An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-208

NORTH CAROLINA COURT OF APPEALS

Filed: 17 February 2004

STATE OF NORTH CAROLINA
            
v .                         Wake County
                            Nos. 01 CRS 112990
CARL EDWARD LYONS,                 01 CRS 112994
        Defendant.

    Appeal by defendant from judgment entered 23 September 2002 by Judge Thomas D. Haigwood in Wake County Superior Court. Heard in the Court of Appeals 19 November 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Ann B. Wall, for the State.

    Russell J. Hollers III, for defendant-appellant.

    GEER, Judge.

    Defendant Carl Edward Lyons entered an Alford plea of guilty to one count of first degree forcible sex offense and one count of first degree kidnapping.   (See footnote 1)  The offenses were consolidated for judgment and sentence. In his appeal, defendant contends that thesentence violated double jeopardy, that the prosecutor's summary of the facts provided an insufficient factual basis for his plea, and that a sentence in the aggravated range was not supported by the facts. Defendant, however, waived his right to appeal (1) on grounds of double jeopardy by pleading guilty; and (2) regarding the sufficiency of the factual basis to support the plea by failing to object at the sentencing hearing. We also hold that the undisputed facts support the trial court's finding of the aggravating factor that defendant took advantage of a position of trust or confidence in committing the crimes.

Facts
     Defendant did not object to the prosecutor's statement of facts forming the basis for his Alford plea. That statement set forth the following facts. D efendant invited a childhood friend and his family to temporarily live in defendant's home in Raleigh while the friend looked for a house in the Triangle or Triad area. In encouraging his friend, defendant announced that he loved the friend's 15-year-old son ("K.V.M.") "like a son[.]" Despite the friend's initial reluctance, the family moved into defendant's home in the fall of 2001.
    K.V.M., his father, his stepmother, and two step-siblings lived in defendant's home for approximately a month and a half. During this time, K.V.M.'s father traveled back and forth toGreensboro searching for a new house for his family, always returning to defendant's home at night.
    On 4 December 2001, K.V.M.'s father, stepmother, and two step- siblings went out of town, but left K.V.M. in Raleigh in defendant's care. When K.V.M. returned from school that day, defendant was the only person in the house. Defendant and K.V.M. smoked marijuana together. Later, although defendant tried to engage K.V.M. in conversation, K.V.M. ignored him and played with a video game that defendant had previously given him.
    K.V.M.'s father called that evening to tell defendant that he had purchased a home in Greensboro and that the family would move the next day. At some point after the call ended, defendant grabbed K.V.M. and took him upstairs to a bedroom. Defendant told K.V.M. that either K.V.M. was going to perform fellatio on him or that defendant was going to perform fellatio on K.V.M. When K.V.M. refused, defendant pulled a gun out of the closet and pointed it at K.V.M. Through the night, defendant repeatedly performed fellatio on K.V.M. while displaying the gun.
    At some point that night, defendant forced K.V.M. to perform fellatio on him. When K.V.M. was unable to complete the act and gagged, defendant made K.V.M. lie down in bed with him and masturbate him until defendant ejaculated on K.V.M.'s chest.
    The next morning, defendant would not allow K.V.M. to go toschool. Defendant swallowed several hundred over-the-counter painkillers and became woozy. He again performed fellatio on K.V.M., but then vomited and became weak. K.V.M. told defendant that the smell of vomit was making him ill and asked permission to go for a walk. Defendant told K.V.M. he could go outside, but that he had to return. K.V.M. went directly to a laundromat and called his mother in New York. After the call, he went to a police station where a police officer interviewed him, writing in her report that K.V.M. was violently shaking and crying.
    The police arrived at defendant's home and took defendant to a hospital because of his consumption of pills. During questioning by police, defendant asked if K.V.M. was "okay" and said, "[T]ell him I am sorry."
    A Wake County grand jury indicted defendant on 28 January 2002, charging him with the crimes of first degree forcible sex offense, statutory sex offense, indecent liberties, and first degree kidnapping. Defendant entered an Alford plea to one count of first degree forcible sex offense and one count of first degree kidnapping. Defendant agreed to a plea arrangement under which defendant would receive one consolidated active sentence in the trial court's discretion and the State would dismiss other charges. After determining that defendant was a Level II offender based on two prior misdemeanor convictions, the trial court found oneaggravating factor _ that defendant took advantage of a position of trust or confidence to commit the offenses _ and no mitigating factors. The court sentenced defendant to a minimum term of 360 months and a maximum term of 441 months.
Double Jeopardy
    Defendant contends first that entry of judgment on both the charge of first degree forcible sex offense and the charge of first degree kidnapping violated the Double Jeopardy Clause, relying upon State v. Freeland, 316 N.C. 13, 340 S.E.2d 35 (1986). This issue is not, however, properly before the Court. As this Court held in State v. Hughes, 136 N.C. App. 92, 97, 524 S.E.2d 63, 66 (1999), disc. review denied, 351 N.C. 644, 543 S.E.2d 878 (2000), "[a] defense of double jeopardy is abandoned by a subsequent plea of guilty."
    The Court explained in Hughes that "[t]he defendant may waive the constitutional right not to be placed in jeopardy twice for the same offense." Id. Further, either a plea of guilty or a plea of no contest "waives all defenses other than the sufficiency of the indictment." Id. Hughes therefore establishes that defendant Lyons "waived the right to assert a double jeopardy violation by entering [an Alford] plea[] of guilty . . . ." Id.
Factual Basis for Plea
    Defendant next argues that the prosecutor's summary of factsat the plea hearing was inconsistent with the indictment and, therefore, provided an insufficient factual basis for defendant's plea. During the plea hearing, defendant did not, however, either object to the State's summary or argue before the trial court that the summary failed to provide an adequate factual basis for the plea.
    In State v. Kimble, 141 N.C. App. 144, 539 S.E.2d 342 (2000), disc. review denied, 353 N.C. 391, 548 S.E.2d 150 (2001), as here, the defendant attempted to challenge on appeal the sufficiency of the factual basis for the plea even though he had neither objected to the State's summary nor argued factual insufficiency before the trial court. This Court held that the sufficiency issue, "which was not raised before the trial court, is therefore not properly before this Court." Id. at 147, 539 S.E.2d at 344-45. Likewise, in this case, defendant has not preserved this issue for appellate review.
    Even if this issue were properly before the Court, we would find no error because the record reveals a sufficient factual basis for defendant's guilty plea. The indictment alleges defendant "forced K.V.M. to perform fellatio on defendant." Defendant claims that the State's summary, on the other hand, "showed that Mr. Lyons performed fellatio on K.V.M." The State's summary, however, also included one instance in which defendant forced K.V.M. to performfellatio on defendant although K.V.M. was unable to continue because of gagging. Because "fellatio" is defined as "'contact between the mouth of one party and the sex organs of another[,]'" State v. Goodson, 313 N.C. 318, 319, 327 S.E.2d 868, 869 (1985) (quoting People v. Dimitris, 115 Mich. App. 228, 234, 320 N.W.2d 226, 228 (1981) (per curiam)), this incident is sufficient to support the indictment.
Aggravating Factor
    Finally, defendant argues that the facts do not support the trial court's finding of the aggravating factor that he took advantage of a position of trust or confidence to commit the offense. See N.C. Gen. Stat. § 15A-1340.16(d)(15) (2003). Defendant is entitled to appeal this issue under N.C. Gen. Stat. § 15A-1444(a1) (2003). Defendant does not challenge any other aspect of the sentencing hearing or his sentence.
    A finding of the aggravating factor at issue in this case requires some showing "of a relationship between the defendant and victim generally conducive to reliance of one upon the other." State v. Daniel, 319 N.C. 308, 311, 354 S.E.2d 216, 218 (1987). The facts are undisputed that K.V.M. and his family lived in defendant's home for approximately a month and a half and that K.V.M.'s parents entrusted K.V.M to defendant's care for the night that they were out of town. These facts are sufficient toestablish the necessary relationship of trust or confidence. See, e.g., State v. McGriff, 151 N.C. App. 631, 640, 566 S.E.2d 776, 782 (2002) (position of trust properly found when defendant dated sister of the victim's friend, the friend and the victim went to the sister's house to babysit every day over a two-month period, and defendant was often present at the sister's house while they were babysitting); State v. Gilbert, 96 N.C. App. 363, 366, 385 S.E.2d 815, 817 (1989) (position of trust properly found where child victim was a frequent visitor to defendant's home, defendant gave victim candy and allowed her to play with his dog, and defendant paid her and other children for doing odd jobs around his house); State v. McGuire, 78 N.C. App. 285, 293, 337 S.E.2d 620, 625 (1985) (position of trust properly found where defendant lived with mother of one of the victims and babysat for the victims). We find that the trial court did not err in sentencing defendant within the aggravated range.
    Motion for Appropriate Relief
    Defendant has also filed a motion for appropriate relief with this Court, arguing that his sentence should be vacated as unconstitutional because the aggravating factor was not alleged in the indictment in violation of Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999) and Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We disagree.
    Our Supreme Court has held that Apprendi and Jones apply only when the fact at issue increases the penalty for a crime beyond the prescribed statutory maximum. State v. Lucas, 353 N.C. 568, 595, 548 S.E.2d 712, 730 (2001). The Court then explained that the "statutory maximum" sentence for a criminal offense in North Carolina is "the theoretical maximum sentence any defendant could receive" for that offense when applying the provisions of N.C. Gen. Stat. § 15A-1340.17 (2003). Lucas, 353 N.C. at 596, 548 S.E.2d at 730. While the finding of an aggravating factor does enhance a sentence under the Structured Sentencing Act, the penalty is not, according to Lucas, increased beyond the maximum statutory penalty established by the Act itself. Since defendant's sentence is less than the "statutory maximum," Lucas dictates the conclusion that Apprendi and Jones do not apply. Defendant's motion for appropriate relief is, therefore, denied.

    Affirmed.

    Judges MCGEE and HUNTER concur.

    Report per Rule 30(e).


Footnote: 1
    See North Carolina v. Alford, 400 U.S. 25, 37, 27 L. Ed. 2d 162, 171, 91 S. Ct. 160, 167 (1970) (with an Alford plea, a defendant "voluntarily, knowingly, and understandingly consent[s] to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.").

*** Converted from WordPerfect ***