An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-294


Filed: 6 September 2005


v .                         Wake County
                            No. 02 CRS 209, 51220, 51222
                            & 51225

    Appeal by Defendant from judgment entered 2 July 2003 by Judge W. Osmond Smith in the Superior Court, Wake County. Heard in the Court of Appeals 16 November 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General J. Allen Jernigan, for the State.

    Irving Joyner, for defendant-appellant.

    WYNN, Judge.

    On 1 February 2002, juvenile petitions were filed against Defendant Alejandro Hernandez-Madrid in District Court, Wake County for two counts of first-degree rape, one court of first-degree burglary, and one count of robbery with a dangerous weapon. Following a transfer hearing at the 12 June 2002 juvenile court session, the district court transferred the case to superior court. Defendant appealed the order of transfer, and on 7 October 2002, the superior court upheld the order of transfer. On 1 July 2002, the grand jury indicted Defendant on all four charges. At the 2 July 2003 Criminal Session of Superior Court, Wake County, Defendant pled guilty to two counts of second-degree rape, onecount of first-degree burglary, and one count of robbery with a dangerous weapon. Defendant appeals the district court's order of transfer and the superior court's sentence. For the reasons discussed below, we affirm in part and remand for resentencing pursuant to State v. Allen, __ N.C. __, 615 S.E.2d 256 (2005) and State v. Speight, __ N.C. __, 614 S.E.2d 262 (2005).
    Defendant first argues that the district court erred in transferring his case to superior court for trial as an adult. As discussed below, we conclude that this assignment of error is not properly before the court.
    We begin by addressing the State's contention that Defendant has waived his right to appeal this issue. “In North Carolina, a defendant's right to appeal in a criminal proceeding is purely a creation of state statute.” State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002). Regarding appeal of an order transferring jurisdiction in a juvenile matter to the superior court, the North Carolina Juvenile Code (“the juvenile code”) provides in pertinent part that:
        (c) If an appeal of the transfer order is taken, the superior court shall enter an order either (i) remanding the case to the juvenile court for adjudication or (ii) upholding the transfer order. . . .

        (d) The superior court order shall be an interlocutory order, and the issue of transfer may be appealed to the Court of Appeals only after the juvenile has been convicted in superior court.
N.C. Gen. Stat. § 7B-2603 (2003) (emphasis supplied). The State argues that because Defendant pled guilty in the superior court, and the issue of transfer to superior court is not explicitly included in section 15A-1444(a2) of the North Carolina General Statutes as one of the matters a defendant may appeal after a plea of guilty, Defendant here has waived his right to appeal this issue. The State also contends that Defendant was not “convicted” within the meaning of section 7B-2603(d) of the North Carolina General Statutes, and that he has thus waived his right to appeal. Assuming, without deciding, that a juvenile might under some circumstances be able to appeal a transfer order after a guilty plea, Defendant here has not properly brought the issue before this Court. We note that Defendant's brief does not contain a statement of grounds for appellate review as required by N.C. R. App. Rule 28 (b)(4), so we do not know on what statutory basis he relies. However, Defendant's assignment of error mentions only the transfer order from the district court and not the 7 October 2002 transfer order from the superior court. Thus, he has failed to bring the issue of transfer forward, and we overrule this assignment of error.
    In a Motion for Appropriate Relief filed 19 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 v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004).    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 __, 615 S.E.2d at 265; see Speight, __ N.C. at __, 614 S.E.2d at 264. 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 __, 615 S.E.2d at 265. Accordingly, our Supreme Court concluded that “Blakely errors arising under North Carolina's Structured Sentencing Act are structural and, therefore, reversible per se.” Id. at __, 615 S.E.2d at 269.
    In this case, the trial court found the following aggravating factor: “The defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy.” The facts for this aggravating factor were neither presented to a jury nor proved beyond a reasonable doubt. Nor did Defendant stipulate to this aggravating factor. Id. at __, 615 S.E.2d at 265 (“[U]nder Blakely the judge may still sentence a defendant in the aggravated range based upon the defendant's admission to an aggravating factor enumerated in N.C.G.S. § 15A- 1340.16(d).” (emphasis added)). Following our Supreme Courtholdings in Allen and Speight, we must grant the Motion for Appropriate Relief and remand this matter for resentencing since the aggravating factor was neither a prior conviction nor admitted by Defendant.
    Affirmed in part; Remanded for resentencing in part.
    Judges HUDSON and ELMORE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***