An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1000


Filed: 20 September 2005


v .                         Wake County
                            No. 03 CRS 86370-71

    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 12 April 2005.

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

    Samuel L. Bridges for defendant-appellant.

    ELMORE, Judge.

    Orlando Ashint Morrison (defendant) and two co-defendants, Joseph Sinclair and Aubrey White, were arrested on 8 October 2003 for first-degree kidnapping and armed robbery. Following plea negotiations with the State, defendant entered guilty pleas to second-degree kidnapping and common law robbery.   (See footnote 1)  The parties agreed to sentencing at the discretion of the trial court. The State presented a factual basis for the plea at defendant's sentencing hearing. The factual basis tended to show that on 8 October 2003 defendant and White asked Brandon Hearndon to give them a ride from the campus of St. Augustine in Raleigh to thecampus of N.C. Central University in Durham. Defendant and White asked Hearndon to stop at their apartment first, at which point defendant and White went inside the apartment and returned with Sinclair. Once the three men got inside the car, White placed a gun to the back of Hearndon's head and the men demanded money. Hearndon handed over his wallet, and defendant removed $15.00 and an ATM card. The three defendants then demanded to know the PIN number for the card and drove to an ATM. Defendant 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 each offense that defendant “joined with more than one other person in committing the offense and was not charged with committing a conspiracy.” The court found that the aggravating factors outweighed the mitigating factors and sentenced defendant in the aggravated range for both offenses. Defendant was sentenced to a minimum term of 31 months and maximum of 47 months for the second- degree kidnapping conviction; defendant received a sentence of a minimum term of 16 months and a maximum of 20 months for the common law robbery conviction. From the judgments entered 9 January 2004, defendant appeals.    On appeal, defendant argues that the trial court erred in enhancing his sentence by finding aggravating factors without stipulation by defendant or submission to a jury. In State v. Allen, 359 N.C. 425, 438-39, 615 S.E.2d 256, 265 (2005), our Supreme Court concluded that the provisions of N.C. Gen. Stat. § 15A-1340.16 requiring a trial judge to make findings in aggravation which are not stipulated to by the defendant or submitted to a jury and proven beyond a reasonable doubt violate the defendant's Sixth Amendment right to a jury trial. The Court held that this was structural error and thus reversible per se. Id. at 449, 615 S.E.2d at 272. Here, defendant's sentence was enhanced beyond the prescribed presumptive range based upon aggravating factors neither stipulated to by defendant nor submitted to a jury. Pursuant to Allen, we remand for a new sentencing hearing.
    Remanded for resentencing.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

Footnote: 1
     Both co-defendants, White and Sinclair, also pled guilty to these charges.

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