STATE OF NORTH CAROLINA
v
.
Wake County
No. 98 CRS 3871
HENRY CARLTON LAMM
Attorney General Roy Cooper, by Assistant Attorney General
Chris Z. Sinha, for the State.
Osborn & Tyndall, P.L.L.C., by Amos Granger Tyndall, for
defendant-appellant.
WYNN, Judge.
Defendant Henry Carlton Lamm and his wife had a daughter in
1985. Defendant's wife separated from Defendant for ten years, then
resumed the marital relationship. When the child was ten, Defendant
began to physically and sexually abuse her.
Defendant was charged and indicted on a total of six counts of
taking indecent liberties with a minor, two counts of felony childabuse and one count of first-degree sexual offense. The State
dismissed one count of indecent liberties, and Defendant was tried
on the remaining eight charges. At trial, a jury returned guilty
verdicts on all charges. Defendant presented no evidence. The
trial judge sentenced Defendant to consecutive sentences as follows:
twenty to thirty-three months imprisonment for the three counts of
indecent liberties with a child in 98 CRS 3870; thirty-one to forty-
seven months for each of the two counts of felony child abuse in 98
CRS 3871; and 300 to 369 months for the one count of first-degree
sexual offense and two counts of indecent liberties with a child in
98 CRS 3872. Defendant appealed and this Court remanded the two
counts of felonious child abuse for resentencing. State v. Lamm,
149 N.C. App. 973, 563 S.E.2d 100 (2002).
Upon resentencing for the crimes in 98 CRS 3871, the trial
court found a single aggravating factor regarding the repetitive
nature of the offenses, and further found that this factor
outweighed the mitigating factor, Defendant's employment history.
The trial court again sentenced Defendant in the aggravated range to
a term of thirty-one to forty-seven months for the two counts of
felony child abuse to be served consecutively. Defendant appeals.
__________________________________________
In a Motion for Appropriate Relief filed 16 July 2004,
Defendant contends that the trial court erred in sentencing him
within the aggravated range in violation of his Sixth Amendment
right to a jury trial. See Blakely, 542 U.S. 296, 159 L. Ed. 2d
403. Recently, our Supreme Court recognized that under the Blakely
holding, “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed presumptive
range must be submitted to a jury and proved beyond a reasonable
doubt.” Allen, __ N.C. at __, __ S.E.2d at __; see Speight, __ N.C.
at __, __ S.E.2d at __. The Court therefore held that “those
portions of N.C.G.S. § 15A-1340.16 (a), (b), and (c) which require
trial judges to consider evidence of aggravating factors not found
by a jury or admitted by the defendant and which permit imposition
of an aggravated sentence upon judicial findings of such aggravating
factors by a preponderance of the evidence violate the Sixth
Amendment to the United States Constitution.” Allen, __ N.C. at __,
__ S.E.2d at __. Accordingly, our Supreme Court concluded that
“Blakely errors arising under North Carolina's Structured Sentencing
Act are structural and, therefore, reversible per se.” Allen, __
N.C. at __, __ S.E.2d at __.
In this case, the trial court found the following aggravating
factor: “Continuous repetitive aggravating nature of the ofenses
(sic) over a period of time, which the defendant created substantial
fear and abusiveness toward [] (victim).” The facts for this
aggravating factor were neither presented to a jury nor proved
beyond a reasonable doubt. Following our Supreme Court holdings in
Allen and Speight, we must grant the Motion for Appropriate Relief
and remand this matter for resentencing since the aggravating
factors were neither prior convictions nor facts admitted by
Defendant.
Remanded.
Judges HUNTER and JACKSON concur.
Report per Rule 30(e).
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