An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1552


Filed: 15 November 2005


v .                             Wilkes County
                                No. 02 CRS 54890

    Appeal by defendant from judgment entered 3 August 2004 by Judge Clarence E. Horton, Jr. in Wilkes County Superior Court. Heard in the Court of Appeals 8 June 2005.

     Attorney General Roy Cooper, by Special Counsel Isaac T. Avery, for the State.

    Bryan Gates for defendant-appellant.

    CALABRIA, Judge.

    Edward Arnold Triplett (“defendant”) appeals from judgment entered upon a jury verdict finding him guilty of driving while impaired. We remand for resentencing.
    On 10 November 2002, defendant was driving his pickup truck on Gladys Fork Road in Ferguson, North Carolina when he missed a sharp turn. Defendant's truck crashed into a neighboring resident's yard. Trooper Will Miller (“Miller”) investigated the crash and formed an opinion that defendant was impaired. Defendant was subsequently taken to the hospital, where medical personnel took a blood sample. The blood test revealed defendant had a blood alcohol level of 0.29. On 19 December 2002, Miller cited defendant for driving while impaired.     Defendant was convicted in District Court in Wilkes County on 6 November 2003. Defendant appealed to the Superior Court and the case was tried de novo on 2 August 2004. A jury found defendant guilty of driving while impaired. At the sentencing hearing, the trial judge found three aggravating factors: (1) defendant had an alcohol concentration of at least 0.16 within a relevant time after driving, (2) defendant's driving was especially dangerous, and (3) defendant's negligent driving led to an accident causing property damage in excess of $500.00. The trial court also found as a mitigating factor that defendant had a safe driving record. The trial court weighed the factors and determined that the aggravating factors outweighed the mitigating factor and imposed a Level Three punishment. Defendant was sentenced to six months in the custody of the North Carolina Department of Correction, his sentence was suspended, and he was placed on supervised probation for eighteen months. As a condition of probation, defendant was ordered to pay $908.00 in restitution and, inter alia, not operate a motor vehicle for a period of ninety days. Defendant appeals.
    The sole issue on appeal is whether the trial court erred in determining the aggravating factors for defendant's sentence rather than submitting them to a jury in violation of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). In State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), our Supreme Court expressly adopted Blakely for sentences imposed under the North Carolina Structured Sentencing Act. Our Supreme Court has also made clear that “the rationale in Allen applies to all cases inwhich (1) a defendant is constitutionally entitled to a jury trial, and (2) a trial court has found one or more aggravating factors and increased a defendant's sentence beyond the presumptive range without submitting the aggravating factors to a jury.” State v. Speight, 359 N.C. 602, 606, 614 S.E.2d 262, 264 (2004) (applying Blakely to Level Two sentencing for driving while impaired under the guidelines set forth in N.C. Gen. Stat. § 20-179 (2003)).
    The State argues that defendant is procedurally barred by N.C. R. App. P. 10(b) from raising a Blakely claim as he did not raise the issue during his sentencing hearing. The Supreme Court issued its opinion in Blakely on 24 June 2004. As noted supra, defendant's case came to trial on 2 August 2004. At no point during the trial proceedings did defendant raise or argue the unconstitutionality of the trial court's finding and use of aggravating factors. “No procedural principle is more familiar . . . than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” State v. Mitchell, 276 N.C. 404, 410, 172 S.E.2d 527, 531 (1970) (quoting Yakus v. United States, 321 U.S. 414, 444, 88 L. Ed. 834, 859 (1944)). However, this Court acknowledges that given the rather short time frame between the issuance of Blakely and the defendant's trial in the instant case, a manifest injustice would occur were we not to hear defendant's appeal. See N.C. R. App. P. 2 (2005). Thus, we invoke Rule 2 and hear defendant's appeal.     We note that defendant expressly raised a Blakely claim on appeal despite his aforementioned failure to object at sentencing. Because defendant was sentenced to a Level Three punishment based on aggravating factors not submitted to a jury and not admitted to by the defendant, we remand for resentencing.
    No error at trial. Remanded for resentencing.
    Judges ELMORE and GEER concur.
    Report per Rule 30(e).

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