An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-350


Filed: 17 January 2006


         v.                        Forsyth County
                                No. 03 CRS 59477

    Appeal by defendant from judgment entered 11 May 2004 by Judge Catherine C. Eagles in Forsyth County Superior Court. Heard in the Court of Appeals 27 December 2005.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Dennis P. Myers, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant.

    JACKSON, Judge.

    Dan Horace Mathurin (“defendant”) appeals his conviction for robbery with a dangerous weapon. For the reasons discussed herein, we remand the case for resentencing.
    The State's evidence tended to show that on 28 April 2003, defendant arrived at a barbeque given by Meagen Witt, Anthony Palmer and Erica Anderson at their apartment in Winston Salem. Defendant brought two friends with him, Luke Deal and Marco Reyes (“Reyes”). Reyes was alleged to be a cocaine dealer. While the men sat on the couch playing video games and the two women downloaded music on the computer in the back room, three men wearing bandanas over their faces entered the apartment.      The three men demanded money and drugs from Reyes, Palmer, Deal and defendant. One man approached Reyes and pointed a gun at his head. After the three men retrieved twenty dollars from Reyes, they fled to a nearby apartment. Soon thereafter, defendant arrived at the nearby apartment and inquired as to what the three men had obtained. Defendant was “upset” to learn that the men only obtained twenty dollars from Reyes. One of the three men, Nicholas Brooks, testified at trial that he, defendant, and the two other men had planned to rob the occupants of the apartment to obtain cocaine they thought Reyes would have on his person.
    A jury found defendant guilty as charged. The trial court subsequently found as an aggravating factor that defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy. The trial court found no mitigating factors. The court found by a preponderance of the evidence that the aggravating factor justified an aggravated sentence and sentenced defendant to 120 to 153 months imprisonment. Defendant appeals.
    Defendant contends the trial court erred by sentencing him in the aggravated range. The recent decision of State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), in which our Supreme Court examined the constitutionality of this state's structured sentencing scheme in light of the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), controls the facts of this case.     Defendant first asserts that the trial court lacked jurisdiction to sentence him in the aggravated range because the State failed to allege the aggravating factor in defendant's indictment. However, our Supreme Court expressly rejected a similar assertion by the defendant in Allen, 359 N.C. at 438, 615 S.E.2d at 265 (overruling language in State v. Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001)), “requiring sentencing factors which might lead to a sentencing enhancement to be alleged in an indictment[,]” finding no error in the State's failure to include aggravating factors in the defendant's indictment, and noting that in State v. Hunt, “this Court concluded that 'the Fifth Amendment would not require aggravators, even if they were fundamental equivalents of elements of an offense, to be pled in a state-court indictment.'” (quoting State v. Hunt, 357 N.C. 257, 272-73, 582 S.E.2d 593, 603- 04, cert. denied, 539 U.S. 985, 156 L. Ed. 2d 702 (2003)).
    Defendant also argues that the trial court erred in sentencing him in the aggravated range because the aggravating factor was not submitted to the jury. In Allen, our Supreme Court concluded that, when “[a]pplied to North Carolina's structured sentencing scheme, the rule of Apprendi and Blakely is: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt.” 359 N.C. at 437, 615 S.E.2d at 264-65 (citing Blakely, 542 U.S. at ___, 159 L. Ed. 2d at 413-14; Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455; N.C. Gen. Stat. §§ 15A-1340.13, 15A-1340.14, 15A-1340.16, 15A-1340.17). OurSupreme Court further held “that Blakely errors arising under North Carolina's Structured Sentencing Act are structural and, therefore, reversible per se.” Id. at 444, 615 S.E.2d at 269.
    Here, the trial court, not the jury, made findings in aggravation, not admitted by defendant, based on a preponderance of the evidence. Specifically, the trial court found as an aggravating factor that defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy. The trial court found this factor unilaterally and failed to submit the factor to the jury for proof beyond a reasonable doubt. Thus, in light of our Supreme Court's decision in Allen, we conclude that the trial court committed reversible error by sentencing defendant in the aggravated range. We, therefore, remand the case for resentencing because the trial court failed to submit the aggravating factor to the jury for proof beyond a reasonable doubt.
    Remanded for resentencing.
    Judges WYNN and CALABRIA concur.
    Report per Rule 30(e).

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