An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-453

NORTH CAROLINA COURT OF APPEALS

Filed: 2 August 2005

STATE OF NORTH CAROLINA

v .                         Beaufort County
                            No. 02 CRS 1664, 50925
KENNETH EARL PRITCHARD

    Appeal by Defendant from judgment entered 27 October 2003 by Judge Jack W. Jenkins in Superior Court, Beaufort County. Heard in the Court of Appeals 7 December 2004.   (See footnote 1) 

    Attorney General Roy Cooper, by Assistant Attorney General John P. Barkley, for the State.

    Hosford & Hosford, P.L.L.C., by Geoffrey W. Hosford for defendant-appellant.

    WYNN, Judge.

    The State's presentation of the factual basis for the plea showed that on 6 March 2002, Defendant Kenneth Earl Pritchard went to Melvin Hopkins' apartment building and the two men got into an argument. Defendant swung at Mr. Hopkins who then ran away. Defendant asked Quincy Moore for his gun and began firing at Mr. Hopkins. A stray bullet entered the apartment of Mary Woolard,killing her. The apartment building was crowded with people at the time of the shooting including five or six children playing in the area. Four or five men were also playing basketball near the residence.
    Defendant pleaded guilty to second-degree murder and assault with a deadly weapon with intent to kill. The trial court heard evidence on aggravating and mitigating factors. The trial court found the following aggravating factors: (1) “The 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[;]” and (2) “Premeditation and deliberation.” The trial court also found the following mitigating factors: (1) “The defendant has accepted responsibility for the defendant's criminal conduct[;]” (2) “The defendant has a support system in the community[;]” and (3) “The defendant has a good treatment prognosis and a workable treatment plan is available.” The trial court found that “each aggravating factor in and of itself outweighs all the mitigating factors.”
    The trial court sentenced Defendant in the aggravated range to a minimum term of 196 months and a maximum term of 245 months imprisonment for the second-degree murder charge and a consecutive charge of thirty-one to forty-seven months imprisonment for the assault charge. Defendant appealed.
        _________________________________________
    Defendant contends that the trial court erred in sentencing him within the aggravated range in violation of his Sixth Amendmentright 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 factors: “The 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;” and “Premeditation and deliberation.” It is undisputed that the facts for these aggravating factors were neither presented to a jury nor proved beyond a reasonable doubt. Following our Supreme Court holdings in Allen and Speight, we must remand this matter forresentencing since the aggravating factors were neither prior convictions nor facts admitted by Defendant.
    Remanded.
    Judges MCGEE and TYSON 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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