An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-674

NORTH CAROLINA COURT OF APPEALS

Filed: 21 February 2006

STATE OF NORTH CAROLINA

         v.                        McDowell County
                                Nos. 01 CRS 4043-4
JUSTIN CARNELL SCOTT                    01 CRS 51659
                                    02 CRS 1944
    

    On writ of certiorari from judgment entered 25 June 2002 by Judge Loto G. Caviness in McDowell County Superior Court. Heard in the Court of Appeals 6 February 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Heather H. Freeman, for the State.

    Mercedes O. Chut for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant Justin Carnell Scott entered a guilty plea on 11 June 2002 to first-degree burglary, larceny, and indecent liberties with a minor. The plea agreement provided that all charges would be consolidated for judgment and that defendant would be sentenced within the aggravated range for first-degree burglary in exchange for the dismissal of the charges of statutory rape and false imprisonment. Defendant also agreed to provide truthful testimony in the trial of Corey Grant. Defendant stipulated to the factual basis for entry of the plea, and the trial court accepted defendant's plea.
    At the sentencing hearing, defense counsel argued thatdefendant should be sentenced in the low end of the aggravated range because of defendant's cooperation in the case against his co-defendant. The State requested that the trial court find as an aggravating factor that defendant was not charged with conspiracy but could have been charged with conspiracy under the facts of the case. When the court asked if that was the aggravating factor, defense counsel responded, “That's correct. And we don't dispute that.” Without submitting the issue of the aggravating factor to a jury, the trial court found the aggravating factor that defendant joined with more than one other person in committing the offense and was not charged with conspiracy. The trial court found no mitigating factors and determined that the aggravating factor outweighed no mitigating factor. The trial court sentenced defendant to the aggravated sentence of 120 to 153 months imprisonment.
    Defendant did not appeal, but filed a petition for writ of certiorari with this Court on 29 November 2004 seeking a review of his judgment and commitment. On 16 December this Court allowed the petition and limited review “to the issues within defendant's appeal of right under N.C. Gen. Stat. § 15A-1444 (2003).”
    Defendant contends the trial court erred in sentencing him in the aggravated range. To support his contention, defendant cites Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004) and State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005). As a preliminary matter, we must first determine whether Allen and Blakely are applicable to defendant's 2002 sentencing hearing. OurSupreme Court stated that its holding in Allen, “appl[ies] to cases 'in which the defendants have not been indicted as of the certification date of this opinion and to cases that are now pending on direct review or are not yet final.'” Id. at 427, 615 S.E.2d at 258 (quoting State v. Lucas, 353 N.C. 568, 598, 548 S.E.2d 712, 732 (2001)). Here, this Court granted review of defendant's sentence in December of 2004, and therefore, defendant's appeal was “pending on direct review” when Allen was decided. Accordingly, we conclude Allen and Blakely are applicable to defendant's appeal.
    In Allen, 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). 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.” Allen, 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). The Court noted, however, that “under Blakely the judge may still sentence a defendant in the aggravated range based upon the defendant's admission to an aggravating factor enumerated inN.C.G.S. § 15A-1340.16(d).” Allen, 359 N.C. at 439, 615 S.E.2d at 265.
    Here, the trial court, not the jury, made findings in aggravation; therefore, unless defendant admitted to the factor, the trial court's finding in aggravation was in error. The State asserts that defendant admitted to the existence of the aggravating factor when he stipulated to the factual basis for his plea, agreed to be “sentenced within the aggravated range for first degree burglary,” and stated at the sentencing hearing, through counsel, that he did not dispute the aggravating factor. Defendant, however, argues that he did not knowingly stipulate to the factor and waive his right to have a jury determine the aggravating factor.
    In State v. Meynardie, ___ N.C. App. ___, 616 S.E.2d 21, stay granted by ___ N.C. ___, 620 S.E.2d 199 (2005), this Court decided this same issue in favor of defendant, who had pled guilty and stipulated to the factual basis for the plea. At sentencing, the trial court found an aggravating factor without submitting the issue to a jury and sentenced defendant in the aggravated range. Id. at ___, 616 S.E.2d at 23. Upon appeal, defendant argued that the trial court erred in finding the aggravating factor because he did not admit the factor nor was the factor found by a jury beyond a reasonable doubt. Id. The State argued that the defendant admitted the aggravating factor when he stipulated to the factual basis for his plea. Id. at ___, 616 at 24. This Court determined that the defendant's stipulation to the factual basis for his pleawas not a “'knowing [and] intelligent act[],” Meynardie, ___ at ___, 616 S.E.2d at 24 (quoting Brady v. United States, 397 U.S. 742, 748, 25 L. Ed. 2d 747, 756 (1970)), because the cases holding that an offender had the right to have a jury determine the existence of aggravating factors had not been decided at the time of defendant's sentencing hearing. Based on this reasoning, the defendant's case was remanded for resentencing.
    The State acknowledges this Court's decision in Meynardie and that other cases have followed similar reasoning. See State v. Wissink, ___ N.C. App. ___, 617 S.E.2d 319, stay granted by ___ N.C. ___, 620 S.E.2d ___ (2005); see also State v. Whitehead, ___ N.C. App. ___, 620 S.E.2d 272 (2005). The State, nevertheless, asserts that the instant case is distinguishable from Meynardie because not only did defendant here stipulate to the factual basis, defendant also agreed to the aggravated sentence and did not dispute the aggravating factor at sentencing. These distinguishing factors, however, do not negate the fact that defendant here was not aware of his right to have a jury determine the existence of the aggravating factor and, therefore, his stipulation could not be a “'knowing [and] intelligent act[.]'” Meynardie, ___ at ___, 616 S.E.2d at 24 (quoting Brady v. United States, 397 U.S. 742, 748, 25 L. Ed. 2d 747, 756 (1970)). Accordingly, this case is reversed and remanded for a new sentencing hearing.
    Reversed and remanded.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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