State v Jordan, (03-519) 05/18/2004

Appeal by defendant from judgments entered 10 February 2000 by Judge Kimberly S. Taylor in Iredell County Superior Court. Heard in the Court of Appeals 4 May 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General John J. Aldridge, III, for the State.

Jon W. Myers, for defendant-appellant.

CALABRIA, Judge.

    Defendant pled guilty, pursuant to a plea agreement, to three counts of second-degree kidnapping (Class E felony), one count of first-degree burglary (Class D felony) and one count of robbery with a dangerous weapon (Class D felony). The trial court found defendant to be a prior record level III felon. In accordance with defendant's plea agreement, the trial court consolidated the kidnapping convictions into one judgment and sentenced defendant to a term of 34 to 50 months' imprisonment. The court then consolidated the first-degree burglary and robbery convictions into another judgment and sentenced defendant to a consecutive term of103 to 133 months' imprisonment. From the judgments entered, defendant appeals.
    On appeal, while acknowledging that prior case law has rejected his argument, defendant nonetheless contends that the conflict in the North Carolina structured sentencing grid requires determination of aggravated status and appropriate findings of fact. Specifically, defendant argues that, since defendant's minimum term appears in the presumptive and aggravated range, the trial court was required to determine aggravated status accompanied by appropriate findings of fact. Defendant's argument is wholly without merit.
    Just recently in State v. Fowler, 157 N.C. App. 564, 579 S.E.2d 499 (2003), and State v. Ramirez, 156 N.C. App. 249, 576 S.E.2d 714, disc. rev. denied, 357 N.C. 255, 583 S.E.2d 286, cert. denied, ___ U.S. ___, 157 L.Ed. 2d 388 (2003), our Court rejected this same argument. In both cases, the Court held that the overlap in the presumptive and aggravated range of sentences does not create any statutory ambiguity, and that such an overlap does not require the trial court to make specific findings of aggravating factors. Fowler, 157 N.C. App. at 567-68, 579 S.E.2d at 501-02; Ramirez, 156 N.C. App. at 259, 576 S.E.2d at 721.
    In the instant case, defendant admits, and the record shows, that defendant was sentenced in the presumptive range of sentences. As did the Court in Fowler and Ramirez, we hold that there is no statutory ambiguity in the overlap between the presumptive andaggravated range of sentences in this case, and the trial court did not err in failing to make findings in aggravation.
    Accordingly, the judgments of the trial court are summarily affirmed.
    Affirmed.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***