An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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_657


Filed: 2 August 2005


v .                         Alamance County
                            Nos. 03 CRS 56603
THEODIS LEVON RICE,                    03 CRS 56604

    Appeal by defendant from judgments entered 9 December 2003 by Judge Evelyn W. Hill in Alamance County Superior Court. Heard in the Court of Appeals 2 February 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Roberta A. Ouellette, for the State.

    John T. Hall for defendant-appellant.

    GEER, Judge.

    Defendant Theodis Levon Rice pled guilty to kidnapping, robbery with a dangerous weapon, breaking and entering, and larceny. He appeals from his two consecutive sentences of 92 to 120 months and 80 to 105 months. Because defendant's sentences violate Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004) and State v. Allen, __ N.C. __, __ S.E.2d __, 2005 N.C. LEXIS 695 (July 1, 2005), we remand for resentencing.

    On 22 July 2003, the 16-year-old defendant and six other men entered the home of the victim, Violet Neese, stole money from her, and disabled her telephone. They then put her in the trunk of her own car and drove her to another county, where they stopped on abridge and forced her out of the car. When another car began to approach, defendant and his colleagues got back into the victim's car and fled. Eventually, they were apprehended in Virginia.
    Defendant was charged with and, on 27 October 2003, pled guilty to robbery with a dangerous weapon, felonious breaking and entering, felonious larceny, and kidnapping. At his sentencing hearing on 9 December 2003, the trial court found two mitigating factors: (1) defendant "voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer . . . at an early stage in the criminal process," and (2) "defendant testified on voir dire," referring to defendant's testimony in the trial of another defendant. The trial court also found, as an aggravating factor, that the victim was very old. After concluding that the aggravating factor of the victim's age outweighed the mitigating factors, the trial court sentenced defendant in the aggravated range to 92 to 120 months for the kidnapping charge, followed by a consecutive sentence of 80 to 105 months for the other three charges.
    Defendant appealed, arguing the insufficiency of the evidence to support the trial judge's finding of the aggravating factor. While pending on direct appeal, defendant filed a memorandum of additional authority, asserting that his sentences violated Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004). Since this procedural history is similar to that presented in State v. Allen, __ N.C. __, __, __ S.E.2d __, __, 2005 N.C. LEXIS 695, at *4 (July 1, 2005), we hold that the question whetherdefendant's sentences violate Blakely is properly before this Court.
    The trial judge, sitting without a jury, found as an aggravating factor that "[t]he victim was . . . very old." Based on this aggravating factor, she imposed sentences in the aggravated range. As our Supreme Court has held, under Blakely, "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 __, __ S.E.2d at __, 2005 N.C. LEXIS 695, at *26 (citing Blakely, 542 U.S. at __, 159 L. Ed. 2d at 413_14, 124 S. Ct. at 2537; Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362 (2000)). The only facts excluded from this requirement are those "to which a defendant has admitted or the fact of a prior conviction." Id. at __ n.5, __ S.E.2d at __ n.5 ., 2005 N.C. LEXIS 695, at *42 n.5. The holding in Allen "appl[ies] to cases 'in which the defendants have not been indicted as of the certification date of this opinion and to cases that are now pending on direct review or are not yet final.'" Id. at __, __ S.E.2d at __, 2005 N.C. LEXIS 695, at *2 (quoting State v. Lucas, 353 N.C. 568, 598, 548 S.E.2d 712, 732 (2001)).
    Since neither of the exceptions to Allen and Blakely apply to defendant, "we conclude that the trial court committed reversible structural error by finding the aggravating circumstance[] in this case." State v. Speight, __ N.C. __, __, 614 S.E.2d 262, 264 (2005). Accordingly, we remand for new sentencing in accordancewith Blakely and Allen. Because of our disposition of this appeal, we do not address defendant's argument regarding the sufficiency of the evidence to support the aggravating factor.

     Remanded for resentencing.
    Judges McGEE and TYSON concur.
    Report per Rule 30(e).

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