State v. Wright ( 2019 )


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  •               IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA18-209
    Filed: 15 January 2019
    Mecklenburg County, No. 16 CRS 13373-75
    STATE OF NORTH CAROLINA
    v.
    DEANGELO JERMICHAEL WRIGHT
    Appeal by defendant from judgment entered 25 August 2017 by Judge Linwood
    O. Foust in Superior Court, Mecklenburg County. Heard in the Court of Appeals 19
    September 2018.
    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 a clerical error.
    I.   Background
    Defendant was arrested for selling marijuana to an undercover officer in
    STATE V. WRIGHT
    Opinion of the Court
    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
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    STATE V. WRIGHT
    Opinion of the Court
    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
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    STATE V. WRIGHT
    Opinion of the Court
    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:
    -4-
    STATE V. WRIGHT
    Opinion of the Court
    (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
    -5-
    STATE V. WRIGHT
    Opinion of the Court
    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 the Defendant would stipulate to
    aggravating factors; is that correct? What says the State?
    MR. PIERRIE: I do intend to proceed with aggravating
    factors. I did have a discussion with Mr. Curcio and
    indicated his intent was to stipulate to the one aggravating
    factor that I intended to offer, which was from the AOC
    form is Factor 12A, that the Defendant has during the
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    STATE V. WRIGHT
    Opinion of the Court
    ten-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.
    THE COURT: All right. Would you -- is that correct?
    MR. CURCIO: That is correct, Your Honor. I’ve been
    provided the proper notice and seen the appropriate
    documents, Your Honor.
    ....
    THE COURT: . . . The State having indicated that it’s
    going to proceed on aggravating -- an aggravating factor,
    which would enhance the punishment that the Court gives
    in this case. Your lawyer has informed the Court that you
    will admit that aggravating factor, stipulate to that
    aggravating factor and not require the jury to make a
    determination of that aggravating factor. In other words,
    for aggravating factors, the jury would deliberate just like
    it just did in the case in chief in determining whether or
    not that aggravating factor exists. Your lawyer has
    advised the Court that you are going to stipulate to that
    aggravating factor. And the jury therefore would not be
    required to deliberate and decide that issue. Is that
    correct?
    DEFENDANT: Can I have a chance to -- may I have a
    chance to speak with him?
    THE COURT: Yes.
    (Discussion held off the record.)
    MR. CURCIO: We’re ready to proceed, Your Honor.
    THE COURT: Is that correct, sir?
    DEFENDANT: Yes, sir.
    -7-
    STATE V. WRIGHT
    Opinion of the Court
    THE COURT: And have you had an opportunity to talk
    with your lawyer about this stipulation and what the
    stipulation means?
    (Discussion held off the record.)
    DEFENDANT: Yes, sir.
    THE COURT: And do you now stipulate to the aggravating
    factor stated by the district attorney?
    DEFENDANT: Yes, sir.
    ....
    THE COURT: Do you now waive your right to a -- to
    have the jury determine the aggravating factor?
    (Discussion held off the record.)
    DEFENDANT: Yes, sir. I’m ready to proceed.
    THE COURT: And do you waive the right to have the jury
    determine the aggravating factor and do you stipulate to
    the aggravating factor?
    DEFENDANT: Yes, sir.
    (Emphasis added.)
    The transcript indicates that the trial court inquired about the notice of the
    State’s intent to prove the aggravating factor, and his counsel responded that he was
    “provided the proper notice” and had “seen the appropriate documents.” The trial
    court also asked defendant directly if he “had an opportunity to talk with your lawyer
    about this stipulation and what the stipulation means?” and after discussion off the
    -8-
    STATE V. WRIGHT
    Opinion of the Court
    record, defendant responded, “Yes, sir.” We find the trial court’s colloquy satisfied
    the requirements of N.C. Gen. Stat. § 15A-1022.1. See State v. Khan, 
    366 N.C. 448
    ,
    455, 
    738 S.E.2d 167
    , 172 (2013) (“The record indicates that at the plea hearing the
    trial court went over the terms of the plea agreement with defendant and asked
    defendant directly if he understood its terms, and defendant responded, ‘Yes.’ During
    the hearing, the trial court also asked defendant if he stipulated to the aggravating
    factor, and defendant again answered, ‘Yes.’ We find the trial court’s procedure
    satisfied the requirements of section 15A-1022.1.”).
    This case can be distinguished from Snelling due to the trial court’s inquiry
    into whether defendant had received “proper notice” and his counsel’s affirmative
    response. Even though the State had not technically given “proper notice” because
    the additional file numbers were added to the notice only twenty days before trial
    instead of thirty days, defendant and his counsel had sufficient information to give
    an “intentional relinquishment of a known right.” 
    Ussery, 368 N.C. at 336
    , 777 S.E.2d
    at 279. The trial court specifically inquired about notice, and the aggravating factor
    in question was the exact same as noted in the original notice of intent. The trial
    court also directly questioned defendant: “And do you waive the right to have the jury
    determine the aggravating factor and do you stipulate to the aggravating factor?” and
    defendant answered “Yes, sir.” We conclude that defendant’s knowing and intelligent
    waiver of a jury trial on the aggravating factor under the circumstances necessarily
    -9-
    STATE V. WRIGHT
    Opinion of the Court
    included waiver of the thirty day advance notice of the State’s intent to use the
    aggravating factor.1 This argument is overruled.
    III.    Ineffective Assistance of Counsel
    Defendant argues in the alternative “if this Court finds that [defendant’s] trial
    counsel somehow waived notice on [defendant’s] behalf, then . . . [defendant] asserts
    that he received ineffective assistance of counsel at sentencing.” He argues that
    he was prejudiced by his counsel’s error because his sentence was 3 months longer
    than it could have been without the aggravating factor, and there is no possible
    strategic reason for his counsel’s actions. But even if we assume that his counsel
    erroneously believed the notice of intent to prove aggravating factor was timely given
    for the charges for which defendant was convicted instead of the other charges, his
    counsel’s assistance “was reasonable considering all of the circumstances” of this case.
    Strickland v. Washington, 
    466 U.S. 668
    , 688, 
    80 L. Ed. 2d 674
    , 694 (1984).
    Not every error by counsel rises to the level of ineffective assistance of counsel.
    [T]he performance inquiry must be whether counsel’s
    assistance was reasonable considering all the
    circumstances. Prevailing norms of practice as reflected in
    American Bar Association standards and the like, are
    guides to determining what is reasonable, but they are only
    guides. No particular set of detailed rules for counsel’s
    conduct can satisfactorily take account of the variety of
    circumstances faced by defense counsel or the range of
    legitimate decisions regarding how best to represent a
    1 We note that on the AOC-CR-605 form, Felony Judgment Findings of Aggravating and Mitigating
    Factors, the trial court checked the box under “DETERMINATION” which states, “the State provided
    the defendant with appropriate notice of the aggravating factor(s) in this case.”
    - 10 -
    STATE V. WRIGHT
    Opinion of the Court
    criminal defendant. Any such set of rules would interfere
    with the constitutionally protected independence of
    counsel and restrict the wide latitude counsel must have in
    making tactical decisions. Indeed, the existence of detailed
    guidelines for representation could distract counsel from
    the overriding mission of vigorous advocacy of the
    defendant’s cause. Moreover, the purpose of the effective
    assistance guarantee of the Sixth Amendment is not to
    improve the quality of legal representation, although that
    is a goal of considerable importance to the legal system.
    The purpose is simply to ensure that criminal defendants
    receive a fair trial.
    Judicial scrutiny of counsel’s performance must be
    highly deferential. It is all too tempting for a defendant to
    second-guess counsel’s assistance after conviction or
    adverse sentence, and it is all too easy for a court,
    examining counsel’s defense after it has proved
    unsuccessful, to conclude that a particular act or omission
    of counsel was unreasonable. A fair assessment of attorney
    performance requires that every effort be made to
    eliminate the distorting effects of hindsight, to reconstruct
    the circumstances of counsel’s challenged conduct, and to
    evaluate the conduct from counsel’s perspective at the
    time. Because of the difficulties inherent in making the
    evaluation, a court must indulge a strong presumption that
    counsel’s conduct falls within the wide range of reasonable
    professional assistance; that is, the defendant must
    overcome the presumption that, under the circumstances,
    the challenged action might be considered sound trial
    strategy. There are countless ways to provide effective
    assistance in any given case. Even the best criminal
    defense attorneys would not defend a particular client in
    the same way.
    
    Id. at 688-89,
    80 L. Ed. 2d at 694-95 (citations and quotation marks omitted).
    We first note that the record on appeal is sufficient for us to review defendant’s
    IAC claim.
    - 11 -
    STATE V. WRIGHT
    Opinion of the Court
    IAC claims brought on direct review will be decided
    on the merits when the cold record reveals that no further
    investigation is required, i.e., claims that may be developed
    and argued without such ancillary procedures as the
    appointment of investigators or an evidentiary hearing.
    This rule is consistent with the general principle that, on
    direct appeal, the reviewing court ordinarily limits its
    review to material included in the record on appeal and the
    verbatim transcript of proceedings, if one is designated.
    We agree with the reasoning in McCarver v. Lee, 
    221 F.3d 583
    , 589 (4th Cir.2000), cert. denied, 
    531 U.S. 1089
    ,
    
    121 S. Ct. 809
    , 
    148 L. Ed. 2d 694
    (2001): N.C.G.S. § 15A-
    1419 is not a general rule that any claim not brought on
    direct appeal is forfeited on state collateral review. Instead,
    the rule requires North Carolina courts to determine
    whether the particular claim at issue could have been
    brought on direct review.
    Accordingly, should the reviewing court determine
    that IAC claims have been prematurely asserted on direct
    appeal, it shall dismiss those claims without prejudice to
    the defendant’s right to reassert them during a subsequent
    MAR proceeding. It is not the intention of this Court to
    deprive criminal defendants of their right to have IAC
    claims fully considered. Indeed, because of the nature of
    IAC claims, defendants likely will not be in a position to
    adequately develop many IAC claims on direct appeal.
    Nonetheless, to avoid procedural default under N.C.G.S. §
    15A–1419(a)(3), defendants should necessarily raise those
    IAC claims on direct appeal that are apparent from the
    record. When an IAC claim is raised on direct appeal,
    defendants are not required to file a separate MAR in the
    appellate court during the pendency of that appeal.
    State v. Fair, 
    354 N.C. 131
    , 166-67, 
    557 S.E.2d 500
    , 524-25 (2001) (citations and
    quotation marks omitted).
    Although the State did not technically give proper notice for the specific
    charges of which defendant was convicted, the error in this case is similar to a clerical
    - 12 -
    STATE V. WRIGHT
    Opinion of the Court
    error, since defendant had more than a year’s notice of the State’s intent to prove the
    aggravating factor for some of the simultaneously tried and related charges.
    Defendant cannot claim any sort of surprise or inability to prepare for trial under
    these circumstances. Although his counsel would have had no strategic reason for
    waiving the additional ten days of notice for the particular charges, as a practical
    matter, it is difficult to imagine what advantage defendant could have gained from
    having the issue of his probation violation submitted to a jury. A probation violation
    is easily proved by defendant’s criminal record and was not subject to any reasonable
    dispute. If defendant’s counsel had not waived the minor deficiency in notice, the
    only practical effect would have been to prolong the trial, and there is no reason to
    believe the result would have been any different. And it is apparent from the record
    that defendant’s counsel acted diligently and in good faith in his representation;
    defendant was acquitted of some charges in the same trial. His attorney’s actions
    were objectively reasonable even if technically in error. See State v. Benitez, ___ N.C.
    App. ___, ___, 
    813 S.E.2d 268
    , 278 (2018) (“[T]he trial court did not find that
    defendant’s trial counsel had a strategic reason for failing to file a motion to suppress
    based upon North Carolina General Statute § 7B-2101 but instead that his actions
    were objectively reasonable at the time—considering the state of the law—and that
    he acted diligently and in good faith in his representation of defendant. The trial
    court’s findings of fact demonstrate the court’s efforts to eliminate the distorting
    - 13 -
    STATE V. WRIGHT
    Opinion of the Court
    effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
    and to evaluate the conduct from counsel’s perspective at the time. Defendant’s trial
    counsel did make a legal error, but it was not an objectively unreasonable error at the
    time.” (citation and quotation marks omitted)). Defendant has not shown that “his
    attorney’s conduct rose to the level of unreasonableness or that his attorney’s conduct
    prejudiced defendant’s trial[,]” and his claim of ineffective assistance of counsel is
    without merit. 
    Fair, 354 N.C. at 168-69
    , 557 S.E.2d at 526.
    IV.    Clerical Error
    Defendant argues that the judgment contains a clerical error which should be
    remanded for correction. We agree.
    “A clerical error is defined as, an error resulting from a minor mistake or
    inadvertence, especially in writing or copying something on the record, and not from
    judicial reasoning or determination.” State v. Allen, ___ N.C. App. ___, ___, 
    790 S.E.2d 588
    , 591 (2016) (quotation marks and brackets omitted).
    Defendant’s AOC-CR-603C Judgment Suspending Sentence form for file
    number 16 CRS 013374 is checked by box one which states:
    [The Court] makes no written findings because the prison
    term imposed is within the presumptive range of sentences
    authorized under G.S. 15A-1340.17(c).
    But defendant was sentenced to a minimum of 7 months and a maximum of 18
    months in the custody of the N.C. Division of Adult Correction. The presumptive
    - 14 -
    STATE V. WRIGHT
    Opinion of the Court
    range for a defendant with prior record level of III for a Class I felony is 5-6 months
    minimum and 15-17 months maximum. Defendant was sentenced in the aggravated
    range as the State requested during sentencing:
    On the possession with intent to sell or deliver
    marijuana, a Class I felony, that is an I block. So an active
    sentence cannot be imposed by law. However, I’d ask for at
    the top of the aggravated on that sentence would be eight
    to 19-month sentence with an extensive supervised
    probation.
    Shortly thereafter, the trial court sentenced defendant within the aggravated range:
    In Case No. 16CRS13374, the possession with intent
    to sell and deliver marijuana, it is the judgment of the
    Court that Case No. 16CRS13375, be consolidated in that
    case for purposes of sentencing. And that the Defendant be
    committed to the custody of the North Carolina
    Department of Corrections for a period of not less than
    seven months and no more than 18 months.
    Therefore, box two should have been checked on the form indicating that:
    [The Court] makes the Determination of aggravating and
    mitigating factors on the attached AOC-CR-605.
    It is apparent from the transcript that the trial court sentenced defendant in
    the aggravated range based upon the factor as stipulated.            In fact, defendant
    expressed his displeasure with the sentence, but his comments show he was fully
    aware of the aggravating factor, since he noted that he had done two years on
    probation and “didn’t get violated till the end.         Till my last month getting off
    probation. I got violated for a misdemeanor.” We remand for the limited purpose of
    - 15 -
    STATE V. WRIGHT
    Opinion of the Court
    checking box two on defendant’s AOC-CR-603C form for file number 16 CRS 013374
    and to fill out a corresponding AOC-CR-605.
    V.    Conclusion
    Defendant received a fair trial, free of prejudicial error, but we remand for the
    limited purpose of correcting a clerical error.
    NO ERROR; REMANDED FOR CORRECTION OF A CLERICAL ERROR.
    Judges ZACHARY and MURPHY concur.
    - 16 -
    

Document Info

Docket Number: 18-209

Filed Date: 1/15/2019

Precedential Status: Precedential

Modified Date: 1/15/2019