An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-14


Filed: 20 September 2005


         v.                        Wayne County
                                Nos. 01 CRS 57630-31

    On a writ of certiorari from judgment entered 14 October 2002 by Judge Jerry Braswell in Wayne County Superior Court. Heard in the Court of Appeals 3 January 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Grady L. Balentine, Jr., for the State.

    Irving Joyner, for defendant-appellant.

    CALABRIA, Judge.

    On appeal, Jamey Trilley McKinney (“defendant”) challenges his

sentence on the grounds that under Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), and State v. Allen, ___ N.C. ___, 615 S.E.2d 256 (2005), the trial court improperly sentenced him in the aggravated range. We remand for re-sentencing.
    Defendant pled guilty to first-degree rape and robbery with a dangerous weapon. The trial court consolidated the offenses, found as an aggravating factor that the victim was very old and physically infirm, then sentenced him within the aggravated range to a minimum term of 320 months and a maximum term of 393 months in the North Carolina Department of Correction.    Defendant raises two arguments on appeal. First, defendant contends the court committed plain error by accepting his guilty plea without an adequate factual basis. This contention is dismissed because this Court's order granting defendant's petition for writ of certiorari expressly limited review to an examination of defendant's sentence.
    Second, defendant contends the court erred in his sentence by finding as an aggravating factor that the victim was very old and physically infirm. In his motion for appropriate relief, defendant argues, and we agree, that the trial court erred by imposing a sentence in the aggravated range, on the grounds that the aggravating factors were neither submitted to the jury nor admitted by the defendant. We remand for re-sentencing in conformity with the holdings of Blakely and Allen.
    Remand for re-sentencing.
    Judges TIMMONS-GOODSON and LEVINSON concur.
    Report per Rule 30(e).

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