An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-860


Filed: 2 August 2005


v .                         Robeson County
                            No. 02 CRS 21015

    Appeal by Defendant from judgment entered 7 January 2004 by Judge B. Craig Ellis in Superior Court, Robeson County. Heard in the Court of Appeals 15 February 2005.   (See footnote 1) 

    Attorney General Roy Cooper, by Special Deputy Attorney General Victoria L. Voight, for the State.

    Paul F. Herzog for defendant-appellant.

    WYNN, Judge.

    The evidence at trial tended to show: On 30 December 2002, Leslie Nicole Jones, Lillie McKoy, Angela Pitchford, and Jacqueline Johnson were working at the Town Hall in the Town of Maxton. Jones and Pitchford were working in the customer service area where citizens came to pay their bills.
    At approximately 10:00 a.m. Jones started to walk outside when she noticed Defendant Eddie Caple, who she had known for eight years, outside the door. Jones opened the door and Defendant, witha bandana over his nose, told her to “turn around” and showed her a gun. Defendant made Jones walk to the counter and give him the money in the drawer. He instructed Jones and Pitchford to lay on the floor.
    When Defendant came into the building, McKoy and Johnson were in the collection office. McKoy saw Pitchford get down on her knees and Jones place the money drawer on the counter. McKoy also saw the Defendant, whom she had known for years, ask for the money. Before leaving, Defendant took approximately $255 and fired a shot which lodged in the wall near the door of the men's bathroom.
    A jury found Defendant guilty of robbery with a firearm. The trial court found a non-statutory aggravating factor that “Defendant's actions endangered multiple persons and victims continue to have emotional distress.” The trial court found that the aggravating factors outweighed the two mitigating factors and sentenced Defendant in the aggravated range of ninety-five to 123 months imprisonment. Defendant appealed.
    Defendant contends that the trial court erred in sentencing him within the aggravated range in violation of his Sixth Amendment right to a jury trial. See Blakely, 542 U.S. 296, 159 L. Ed. 2d 403.
    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 areasonable doubt.” Allen, __ N.C. at __, __ S.E.2d at __; see Speight, __ N.C. at __, __ S.E.2d at __. 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 __, __ S.E.2d at __. Accordingly, our Supreme Court concluded that “Blakely errors arising under North Carolina's Structured Sentencing Act are structural and, therefore, reversible per se.” Allen, __ N.C. at __, __ S.E.2d at __.
    In this case, the trial court found the following aggravating factor: “Defendant's actions endangered multiple persons and victims continue to have emotional distress.” It is undisputed that the facts for this aggravating factor were neither presented to a jury nor proved beyond a reasonable doubt. Following our Supreme Court holdings in Allen and Speight, we must remand this matter for resentencing since the aggravating factors were neither prior convictions nor facts admitted by Defendant.
    Defendant did not present arguments for his two remaining assignments of error. Therefore, they are deemed abandoned. N.C. R. App. P. 28(b)(6).
    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).

Footnote: 1
     By order of this Court, the filing of this opinion was delayed pending the outcome of the Supreme Court of North Carolina decisions in State v. Allen, __ N.C. __, __, __ S.E.2d __ , __ (1 July 2005) (485PA04) and State v. Speight, __ N.C. __, __, __ S.E.2d __ , __ (1 July 2005) (491PA04) 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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