An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1704

NORTH CAROLINA COURT OF APPEALS

Filed: 20 September 2005

STATE OF NORTH CAROLINA

v .                         Durham County
                            No. 03 CRS 050549
ELISHA MAURICE WILLIAMSON

    Appeal by defendant from judgment entered 5 May 2004 by Judge Abraham Penn Jones in Durham County Superior Court. Heard in the Court of Appeals 24 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State.

    Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant.

    TYSON, Judge.

    Elisha Maurice Williamson (“defendant”) appeals from judgment finding an aggravating factor and sentencing him to 237 to 294 months for second degree murder. We vacate defendant's sentence and remand.

I. Background
    In June 2003, the nude body of defendant's wife was found wrapped in a sheet outside of the apartment complex where defendant and his wife and children resided. An autopsy revealed she died due to asphyxiation by manual strangulation. Defendant's affidavit states that in the early morning hours of 18 June 2003, he and his wife were arguing when she punched him in the throat. Defendant then placed his wife in a headlock until they fell to the floor. He discovered that she was not only unconscious but dead. Defendant panicked and placed her body in a sheet and dragged it outside the apartment complex, where it was eventually discovered by apartment workers.
    On 8 September 2003, a grand jury indicted defendant for murder. On 5 May 2004, defendant pled guilty to second degree murder. At the sentencing hearing, the trial court found one aggravating factor which was not charged in the indictment or submitted to a jury. The trial court also found the aggravating factor outweighed the mitigating factors and sentenced defendant in the aggravated range. Defendant was sentenced to an active term of imprisonment of 237 to 294 months. Defendant appeals.
II. Issues
    Defendant argues the trial court erred by: (1) sentencing him in the aggravated range without submitting the aggravating factor to a jury; (2) failing to find two additional mitigating factors which were supported by uncontradicted evidence; and (3) finding the aggravating factor that the crime was “especially heinous, atrocious, or cruel” when the evidence did not support such a finding.
III. Aggravated Sentence                                  ;       
    Defendant contends the trial court erred by sentencing him in the aggravated range based the trial court finding the aggravating factor that the crime was “especially heinous, atrocious, or cruel.” Our Supreme Court recently held in State v. Allen, “'[o]ther than the fact of a prior conviction, any fact thatincreases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'” 359 N.C. 425, 434, 615 S.E.2d 256, 262 (2005) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000)).
    The Court later stated in State v. Speight, “the rationale in Allen applies to all cases in which (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.” 359 N.C. 602, 606, 614 S.E.2d 262, 264 (2005) (citing Allen, 359 N.C. at 434, 615 S.E.2d at 262).
    Based on our Supreme Court's holding in Allen and Speight, the trial court erred by sentencing defendant in the aggravated range without submission to or a finding by the jury of factors to support the aggravated sentence beyond a reasonable doubt. Defendant's sentence is vacated and this case is remanded for imposition of a sentence consistent with our Supreme Court's decision in Allen, 359 N.C. at 434, 615 S.E.2d at 262, and Speight, 359 N.C. at 606, 614 S.E.2d at 264.
    In light of our decision vacating defendant's sentence and remanding for a new sentencing hearing, we do not address defendant's assignment of error of whether sufficient evidence was presented to show the crime was “especially heinous, atrocious, or cruel.”
IV. Mitigating Factors
    Defendant argues the trial court erred when it failed to find two additional mitigating factors which were supported by uncontradicted evidence.
    The State argues Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure requires a defendant to present an issue to the trial court and obtain a ruling in order to preserve that issue for appellate review and that defendant here failed to object.
    While defendant may have failed to specifically object to the trial court's alleged lack of finding additional mitigating factors, defense counsel stated at the sentencing hearing that if the court was not going to acknowledge the mitigating factors he would have to appeal. The trial court responded, “no, no let me correct that.” On the sentencing worksheet, the trial court found three mitigating factors to exist, specifically:
        15. The defendant has accepted responsibility for the defendant's criminal conduct.

        17. The defendant supports the defendant's family.

        18. The defendant has a support system in the community.

The trial court then determined the “factors in aggravation outweigh the factors in mitigation and that an aggravated sentence is justified.”
     “Our Supreme Court has held that an error at sentencing is not considered an error at trial for the purpose of N.C. Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure.” State v.Hargett, 157 N.C. App. 90, 92, 577 S.E.2d 703, 705 (2003) (citing State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991)).
     In addition, the majority in Canady specifically held that Rule 10(b)(1) had no application to sentencing matters. 330 N.C. at 401, 410 S.E.2d at 878.
        [Rule 10(b)(1)] is directed to matters which occur at trial and upon which the trial court must be given an opportunity to rule in order to preserve the question for appeal. The purpose of the rule is to require a party to call the court's attention to a matter upon which he or she wants a ruling before he or she can assign error to the matter on appeal.

Id. (citations omitted). Defendant's failure to object to the trial court's alleged failure to find additional mitigating factors at sentencing does not preclude review by this Court under Rule 10(b)(1). Although this issue is properly before us, as we recently stated in State v. Everette,
        Since the trial court's determination of the aggravating factors violated defendant's constitutional rights, we remand for resentencing . . . Defendant therefore contends that defendant can be resentenced at no greater than the mitigated range, since the trial court correctly found a mitigating factor. However, our Supreme Court stated in Allen that the proper procedure when appellate review reveals a Blakely error is to simply remand for resentencing. Pursuant to the Supreme Court's directive, we remand for resentencing . . . .

___ N.C. App. ___, ___, 616 S.E.2d 237, 243 (2005) (citation omitted).
V. Conclusion
    The trial court erred by sentencing defendant in the aggravated range without submitting the aggravating factor to ajury. Defendant's sentence is vacated and remanded for a new sentencing hearing consistent with our Supreme Court's decisions in Allen, 359 N.C. at 434, 615 S.E.2d at 262, and Speight, 359 N.C. at 606, 614 S.E.2d at 264.
    In light of our holding on defendant's assignment of error concerning the finding of an aggravating factor in order to enhance his sentence, we do not address defendant's assignment of error asserting the trial court's finding the crime was “especially heinous, atrocious, or cruel” was not supported by the evidence.
    Vacate Judgment, Remanded for New Sentencing Hearing.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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