State v. Rico, 218 N.C. App. 109

Defendant Felipe Alfaro Rico was indicted for first-degree murder in Sampson County and pled guilty to voluntary manslaughter on Oct 1, 2008, admitting the aggravating factor that he used a deadly weapon.
The plea agreement provided that the State would dismiss the murder charge, Rico would admit the deadly-weapon aggravator, and he would receive an active sentence of 84–110 months.
Judge W. Russell Duke, Jr. accepted the plea and sentenced Rico to 84–110 months, stating the term was within the presumptive range and imposed restitution of $5,052.75.
Duke did not make written findings of aggravating factors or exercise discretion about aggravation, citing that the sentence was pursuant to a plea arrangement.
Rico later filed a MAR in 2009; Judge Lanier denied it and then amended the judgment to include an aggravating finding, which this Court held to be improper and thus vacated.
The court ultimately held the aggravated sentence invalid, vacated the judgments and MAR order, vacated restitution, and remanded for resentencing on the guilty plea under the plea agreement.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the aggravated sentence was valid without findings and discretion	Rico argues improper imposition of an aggravated sentence	Rico contends the plea agreement precluded proper exercise of discretion	Aggravated sentence invalid; lacking required findings and discretion
Whether the amended judgment validly corrected a clerical error	Rico argues amendment fixed a clerical error	State contends amendment cured the error	Amendment cannot cure a prior legal error; MAR and judgments vacated
Whether restitution was properly supported by evidence	State concedes restitution lacked competent evidence	Restitution amount unsupported	Restitution vacated for lack of evidentiary support
Whether the plea agreement should be rescinded and the matter remanded for new sentencing	Rico seeks to uphold plea terms and remand for correct sentencing	State bears responsibility for illegal sentence; remedy to remand for new sentencing	Remanded for resentencing on the guilty plea; State bears risk of mistake; full plea not set aside

State v. Bright, 135 N.C. App. 381, 520 S.E.2d 138 (1999) (requiring written findings when deviating from presumptive range; plea does not excuse findings)
State v. Rivers, 64 N.C. App. 554, 307 S.E.2d 588 (1983) (deadly-weapon use cannot elevate sentence when necessary to prove element)
State v. Replogle, 181 N.C. App. 579, 640 S.E.2d 757 (2007) (restitution must be supported by evidence at trial/sentencing)
State v. Gillespie, 707 S.E.2d 712 (2011) (discretion to impose aggravated sentence rests with judge)
State v. Blackwell, 135 N.C. App. 729, 522 S.E.2d 313 (1999) (State bears responsibility for plea agreement contents; strict adherence)