An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-791


Filed: 1 November 2005


    v .                         Guilford County
                                Nos. 03 CRS 24657
                                    03 CRS 94977

    Appeal by defendant from judgments entered 16 December 2003 by Judge A. Moses Massey in Guilford County Superior Court. Heard in the Court of Appeals 2 February 2005.

     Attorney General Roy Cooper, by Assistant Attorney General Elizabeth J. Weese, for the State.

    K.E. Krispen Culbertson, for defendant-appellant.

    CALABRIA, Judge.

    Steven J. Fracheur (“defendant”) appeals from judgments entered on guilty pleas to four counts of taking indecent liberties with a child. Defendant was sentenced in the aggravated range for two of the four counts to two consecutive active terms of twenty to twenty-four months in the North Carolina Department of Correction. For the last two counts, which were consolidated for judgment, defendant was sentenced to a third consecutive term of twenty to twenty-four months suspended for sixty months supervised probation upon defendant's release from incarceration. We remand for resentencing.    At trial, defendant stipulated to the following factual basis for his plea. Defendant is the great uncle of V.J. (the “victim”), who was eight years old at the time of the incident. In August of 2003, the victim's parents became aware that defendant was touching the victim inappropriately and making her touch him inappropriately. After some questioning, the victim revealed defendant had engaged in this inappropriate course of action on multiple occasions. Defendant was interviewed by the Greensboro Police Department and made a full disclosure at that time.
    The trial court proceeded to sentencing and heard from the victim's mother and father. The victim's mother testified that defendant had “always been close,” “was a favorite uncle,” and the family had “always loved each other and helped each other.” In fact, the victim's father had allowed defendant to move in so as “to give him a chance and help him out” at a time when defendant was out of work and did not have a place to stay. The testimony of the victim's father added that the victim “trusted [defendant and] looked up to him[.]” Counsel for defendant noted defendant was deeply remorseful and accepted responsibility for his actions. Defendant's sister had been supportive of him at all times since the accusations surfaced. Counsel for defendant also noted he had been employed at Cone Hospital for twenty years and had no prior criminal history.
    Based upon the foregoing, the trial court found there was a factual basis for the entry of defendant's plea. The court found four factors in mitigation: (1) defendant voluntarily acknowledgedhis wrongful conduct at an early stage of the criminal process, (2) defendant accepted responsibility for his criminal conduct, (3) defendant had a support system in the community, and (4) defendant had a positive employment history. The trial court found as an aggravating factor that defendant took advantage of a position of trust or confidence to commit the offense. The trial court balanced the factors and determined that the factor in aggravation outweighed the factors in mitigation. The trial court sentenced defendant in the aggravated range. Defendant appeals.
    Defendant subsequently submitted a motion for appropriate relief requesting a reduction in his sentence in accordance with the United States Supreme Court holding in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), expressly adopted by our Supreme Court in State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005). Specifically, defendant argues if aggravating factors enhance a sentence beyond the presumptive range, a trial court must send the aggravating factors to a jury for findings beyond a reasonable doubt, unless the defendant admits the aggravating factors and waives a jury trial. Id., 359 N.C. at 438-39, 615 S.E.2d at 265. Our Supreme Court has held that “Blakely errors . . . are structural and, therefore, reversible per se.” Allen, 359 N.C. at 441, 615 S.E.2d at 269. Accordingly, because defendant did not stipulate to the aggravating factors and the trial court did not submit them to the jury, we grant defendant's motion for appropriate relief and remand to the trial court for a new sentencing hearing.    Because we have granted defendant a new sentencing hearing we do not address his other assignments of error, which relate to alleged sentencing violations by the trial court.
    Remand for resentencing.
    Judges HUNTER and JACKSON concur.
    Report per Rule 30(e).

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