An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-488

NORTH CAROLINA COURT OF APPEALS

Filed: 6 September 2005

STATE OF NORTH CAROLINA

v .                         Wilkes County
                            Nos. 02 CRS 51236, 51754-65
JEFFREY KENT WITSHER,
    Defendant.                    
    

    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 State.

    Office of the Appellate Defender, by Staples Hughes, for the defendant-appellant.

    WYNN, Judge.

     “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.

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    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 offense.”
    Recently, our Supreme Court recognized that under the Blakelyholding, “[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 errors arising under North Carolina's Structured Sentencing Act are structural and, therefore, reversible per se.” Id. 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[,]” was 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 and Speight we remand for resentencing.
    Remanded for resentencing.
    Judges McGEE and TYSON concur.
    Report per Rule 30(e).


Footnote: 1
    The filing of this opinion was delayed pending the outcome of the Supreme Court of North Carolina decisions in State v. Allen, __ 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, 542 U.S. 296, 159 L. Ed. 2d 403 (2004) .

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