An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1602
Filed: 6 September 2005


v .                         Wake County
                            Nos. 03 CRS 52844-45

    Appeal by defendant from judgment entered 19 April 2004 by Judge James C. Spencer, Jr., in Wake County Superior Court. Heard in the Court of Appeals 23 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Q. Shanté Martin, for the State.

    Don Willey for defendant-appellant.

    LEVINSON, Judge.

    Defendant (Gregory Davis) appeals from the judgment and commitment entered upon his plea of guilty to first degree rape and first degree burglary. We remand for a new sentencing hearing.
    Defendant was indicted 22 July 2003 for first degree rape and first degree burglary, and on 23 January 2004 he entered pleas of guilty to these offenses, pursuant to a plea agreement that contained no agreement as to sentence. On 19 April 2004 defendant appeared before the trial court for sentencing. The court found that defendant had a prior record level of II under N.C. Gen. Stat. § 15A-1340.14, and that he had pled guilty to offenses categorized as B1 and D level felonies under N.C. Gen. Stat. § 14-27.2(a) andN.C. Gen. Stat. § 14-51. The court found the existence of the following three aggravating factors under N.C. Gen. Stat. § 15A-1340.16(d): “The victim was very old”; “The victim was mentally infirm”; and “The victim was physically infirm.” The trial court determined that the aggravating factors outweighed one mitigating factor, and sentenced defendant to a consolidated, aggravated prison term of 300 - 369 months. From this judgment defendant appeals.
    Defendant argues, and we agree, that the trial court erred by imposing a sentence in the aggravated range, on the grounds that the aggravating factors were neither submitted to the jury nor admitted by defendant. We remand for resentencing in conformity with the rulings in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, reh'g denied, __ U.S. __, 159 L. Ed. 2d 851 (2004), and State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005).
    Judges WYNN and CALABRIA concur.
    Report per Rule 30(e).

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