STATE OF NORTH CAROLINA
v. Buncombe County
No. 03 CrS 64517
03 CrS 64520-26
JERRY WAYNE NELSON
Attorney General Roy Cooper, by Assistant Attorney General Amy
C. Kunstling, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for defendant-appellant.
Jerry Wayne Nelson (defendant) pled guilty on 16 March 2004 to
four counts each of attempted first degree sexual offense and
taking indecent liberties. The trial court consolidated the
convictions for judgment and imposed a sentence within the
aggravated range of a minimum term of 192 months and a maximum term
of 240 months. As factors in aggravation, the trial court found
that (1) defendant took advantage of a position of trust or
confidence to commit the offense, and (2) "[t]his involved a course
of conduct with repeated occurrences which took place over a period
of three years, which the Court would find a long period of time."
Defendant appeals. In State v. Allen, 359 N.C. 425, 439, 615 S.E.2d 256, 266
(2005), our Supreme Court held unconstitutional
portions of the Structured Sentencing Act which require the sentencing judge to consider the existence of aggravating factors not admitted to by a defendant or found by a jury and which permit the judge to impose an aggravated sentence after finding such aggravating factors by a preponderance of the evidence.
As the present appeal was pending at the time of the certification date of the Allen opinion, the Allen holding applies. Id. at 427, 615 S.E.2d at 258. It is undisputed in the case before us that a jury did not find the existence of the aggravating factors. Consequently, the sentence can be upheld only if there is a stipulation or admission by defendant to the existence of the aggravating factors.
The State argues that defendant stipulated to the existence of an aggravating factor by stipulating to the factual basis for the plea. This Court rejected an identical argument in State v. Corey, N.C. App. , 618 S.E.2d 784, stay allowed, N.C. , 2005 N.C. LEXIS 971 (2005), and State v. Meynardie, N.C. App. , 616 S.E.2d 21, stay allowed, N.C. , 2005 N.C. LEXIS 874 (2005). Those decisions are controlling and, together with Allen, mandate that defendant be re-sentenced.
Remanded for resentencing.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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