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175 N.C. App. 434

626 S.E.2d 301

State v. Huu the Cao

Court of Appeals of North Carolina

Decided January 17, 2006

Court of Appeals of North Carolina · decided 2006-01-17

Cited by 24 later decisions — most recently October 2013

24 state decisions

Relies on Blakely v. Washington · 175 N.C. App. 250 - State v. Hanton

Good law ✅— No negative treatment on recordhow we know

Decided 2006-01-17

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McGEE, Judge,

¶1concurring in part and concurring in the result in part.

¶2I fully concur with the majority opinion except for the reasons set forth in the dissenting portion of my opinion filed 3 January 2006 in State v. Hanton, 175 N.C. App. 250, 623 S.E.2d 600 (2006). I conclude that upon remand, a determination of whether defendant’s out-of-state convictions are substantially similar to North Carolina offenses should be determined by the trial court in the event the trial court can conduct a comparison of the elements of the two states’ statutes without undertaking any type of factual analysis of the circumstances underlying defendant’s prior convictions. However, in the event a factual inquiry into, or analysis of, defendant’s conduct is necessary to resolve whether defendant would have been convicted under a similar North Carolina law, that determination must be made by a jury under Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), and Shepard v. United States, 544 U.S. -, 161 L. Ed. 205 (2005).

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