State v. Scott ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-326
Filed 07 February 2023
New Hanover County, No. 20 CRS 51367
STATE OF NORTH CAROLINA
v.
DARYL SPENCER SCOTT
Appeal by Defendant from a judgment entered 21 September 2021 by Judge
William W. Bland in New Hanover County Superior Court. Heard in the Court of
Appeals 21 September 2022.
Attorney General Joshua H. Stein, by Assistant Attorney General T. Hill Davis,
III, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S.
Zimmer, for Defendant.
WOOD, Judge.
Defendant appeals from a conviction of possessing a firearm as a felon alleging
the trial court erred when it denied his motion to suppress evidence of a firearm found
during a search he contends was unconstitutional and increased his prior record level
at sentencing. We disagree.
I. Background
Wilmington Police Officer Pagan was surveilling the parking lot of Sam’s
Minimart in Wilmington on 14 February 2020. The parking lot was located in an
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area of the city where drug sales and shootings were not uncommon. He observed
Defendant’s Honda Accord park on the lot next to a silver sedan whose owner Officer
Pagan knew had a history of drug dealing. Defendant and a passenger exited the
Honda and approached the silver sedan. Shortly thereafter, Defendant and his
passenger returned to the Honda and drove away. Officer Pagan followed them a
short distance in his patrol car and noticed the Honda’s license plate appeared
expired. He then activated the blue lights on his patrol car to conduct a traffic stop
of Defendant’s vehicle. Defendant promptly pulled over.
Officer Pagan approached Defendant and informed him that he was stopped
because of the expired license plate. Defendant did not appear nervous and
responded that the registration should not be expired. Upon request, Defendant
produced his driver’s license but was unable to locate the car’s registration. Officer
Pagan returned to his patrol vehicle with Defendant’s license where he learned from
his car’s computer system that Defendant was designated as a “validated gang
member” and had previously been charged with murder. Relevant to this case,
Officer Pagan was aware of a local gang war between two prominent gangs at the
time. Officer Pagan retrieved a clip board from his trunk and briefed an arriving
officer of the situation before re-approaching Defendant.
Upon returning to Defendant’s vehicle, Officer Pagan asked Defendant to step
out of the vehicle so that he could perform a weapons frisk. Defendant complied, and
Officer Pagan frisked him at the rear of the Honda. Officer Pagan did not find a
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weapon on Defendant’s person. He then asked the three passengers to exit the vehicle
as backup officers arrived. After Officer Pagan performed a non-intrusive pat down
of Defendant, Defendant informed him that a pocketknife was present in the front,
driver-side door compartment. With this information, Officer Pagan returned to the
vehicle to retrieve the pocketknife, and Defendant asked Officer Pagan if he would
retrieve Defendant’s phone near the center console. Officer Pagan obliged Defendant
and found an open beer can in the center console. He then rummaged through the
front, driver-side door compartment but did not initially find a pocketknife, so he next
peered under the driver’s seat where he discovered a pistol.
After securing the pistol, Officer Pagan ordered Defendant and all passengers
be detained and placed in handcuffs. A further search of the passenger compartment
revealed a scale and bags consistent with heroin paraphernalia. On 24 August 2020,
Defendant was indicted for possessing a firearm as a felon in violation of N.C. Gen.
Stat. § 14-415.1 (2021) and possessing drug paraphernalia in violation of N.C. Gen.
Stat. § 90-113.22(A) (2021).
On 21 September 2021, in a pretrial motion, Defendant moved to suppress
evidence of the firearm. Defendant argued that Officer Pagan’s frisk of Defendant’s
vehicle was constitutionally impermissible and therefore produced unlawfully
acquired evidence. Defendant did not argue that the traffic stop was impermissibly
extended beyond the scope of Officer Pagan’s original mission. The trial court denied
Defendant’s motion.
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During his trial, which took place on 23 September 2021, Defendant generally
objected to the evidence obtained during the frisk of his vehicle, specifically the
firearm. The trial court overruled Defendant’s objection. On the same day, the jury
found Defendant guilty of possession of a firearm by a felon and not guilty of
possession of drug paraphernalia.
During the sentencing hearing, the trial court calculated Defendant’s sentence
by using a prior record level worksheet for structured sentencing. The worksheet
listed a subtotal of nine points from the prior crimes of second-degree murder and
three misdemeanor convictions. The court then added one point for committing a
crime “while the offender was on probation, parole, or post-release supervision.”
Thus, Defendant’s prior record points totaled ten points, and he was sentenced as a
prior record level IV offender. Absent the additional point, Defendant would have
been sentenced as a prior record level III offender.
The trial court sentenced Defendant to an active term of a minimum of
nineteen and a maximum of thirty-two months imprisonment.
Defendant appeals as of right pursuant to N.C. Gen. Stat. § 15A-1444(a) (2021).
He contests the trial court’s denial of his motion to suppress evidence and contends
he did not receive notice of the additional point for committing a crime while on
probation, parole, or post-release supervision and was, therefore, sentenced
improperly.
II. Standard of Review
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We review the denial of a motion to suppress to determine “whether competent
evidence supports the trial court’s findings of fact and whether the findings of fact
support the conclusions of law.” State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874,
878 (2011) (citing State v. Brooks, 337 N.C. 132, 140-41, 446 S.E.2d 579, 585 (1994)).
We review conclusions of law de novo. State v. Johnson, 225 N.C. App. 440, 443-44
(2013). “Under a de novo standard of review, this Court considers the matter anew
and freely substitutes its own judgment for that of the trial court.” Reese v.
Mecklenburg Cnty., 200 N.C. App. 491, 497, 685 S.E.2d 34, 38 (2009) (citations
omitted).
We review “[t]he determination of an offender’s prior record level [as] a
conclusion of law that is subject to de novo review on appeal.” State v. Bohler, 198
N.C. App. 631, 633, 681 S.E.2d 801, 804 (2009) (citing State v. Fraley, 182 N.C. App.
683, 691, 643 S.E.2d 39, 44 (2007)).
III. Discussion
A. Evidence Suppression
Defendant first alleges error with the trial court’s denial of his motion to
suppress evidence of the firearm. Defendant argues that the evidence should have
been suppressed because it was obtained in violation of Defendant’s right to be free
from an unreasonable search and seizure and challenges the trial court’s conclusion
of law holding otherwise. Specifically, Defendant argues that Officer Pagan
improperly frisked Defendant and his vehicle and impermissibly extended the
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duration of the traffic stop. We are not persuaded.
During the motion to suppress, the trial court concluded:
But up to that point of seeing the firearm under the
driver’s seat in which the defendant had been driving, the
court does not find any constitutional violation of the
defendant's rights. The officer has conducted a legitimate
stop and taken appropriate actions for his safety and for
the safety of the defendant as well as the passengers in the
defendant’s vehicle; and therefore the motion to suppress
is respectfully denied.
We review this conclusion of law de novo to determine if Officer Pagan overstepped
his constitutional limits.
The State may not unreasonably seize or search people. N.C. Const. art. I, §
20; U.S. Const. amend. IV. If it does, evidence obtained from that illegal conduct
must be suppressed at trial. State v. Pope, 333 N.C. 106, 113-14, 423 S.E.2d 740, 744
(1992). “[S]earches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendment—subject
only to a few specifically established and well-delineated exceptions.” State v. Fizovic,
240 N.C. App. 448, 452, 770 S.E.2d 717, 720 (2015) (quoting Katz v. United States,
389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576, 585 (1967)).
Defendant concedes, and we agree, that Officer Pagan’s initial traffic stop was
proper. “[A] traffic stop is considered a ‘seizure’ ” for our purposes. State v. Otto, 366
N.C. 134, 136, 726 S.E.2d 824, 827 (2012). Officer Pagan observed Defendant’s
vehicle bearing an expired license plate, and we have held that this observation alone
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supports a seizure. State v. Edwards, 164 N.C. App. 130, 136, 595 S.E.2d 213, 218
(2004). We therefore next evaluate Defendant’s claims that the frisk and time
extension were unjustified and, therefore, unconstitutional.
1. Weapons Frisk
If, during a lawful stop, an officer “reasonably believes that the person is armed
and dangerous, the officer may frisk the person to discover a weapon or weapons.”
State v. Pearson, 348 N.C. 272, 275, 498 S.E.2d 599, 600 (1998). (citing Terry v. Ohio,
392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). An officer may also frisk a vehicle
to include even the passenger compartment and other such places where a “suspect
may gain immediate control of weapons” but “limited to those areas in which a
weapon may be placed or hidden.” State v. Johnson, 378 N.C. 236, 2021-NCSC-85, ¶
16 (quoting Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3481, 77 L. Ed.
2d 1201, 1220 (1983)). This is a limited search and may only be justified if “the officer
develops a reasonable suspicion that the suspect of the traffic stop is armed and
dangerous.” Id. The “legitimate and weighty interest in officer safety” supports this
intrusion. State v. Johnson, 246 N.C. App. 677, 692, 783 S.E.2d 753, 764 (2016)
(quotation marks omitted) (quoting Arizona v. Johnson, 555 U.S. 323, 331, 129 S. Ct.
781, 786, 172 L. Ed. 2d 694, 702 (2009)). The necessary standard of “[r]easonable
suspicion demands more than a mere ‘hunch’ on the part of the officer but requires
‘less than probable cause and considerably less than preponderance of the evidence.’
” State v. Johnson, 378 N.C. 236, 2021-NCSC-85, ¶ 16 (quoting State v. Williams, 366
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N.C. 110, 117, 726 S.E.2d 161, 167 (2012)). It “requires only ‘some minimal level of
objective justification,’ and arises from ‘specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant’ the intrusion.”
Id. (first quoting State v. Styles, 362 N.C. 412, 414, 665 S.E.2d 438, 439 (2008); and
then quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). “The crucial
inquiry is ‘whether a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in danger.’ ” State v.
Johnson, 246 N.C. App. 677, 693, 783 S.E.2d 753, 764-65 (2016) (quoting Terry, 392
U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). Officers are therefore “entitled to
formulate ‘common-sense conclusions’ about ‘the modes or patterns of operation of
certain kinds of lawbreakers.’ ” State v. Butler, 331 N.C. 227, 234, 415 S.E.2d 719,
723 (1992) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695, 66
L. Ed. 2d 621, 629 (1981). “A court ‘ “must consider ‘the totality of the
circumstances—the whole picture’ in determining whether a reasonable suspicion”
exists.’ ” State v. Otto, 366 N.C. 134, 138, 726 S.E.2d 824, 828 (2012) (quoting Styles,
362 N.C. at 414, 665 S.E.2d at 440).
Here, Officer Pagan observed Defendant visit a parking lot noted for its drug
sales and shootings, and while there, Defendant exited his vehicle and briefly
approached the vehicle of a known drug dealer. After Defendant was stopped, Officer
Pagan received caution data notifying him Defendant was a validated gang member
and had previously been charged with murder. Officer Pagan was aware that two
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local gangs were involved in a gang war, and in his experience, suspects involved with
drug and gang activity may be armed and dangerous.
Each of these factors, standing alone, might not be sufficient to justify a
weapons frisk. See State v. Jackson, 368 N.C. 75, 80, 772 S.E.2d 847, 850 (2015)
(stating that defendant’s presence in a high-crime area alone is not sufficient), State
v. Johnson, 378 N.C. 236, 2021-NCSC-85, ¶ 18 n.2 (expressing hesitancy to use a
suspect’s prior criminal record as a factor except in specific circumstances), State v.
Butler, 331 N.C. 227, 233, 415 S.E.2d 719, 722 (1992) (stating that officer’s experience
and defendant’s presence around suspected drug dealers are not, on their own,
sufficient). However, “[w]e examine the totality of the circumstances surrounding
Officer [Pagan]’s interaction with [D]efendant in order to achieve a comprehensive
analysis as to whether the officer’s conclusion that [D]efendant may have been armed
and dangerous was reasonable.” State v. Johnson, 378 N.C. 236, 2021-NCSC-85, ¶
18.
For example, our Supreme Court held in State v. Butler that the following
factors, when taken together, were sufficient to justify a weapons frisk:
1) defendant was seen in the midst of a group of people
congregated on a corner known as a “drug hole”; 2) [Officer]
Hedges had had the corner under daily surveillance for
several months; 3) Hedges knew this corner to be a center
of drug activity because he had made four to six drug-
related arrests there in the past six months; 4) Hedges was
aware of other arrests there as well; 5) defendant was a
stranger to the officers; 6) upon making eye contact with
the uniformed officers, defendant immediately moved
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away, behavior that is evidence of flight; and 7) it was
Hedges’ experience that people involved in drug
traffic[king] are often armed.
331 N.C. 227, 233, 415 S.E.2d 719, 722 (1992).
In the present case, similar factors are present: 1) Defendant’s presence in a
high-crime area; 2) Defendant’s interaction with a known drug dealer; 3) caution data
revealing Defendant’s prior charge of murder and gang involvement; 4) Officer
Pagan’s awareness of an active gang war; and 5) Officer Pagan’s own training and
experiences. Though Defendant did not exhibit “evidence of flight” as in Butler, we
hold that the additional factors of Defendant’s status as a validated gang member
and Officer Pagan’s awareness of an active, local gang war are more than sufficient
to cause an officer to reasonably suspect the individual is armed and dangerous. This
suspicion permitted Officer Pagan to search both Defendant and his vehicle for
weapons before continuing with the purpose of the stop. We, therefore, agree with
the trial court’s ruling and hold that Officer Pagan did not overstep his constitutional
bounds when he frisked Defendant and Defendant’s vehicle
2. Extension of Stop
Defendant next argues that evidence of the firearm should have been
suppressed because the stop was unlawfully extended beyond the scope of its purpose.
See Rodriguez v. United States, 575 U.S. 348, 354, 135 S. Ct. 1609, 1614, 191 L. Ed.
2d 492, 498 (2015). We note, however, that Defendant did not present this argument
at the suppression hearing or during trial. Instead, Defendant relied upon the above
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weapons frisk theory to support his suppression motion.
“[A] criminal defendant is not entitled to advance a particular theory in the
course of challenging the denial of a suppression motion on appeal when the same
theory was not advanced in the court below.” State v. Hernandez, 227 N.C. App. 601,
608, 742 S.E.2d 825, 829 (2013). Such “argument is deemed waived on appeal.” State
ex rel Boggs v. Davis, 207 N.C. App. 359, 363, 700 S.E.2d 85, 88 (2010) (citing State
v. Augustine, 359 N.C. 709, 721, 616 S.E.2d 515, 525 (2005)).
Because Defendant did not raise this argument in the trial court below, it has
been waived.
B. Sentencing
Defendant next argues that he did not receive proper notice of the State’s
intent to prove the tenth prior record point and that the trial court did not properly
inquire into whether notice was given or otherwise waived. As with the preceding
argument, Defendant did not object to this alleged error with the trial court.
However, “[i]t is not necessary that an objection be lodged at the sentencing hearing
in order for a claim that the record evidence does not support the trial court’s
determination of a defendant’s prior record level to be preserved for appellate review.”
State v. Bohler, 198 N.C. App. 631, 633, 681 S.E.2d 801, 804 (2009) (citing State v.
Morgan, 164 N.C. App. 298, 304, 595 S.E.2d 804, 809 (2004)). We therefore review
this alleged error de novo. Id.Under North Carolina’s structured sentencing guidelines, a trial court may
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assign prior record points to a defendant if the defendant was previously convicted of
certain crimes and if the defendant committed the relevant crime while on probation,
parole, or post-release supervision. N.C. Gen. Stat. § 15A-1340.14(b) (2021). The sum
of these points total the prior record level to be used in calculating the severity of a
sentence. § 15A-1340.14(c). Among the list of possible point assignments stands
subsection (b)(7):
If the offense was committed while the offender was on
supervised or unsupervised probation, parole, or post-
release supervision, or while the offender was serving a
sentence of imprisonment, or while the offender was on
escape from a correctional institution while serving a
sentence of imprisonment, 1 point.
§ 15A-1340.14(b)(7). Subsection (b)(7) is unique in that, unlike with other point
assignments, “[t]he State must provide a defendant with written notice of its intent
to prove the existence of . . . a prior record level point under . . . (b)(7) at least 30 days
before trial.” § 15A-1340.16(a6). However, “[a] defendant may waive the right to
receive such notice.” Id. In either case, “[t]he court shall . . . determine whether the
State has provided the notice to the defendant . . . or whether the defendant has
waived his or her right to such notice.” § 15A-1022.1(a). The court is required to
follow this and other procedures outlined in Section 15-A1022.1 “unless the context
clearly indicates that they are inappropriate.” § 15A-1022.1(e).
In the present case, before signing the worksheet, the trial court asked whether
the State gave Defendant proper notice of its intent to seek the additional point of
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committing a crime while on probation, parole, or post-release supervision.
[PROSECUTOR]: Your Honor, these convictions began
back in 2002 running all the way up to his second-degree
murder conviction in 2009 for which he was on parole at
the time of this offense, and we have indicated that by
adding the proper point in the prior sentencing worksheet.
THE COURT: Had notice been given of that?
[PROSECUTOR]: Yes, sir. We had discussed that.
[DEFENSE COUNSEL]: Yes, Judge.
THE COURT: Okay.
And again, the trial court asked,
THE COURT: Please. Have you -- you had a chance,
[defense counsel], to look at this?
[DEFENSE COUNSEL]: I have, your Honor.
THE COURT: Do you agree that the worksheet is an
accurate representation of his prior record?
[DEFENSE COUNSEL]: I do, Judge.
Finally, the Court addressed the point specifically to confirm with both
the Defendant and Defendant’s counsel as to whether they were informed of
the extra point and that it increased the Defendant from 9 to 10 points
(resulting in a Level IV rather than Level III).
THE COURT: I do see this point is the point that takes it
from 9 to 10, that this offense was committed while on
probation, parole, or post-release supervision. Any—you
have anything to say regarding that point?
[DEFENSE COUNSEL]: Not regarding that particular
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point, Judge.
After these inquiries, the court found that “the State and the defendant have
stipulated in open court to the prior convictions, points, and record level.” Both the
prosecutor’s and defense counsel’s signatures appear on the worksheet under the
“Stipulation” heading.
1. Notice Requirement
We first look to whether the State provided Defendant with written notice of
its intent to prove the prior record point of committing an offense while “on probation,
parole, or post-release supervision” as required by Section 15A-1340.16(a6).1 We note
the presence of a prior record level worksheet in the record that defense counsel might
have received as part of discovery, and a review of the transcript during sentencing
shows defense counsel was familiar with the worksheet; however, there is no
certificate of service within the file to allow us to conclude written notice was given
to Defendant. The worksheet lists point assignments for Defendant’s prior
convictions, an additional point assignment for committing a crime while “on
probation, parole, or post-release supervision,” and a prior record level IV calculation.
Moreover, defense counsel’s signature appears alongside the prosecutor’s signature
under the heading “Stipulation” which states, “The prosecutor and defense counsel .
1 This is a separate inquiry from determining if the State actually proved Defendant’s prior
record level by stipulation or other means. See N.C. Gen. Stat. § 15A-1340.14(f) (2021); State v. Briggs,
249 N.C. App. 95, 99, 790 S.E.2d 671, 674 (2016).
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. . stipulate to the information set out in Sections I [scoring] and V [prior convictions]
of this form and agree with the defendant’s prior record level . . . .” However, this
court has held that merely providing a defendant with a proposed prior record level
worksheet during discovery is not sufficient to effectuate the written notice
requirement of Section 15A-1340.16(a6). State v. Crook, 247 N.C. App. 784, 797, 785
S.E.2d 771, 780 (2016). In the absence of any other writing, then, we must conclude
the State failed to deliver proper written notice to Defendant.
Therefore, we next look to whether Defendant waived his right to notice. To
determine this, we look at the inquiry and responses made at the sentencing hearing.
The circumstances in this case are similar to those in State v. Wright, 265 N.C. App.
354, 357-58, 826 S.E.2d 833, 836 (2019). In Wright, “the trial court inquired about
the notice of the State’s intent to prove the aggravating factor, and [defense] counsel
responded that he was ‘provided the proper notice’ and had ‘seen the appropriate
documents.’ ” Wright, 265 N.C. App. at 360, 826 S.E.2d at 837. The trial court also
asked the defendant directly if he wished to “waive the right to have the jury
determine the aggravating factor and . . . stipulate to the aggravating factor?” to
which the defendant replied, “Yes, sir.” Id. The defendant’s and his counsel’s
affirmations constituted a sufficient waiver of notice. This Court reasoned that the
“defendant’s knowing and intelligent waiver of a jury trial on the aggravating factor
under the circumstances necessarily included waiver of the thirty day advance notice
of the State’s intent to use the aggravating factor.” Id. at 361, 826 S.E.2d at 838.
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“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.’ ” Id. (quoting Ussery v. Branch
Banking & Tr. Co., 368 N.C. 325, 336, 777 S.E.2d 272, 279 (2015)).
In the present case, Defendant’s counsel stated affirmatively that he had
received notice of the State’s intent to assess the sentencing point, which was
confirmed by the attorney for the State. When asked by the trial court if the State
provided notice of its intent to prove Defendant was on parole at the time of the
offense, the prosecutor stated, “Yes, sir. We had discussed that,” and defense counsel
responded, “Yes, Judge.” Though the trial court did not question Defendant directly
about his intent to waive notice, as in Wright, we hold that defense counsel’s
stipulation and affirmation on behalf of his client was sufficient to constitute waiver
of the notice requirement.
Moreover, Defendant’s counsel affirmed that Defendant was on parole at the
time of the commission of the present crime and signed the sentencing worksheet
which indicated that the Defendant was on parole. Furthermore, the second-degree
murder conviction that was the basis for Defendant’s conviction for a felon in
possession of a firearm was the basis of this sentencing point. This conviction was
stipulated to by Defendant at trial, and the judgment in that case was introduced as
State’s Exhibit 7 at trial. This conviction was also referenced in Defendant’s
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indictment in this case.
2. Court Inquiry
Finally, we consider whether the trial court performed its procedural duties
under Section 15A-1022.1, the Blakley Act. This statute requires the court to
“determine whether the State . . . provided the notice to the defendant required by
G.S. 15A-1340.16(a6) or whether the defendant . . . waived his or her right to such
notice.” § 15A-1022.1(a). When a defendant admits to a prior record finding for the
offense of committing a crime while on probation, parole, or post-release supervision,
the trial court must also perform a mandatory colloquy with
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.
§ 15A-1022.1(b). Further, it must “determine that there is a factual basis for the
admission, and that the admission is the result of an informed choice by the
defendant.” § 15A-1022.1(c). These procedures may be ignored, however, if “the
context clearly indicates that they are inappropriate.” § 15A-1022.1(e).
Exploring the context necessary to cast aside the requirements of Section 15A-
1022.1, this Court held in State v. Marlow that certain “circumstances under which
defendant’s prior record was stipulated” were sufficient to fall within this exception.
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229 N.C. App. 593, 602, 747 S.E.2d 741, 748, (2013).
After asking defense counsel if they had a chance to review
the prior record level and have a discussion with
defendant, defense counsel responded “[h]e did [stipulate],
yes, sir.” Defense counsel had the opportunity to inform
defendant of the repercussions of conceding certain prior
offenses and defendant had the opportunity to interject had
he not known such repercussions. Yet, even after being
informed, defendant neither objected to nor hesitated when
asked about such convictions. With such a routine
determination as to whether defendant was convicted of
possession of drug paraphernalia while on probation for
another offense, we see no reason to have engaged in an
extensive colloquy with defendant.
Id.Here, we likewise hold that the court’s interaction with defense counsel
amounted to the same “routine determination.” Defense counsel affirmed he had seen
the prior record level worksheet and that it was “an accurate representation of his
prior record.” Defendant, through his counsel, stipulated to the addition of the prior
record point as evidenced by defense counsel’s signature. As in Marlow, defense
counsel “had the opportunity to inform defendant of the repercussions of conceding
certain prior offenses and defendant had the opportunity to interject had he not
known such repercussions” and did not object to the point at sentencing. Id.Therefore, the trial court was not required to follow the precise procedures prescribed
in N.C. Gen. Stat. § 15A-1022.1 (2021), as defendant acknowledged his status and
violation by arrest in open court.
IV. Conclusion
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Evidence of the firearm was properly obtained such that the trial court did not
err by denying Defendant’s motion to suppress. Though the State did not provide
written notice of its intent to prove a unique prior record point, Defendant waived
such notice, and the trial court was not required to perform a colloquy under the
Blakely Act. N.C. Gen. Stat. § 15A-1022.1 (2021). We find no error in the jury’s
verdict or the judgment entered by the trial court.
NO ERROR.
Judges TYSON and CARPENTER concur.
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