An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA03-336


Filed: 2 August 2005


v .                         Wake County
                            No. 98 CRS 3871

    Appeal by Defendant from resentencing entered 14 May 2002 by Judge David Q. LaBarre in Superior Court, Wake County. Heard in the Court of Appeals 19 October 2004, recalendered and reheard on 12 April 2005.   (See footnote 1) 

    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.
    Judges HUNTER and JACKSON concur.
    Report per Rule 30(e).

Footnote: 1
     By order of this Court, the filing of this opinion was delayed pending the outcome of the Supreme Court of North Carolina decisions in State v. Allen, __ N.C. __, __, __ S.E.2d __ , __ (1 July 2005) (485PA04) and State v. Speight, __ N.C. __, __, __ S.E.2d __ , __ (1 July 2005) (491PA04) on issues arising from the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004).

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