No



No. COA04-422 TENTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA )

)

-vs- ) From WAKE COUNTY

)

ROBERT HENRY BURR )

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DEFENDANT APPELLANT'S BRIEF

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INDEX

AUTHORITIES CITED............................. iv

QUESTIONS PRESENTED........................... 1

PROCEDURAL HISTORY............................ 2

GROUNDS FOR APPELLATE REVIEW.................. 3

A. Right to appeal insufficiency of the

evidence to support the sentence........ 3

B. Right to appeal lack of jurisdiction

to sentence in the aggravated range..... 4

C. Petition for a writ of certiorari to

review the factual basis for the

guilty pleas to security fraud and the

lack of notice of the aggravating

factor found............................ 5

FACTS......................................... 7

A. Indictments............................. 7

B. Plea agreement.......................... 10

C. Factual basis........................... 10

D. Sentencing.............................. 16

ARGUMENTS

I. The Superior Court erred in imposing

consecutive sentences for two counts of

obtaining property by false pretense without

sufficient evidence to support a finding of

more than a single offense.................... 18

A. Preservation for review by law.......... 18

B. Applicable law.......................... 18

C. Application to the facts................ 20

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II. The Superior Court erred in accepting

guilty pleas to security fraud without

any factual basis to determine that there

was an offer, sale, or purchase of any

security...................................... 21

A. Preservation for review by law.......... 21

B. Applicable law.......................... 22

C. Application to the facts................ 23

III. The Superior Court erred in accepting

guilty pleas to security fraud without

any factual basis to determine that the

statements of facts alleged to have been

omitted were necessary in order to make the

statements made, in light of the

circumstances in which they were made, not

misleading.................................... 23

A. Preservation for review by law.......... 23

B. Applicable law.......................... 24

C. Application to the facts................ 24

IV. The Superior Court lacked jurisdiction

to sentence the Defendant-Appellant in

the aggravated range absent allegation of the

aggravating factor in the indictment and

submission of the aggravating factor to a

jury.......................................... 25

A. Preservation for review by law.......... 25

B. Applicable law.......................... 26

C. Application to the facts................ 28

V. The Superior Court erred in finding an

aggravating factor not alleged in any

pleading or otherwise prior to the finding.... 28

A. Preservation for review by law.......... 29

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B. Applicable law.......................... 29

C. Application to the facts................ 30

CONCLUSION.................................... 31

CERTIFICATE OF SERVICE........................ 33

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AUTHORITIES CITED

Apprendi v. New Jersey, 530 U.S. 466,

120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)........ 26

Jones v. United States, 526 U.S. 227,

119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)........ 26

State v. Bailey, 157 N.C.App. 80, 577 S.E.2d

683 (2003).................................... 18

State v. Bivens, 155 N.C.App. 645,

573 S.E.2d 259 (2002)......................... 6

State v. Fernandez, 346 N.C. 1, 484 S.E.2d

350 (1997).................................... 19

State v. Grady, 136 N.C.App. 394, 524 S.E.2d

75 (2000)..................................... 19

State v. Hines, 36 N.C.App. 33, 243 S.E.2d

782 (1978).................................... 21

State v. Hunt, 357 N.C. 257, 582 S.E.2d 593

(2003)........................................ 27

State v. Johnson, 212 N.C. 566, 194 S.E.2d

319 (1937).................................... 19

State v. Lucas, 353 N.C. 568, 548 S.E.2d 712

(2001)........................................ 26

State v. Shoff, 118 N.C.App. 724, 456 S.E.2d

875 (1995).................................... 7

State v. Wallace, 351 N.C. 481, 528 S.E.2d

326 (2000).................................... 4

United States Constitution, Sixth Amendment... 6

United States Constitution, Fourteenth

Amendment..................................... 6

North Carolina Constitution, Art. I, §19...... 7

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North Carolina Constitution, Art. I, §22...... 28

North Carolina Constitution, Art. I, §23...... 6

North Carolina Constitution, Art. I, §24...... 28

N.C.G.S. §14-100.............................. 2

N.C.G.S. §15A-1022(c)......................... 6

N.C.G.S. §15A-1340.14......................... 27

N.C.G.S. §15A-1340.16(b)...................... 27

N.C.G.S. §15A-1340.16(d)...................... 27

N.C.G.S. §15A-1340.16(d)(14).................. 30

N.C.G.S. §15A-1340.16(d)(20).................. 28

N.C.G.S. §15A-1340.16A........................ 27

N.C.G.S. §15A-1340.17(c)...................... 4

N.C.G.S. §15A-1340.17(c)(4)................... 27

N.C.G.S. §15A-1340.17(d,e).................... 27

N.C.G.S. §15A-1444(a1)........................ 3

N.C.G.S. §15A-1444(e)......................... 5

N.C.G.S. §15A-1446(d)(16)..................... 21

N.C.G.S. §15A-1446(d)(18)..................... 18

N.C.G.S. §15A-2000(e)......................... 27

N.C.G.S. §78A-2(11)........................... 22

N.C.G.S. §78A-8(2)............................ 2

N.C.R.App.P. 13(a)(1)......................... 3

N.C.R.App.P. 21(a)(1)......................... 5

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N.C.R.App.P. 27(c)............................ 3

No. COA04-422 TENTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA )

)

-vs- ) From WAKE COUNTY

)

ROBERT HENRY BURR )

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DEFENDANT APPELLANT'S BRIEF

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QUESTIONS PRESENTED

1) Is the evidence presented in the guilty plea and sentencing

proceedings sufficient to support consecutive sentences for two counts of obtaining property by false pretense?

2) Do the statements made to the Superior Court in the guilty

plea proceedings provide a factual basis for conviction of fraud in the offer, sale, or purchase of any security?

3) Do the statements made to the Superior Court in the guilty

plea proceedings provide a factual basis for conviction of security fraud by omission to state material facts?

4) Does the Superior Court have jurisdiction to sentence in the

aggravated range absent allegation of the aggravating factor in the indictment and submission of the aggravating factor to a jury?

5) Is the Superior Court correct to find an aggravating factor

without any allegation of that aggravating factor prior to the finding?

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PROCEDURAL HISTORY

On 22 July 2003, a grand jury in Wake County indicted the Defendant-Appellant Robert Burr for six counts of security fraud in violation of N.C.G.S. §78A-8(2) (Rpp. 20-25) and two counts of obtaining property by false pretense in violation of N.C.G.S. §14-100 for obtaining $5 million from a Billy B. Britt in 2001 (Rpp. 26-27).

On 9 October 2003, the Defendant-Appellant appeared before the Superior Court (Hon. Wade Barber, presiding), and guilty pleas as charged were entered to all of the indictments (Tpp. 1-22). The Superior Court found as an aggravating factor that the crimes were committed while the Defendant-Appellant was on pretrial release regarding similar crimes in Arizona (Rpp. 57, 59) and imposed consecutive sentences of 84-110 months imprisonment in the aggravated range at Class C, Level I, for the two counts of obtaining property by false pretense, consolidating the six security fraud convictions for judgment with one of the obtaining property by false pretense convictions (Rpp. 61-64). The Defendant-Appellant gave notice of appeal (Rpp. 62, 64; Tp. 46).

The court reporter certified delivery of the transcript on 14 January 2004 (Rp. 68). The Defendant-Appellant served a proposed record on appeal on 18 February 2004 (Rp. 71), which

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became the Record on Appeal in the absence of any objection, amendment, or proposed alternative record (Rp. 72).

The Defendant-Appellant filed the Record on Appeal on 23 March 2004 (Rp. 1), and the Clerk of the Court of Appeals mailed the printed record to the parties on 5 April 2004.

This Defendant Appellant's Brief is mailed to the Court of Appeals with a copy to the assigned associate attorney general on 6 May 2004, one day after the initial deadline allowed by N.C.R.App.P. 13(a)(1), so is filed subject to the Court of Appeals allowing the motion filed herewith to extend the filing deadline by one day as permitted by N.C.R.App.P. 27(c).

GROUNDS FOR APPELLATE REVIEW

The Defendant-Appellant assigns five errors on appeal (Rpp. 69-70). Regarding two of the assignments of error, the Defendant-Appellant appeals as a matter of right. Regarding the other three assignments of error, the Defendant-Appellant asks the Court of Appeals to deem this Defendant Appellant's Brief to be a petition for a writ of certiorari and to review the assignments as a matter of discretion.

A. Right to appeal insufficiency of the evidence to support

the sentence.

N.C.G.S. §15A-1444(a1) states: "A defendant who has... entered a plea of guilty...to a felony, is entitled to appeal as

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a matter of right the issue of whether his sentence is supported by evidence introduced...if the minimum sentence...does not fall within the presumptive range for the defendant's prior record... level and class of offense".

Here, the Superior Court sentenced the Defendant-Appellant to two consecutive terms of 84-110 months imprisonment in the aggravated range at Class C, Level I (Rpp. 57-64). The presumptive range of minimum sentences at Class C, Level I, is 58-73 months, see chart at N.C.G.S. §15A-1340.17(c).

Accordingly, the Defendant-Appellant appeals as a matter of right regarding the issue of whether the evidence presented to the Superior Court is sufficient to support a finding of more than a single offense of obtaining property by false pretense in order to impose consecutive sentences (assignment of error 3 at Rp. 70; argument I below).

B. Right to appeal lack of jurisdiction to sentence in the

aggravated range.

"(W)here an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court", State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000).

Accordingly, the Defendant-Appellant appeals as a matter of

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right regarding the issue of whether the indictments are facially sufficient to give the Superior Court jurisdiction to sentence in the aggravated range absent allegation of the aggravating factor in the indictments (assignment of error 4 at Rp. 70; argument IV below).

C. Petition for a writ of certiorari to review the factual

basis for the guilty pleas to security fraud and the lack

of notice of the aggravating factor found.

N.C.G.S. §15A-1444(e) states: "Except as provided in subsections (a1) and (a2) of this section and G.S. 15A-979, and except when a motion to withdraw a plea of guilty...has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty...but he may petition the appellate division for review by writ of certiorari".

N.C.R.App.P. 21(a)(1) states: "The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the...orders of trial tribunals when...no right of appeal from an interlocutory order exists".

The Defendant-Appellant asks the Court of Appeals to deem this Defendant Appellant's Brief to be a petition for a writ of certiorari to review the issues of the factual basis for the guilty pleas to security fraud (assignments of error 1 and 2 at

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Rpp. 69-70; arguments II and III below). Compare State v. Bivens, 155 N.C.App. 645, 647-648, 573 S.E.2d 259, 261 (2002) (review by writ of certiorari of issue whether the Superior Court can sentence in the presumptive range after finding that mitigating factors outweigh the aggravating factors).

Review by writ of certiorari is warranted because determination that there is a factual basis for a guilty plea is a statutory mandate, see N.C.G.S. §15A-1022(c), and in this case, the Superior Court accepted guilty pleas to six counts of security fraud without any showing that a "security" was involved in the alleged criminal transaction or that the statements of facts alleged to have been omitted would have made the statements made not misleading, both essential elements of the security fraud charged in each count.

The Defendant-Appellant also asks the Court of Appeals to deem this Defendant Appellant's Brief to be a petition for a writ of certiorari to review the issue of whether the Superior Court can find an aggravating factor not alleged in any pleading or otherwise alleged prior to the finding (assignment of error 5 at Rp. 70; argument V below). Review by writ of certiorari is warranted because notice of a criminal accusation is a fundamental right guaranteed by Article I, Section 23 of the North Carolina Constitution and by the Sixth and Fourteenth

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Amendments to the United States Constitution and is a fundamental component of the right to due process of law guaranteed by Article I, Section 19 of the North Carolina Constitution and by the Fourteenth Amendment to the United States Constitution.

Review of all three issues is permitted by N.C.R.App.P. 21(a)(1) because the determination by the Superior Court to accept the guilty pleas (Rp. 47; Tp. 22) and the finding by the Superior Court of an aggravating factor (Rpp. 57-60; Tp. 39) are "orders of [the] trial tribunal[] when...no right of appeal from an interlocutory order exists". Compare State v. Shoff, 118 N.C.App. 724, 456 S.E.2d 875 (1995)(denial of motion to dismiss DWI charge on grounds of double jeopardy is an interlocutory order from which no right to appeal exists), affirmed, 342 N.C. 638, 466 S.E.2d 277 (1996).

FACTS

A. Indictments

Two indictments charge the Defendant-Appellant with obtaining property by false pretense in violation of N.C.G.S. §14-100, the false pretense consisting of "statements made by the defendant to Billy B. Britt that funds given to the defendant would be invested, by the defendant, into a private placement investment program that would generate profits of ten

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percent (10%) per month, when in fact the defendant converted the [funds] to his personal use and benefit", one of the indictments alleging the obtaining of $3 million on or about 5 July 2001 (03CRS 53008; Rp. 26) and the other indictment alleging the obtaining of $2 million on or about 26 July 2001 (03CRS 53009; Rp. 27).

Six indictments charge the Defendant-Appellant with security fraud in violation of N.C.G.S. §78A-8(2).

The first two of those six indictments allege that the Defendant-Appellant "did, in connection with the offer, sale, or purchase of a security...omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading in that the defendant omitted to state to Billy B. Britt that on May 18, 2001...the defendant pled guilty to two counts of Fraudulent Schemes and Artifices (felonies) in the State of Arizona, pursuant to the defendants participation in an investment scheme that defrauded investors of over $44 million", one of the indictments alleging the investment of $3 million on or about 5 July 2001 and the other indictment alleging the investment of $2 million on or about 26 July 2001 (03CRS 53002-53003; Rpp. 20-21).

The next two of those six indictments allege that the

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Defendant-Appellant "did, in connection with the offer, sale, or purchase of a security...omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading in that the defendant omitted to state to Billy B. Britt that, pursuant to a plea agreement with the State of Arizona on May 18, 2001... the defendant agreed to make restitution in the amount of $4,980,060.48", one of the indictments alleging the investment of $3 million on or about 5 July 2001 and the other indictment alleging the investment of $2 million on or about 26 July 2001 (03CRS 53004-53005; Rpp. 22-23).

The last two of those six indictments allege that the Defendant-Appellant "did, in connection with the offer, sale, or purchase of a security...omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading in that the defendant omitted to state to Billy B. Britt that, on December 20, 2000 the defendant signed an Agreed Order of Contempt, whereby, the defendant was found to be in contempt of a federal court's Order Appointing Temporary Receiver, Temporary Restraining Order, and Preliminary Injunction", one of the indictments alleging the omission on or about 5 July 2001 and the other indictment alleging the omission on or about 26 July

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2001 (03CRS 53006-53007; Rpp. 24-25).

B. Plea agreement

On 9 October 2003, the Defendant-Appellant appeared with appointed counsel (see Rp. 19) before the Superior Court in Wake County (Hon. Wade Barber, presiding), and guilty pleas were entered to each of the indictments as charged (Rpp. 29, 31-32; Tpp. 1-21). The plea agreement specified only that the security fraud charges and one of the obtaining property by false pretense charges be consolidated for one judgment, other terms and conditions to be in the discretion of the Superior Court (Rpp. 31-32; Tp. 7).

In the plea colloquy with the Superior Court (Tpp. 3-8), the Defendant-Appellant answered, "Yes, sir", when asked whether he understood that he was pleading guilty to counts of securities fraud with a maximum punishment of 10 months and to two counts of obtaining property by false pretense with a maximum punishment of 120 months each for a total maximum punishment of 300 months and a mandatory mimimum sentence of 44 months (Tpp. 6-7). The Defendant-Appellant answered, "Yes, sir", when asked if he is in fact guilty of the crimes (Rp. 7).

C. Factual basis

Asked for a factual basis for each of the charges, the prosecutor stated in relevant part:

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"The victim in this case, Mr. Bill Britt, who is a resident of Orange County received a phone call from an individual named Don Miller in March of 2001. He indicated that he was not necessarily acquainted with Mr. Miller, but in any event, Mr. Miller told him that there was an individual who had assisted in some of his -- in some investments and some business matters that Mr. Britt might be interested in, and thereafter introduced Mr. Britt to Mr. Burr.

April the 12th of 2001 at the Cardinal Club here in Raleigh, Mr. Burr and Mr. Britt met. Mr. Britt never met him prior to that time...at that meeting, the defendant...indicated to Mr. Britt that he was a lawyer by training, but his business was assisting people by making large investments and private placements. He indicated that he had an office in the First Union building, and both of those representations were not true.

They later had a meeting, several other meetings and ended up on July the 5th of 2001, as a result of their meeting, the victim transferred three million dollars based on their agreement to a escrow agent in California. And then on the 26th day of July 2001, the victim transferred two million dollars to this escrow agent in California.

The representations made to Mr. Britt by Mr. Burr was that this five million dollars would be placed in an investment opportunity that would guarantee a return of up to ten percent per month, and that it was virtually guaranteed that it was a no brainer, and that there were no risks involved in it.

The other things that Mr. Burr did not tell Mr. Britt, which make up part of the failure to disclose on the solicitation for the securities violations, Mr. Burr did not tell Mr. Britt that Mr. Burr had been charged in Arizona, and was under indictment and had pled guilty to a fraudulent scheme out there and was awaiting sentencing, and that part of his plea arrangement out there was that he was going to be required to pay a -- a fine of 4.9 million dollars, and that

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plea arrangment had been entered into just several months prior to the time that the victim and the defendant met.

So it was just prior, several months prior to their meeting and the solicitation of Mr. Britt by Mr. Burr, that Mr. Burr had found himself in state court in Arizona under those charges and with that sort of possible sentence hanging over his head out there.

He also failed to disclose to Mr. Britt that he was a named party in a case in federal court in Texas entitled Securities Exchange Commission versus Cook, which is a receivership wherein actually Mr. Burr, I believe, signed a consent agreement to be a respondent in that, and was required by orders of that court to report his various financial activities and so forth.

Those are the -- the securities fraud cases involve separate misrepresentations for failure to disclose material facts that are required when there is a securities solicitation. It is different than merely telling a lie. You're under an obligation to disclose things, so on each one of the occasions when he got the money from Mr. Britt, he had failed to disclose three different material things, that makes up the six counts, but they're nevertheless being consolidated.

The escrow agent in California is an attorney. The money was wired to his trust account in those two different groups, one three million and one two million, and after he got the money he disbursed it based instructions from Mr. Burr.

During the next six to nine months, there were times when the victim was wondering what was going on with his investment where his funds were, why he wasn't getting any return on it and there was fully money disbursed from the original principal back to the victim to make it look as if there was an investment.

Out of the five million that the lawyer in California took into his trust accout, 1.5 million of it was put into an investment that I'll just call Forex, F-O-R-E-X which is a

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foreign exchange investment scheme, for lack of a better word, as a result of part of that money a man named whose last name is Bradley was prosecuted in federal court for actually scamming those people, but he got that money from.

About 200 thousand dollars was kept by the lawyer in California as his attorney's fees, and I don't quite have the figure in front of me, but perhaps several hundred thousand dollars was sent back to Mr. Britt, supposedly as return on his investment, but it was actually from the original principal...

this is before the money went to Forex.

Four and a half million went to McDonald Investments, which is an investment group. That went to an account that Mr. Burr, the defendant had control over. And so after that four and a half million went to McDonald Investments, thereafter a million and a half...of that was put in the foreign exchange investment, the other three million was thereafter in this account under the control of Mr. Burr...At McDonnell Investments. Based on the information that we have, all of this money was transferred to various LLC's and other legal entities which Mr. Burr and his brother had control over or which were their own little companies.

Mr. Burr and his brother, and I believe this Mr. Burr's wife and child...I believe all moved to Wilmington and for the two years that would have gone from July 2001 until the arrest of the Burrs, which was in June of this year, two homes were bought in Wilmington, initial value per home was about four hundred thousand dollars.

Substantial improvements were made to those homes, including one of the homes had a forty thousand dollar plus stereo and TV system put into it.

They leased cars...he and his brother and his wife apparently lived mostly off of credit cards that were paid each month out of funds that orignally came from Mr. Britt.

They spent about 20 thousand dollars a month and paid so before that would have been close to a half million dollars, I suppose.

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...my information...when Mr. Burr gets back to Arizona to be sentenced in that case...his Arizona time will run concurrent with this time ...The minimum is three and a maximum is ten on the Arizona case...The cofefendant got twelve and a half. This defendant...had pled, but had not been sentenced, and was supposed to be cooperating with law enforcement officials...But during the time that he was supposed to be cooperating...this is what he did.

...how Mr. Burr...was living off of credit cards and so forth and that it was Mr. Britt's money. In the several months prior to the time that he got the money from Mr. Britt, the bank account balances in Mr. Burr's checking accounts or other bank accounts...show a minimal balance, that is no other income and no other available funds which leads us to the conclusion that once he solicited and obtained the money from Mr. Britt and it went to California and then it went to McDonnell's Investment group and 1.5 million goes to Forex and the remainder ends up back in Mr. Burr's hands, so that he's able to live that lifestyle. They had leased several vehicles.

THE COURT: What's the status of the money that went to Forex, do you understand?

[prosecutor] The short answer is it's gone...a man named Michael Bradley was prosecuted for his activities in that investment scheme for obtaining money from people with the idea that it would be invested in this scheme, and I'm not real sure what happened, whether it never did invest it in him or did divulge really what the thing was about, but in any event he lost a large amount of money...I'm not sure that the money that Mr. Bradley was prosecuted for included this 1.5 million...It was a day trade foreign currency idea, which is sort of the newest version of the commodities market or actually a not a new version...

...after the money had been transferred, there was supposed to be a meeting or something with Mr. Burr through the escrow agent and the

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victim, the victim was told by the escrow agent that Mr. Burr was not available on that particular day for the meeting...He had actually been found in contempt and was incarcerated in Texas in that federal receivership...

...The victim feels like that if he were to testify in this case or in some other forum, that he would be received by the jury as perhaps fool hardy in delivering this much money to a person that he barely knew. And although he will testify, he has some hesitancy so he may have some hesitancy about going to California or going to -- the federal authorities are not interested in this, so which would have made dealing with the California lawyer a whole lot easier...The victim in this case is an extremely wealthy man"

(Rpp. 33-46; Tpp. 8-21).

Asked by the Superior Court, "do you stipulate there's a factual basis to support each of these charges?", appointed counsel answered, "Yes, sir, I do" (Rp. 46; Tp. 21). Appointed counsel went on to say, "as far as the money from Forex, my client tells me that Forex raised four billion dollars and out of that money 2.3 to 2.5 million is still left, and it's in the Bank of Saipan and apparently the authorities are...trying to get some of it back...He also tells me...they actually spent money on attorneys, private investigators trying to locate where that money was and Mr. Britt's behalf, but aside from that addition, we would stipulate" (Rpp. 46-47; Tpp. 21-22).

The Superior Court then found "that there's a factual basis for the entry of the plea, Mr. Burr is satisified with his

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lawyer, Mr. Burr is competent to stand trial and enters this plea freely, voluntarily and understandingly. It is accepted by the Court and is ordered recorded" (Rp. 47; Tp. 22).

D. Sentencing

After inquiries regarding the Defendant-Appellant's prior record, the Superior Court found no prior convictions, establishing prior record level I (Tpp. 23-26; see Rpp. 48-49).

The Defendant-Appellant addressed the Superior Court, stating that he is an "honorably discharged veteran from the US Navy" and that he spoke "to acknowledge and accept responsibility for the crimes which I am pleading guilty to today" (Tp. 33). Asked by the Superior Court the business of his company, the Defendant-Appellant answered, "To act as a broker for a private placements and to manage those placements for the benefit of itself and third parties on a joint venture basis" (Tp. 36).

The prosecutor asked the Superior Court "to find as an aggravating factor...that...the offense involved the actual taking of property of great monetary value or damage causing great monetary loss" (Tp. 37). The prosecutor provided the Superior Court with an unsigned plea agreement faxed from Arizona (Rpp. 50-56; Tpp. 37-38).

After determining that the Defendant-Appellant had nothing

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else to say (Tp. 38), the Superior Court found as an aggravating factor: "The defendant at the time he committed...these crimes had, in that State of Arizona, entered pleas of guilty pursuant to a plea agreement to: Count one, fraudulently obtaining over $900,000 in 1997 by promising an extraordinary rate of return; Count two, that he fraudulently obtained in excess of $7 million between December 1997 and June 1998. Although final judgment has not been entered in those cases, those pleas of guilty and his conduct, knowledge there significantly aggravate the defendant's culpability in these cases" (Tp. 39). On the forms, the Superior Court entered the aggravating factor under #20, "Additional written findings of factors in aggravation" (Rpp. 57, 59).

The Superior Court found mitigating factors that the Defendant-Appellant had been honorably discharged from the United States Armed Services and had accepted responsibility for his conduct (Rpp. 58, 60; Tpp. 39-40).

Finding that the factors in aggravation outweigh the factors in mitigation, justifying an aggravated sentence (Rpp. 58, 60; Tp. 40), the Superior Court sentenced the Defendant-Appellant to two consecutive terms of 84-110 months imprisonment with restitution and attorney's fees totalling $4,894,925 (Rpp. 61-64; Tpp. 40-44).

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The Defendant-Appellant gave notice of appeal to the Court of Appeals, and the Superior Court denied bail pending appeal (Tp. 46).

ARGUMENTS

I. The Superior Court erred in imposing consecutive sentences

for two counts of obtaining property by false pretense without sufficient evidence to support a finding of more than a single offense. (Assignment of Error #3, Rp. 70)

A. Preservation for review by law

N.C.G.S. §15A-1446(d) states: "Errors based upon any of the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection, exception or motion has been made in the trial division...(18) The sentence imposed was unauthorized at the time imposed...was illegally imposed, or is otherwise invalid as a matter of law".

Here, the Defendant-Appellant asserts that the consecutive sentences imposed are invalid as a matter of law.

B. Applicable law

"The Double Jeopardy Clauses of '[b]oth the Fifth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution protect against multiple punishments for the same offense'", State v. Bailey, 157 N.C.App. 80, 86, 577 S.E.2d 683, 687 (2003)(quoting State v.

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Fernandez, 346 N.C. 1, 18, 484 S.E.2d 350, 361 (1997)).

Whether consecutive sentences are valid or invalid depends on whether the evidence establishes distinct offenses or one continuing offense. See State v. Grady, 136 N.C.App. 394, 524 S.E.2d 75 (2000)(double jeopardy to impose consecutive sentences for two counts of maintaining a dwelling for use of a controlled substance where the evidence established one continuing offense).

In State v. Grady, "Both counts involved undercover purchases made by the same officer at the same dwelling. One offense occurred on 22 July 1997 and the other on 22 August 1997", 136 N.C.App. at 399, 524 S.E.2d at 78. The Court of Appeals notes, "Use of the words, 'keep or maintain any... dwelling house...or any place whatever,' implies a process of indefinite duration, indicating that the General Assembly intended that a violation of this statute be a continuing offense", Id. The Court of Appeals also notes, "Our Supreme Court has defined a continuing offense as 'a breach of the criminal law not terminated by a single act or fact, but which subsists for a definite period and is intended to cover or apply to successive similar obligations or occurrences'", 136 N.C.App. at 399, 524 S.E.2d at 79 (quoting State v. Johnson, 212 N.C. 566, 570, 194 S.E.2d 319, 322 (1937)).

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Regarding the crime of obtaining property by false pretense, the Court of Appeals has held, "(T)he essence of the crime is the intentional false pretense not the resulting economic harm to the victim...The gravamen of the criminal offense...is making the false pretense and, thereby, obtaining another person's property of services. The simple purpose of G.S. 14-100 is to prevent persons from using false pretenses to obtain property. The ultimate loss to the victim...is an issue which is irrelevent to the purpose of the criminal statute and is an issue properly within the province of the civil courts", State v. Hines, 36 N.C.App. 33, 42, 243 S.E.2d 782, 787 (1978).

N.C.G.S. §14-100(a) prohibits obtaining property "by means of any kind of false pretense whatsover", so encompasses both discrete and continuing offenses.

C. Application to the facts

Here, the facts as recited by the prosecutor establish a single offense continuing over a period of time rather than two discrete offenses. The prosecutor speaks of "a meeting, several other meetings" which "ended up on July the 5th of 2001...the victim transferred three million dollars...to a escrow agent in California. And then on the 26th day of July 2001, the victim transferred two million dollars to this escrow agent" (Rp. 35). The prosecutor does not speak of distinct false pretenses

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obtaining first the $3 million and then the $2 million but instead puts the false pretenses and the two payments together, stating: "The representations made to Mr. Britt by Mr. Burr was that this five million dollars would be placed in an investment opportunity that would guarantee a return of up to ten percent per month, and that it was virtually guaranteed that it was a no brainer, and that there were no risks involved" (Rp. 35).

There is no evidence that the crime is other than as described by the prosecutor: False pretenses in a series of meetings ending with the victim transferring $5 million to the Defendant-Appellant's agent, a single, continuing offense for which the United States Constitution and North Carolina Constitution prohibit double punishment.

II. The Superior Court erred in accepting guilty pleas to

security fraud without any factual basis to determine that there was an offer, sale, or purchase of any security. (Assignment of Error #1 at Rp. 69)

A. Preservation for review by law

N.C.G.S. §15A-1446(d) states: "Errors based upon any of the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection, exception or motion has been made in the trial division...(16) Error occurred in the entry of the plea".

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Here, the Defendant-Appellant asserts that error occurred in the entry of the six guilty pleas to security fraud because of the absence of any factual basis to support an essential element of the crime of security fraud.

B. Applicable law

N.C.G.S. §15A-1022(c) states: "The judge may not accept a plea of guilty...without first determining that there is a factual basis for the plea".

N.C.G.S. §78A-8 states: "It is unlawful for any person, in connection with the offer, sale or purchase of any security... (2)...to omit to state a material fact necessary in order to make the statements made...not misleading" (emphasis added).

By N.C.G.S. §78A-2(11):

"'Security' means any note; stock; treasury stock; bond; debenture; evidence of indebtedness; certificate of interest or participation in any profit-sharing agreement; collateral-trust certificate; preorganization certificate or subscription; transferable share; investment contract including without limitation any investment contract taking the form of a whiskey warehouse receipt or other investment of money in whiskey or malt beverages; voting-trust certificate; certificate of deposit for a security; certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under a title or lease; viatical settlement contract or any fractional or pooled interest in a viatical settlement contract; or, in general, any interest or instrument commonly known as a 'security,' or any certificate of interest or participation in,

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temporary or interim certificate for, receipt for guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing."

While the statutory definition of "security" is broad, in all cases it contemplates some writing evidencing a party's interest.

C. Application to the facts

Here, the factual basis recited by the prosecutor contains no mention of any writing whatsoever. The prosecutor describes what the victim was promised as "an investment opportunity" (Rp. 35) and states that $1.5 million was "put into...a foreign exchange investment scheme" (Rp. 37), but nowhere is there any information that any "security" was involved in the dealings between the Defendant-Appellant and the victim.

III. The Superior Court erred in accepting guilty pleas to

security fraud without any factual basis to determine that the statements of facts alleged to have been omitted were necessary in order to make the statements made, in light of the circumstances in which they were made, not misleading. (Assignment of Error #2 at Rpp. 69-70)

A. Preservation for review by law

N.C.G.S. §15A-1446(d) states: "Errors based upon any of the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection,

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exception or motion has been made in the trial division...(16) Error occurred in the entry of the plea".

Here, the Defendant-Appellant asserts that error occurred in the entry of the six guilty pleas to security fraud because of the absence of any factual basis to support an essential element of the crime of security fraud.

B. Applicable law

N.C.G.S. §15A-1022(c) states: "The judge may not accept a plea of guilty...without first determining that there is a factual basis for the plea".

N.C.G.S. §78A-8 states: "It is unlawful for any person, in connection with the offer, sale or purchase of any security... (2)...to omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading" (emphasis added).

C. Application to the facts

Here, the security fraud indictments charge omission to inform the victim of the Defendant-Appellant's guilty plea to fraudulent schemes in Arizona (Rpp. 20-21), of the requirement for the Defendant-Appellant to pay nearly $5 million in restitution (Rpp. 22-23), and of the Defendant-Appellant having been found in contempt of a federal court (Rpp. 24-25).

However, N.C.G.S. §78A-8(2) does not criminalize a person's

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omission to disclose his every prior bad act, but only omission to disclose information that would "make the statements made... not misleading".

Here, according to the prosecutor, the "statements made" were that "Mr. Burr indicated to Mr. Britt that he was a lawyer by training, but his business was assisting people in making large investments and private placements. He indicated that he had an office in the First Union Building, and both of those representations were not true" (Rp. 34), and that "The representation made to Mr. Britt by Mr. Burr was that this five million dollars would be placed in an investment opportunity that would guarantee a return of up to ten percent per month, and that it was virtually guaranteed that it was a no brainer, and that there were no risks involved in it" (Rp. 35). Disclosure of the plea in Arizona, the restitution obligation, and the contempt adjudication would not have made those statements not misleading.

IV. The Superior Court lacked jurisdiction to sentence the

Defendant-Appellant in the aggravated range absent allegation of the aggravating factor in the indictment and submission of the aggravating factor to a jury. (Assignment of Error #4 at Rp.70)

A. Preservation for review by law

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"(W)here an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court", State v. Wallace, above, 351 N.C. 481, 503, 528 S.E.2d 326, 341.

Here, the Defendant-Appellant alleges that the indictments are facially invalid to confer jurisdiction on the Superior Court to sentence in the aggravated range.

B. Applicable law

"(I)n Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)...We there noted that 'under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt...The Fourteenth Amendment commands the same answer in this case involving a state statute", Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 2355, 147 L.E.2d 435, 446 (2000).

In State v. Lucas, 353 N.C. 568, 597-598, 548 S.E.2d 712, 731 (2001), the Supreme Court cites Jones and Apprendi in holding that firearm enhancement factors must be alleged in an indictment and submitted to a jury before the firearm

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enhancement required by N.C.G.S. §15A-1340.16A can be added to a sentence.

Like the firearm enhancement factors, the aggravating factors listed in N.C.G.S. §15A-1340.16(d) are "fact[s] (other than prior conviction) that increase[] the maximum penalty for a crime". Prior convictions are already taken into account in determining the defendant's prior conviction level under N.C.G.S. §15A-1340.14. The prior record level established by a defendant's prior convictions along with the class of the felony committed limits the Superior Court's sentencing options to the ranges of minimums specified in N.C.G.S. §15A-1340.17(c) with the corresponding maximum specified in N.C.G.S. §15A-1340.17(d,e). Absent an aggravating factor, the "maximum penalty for a crime" is the highest number in the presumptive range at the applicable prior record level and felony class. See N.C.G.S. §§15A-1340.16(b), 1340.17(c)(4).

Although in State v. Hunt, 357 N.C. 257, 582 S.E.2d 593 (2003), the Supreme Court holds that Jones and Apprendi do not require allegation in a short-form indictment of aggravating circumstances in a capital case, that holding is based in part on consideration that "N.C.G.S. §15A-2000(e) limits to eleven the list of possible aggravators" in capital cases, 357 N.C. at 276, 582 S.E.2d 593. In non-capital cases, N.C.G.S. §15A-

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1340.16(d)(20) allows the Superior Court to find "(a)ny other aggravating factor reasonably related to the purpose of sentencing", effectively allowing an unlimited number of aggravating factors in a non-capital case.

Moreover, the Supreme Court in Lucas specifies that its holding applies as of the date of its Lucas decision, not as of the the date of Apprendi, see 353 N.C. at 598, 548 S.E.2d at 732, implying that the Lucas requirment to allege sentencing enhancement factors in an indictment is compelled not by the Fourteenth Amendment to the United States Constitution and Jones and Apprendi, but by the indictment, notice, and jury trial guarantees of North Carolina Constitution, Art. I, Sections 22, 23, and 24.

C. Application to the facts

Here, none of the indictments alleges any aggravating factor (Rpp. 21-27), and the Defendant-Appellant did not waive submission of any alleged aggravating factor to a jury. Instead, the Superior Court found an aggravating factor under the "catch-all" provision of N.C.G.S. §15A-1340.16(d)(20) and imposed sentence in the aggravated range (Rpp. 57, 59, 61, 63; Tpp. 39-41).

V. The Superior Court erred in finding an aggravating factor not

alleged in any pleading or otherwise prior to the finding.

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(Assignment of Error #5 at Rp. 70)

A. Preservation for review by law

N.C.G.S. §15A-1446(d) states: "Errors based upon any of the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection, exception or motion has been made in the trial division...(18) The sentence imposed...was illegally imposed, or is otherwise invalid as a matter of law".

Here, the Defendant-Appellant asserts that a sentence resulting from finding an aggravating factor not alleged in any pleading or otherwise prior to the finding is invalid as a matter of law.

B. Applicable law

The Sixth Amendment to the United States Constitution requires: "In all criminal prosecutions, the accused shall enjoy the right...to be informed of the nature and cause of the accusation." Similarly, the North Carolina Constitution, Article I, Section 23, guarantees: "(E)very person charged with crime has the right to be informed of the accusation."

In State v. Hunt, above, the Supreme Court notes, "(T)he United States Supreme Court has unequivocally applied the Sixth Amendment's edict that the accused be informed of criminal accusations against him...In defining the parameters of state

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criminal defendants' rights to notice under the Sixth Amendment, the Supreme Court has concluded that such defendants have a right to 'reasonable notice' sufficient to ensure that they are afforded an opportunity to defendant against the charges", 357 N.C. at 271, 582 S.E.2d at 602.

C. Application to the facts

Here, the Defendant-Appellant had no notice of the aggravating factor found by the Superior Court to warrant sentence in the aggravated range. That aggravating factor was not alleged in any indictment or other pleading. The aggravating factor proposed by the prosecutor was the taking of property of great monetary value with great monetary loss specified by N.C.G.S. §15A-1340.16(d)(14) (Tp. 37).

The first disclosure of the Superior Court's consideration of the Arizona plea agreement as a possible aggravating factor came only after the Superior Court had determined that the Defendant-Appellant had nothing more to say (Tp. 38) and was made not with any opportunity for the Defendant-Appellant to respond, but in the Superior Court's finding of the aggravating factor in pronouncing sentence (Tpp. 39-40).

Finding the aggravating factor without any notice or opportunity for the Defendant-Appellant to be heard violates the notice and due process guarantees of the Sixth and Fourteenth

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Amendments to the United States Constitution and Article I, Sections 19 and 23 of the North Carolina Constitution.

CONCLUSION

If the Court of Appeals finds error in the imposition of consecutive sentences argued at I above, one of the judgments of the Superior Court in Wake County in 03CRS 53008 or 03CRS 53009 must be vacated and judgment arrested on that count of obtaining property by false pretense.

If the Court of Appeals finds error in the acceptance of guilty pleas to six counts of security fraud argued at II or III above, the judgment of the Superior Court in 03CRS 53008 and the guilty pleas to six counts of security fraud must be vacated and the case remanded to the Superior Court for further proceedings.

If the Court of Appeals finds error in sentencing in the aggravated range argued at IV above, the judgments of the Superior Court in both 03CRS 53008 and 03CRS 53009 must be vacated and the case remanded to the Superior Court for sentencing in either the presumptive range or mitigated range.

If the Court of Appeals finds error in sentencing in the aggravated range argued at V above, the judgments of the Superior Court in both 03CRS 53008 and 03CRS 53009 must be vacated and the case remanded to the Superior Court for sentencing.

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6 May 2004 Defendant-Appellant ROBERT BURR

By appointed counsel

_______________________________

KEVIN P. BRADLEY

P.O. Box 303

Durham NC 27702-0303

(919) 680-2062

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CERTIFICATE OF SERVICE

KEVIN P. BRADLEY certifies:

1) I am a lawyer licensed in North Carolina, State Bar 22798. I

am appointed to represent the Defendant-Appellant Robert Burr on appeal to the Court of Appeals from the judgments of the Superior Court in Wake County 9 October 2003 convicting the Defendant-Appellant on guilty pleas of two counts of obtaining property by false pretense and six counts of security fraud and sentencing the Defendant-Appellant to two consecutive terms of 84-110 months imprisonment.

2) On Thursday 6 May 2004, I served a copy of the above

Defendant Appellant's Brief on the respondent State of North Carolina by first class mail addressed: Attorney General, Tort Claims Section, ATTN: Iain M. Stauffer, Associate Attorney General, 9001 Mail Service Center, Raleigh NC 27699-9001.

Certified on 6 May 2004.

______________________________

KEVIN P. BRADLEY

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