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State v. Wright

Court of Appeals of North Carolina

February 19, 2019

STATE OF NORTH CAROLINA
v.
DEANGELO JERMICHAEL WRIGHT

          Heard in the Court of Appeals 19 September 2018.

          Appeal by defendant from judgment entered 25 August 2017 by Judge Linwood O. Foust in Superior Court, Mecklenburg County, No. 16 CRS 13373-75

          Attorney General Joshua H. Stein, by Assistant Attorney General Alexandra M. Hightower, for the State.

          Yoder Law PLLC, by Jason Christopher Yoder, for defendant-appellant.

          STROUD, JUDGE.

         At issue is whether the State provided the required notice of intent to prove aggravating factors. Because defendant waived his right to have a jury determine the presence of an aggravating factor, there was no error. We find defendant's ineffective assistance of counsel claim to be without merit and deny his related motion for appropriate relief, but we remand for correction of clerical errors.

         I. Background

         Defendant was arrested for selling marijuana to an undercover officer in Charlotte on 7 August 2015 ("first arrest"). Defendant was arrested a second time for selling marijuana to an undercover officer in the same location on 15 October 2015 ("second arrest"). On 11 January 2016, defendant was indicted for the sale and delivery of marijuana and possession with intent to sell or deliver ("PWISD") arising from the second arrest. On 14 April 2016, the State served defendant with a notice of intent to prove aggravating factors for the charges arising only from the second arrest. Box 12a. on the notice was checked, which stated:

The defendant has, during the 10-year period prior to the commission of the offense for which the defendant is being sentenced been found by a court of this State to be in willful violation of the conditions of probation imposed pursuant to a suspended sentence or been found by the Post-Release Supervision and Parole Commission to be in willful violation of a condition of a parole or post-release supervision imposed pursuant to release from incarceration.

         On 2 May 2016, defendant was indicted for sale and delivery of a controlled substance, PWISD, and possession of marijuana drug paraphernalia arising from the first arrest. Over a year later, but twenty days prior to trial of all charges against defendant, the State added the file numbers related to defendant's first arrest to a copy of the previous notice of intent to prove aggravating factors. A handwritten note was added to the form which stated, "Served on Defense Counsel on 8/1/2017," and it was signed by an assistant district attorney.

         Defendant's trial began on 21 August 2017, and all of defendant's charges arising from the first and second arrests were joined for trial. Defendant was found not guilty of selling, delivering, or PWISD marijuana for the charges arising from the second arrest, but he was found guilty of attempted sale, attempted delivery, PWISD marijuana, and possession of marijuana drug paraphernalia for the charges from the first arrest. The trial court arrested the judgment for attempted sale, and the State informed the court it intended to prove an aggravating factor. Defendant's attorney stated that he had received the proper notice, and after defendant and his attorney talked, defendant stipulated to the aggravating factor on 25 August 2017. The trial court sentenced defendant in the aggravated range, and defendant timely gave notice of appeal.

         II. Notice of Intent to Prove Aggravating Factors

         Defendant argues that the trial court erred in sentencing defendant to an aggravated sentence when the State did not provide thirty days written notice before trial of its intent to prove an aggravating factor for charges arising from the first arrest, and defendant did not waive his right to such notice. We review this argument de novo:

The determination of an offender's prior record level is a conclusion of law that is subject to de novo review on appeal. Pursuant to North Carolina's felony sentencing system, the prior record level of a felony offender is determined by assessing points for prior crimes using the method delineated in N.C. Gen. Stat. § 15A-1340.14(b)(1)-(7). As relevant to the present case, a trial court sentencing a felony offender may assess one prior record level point if the offense was committed while the offender was on supervised or unsupervised probation, parole, or post-release supervision. Prior to being assessed a prior record level point pursuant to N.C. G.S. § 15A-1340.14(b)(7), however, our General Statutes require the State to provide written notice of its intent to do so.

State v. Wilson-Angeles, __ N.C.App. __, __, 795 S.E.2d 657, 668 (2017) (citations, quotation marks, and brackets omitted).

          N.C. Gen. Stat. § 15A-1340.16(a6) requires the State to give defendant thirty days' written notice before trial, or the entry of a guilty or no contest plea, of its intent to use aggravating factors:

The State must provide a defendant with written notice of its intent to prove the existence of one or more aggravating factors under subsection (d) of this section or a prior record level point under G.S. 15A-1340.14(b)(7) at least 30 days before trial or the entry of a guilty or no contest plea. A defendant may waive the right to receive such notice. The notice shall list all the aggravating factors the State seeks to establish.

N.C. Gen. Stat. § 15A-1340.16(a6) (2017). Therefore, at least thirty days prior to a trial or plea, the State must give a defendant written notice of its intent to prove an aggravating factor. Id. Here, defendant was tried on all pending charges, and prior to sentencing, defendant stipulated to the existence of the aggravating factor. N.C. Gen. Stat. § 15A-1022.1 requires the trial court, during sentencing, to determine whether the State gave defendant the required thirty days' notice of its intent to prove an aggravating factor or if defendant waived his right to that notice:

(a) Before accepting a plea of guilty or no contest to a felony, the court shall determine whether the State intends to seek a sentence in the aggravated range. If the State does intend to seek an aggravated sentence, the court shall determine which factors the State seeks to establish. The court shall determine whether the State seeks a finding that a prior record level point should be found under G.S. 15A-1340.14(b)(7). The court shall also determine whether the State has provided the notice to the defendant required by G.S. 15A-1340.16(a6) or whether the defendant has waived his or her right to such notice.
(b) In all cases in which a defendant admits to the existence of an aggravating factor or to a finding that a prior record level point should be found under G.S. 15A-1340.14(b)(7), the court shall comply with the provisions of G.S. 15A-1022(a). In addition, the court shall address the defendant personally and advise the defendant that:
(1) He or she is entitled to have a jury determine the existence of any aggravating factors or points under G.S. 15A-1340.14(b)(7); and
(2) He or she has the right to prove the existence of any mitigating factors at a sentencing hearing before the sentencing judge.
(e) The procedures specified in this Article for the handling of pleas of guilty are applicable to the handling of admissions to aggravating factors and prior record points under G.S. 15A-1340.14(b)(7), unless the context clearly indicates that they are inappropriate.

N.C. Gen. Stat. § 15A-1022.1 (emphasis added).

         This Court has not addressed what constitutes waiver of the notice requirement of N.C. Gen. Stat. § 15A-1340.16(a6). "Waiver is the intentional relinquishment of a known right, and as such, knowledge of the right and an intent to waive it must be made plainly to appear." Ussery v. Branch Banking & Tr., 368 N.C. 325, 336, 777 S.E.2d 272, 279 (2015) (citation and quotation marks omitted). In State v. Snelling, "the parties stipulated that defendant had 6 prior record level points and was thus a PRL III." 231 N.C.App. 676, 678, 752 S.E.2d 739, 742 (2014). This Court concluded that "the trial court never determined whether the statutory requirements of N.C. Gen. Stat. § 15A-1340.16(a6) were met. Additionally, there is no evidence in the record to show that the State provided sufficient notice of its intent to prove the probation point." Id. at 682, 752 S.E.2d at 744. "Moreover, the record does not indicate that defendant waived his right to receive such notice." Id. As a result, this Court remanded the case for a new sentencing hearing. Id. at 683, 752 S.E.2d at 744.

         Here, after the jury returned verdicts of guilty for charges from the first arrest, the State advised the trial court it intended to prove aggravating factors for sentencing:

THE COURT: The jury having returned verdicts of guilty in Case No. 16CRS13374, 16CRS13373, counts one and two, and 16CRS13375. The State having announced to the Court that it intends to proceed on aggravating factors in this matter, which is a jury matter. The district attorney has indicated to the Court that in conference with the defense counsel, that ...

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