A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-1425


Filed: 16 July 2002


         v.                        Wake County
                                No. 96 CRS 990

    Appeal by defendant from judgment entered 29 May 2001 by Judge James C. Spencer in Wake County Superior Court. Heard in the Court of Appeals 1 July 2002.

    Attorney General Roy Cooper, by Assistant Attorney General Amy C. Kunstling, for the State.

    Ligon and Hinton, by Lemuel W. Hinton, for defendant- appellant.

    BRYANT, Judge.

    Defendant was found guilty on 14 March 1997 of first degree rape, first degree sexual offense, and taking indecent liberties with a minor. The convictions were consolidated for judgment and defendant was sentenced to a minimum term of 384 months and a maximum term of 460 months. His conviction of first degree rape was ultimately overturned by the North Carolina Supreme Court. State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663 (2000).
    On remand, the State elected to take a voluntary dismissal of the charge of first degree rape. On 29 May 2001 the trial court conducted a re-sentencing hearing. The court consolidated the remaining two convictions and sentenced defendant again to a minimum term of 384 months and the corresponding maximum of 460months. Defendant appeals from this judgment.
    Defendant's appointed counsel acknowledges that defendant does not have a right to appeal the sentence because he received a term within the presumptive range. See N.C.G.S. § 15A-1444(a1) (2001); State v. Brown, 146 N.C. App. 590, 553 S.E.2d 428 (2001). He requests this Court to treat the record and brief as a petition for a writ of certiorari. In our discretion, we allow the request.
    Defendant's counsel also requests this Court to review the case pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, reh'g denied, 388 U.S. 924, 18 L. Ed. 2d 1377 (1967) and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985). Counsel attached to his brief the letter he wrote to defendant advising him in accordance with those decisions.
    Defendant has filed his own arguments. Most of his arguments concern matters in the original trial which were or could have been addressed by this Court or the North Carolina Supreme Court in their prior opinions. As such, they may not be raised again. See N.C.G.S. § 15A-1419(a)(2) (2001); State v. Boyd, N.C. App. __, 559 S.E.2d 1 (2002). He also argues jurors erroneously were not allowed to weigh the evidence of aggravating factors and his re- sentencing was in violation of the double jeopardy clause. Both of these arguments are without merit. The weighing of aggravating factors in a non-capital case is within the exclusive province of the trial judge, who sits as both judge and jury in a sentencing proceeding. State v. Ahearn, 307 N.C. 584, 596-97, 300 S.E.2d 689, 697 (1983). A retrial or resentencing proceeding ordered by anappellate court does not violate the prohibition against double jeopardy. State v. Stafford, 274 N.C. 519, 531-34, 164 S.E.2d 371, 380-82 (1968).
    After carefully reviewing the record, we find no error.
    No error.
    Judges MARTIN and HUNTER concur.
    Report per Rule 30(e).

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