An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-813

NORTH CAROLINA COURT OF APPEALS

Filed: 20 September 2005

STATE OF NORTH CAROLINA

v .                         Wake County
                            Nos. 03 CRS 86373
JOSEPH G. SINCLAIR                    03 CRS 86374

    Appeal by defendant from judgment entered 9 January 2004 by Judge Evelyn W. Hill in Wake County Superior Court. Heard in the Court of Appeals 8 March 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State.

    The Turrentine Group, PLLC, by Karlene Scott-Turrentine, for defendant-appellant.

    ELMORE, Judge.

    Joseph G. Sinclair (defendant) and two co-defendants, Orlando Morrison and Aubrey White, were arrested on 8 October 2003 for first-degree kidnapping and armed robbery. On 7 January 2004 defendant entered into plea negotiations with the State, according to which defendant agreed to plead guilty to second-degree kidnapping and common law robbery. On 9 January 2004 Judge Evelyn Hill presided over defendant's sentencing hearing. The State's factual basis for the plea tended to show that on 8 October 2003 the two co-defendants, White and Morrison, asked Brandon Hearndon for a ride from Raleigh to the N.C. Central University campus in Durham. White and Morrison asked Hearndon to stop at an apartment first where they retrieved defendant from inside. Upon returningto the car, the three defendants demanded money as White placed a gun to the back of Hearndon's head. Hearndon handed over his wallet, and Morrison removed $15.00 and an ATM card from it. The three defendants then demanded to know the PIN number for the card and drove to an ATM. Morrison attempted to withdraw money but was unsuccessful. As they were driving to a different ATM, Hearndon observed the barrel of the gun and believed it to be a BB gun or pellet gun but not an actual firearm. Hearndon struggled with the men, and the car crashed into a fire station. As the three defendants fled, Hearndon gave the firemen an account of what had happened.
    The trial court found as an aggravating factor for both offenses that defendant “joined with more than one other person in committing the offense and was not charged with committing a conspiracy.” After finding that the aggravating factors outweighed the mitigating factors, the court sentenced defendant to 31 to 47 months imprisonment for the second-degree kidnapping offense and 16 to 20 months for the common law robbery offense. Defendant appeals from the judgments entered 9 January 2004.
    First, defendant argues that the trial court erred in accepting his guilty plea where the State's factual basis for the plea did not include facts to support the charge of armed robbery. However, the charge of armed robbery was dismissed pursuant to the plea negotiations and defendant agreed to plead guilty to common law robbery. Defendant contends nonetheless that the prosecutor should be required to present evidence of each element for anoffense which was dismissed pursuant to the plea negotiations. Defendant cites no case law or statutory authority in support of his argument. N.C. Gen. Stat. § 15A-1022(c) provides the authority for a trial judge to accept a defendant's guilty plea based upon the prosecutor's statement of facts. See N.C. Gen. Stat. § 15A- 1022(c) (2003) (“The judge may not accept a plea of guilty or no contest without first determining that there is a factual basis for the plea. . . .”). Nowhere does the statute mandate a factual basis for any charges dismissed pursuant to the plea agreement. Defendant's argument is without merit.
    Next, defendant argues that the trial court erred in sentencing him in the aggravated range based upon factors which were neither stipulated to by defendant nor proven to a jury beyond a reasonable doubt. In State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), our Supreme Court applied the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), to the North Carolina Structured Sentencing Act. The Court held that the provisions of N.C. Gen. Stat. § 15A-1340.16 requiring a trial judge to consider aggravating factors that are not stipulated to by defendant or found by a jury beyond a reasonable doubt violate the defendant's Sixth Amendment right to a trial by jury. Allen, at 359 N.C. at 438-39, 615 S.E.2d at 265.     In the instant case, defendant's sentence was enhanced beyond the presumptive range based upon aggravating factors not submitted to a jury and proven beyond a reasonable doubt. Defendant'ssentence therefore violates his Sixth Amendment right to a jury trial. Pursuant to Allen, we remand for a new sentencing hearing.
    Remanded for resentencing.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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