Converted WP file 030785-2

Appeal by defendant from judgment entered 28 January 2003 by Judge James C. Spencer, Jr. in Wake County Superior Court. Originally heard in the Court of Appeals 17 March 2004. A unanimous panel of this Court granted defendant a new trial. See State v. Lewis, 166 N.C. App. 596, 603 S.E.2d 559 (2004). Now on remand from the North Carolina Supreme Court, opinion filed 7 October 2005, for consideration of defendant's remaining assignments of error.

Attorney General Roy Cooper, by Special Deputy Attorney General Victoria L. Voight, for the State.

Paul M. Green for defendant-appellant.

    ELMORE, Judge.

    This appeal is back before this Court on remand from the North Carolina Supreme Court. Defendant's sole assignment of error in the appeal concerned the admission of the victim's statements to police officers when the victim was unavailable at trial and defendant had no prior opportunity to cross-examine the victim. This Court, in a unanimous decision, determined that the statements of the victim to an officer in the course of initial questioningabout the alleged crime and the statements of the victim identifying defendant in a photographic lineup were testimonial statements as contemplated by Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). This Court held that the error in admitting the statements in violation of defendant's Sixth Amendment right of confrontation was not harmless beyond a reasonable doubt.
    The Supreme Court, in State v. Lewis, 360 N.C. 1, 619 S.E.2d 830 (2005), applied Crawford and two of its decisions interpreting Crawford to the facts of the instant appeal. The Court concluded that the victim's statements in response to initial questioning by a patrol officer were not the result of structured police questioning and therefore not testimonial in nature. Lewis, 360 N.C. at 22, 619 S.E.2d at 844. The Court determined that the statements identifying defendant as the perpetrator based upon a photographic lineup prepared by a detective were testimonial. Id. at 24, 619 S.E.2d at 844-45. Observing that the victim was unavailable and that defendant had no prior opportunity to cross- examine the victim, the Court held that the admission of the victim's statements identifying defendant in the photographic lineup violated the principles of Crawford. However, the Court found this constitutional error to be harmless beyond a reasonable doubt and reversed the decision of this Court. Id. at 29-30, 619 S.E.2d at 848.
    After the Supreme Court issued its decision, defendant filed a “Motion for Relief from Prior Order and Reinstatement of Motionfor Appropriate Relief.” Defendant's motion, filed with this Court on 24 October 2005, noted that his previously filed motion for appropriate relief seeking resentencing under Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), was no longer moot following the Supreme Court's reversal of this Court's decision granting a new trial. We now consider the merits of defendant's motion for appropriate relief.
    The trial court found as an aggravating factor to the offense of assault with a deadly weapon inflicting serious injury that the victim was very old. The court found this same aggravating factor with respect to the offense of robbery with a dangerous weapon. The court found that the aggravating factors outweighed the mitigating factors and sentenced defendant in the aggravated range for both offenses. Defendant was sentenced to a minimum term of 48 months and maximum of 67 months for the assault conviction; defendant received a sentence of a minimum term of 144 months and a maximum of 182 months for the robbery conviction.
    In State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), our Supreme Court applied Blakely v. Washington to the North Carolina Structured Sentencing Act and held that the provisions of N.C. Gen. Stat. § 15A-1340.16 which require a trial judge to make findings of aggravating factors neither stipulated to by the defendant nor found by a jury violate the defendant's Sixth Amendment right to a jury trial. See Allen, 359 N.C. at 433, 615 S.E.2d at 262. Therefore, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribedpresumptive range must be submitted to a jury and proved beyond a reasonable doubt.” Id. at 437, 615 S.E.2d at 264-65. The error of failing to submit aggravating factors for jury consideration is structural and reversible per se. See id. at 449, 615 S.E.2d at 272.
    As defendant was sentenced beyond the prescribed presumptive range based upon factors neither stipulated to by defendant nor found by a jury beyond a reasonable doubt, defendant is entitled to a new sentencing hearing.
    Remanded for resentencing.
    Judges McCULLOUGH and BRYANT concur.
    Report per Rule 30(e).

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