An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 September 2005
STATE OF NORTH CAROLINA
Nos. 02 CRS 51236, 51754-65
JEFFREY KENT WITSHER,
Appeal by Defendant from judgment entered 26 September 2002 by
Judge Michael E. Helms in Superior Court, Wilkes
County. Heard in
the Court of Appeals 11 January 2005.
(See footnote 1)
Attorney General Roy Cooper, by Jane Rankin Thompson, for the
Office of the Appellate Defender, by Staples Hughes, for the
Other 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. State v. Allen, __ N.C. __, __, 615 S.E.2d 256, 265
(2005). Here, Defendant Jeffrey Kent Witsher contends that the
trial court erred in finding an aggravating factor and sentencing
him within the aggravated range. We agree and remand forresentencing.
The record reflects that Defendant explicitly did not admit,
but pled no contest,
to multiple counts of indecent liberties and
one count of violation of a domestic violence protection order. At
the plea hearing, the prosecutor related that the victims of the
alleged indecent liberties were Defendant's minor daughters, that
when the daughters told their mother of the incidents, their
mother, Defendant's wife, called the police. The mother took the
daughters to a shelter and obtained a domestic violence protection
order against Defendant. Defendant was found hiding in the attic
of his home by the police.
The trial court found the aggravating factor that Defendant
took advantage of a position of trust or confidence to commit the
offense. The trial court also found several mitigating factors,
but found that the aggravating factor outweighed the mitigating
factors and sentenced Defendant in the aggravated range. From this
sentencing, Defendant appeals.
Defendant contends that the trial court erred in finding an
aggravating factor and 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). The
trial court found the aggravating factor that Defendant took
advantage of a position of trust or confidence to commit the
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
State v. Speight
, __ N.C. __, __, 614 S.E.2d 262, 264 (2005). 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
arising under North Carolina's Structured Sentencing Act are
structural and, therefore, reversible per se
. at __, 615
S.E.2d at 269.
As the aggravating factor here, that Defendant took advantage
of a position of trust or confidence to commit the offense[,]
not a prior conviction, was not admitted by Defendant, and the
facts for this aggravating factor were not presented to a jury and
proved beyond a reasonable doubt,
pursuant to Allen
remand for resentencing.
Remanded for resentencing.
Judges McGEE and TYSON concur.
Report per Rule 30(e).
The filing of this opinion was delayed pending the outcome
of the Supreme Court of North Carolina decisions in
, __ N.C. __, 615 S.E.2d 256 (2005) and State v. Speight
N.C. __, 614 S.E.2d 262 (2005) on issues arising from the United
States Supreme Court's decision in Blakely v. Washington
U.S. 296, 159 L. Ed. 2d 403 (2004)
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