating factor was not alleged in a charging document, Mr. Shaw did not have
notice of the factor and the trial court did not have jurisdiction to rely on the factor
in sentencing. State v. Westbrooks, 345 N.C. 43, 58, 478 S.E.2d 483, 492 (1996)
30
(citation omitted) (one “purpose[ ] of an indictment include[s] giving a defendant
notice of the charge against him so that he may prepare his defense”); State v.
McBane, 276 N.C. 60, 65, 170 S.E.2d 913, 916 (1969) (“A valid warrant or
indictment is an essential of jurisdiction. … The warrant or indictment must charge
all the essential elements of the alleged criminal offense.”).
The fact that Mr. Shaw stipulated to the aggravating factor that the victim
suffered greatly prior to her death does not mean that the trial court’s error in relying
on the improper aggravating factor was harmless.
Our Supreme Court has held that where an aggravating factor is erroneous,
but where one or more other aggravating factors are properly found, there is no
prejudicial error if the trial court announces that each of the aggravating factors
independently justified the aggravated sentence imposed. State v. Everette, 361
N.C. 646, 657-58, 652 S.E.2d 241, 248-49 (2007). However, in Everette, the trial
court did not, through its remarks, appear to be relying on an extra aggravating
factor as well as on the properly found aggravating factors. In Mr. Shaw’s case,
while the trial court announced that the aggravated sentence was based on a
weighing of the stipulated aggravating factor against the mitigating factors, the trial
court also indicated through its remarks that it was taking into account that the State
could have tried Mr. Shaw for premeditated murder. Therefore, Everette does not
apply. Accordingly, the trial court’s proper finding of one aggravating circumstance
does not mean that the error here is harmless.
31
Mr. Shaw must be granted a new sentencing hearing. “When the trial judge
errs in finding an aggravating factor and imposes a sentence in excess of the
presumptive term, the case must be remanded for a new sentencing hearing.” State
v. Wilson, 338 N.C. 244, 259, 449 S.E.2d 391, 400 (1994). Resentencing is required
even if a single factor in aggravation is improperly applied. State v. Ahearn, 307
N.C. 584, 602, 300 S.E.2d 689, 701 (1983).
In State v. Ahearn, supra, the trial court found several aggravating and
mitigating factors and gave the defendant an aggravated sentence. On appeal, the
Supreme Court determined that one of the aggravating factors was unsupported.
The Court concluded that the error was not harmless because there was no way to
know how much weight was afforded to each aggravating factor: “Reliance on a
factor in aggravation determined to be erroneous may or may not have affected the
balancing process which resulted in the decision to deviate from the presumptive
sentence.” Id. at 602, 300 S.E.2d at 700. Indeed, “it must be assumed that every
factor in aggravation measured against every factor in mitigation, with concomitant
weight attached to each, contributes to the severity of the sentence.” Id. at 602, 300
S.E.2d at 701. For this reason, “our appellate courts should not attempt to second
guess the sentencing judge with respect to the weight given to any particular factor
… [or] engage in numerical balancing in order to determine whether a sufficient
number of aggravating factors remain to ‘tip the scales.’” Id.
32
In this case, like Ahearn, there is no way to know how much weight the trial
court gave the extra nonstatutory aggravating factor. Therefore, the error was not
harmless and Mr. Shaw must be granted a new sentencing hearing. See State v.
Hurt, 361 N.C. 325, 332, 643 S.E.2d 915, 919 (2007) (where one of three
aggravating factors that was not submitted to jury in violation of Blakely was not
supported by overwhelming and uncontroverted evidence, our Supreme Court
remanded case for a new sentencing hearing, noting, “Having concluded that the
trial court’s finding of the HAC aggravating factor was not harmless error, we need
not consider the other two aggravating factors”); State v. Rollins, 131 N.C. App.
601, 508 S.E.2d 554 (1998) (relying on Ahearn and remanding for new sentencing
hearing where one of three aggravating factors improperly found).
This error is properly before this Court and is preserved for review. A
defendant who pleads guilty has a right to appeal the issue of whether the trial court
erred by finding an aggravating factor not admitted by the defendant nor found by a
jury beyond a reasonable doubt. E.g., State v. Whitehead, 174 N.C. App. 165, 620
S.E.2d 272 (2005). Further, “‘[a]n error at sentencing is not considered an error at
trial for the purpose of Rule 10(b)(1) because this rule is ‘directed to matters which
occur at trial and upon which the trial court must be given an opportunity to rule in
order to preserve the question for appeal.’” State v. Curmon, 171 N.C. App. 697,
703, 615 S.E.2d 417, 422 (2005) (citations omitted). Therefore, our courts do not
“require that after a trial is completed and a judge is preparing a judgment or making
findings of aggravating factors in a criminal case, that a party object as each fact or
33
factor is found in order to preserve the question for appeal.” State v. Canady, 330
N.C. 398, 403, 410 S.E.2d 875, 878 (1991).
Certainly, no defendant wishes for a trial court to find additional aggravation
and sentence him to the highest possible sentence, especially in a way that violates
procedures set out in our statutes. Here, Mr. Shaw’s attorney specifically requested
that the trial court not sentence Mr. Shaw at the top of the aggravated range. (IIpp.
241-42) Accordingly, “[t]he defendant did not want the court to find the
aggravating factor and the court knew or should have known it. This is sufficient to
support an assignment of error.” 330 N.C. at 402, 410 S.E.2d at 878. In addition,
the statutory errors are preserved as violations of statutory mandates. Ashe, supra.
See §§15A-1340.16(a3) (“a jury shall be impaneled to determine if the aggravating
factor or factors exist), -1340.16(a4) (nonstatutory aggravating factors “shall be
included in an indictment or other charging instrument”) (emphasis added).
In summary, the trial court erred by considering the aggravating factor that
Mr. Shaw could have been tried for first-degree premeditated murder. Mr. Shaw
must be granted a new sentencing hearing.
CONCLUSION
For all the foregoing reasons, Mr. Shaw respectfully contends he must be
granted a new sentencing hearing.
Respectfully submitted this the 30th day of October, 2009.
34
______________________________Anne M. GomezAssistant Appellate [email protected]
Staples S. HughesAppellate [email protected]
Office of the Appellate Defender123 West Main Street, Suite 500Durham, North Carolina 27701(919)560-3334
ATTORNEYS FOR DEFENDANT
35
CERTIFICATION OF COMPLIANCE WITH RULE 28( j )(2)(A)(2)
I hereby certify that the foregoing Defendant -Appellant’s brief complies with Appellate Rule 29(j)(2)(A)(2) in that, according to the word processing program used to produce this brief (Microsoft Word), the document does not exceed 8,750 words, exclusive of cover, index, table of authorities, certificate of compliance, certificate of service, and addendum.
This the 30th day of October, 2009.
____________________________Anne M. GomezAssistant Appellate Defender
CERTIFICATE OF FILING AND SERVICE
I hereby certify that the original Defendant-Appellant’s Brief has been filed pursuant to Rule 26 by electronic means with the Clerk of the North Carolina Court of Appeals.
I further hereby certify that a copy of the above and foregoing Defendant-Appellant’s Brief has been duly served upon Daniel P. O’Brien, Assistant Attorney General, [email protected], by electronic means.
This the 30th day of October, 2009.
____________________________Anne M. GomezAssistant Appellate Defender
36