STATE OF NORTH CAROLINA
v. Wayne County
Nos. 01 CRS 57630-31
JAMEY TRILLEY MCKINNEY
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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