in the Court of Appeals 19 September 2018.
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.
Law PLLC, by Jason Christopher Yoder, for
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.
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.
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
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
Notice of Intent to Prove Aggravating Factors
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
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
(1) He or she is entitled to have a jury determine the
existence of any aggravating factors or points under G.S.
(2) He or she has the right to prove the existence of any
mitigating factors at a sentencing hearing before the
(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).
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.
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,