State v Apple, (04-1568) 11/01/2005

Appeal by defendant from judgments entered by Judge Wade Barber in Orange County Superior Court. Heard in the Court of Appeals 23 August 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Amar Majmundar, for the State.

Amos Granger Tyndall for defendant-appellant.

    CALABRIA, Judge.

    Billy Apple (“defendant”) seeks review of judgments, entered pursuant to a plea agreement, for the offenses of indecent liberties with a child, secretly peeping into a room occupied by females, and contributing to delinquency and neglect by parents and others. We affirm the plea adjudication but remand for resentencing.
    In February of 2003, Alamance County deputies confiscated video tapes that depicted women and girls as they undressed intanning salons. The Alamance County police then contacted the Hillsborough Police Department (“Hillsborough P.D.”) because they believed the taping occurred in Hillsborough. The Hillsborough P.D. investigated this matter and a search warrant was issued to search defendant's salon. The police found recording devices in the air purifiers located in the tanning beds, and they also found a monitor for viewing the recordings. Based on this evidence, a search warrant was then obtained for defendant's residence. A search of defendant's residence revealed that defendant had purchased the recording devices over the Internet and frequented pornography sites on the Internet including one entitled “Candid Tanning Salon, Undressing Before Getting into the Machine.” In the process of identifying the victims of the crimes, the police discovered that the majority of the victims were from defendant's church and a high school where defendant coached girls softball. On 8 December 2003, defendant was indicted on seven counts of indecent liberties with a child, one count of indecent liberties with a student, seven counts of contributing to the delinquency and neglect by parents and others, and fifty-seven counts of secretly peeping into a room occupied by a female person. Pursuant to a plea agreement, defendant pled guilty. The trial court found as aggravating factors that defendant took advantage of a position of trust or confidence to commit the offenses and “[t]he Defendant was trusted because he ha[d] been a sworn police officer, worked as a high school coach, was a teacher in public schools[,] and was proprietor of the business where the videos were made.” The trialcourt found that the aggravating factors outweighed the mitigating factors and sentenced defendant to seven consecutive sentences of 20 to 24 months, and one 8 to 10 month sentence in the custody of the North Carolina Department of Correction. Each sentence was suspended, and defendant was placed on supervised probation for 60 months. Included with the special conditions of probation, the trial court required defendant to register as a sex offender, submit to electronic monitoring, and pay restitution in the amount of $64,000. Defendant appeals.
I.    Sentencing Defendant in the Aggravated Range
    Defendant first argues, both in his brief and in a motion for appropriate relief, that the trial court committed reversible error by sentencing him in the aggravated range on the grounds that the aggravating factors were not found by a jury. Blakely v. Washington, 542 U.S. 296 (2004), expressly adopted by our Supreme Court in State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), requires a trial court to submit aggravating factors to a jury for findings beyond a reasonable doubt if the aggravating factors will enhance a defendant's sentence beyond the statutory presumptive range, 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. The purpose of submitting the aggravating factors to the jury is “to give intelligible content to the right of jury trial.” Blakely, 542 U.S. at ___. In analyzing Blakely, our Supreme Court has recently held that “Blakely errors arising under North Carolina's Structured Sentencing Act are structural and, therefore,reversible per se.” Allen, 359 N.C. at 444, 615 S.E.2d at 269.     The State argues that on these facts we need not remand for resentencing because defendant admitted the facts supporting the aggravating factor. In the sentencing hearing, defendant's counsel said, “He knows that what can only be viewed as a breach of trust on his part has caused a great many people who loved him and admired him and respected him to feel totally different about him.” Defendant also spoke at the hearing and said, “the only thing I can do now is take this opportunity to apologize to everyone that I offended and let [] down because I know the position I was at and the things of leadership that a lot of people are disappointed in me.” (Emphasis added).
    We reject the State's contention that defendant definitely and clearly stipulated to the aggravating factors during the course of his plea and sentencing hearing. See State v. Alexander, 359 N.C. 824, __, 616 S.E.2d 914, 917 (2005) (stating, “While a stipulation need not follow any particular form, its terms must be definite and certain[.]”) (citations omitted). Since defendant did not stipulate to the aggravating factors and the trial court did not submit them to a jury for findings beyond a reasonable doubt, defendant is entitled to a new sentencing hearing, and we grant defendant's motion for appropriate relief.
II.    Additional Sentencing Challenges
    Defendant next argues that the trial court erred by failing to consider mitigating factors, finding aggravating factors that were not supported by the evidence, and making written findings of twoaggravating factors when, during the hearing, the court made a finding of only one aggravating factor. Because we have remanded for resentencing, we need not address these assignments of error. In his final argument, defendant contends that the trial judge improperly included a $2000 fine on the judgment form for case number 03 CRS 51986, which the judge had not imposed during the sentencing hearing. Our review of the transcript reveals during the hearing the trial judge said, “And in 1986, that's 20 to 24 months to run at the expiration of 85, an additional fine of $2000.[].” We, accordingly, reject this assignment of error.
III. Abandonment of Remaining Assignments of Error
    Pursuant to N.C. R. App. P. 28(b)(6) (2005), when assignments of error are not argued on appeal they are abandoned. As such, we do not address defendant's remaining assignments of error.
    Remanded for resentencing.
    Judges WYNN and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***