NO. COA05-252

NORTH CAROLINA COURT OF APPEALS

Filed: 1 November 2005

    Appeal by defendant from judgments entered 1 July 2003 by Judge Gregory A. Weeks in Cumberland County Superior Court. Heard in the Court of Appeals 20 October 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Amy C. Kunstling

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Barbara S. Blackman

    LEVINSON, Judge.

     Defendant appeals from judgments and commitments entered upon his guilty pleas to four counts of taking indecent liberties with a child; three counts of first degree statutory rape; three counts of first degree statutory sexual offense; three counts of felonious child abuse; four counts of felonious incest; one count of second degree forcible rape; and one count of second degree forciblesexual offense. For sentencing, one count each of first degree statutory rape and first degree statutory sexual offense were consolidated for judgments in 00 CRS 57998, 00 CRS 57999, and 00 CRS 58000. The remaining counts were consolidated for judgment in 00 CRS 58001.
    Defendant argues that, with respect to the judgments on the first degree statutory rape and first degree statutory sexual offense, the trial court erred by sentencing him in excess of the statutory maximum based on aggravating factors not submitted to the jury and not admitted by defendant. Defendant argues he is entitled to a new sentencing hearing pursuant to Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, reh'g denied, __ U.S. __, 159 L. Ed. 2d 851 (2004). We agree.
    With respect to the relevant judgments, the trial court made statutory finding number 15 that “[t]he defendant took advantage of a position of trust or confidence to commit the offense”, and a non-statutory factor that “[t]he victim of this offense suffered serious injury both mental and emotional permanent and debilitating.” The trial court found that these aggravating factors outweighed mitigating factors 11, 14 and 19 set forth in N.C. Gen. Stat. § 15A-1340.16 (2003), and sentenced defendant to aggravated terms of imprisonment. The aggravating factors were not found beyond a reasonable doubt by the jury, and were not admittedby defendant. Therefore, we remand for resentencing of those offenses consolidated for judgment in 00 CRS 57998, 00 CRS 57999, and 00 CRS 58000 in conformity with the rulings in Blakely and State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005).
    We do not disturb the judgment entered in 00 CRS 58001, except to the extent we instruct the trial court judge to correct a clerical error in that judgment. The judgment in 00 CRS 58001 directs that the sentence imposed therein shall begin at the expiration of the sentence imposed in 02 CRS 58000. However, this conflicts with the trial court's decree in open court that it run concurrently with the term of imprisonment required by 00 CRS 58000.
    Remanded for resentencing.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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