State v. Hinton, ___ N.C. App. ___, 823 S.E.2d 667 (Jan. 15, 2019)

The court held that even if the trial court erred under Blakely by finding the existence of an aggravating factor and sentencing the defendant in the aggravated range, any error was harmless. After the jury found the defendant guilty of two counts of common-law robbery the trial court dismissed the jury and held a sentencing hearing. The State had given timely notice of his intent to prove the existence of an aggravating factor, specifically that during the 10-year period prior to the commission of the offense the defendant was found in willful violation of his conditions of probation (aggravating factor G.S. 15A-1340.16(d)(12a)). At sentencing hearing, the State offered evidence demonstrating the existence of the aggravating factor. Over the defendant’s objection that under the statutes and Blakely the existence of the aggravating factor must be found by the jury, the trial court sentenced the defendant in the aggravated range. The court opined that “Given the standard of proof that applies in this State, it is arguable whether a judgment of a willful probation violation—be it by admission or court finding—is sufficiently tantamount to a “prior conviction” to allow a sentencing judge to use that previous finding as an aggravating factor justifying an increase in the length of a defendant’s sentence beyond that authorized by the jury’s verdict alone consonant with the demands of due process.” However, it found that it need not decide the issue, concluding instead that even if an error occurred it was harmless given the State’s evidence.