concurring in part and dissenting in part.
I concur with the portions of the majority opinion vacating Judge Lanier’s order on defendant’s motion for appropriate relief and his amended Judgment and Commitment of 18 March 2010.1 further concur in the portion of the opinion discussing the award of restitution.
I dissent in this matter because the plea arrangement of 1 October 2008 must be set aside, and this matter remanded to the trial court for disposition of the murder charge against defendant.
I. Factual and Procedural Background
On 29 September 2008, Felipe Alfaro Rico (defendant) was indicted for the murder of Mario Alberto Rivera-Juarez. This offense was alleged to have taken place on 15 May 2008. On 9 July 2008, the State served upon defendant’s counsel a Notice of Aggravating Factors, which alleged the aggravating factor that defendant used a deadly weapon at the time of the crime. N.C. Gen. Stat. § 15A-1340.16(d)(10). On 1 October 2008, defendant consented to being tried upon a bill of information charging him with the lesser crime of voluntary manslaughter.
*120On 1 October 2008, before Judge W. Russell Duke, Jr., the defendant pled guilty to voluntary manslaughter. The terms of the plea arrangement between the State and the defendant were as follows:
Upon the defendant’s plea of guilty to the offense listed below [voluntary manslaughter], the State will not proceed on the remaining related offense listed on the reverse [murder]. The defendant admits the existence of aggravating factor No. 10(b) (used a deadly weapon at the time of the crime [sic]. The defendant shall receive an active sentence of not less than 84 months nor more than 110 months1 in the NC Dept, of Corrections. Further, the defendant waives any rights under NCGS 15A-268 regarding the disposal or destruction of evidence.
Defendant further stipulated to three prior convictions and that he was a prior record level II for purposes of felony structured sentencing.
The trial court entered judgment sentencing defendant to an active term of imprisonment of 84 to 110 months. The judgment reflects that this was a sentence from the presumptive range, and that it was imposed pursuant to a plea arrangement as to sentence. On 27 August 2009, defendant filed a pro se motion for appropriate relief with the trial court. Defendant contended that it was improper for the State to use the aggravating factor of using a deadly weapon at the time of the crime to aggravate his sentence for the crime of voluntary manslaughter. Defendant further alleged that the aggravated sentence violated the strictures of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), and that he was not given notice of the aggravating factor as required by N.C. Gen. Stat. § 15A-1340.16(a6). Defendant sought a new sentencing hearing, and appointment of counsel to represent him in connection with his motion.
On 19 March 2010, Judge Russell J. Lanier, Jr. entered an order upon defendant’s motion for appropriate relief, without a hearing. This order held that defendant’s motion for appropriate relief was without merit, and denied that motion. The order further held that there was a clerical error in the judgment, in that it imposed a sentence from the aggravated range of sentences, without finding an aggravating factor.2 Judge Lanier entered findings in aggravation con*121sistent with the terms of the plea arrangement, and then entered an amended judgment imposing an active sentence of 84 to 110 months, from the aggravated range of sentences.
On 21 May 2010, defendant filed á pro se petition for writ of certiorari with the North Carolina Court of Appeals, seeking review of Judge Lanier’s judgment of 18 March 2010. On 1 June 2010, this Court allowed defendant’s petition and directed that the Superior Court of Sampson County determine whether defendant was entitled to proceed as an indigent. Appellate entries were made on 16 July 2010.
II. Imposition of Aggravated Sentences Under Structured Sentencing
Defendant pled guilty to voluntary manslaughter, and stipulated to the existence of the aggravating factor that he used a deadly weapon at the time of the crime. Judge Duke conducted a colloquy with the defendant concerning this aggravating factor that complied with the provisions of N.C. Gen. Stat. § 15A-1022.1. Once the aggravating factor was established, the trial court was required to weigh the aggravating factor against any mitigating factors (there were none present in the instant case) and determine whether it was appropriate to impose an aggravated sentence. N.C. Gen. Stat. § 15A-1340.16(b). This statute provides that the trial court “may impose a sentence that is permitted by the aggravated range . . . .” (emphasis added) The imposition of an aggravated sentence rests in the sound discretion of the sentencing judge. State v. Gillespie, _ N.C. App. _, _, 707 S.E.2d 712, 714 (2011).
Instead of making findings in aggravation and mitigation as required by N.C. Gen. Stat. § 15A-1340.16 and exercising his discretion as to whether an aggravated sentence should be imposed, Judge Duke treated the plea arrangement as being a plea bargain as to sentence pursuant to N.C. Gen. Stat. § 15A-1023. Since an aggravated sentence can only be imposed in the discretion of the trial court pursuant to 15A-1340.16, such a sentence can never be the subject of a plea bargain as to sentence. Only a sentence from the presumptive range can be the subject of a plea bargain as to sentence under N.C. Gen. Stat. § 15A-1023.
Judge Duke erred in treating defendant’s plea as a plea bargain as to sentencing. The judgment which Judge Lanier attempted to correct was fatally flawed.
*122TTT. Rescission of the Plea Bargain
Defendant was indicted for the murder of Mario Alberto Rivera. The plea agreement with the State allowed him to plead guilty to the lesser offense of voluntary manslaughter. In return for the plea to a lesser offense, defendant admitted to an aggravated factor and agreed to the imposition of a specific sentence from the aggravated range. As is noted in the majority opinion and section II of this dissent, neither the aggravating factor nor the aggravated sentence were proper. Defendant seeks to disavow the portions of the plea arrangement that were unfavorable (aggravated range sentence) but yet retain the portion that is favorable (plea to a reduced offense). The majority opinion allows defendant to fully achieve his objectives.
Although a plea agreement occurs in the context of a criminal proceeding, it remains contractual in nature. United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985), cert. denied, 479 U.S. 835, 93 L.Ed.2d 75 (1986). A plea agreement will be valid if both sides voluntarily and knowingly fulfill every aspect of the bargain. See Dixon v. State, 8 N.C. App. 408, 416, 174 S.E.2d 683, 689 (1970) (a plea of guilty will stand unless induced by misrepresentation, including unfulfilled or unfulfillable promises); State v. Fox, 34 N.C. App. 576, 579, 239 S.E.2d 471, 473 (1977) (if defend- ant elects not to stand by his portion of the plea arrangement, the State is not bound by its agreement).
State v. Rodriguez, 111 N.C. App. 141, 144, 431 S.E.2d 788, 790 (1993).
In the instant case, essential and fundamental terms of the plea agreement were unfulfillable. Defendant has elected to repudiate a portion of his agreement. Defendant cannot repudiate in part without repudiating the whole. State v. Fox, 34 N.C. App. 576, 579, 239 S.E.2d 471, 473 (1977) (“Where a defendant elects not to stand by his portion of a plea agreement, the State is not bound by its agreement to forego the greater charge.”).
The entire plea agreement must be set aside, and this case remanded to the Superior Court of Sampson County for disposition on the original charge of murder.
. Based upon the sentencing grid in effect at the time of the offense, this sentence was from the aggravated range. N.C. Gen. Stat. § 15A-1340.17(c).
. A review of the sentencing hearing on 1 October 2008 reveals that there was no clerical error. Judge Duke stated that: “[t]he Court makes no written findings because the prison term imposed is pursuant to a plea arrangement.”