An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-70


Filed: 4 October 2005


v .                         Vance County
                            Nos. 99 CRS 7744
TONY ALLEN ROYSTER                    99 CRS 7745

    Appeal by defendant from judgment entered 5 September 2000 by Judge Orlando F. Hudson in Vance County Superior Court. Heard in the Court of Appeals 2 November 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

    Office of the Appellate Defender, by Anne M. Gomez, for defendant-appellant.

    ELMORE, Judge.

    Tony Allen Royster (defendant) was indicted for two counts of armed robbery and one count of first-degree kidnapping. On 5 September 2000 defendant entered into a plea agreement with the State. Pursuant to this agreement, defendant pled guilty to two counts of armed robbery and one count of second-degree kidnapping. The parties agreed that the two counts of armed robbery would be consolidated and that defendant would receive a sentence in the aggravated range of a minimum of 120 months. The parties also agreed that sentencing on the second-degree kidnapping would be at the discretion of the trial court.
    Judge Orlando Hudson presided over the sentencing hearing and accepted defendant's guilty plea. The State's factual basis forthe plea tended to show that on 13 July 1999 defendant told his cousin, Derrick Burrell (Burrell), to drop him off at a shopping center parking lot and to meet him later that day at the Winn-Dixie grocery store parking lot. After Burrell drove off, defendant approached an old man in a white Buick and ordered him to move over to the passenger side. Defendant held a pistol and said, “I'm taking your car.” The man, identified as Charles Wynn, pulled out a pistol. Defendant reached over and took the pistol away from Mr. Wynn. Defendant then drove to a dirt road where he tied Mr. Wynn to a tree. Defendant drove away and proceeded to a Bank of America branch where he demanded money from the tellers behind the counter. Defendant waved two pistols in the air and tossed a backpack to one of the tellers to fill up with money. After taking the money handed over in the backpack, defendant drove to the Winn-Dixie parking lot to meet Burrell. In his statement to police, defendant said that he gave $500.00 of the bank money to Burrell.
    Judge Orlando Hudson made findings of aggravating and mitigating factors with respect to each of the three offenses. For the armed robbery conviction involving Bank of America, Judge Hudson found as aggravating factors that defendant “induced others to participate in the commission of the offense” and that defendant “knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person.” For both the kidnapping conviction and the armed robbery conviction involving Charles Wynn, Judge Hudson found as aggravating factors that the victim was veryold and that the victim suffered serious injury that is permanent and debilitating.
    Consistent with the terms of the plea agreement, Judge Hudson sentenced defendant to a minimum term of 120 months and maximum of 153 months imprisonment for the consolidated armed robbery convictions. Judge Hudson sentenced defendant to a minimum term of 42 months and a maximum of 60 months imprisonment for the second- degree kidnapping conviction, to run consecutively with the previous sentence. The trial court ordered that defendant pay restitution in the amount of $9,910.00 to Bank of America and $475.00 to Charles Wynn.
    On 16 January 2004 defendant filed a “Petition For Writ Of Certiorari And/Or Motion To Deem Record On Appeal Timely Filed” with this Court seeking review of the judgments entered 5 September 2000 by Judge Hudson. By order entered 6 February 2004, this Court deemed the record on appeal to be timely filed.
    First, we note that defendant has not properly preserved a challenge to any error by the trial court in finding aggravating factors for the consolidated armed robbery offenses. Pursuant to the plea negotiations, defendant agreed to be sentenced in the aggravated range for these consolidated offenses. Because defendant did not provide any argument in his brief in support of the assignment of error to the trial court's findings of aggravating factors for the robbery offenses, defendant has waived appellate review. See N.C.R. App. P. 28(b)(6). Further, we reject defendant's attempt to raise this issue in his reply brief asimproper under our Rules of Appellate Procedure. See N.C.R. App. P. 28(h). “A reply brief is intended to be a vehicle for responding to matters raised in the appellees' brief and is not intended to be -- and may not serve as -- a means for raising entirely new matters.” Newsome v. N.C. State Bd. of Elections, 105 N.C. App. 499, 504, 415 S.E.2d 201, 203 (1992) (internal quotations omitted).
    Next, defendant argues that the sentences for both the consolidated armed robbery offenses and the kidnapping offense are unconstitutional because the aggravating factors were not listed in the indictments. In State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), our Supreme Court held that factors which might lead to an enhanced sentence need not be alleged in the indictment. Allen, 359 N.C. at 438, 615 S.E.2d at 265. Defendant's argument is without merit.     
    Next, defendant argues that the trial court erred in sentencing him in the aggravated range for the kidnapping offense based upon factors which were not submitted to a jury and proven beyond a reasonable doubt. In Allen, our Supreme Court addressed the applicability of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), to the North Carolina Structured Sentencing Act. The Court held that, consistent with a defendant's Sixth Amendment right to trial by jury, “[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.” Id. at 437, 615 S.E.2d at 265. The Court concluded that the provisions of N.C. Gen. Stat. § 15A- 1340.16 which require a trial judge to make findings of aggravating factors that are not stipulated to by the defendant or found by a jury are unconstitutional. Id. at 438-39, 615 S.E.2d at 265. The Court also concluded that Blakely errors arising under North Carolina's Structured Sentencing Act are structural and, therefore, reversible per se.” Id. at 444, 615 S.E.2d at 269. Here, defendant's sentence for the second-degree kidnapping conviction was enhanced beyond the prescribed presumptive range based upon factors found by the trial court. Therefore, pursuant to Allen, defendant is entitled to a new sentencing hearing on this charge.
    Finally, defendant challenges the trial court's award of restitution on the grounds that there was insufficient evidence to support the award. Although defendant did not object to the trial court's entry of the award of restitution, this issue is deemed preserved under N.C. Gen. Stat. § 15A-1446(d)(18). See State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004). The trial court ordered that defendant pay restitution to Charles Wynn in the amount of $475.00 and to Bank of America in the amount of $9,910.00, for total restitution of $10,385.00. The State concedes that the trial court's determination of restitution is not supported by competent evidence in the record. See State v. Wilson, 340 N.C. 720, 726-27, 459 S.E.2d 192, 196 (1995) (amount of restitution ordered by trial court must be supported by evidence introduced at trial or at sentencing; unsworn statements of prosecutor insufficient to support restitution award).     Here, the State submitted a factual statement as to the injuries and damages arising from defendant's robbery and kidnapping offenses. The prosecutor stated that Charles Wynn incurred hospital expenses as a result of the robbery and kidnapping, but no hospital records or bills were submitted in support of this claim. Thus, the specific amount of $475.00 in restitution to Mr. Wynn was not supported by any evidence. Also, the specific amount of $9,910.00 in restitution to Bank of America was unsupported by the evidence; the only evidence presented was the police statement of defendant, in which he said that he gave $500.00 of the money from the bank robbery to Burrell. As the trial court's determination of restitution is not supported by evidence in the record, we reverse that part of the judgment requiring defendant to pay restitution in the amount of $10,385.00. See Wilson, 340 N.C. at 727, 459 S.E.2d at 196 (vacating portion of judgment recommending restitution unsupported by evidence); State v. Buchanan, 108 N.C. App. 338, 341-42, 423 S.E.2d 819, 821 (1992).
    Reversed in part; remanded for resentencing.
    Judges WYNN and HUDSON concur.
    Report per Rule 30(e).

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