State v. Snelling , 231 N.C. App. 676 ( 2014 )

NO. COA13-518
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
STATE OF NORTH CAROLINA
v. Wake County
Nos. 10 CRS 230038, 39
EMANUEL EDWARD SNELLING, JR.
Appeal by defendant from judgment entered 23 August 2012 by
Judge Carl R. Fox in Wake County Superior Court. Heard in the
Court of Appeals 20 November 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth N. Strickland, for the State.
Attorney Anna S. Lucas, for defendant.
Elmore, Judge.
On 23 August 2012, a jury found Emanuel Edward Snelling, Jr.
(defendant), guilty of larceny from the person, robbery with a
dangerous weapon, and second degree kidnapping. The trial court
sentenced defendant as a prior record level III offender (PRL III)
to consecutive terms of active imprisonment of 26 to 41 months
(second degree kidnapping) and 84 to 110 months (robbery with a
dangerous weapon), with 6 to 8 months (larceny from the person) to
be served concurrently. Defendant now appeals and raises as error
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the trial court’s: 1.) failure to answer a jury question and 2.)
determination that he was a PRL III. After careful consideration,
we conclude that there was no trial error as to the jury question,
but we vacate the sentence of the trial court and remand for a new
sentencing hearing.
I. Facts
During the deliberation phase of trial, the jury indicated
that it had a question about the robbery with a dangerous weapon
charge. Initially, the trial court instructed the jury on the
sixth and seventh elements of robbery with a dangerous weapon as
follows:
Sixth, that the defendant had a firearm in his
possession at the time he obtained the
property, or that it reasonably appeared to
the victim that a firearm was being used, in
which case you may infer that the said
instrument was what the defendant’s conduct .
. . seventh, that the defendant obtained the
property by endangering or threatening the
life of [victim] with a pistol or firearm.
Thereafter, the trial court realized that the initial
instruction was incomplete and told the jury:
If you’ll turn back to the robbery with a
firearm, the sixth element, doesn’t have the
ending language on it and it should read: In
– let’s see. Read me -- read it again. Sixth,
that the defendant had a firearm in his
possession at the time he obtained the
property or that it reasonably appeared to the
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victim that a firearm was being used, in which
case you may infer that the said instrument
was what the defendant’s conduct represented
it to be. It should have “be” at the end. I’ve
learned there aren’t any English majors on the
Pattern Jury Instructions committee. Anybody
have any questions about that remaining
language? Okay. Thank you.
A short time later, the jury posed this question to the trial
court: “does the [S]tate have to prove physical presence of a
pistol for the seventh bullet of robbery with a firearm or is it
simply that she had to believe the presence of a pistol and feel
threatened?” Over defendant’s objection, the trial court
responded:
TRIAL COURT: When I read the instruction for
number six, that the defendant had a firearm
in his possession at the time he obtained the
property or that he was reasonably or
reasonably appeared to the victim that a
firearm was being used, in which case you may
infer that the said instrument was what the
defendant's conduct represented it to be.
That carries over into any reference to a
pistol in the instructions, so number seven,
when it refers to a pistol, you can take it in
context of the fact that the statement about
a firearm and the representation of a firearm
from number six. Okay, six. Does that answer
the question?
JUROR NO. 6: I believe so.
(Emphasis added). Thereafter, the jury continued deliberating and
reached a unanimous verdict of guilty as to all charges. At
sentencing, the parties stipulated that defendant had 6 prior
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record level points and was thus a PRL III. It is also undisputed
that 1 of the 6 points was assigned to defendant because he was on
probation (the probation point) at the time these offenses were
committed. At no time did the trial court: 1.) advise defendant
of his rights to prove mitigating factors and have a jury decide
the existence of the probation point; or 2.) determine whether
written notice was given to defendant by the State of its intent
to seek the probation point.
II. Analysis
a.) Answer to Jury Question
Defendant first argues that the trial court erred in its
answer to a jury question about whether the State must prove the
actual presence of a firearm on the charge of robbery with a
dangerous weapon. We disagree.
On appeal, this Court considers a jury charge
contextually and in its entirety. The charge
will be held to be sufficient if it presents
the law of the case in such manner as to leave
no reasonable cause to believe the jury was
misled or misinformed. The party asserting
error bears the burden of showing that the
jury was misled or that the verdict was
affected by an omitted instruction. Under such
a standard of review, it is not enough for the
appealing party to show that error occurred in
the jury instructions; rather, it must be
demonstrated that such error was likely, in
light of the entire charge, to mislead the
jury.
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Hammel v. USF Dugan, Inc., 178 N.C. App. 344, 347, 631 S.E.2d 174,
178 (2006) (citations and quotation marks omitted). The trial
court has the duty to “declare and explain the law arising on the
evidence relating to each substantial feature of the case.” State
v. Hockett, 309 N.C. 794, 800, 309 S.E.2d 249, 252 (1983) (citation
and quotation omitted).
In support of his argument that the trial court failed to
answer the jury’s question, defendant relies on Hockett, which
also involved a robbery with a dangerous weapon charge. Id. In
Hockett, the jury asked the trial court during its deliberation if
“the threat of harm or force with a deadly weapon [is] the same as
actually having or using a weapon?” Id. Instead of answering the
jury’s question or reviewing the elements of the charge, the trial
court instructed the jury to continue its deliberation. Id. at
801-02, 309 S.E.2d at 252-53. Our Supreme Court ruled that because
“the jury did not understand . . . how the presence or absence of
a gun would affect the degree of guilt[,]” the trial court’s
failure to answer the jury’s question of law was prejudicial error.
Id. at 802, 309 S.E. 2d at 253.
Defendant’s reliance on Hockett is misplaced. Unlike in
Hockett, the trial court in the present case answered the jury’s
legal question, and the jury indicated that it understood the trial
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court’s answer. The trial court told the jury to interpret element
numbers six and seven of the robbery with a dangerous weapon charge
in tandem rather than as mutually exclusive requirements.
Specifically, the trial court’s answer properly clarified that the
jury must find either that 1.) defendant actually possessed a
firearm; or 2.) victim reasonably believed that defendant
possessed a firearm, in which case the jury could infer that the
object was a firearm. See State v. Lee, 128 N.C. App. 506, 510,
495 S.E.2d 373, 376 (1998) (“The State need only prove that the
defendant represented that he had a firearm and that circumstances
led the victim reasonably to believe that the defendant had a
firearm and might use it.”); see also State v. Bartley, 156 N.C.
App. 490, 496, 577 S.E.2d 319, 323 (2003) (“Proof of armed robbery
requires that the victim reasonably believed that the defendant
possessed . . . a firearm in the perpetration of the crime[;]”
State v. Fleming, 148 N.C. App. 16, 22, 557 S.E.2d 560, 564 (2001)
(“If there is some evidence that the implement used was not a
firearm . . . a permissive inference[] [permits] but does not
require the jury to infer that the instrument used was in fact a
firearm[.]”). Thus, the trial court did not err in its answer to
the jury.
b.) Sentencing Procedure Pursuant to N.C. Gen. Stat. 15A-1022.1
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Defendant also argues that the trial court erred in sentencing
defendant as a PRL III because it failed to comply with N.C. Gen.
Stat. § 15A-1022.1 (2011). We disagree.
“[We review alleged sentencing errors for] ‘whether [the]
sentence is supported by evidence introduced at the trial and
sentencing hearing.’” State v. Deese, 127 N.C. App. 536, 540, 491
S.E.2d 682, 685 (1997) (quoting N.C. Gen. Stat. § 15A-1444(a1)
(Cum. Supp. 1996)). However, “[t]he determination of an offender’s
prior record level is 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) (citation omitted). The PRL for a
felony offender during sentencing is determined by “the sum of the
points assigned to each of the offender’s prior convictions[.]”
N.C. Gen. Stat. § 15A-1340.14 (2011). A PRL II offender has
between 2-5 points, whereas a PRL III offender has at a minimum of
6 and no more than 9 points. Id. A sentencing error that
improperly increases a defendant’s PRL is prejudicial. State v.
Hanton, 175 N.C. App. 250, 260, 623 S.E.2d 600, 607 (2006).
Under N.C. Gen. Stat § 15A-1340.14 (b)(7) (2011), a defendant
shall be assigned one point “[i]f the offense was committed while
the offender was on supervised or unsupervised probation[.]”
“[T]he jury shall determine whether the point should be
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assessed[,]” unless the defendant admits to it. N.C. Gen. Stat.
§ 15A-1340.16 (2011). In such cases, the point will be treated as
though it was found by the jury. Id. These admissions are
generally constrained by the procedures set out in N.C. Gen. Stat.
15A-1022.1, which mandates that the trial court
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.
N.C. Gen. § 15A-1022.1 (2011). However, these procedural
requirements are not mandatory when “the context clearly indicates
that they are inappropriate.” Id.
In State v. Marlow, the defendant was sentenced at a PRL II.
State v. Marlow, ___ N.C. App. ___, ___, 747 S.E.2d 741, 748
(2013). One of his points was determined pursuant to N.C. Gen.
Stat. § 15A-1340.14(b)(7) because of a conviction while he was on
probation. Id. Even though the trial court did not make any of
the inquiries mandated by N.C. Gen. Stat. § 15A-1022.1, this Court
held that “conducting a statutorily mandated colloquy with [the
defendant] . . . would have been inappropriate and unnecessary”
where: 1.) the defendant stipulated to his prior record level; 2.)
the defendant’s counsel could have “inform[ed] [the defendant] of
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the repercussions of conceding certain prior offenses[;]” 3.) the
“defendant had the opportunity to interject had he not known such
repercussions[;]” and 4.) the additional point was a mere “routine
determination” by the trial court based on the circumstances. Id.
at ___, 747 S.E.2d at 747-48.
Similarly, in the case at bar, it is uncontested that
defendant stipulated to being on probation when he committed
larceny from the person, robbery with a dangerous weapon, and
second degree kidnapping. The prosecutor and defendant’s counsel
signed the prior record level worksheet “agree[ing] with the
defendant’s prior record level[.]” At sentencing, defendant
stipulated that he was a PRL III: two points for a Class H Felony
conviction, three points for three class one misdemeanors, and one
probation point. Defendant admitted at trial that he was on
probation at the time these offenses occurred, and his attorney
also alluded to defendant’s probation during sentencing.
Moreover, the trial court spoke at sentencing, without resistance
from defendant, about his having “just been placed on probation”
when he committed these offenses. Thus, the trial court ruled
that defendant’s PRL was stipulated by the parties resulting in
six prior record points at a PRL III. Despite defendant’s numerous
opportunities to oppose the finding of the probation point, he did
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not. Under the circumstances, the determination of defendant’s
probation point was routine and a non-issue. Accordingly, we hold
that within the context of defendant’s sentencing hearing, the
procedures specified by N.C. Gen. Stat. § 15A-1022.1 would have
been inappropriate. See Marlow, supra.
c.) Sentencing Procedure Pursuant to N.C. Gen. Stat. § 15A-
1340.16(a6)
In his final argument on appeal, defendant avers that the
trial court erred in sentencing defendant as a PRL III because it
failed to comply with N.C. Gen. Stat § 15A-1340.16(a6). We agree.
N.C. Gen. Stat. § 15A-1340.16(a6) requires the State
to 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) (2011). The statute is clear
that unless defendant waives the right to such notice, the State
must provide defendant with advanced written notice of its intent
to establish: 1.) any of the twenty aggravating factors listed in
N.C. Gen. Stat. § 15A-1340.16(d); or 2.) a probation point pursuant
to N.C. Gen. Stat. 15A-1340.14(b)(7). Id. The trial court shall
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determine if the State provided defendant with sufficient notice
or whether defendant waived his right to such notice. N.C. Gen.
Stat. § 15A-1022.1 (2011).
Here, 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. Moreover, the record does not indicate that
defendant waived his right to receive such notice. Thus, the trial
court erred by including the probation point in its sentencing of
defendant as a PRL III. This error was prejudicial because the
probation point raised defendant’s PRL from a PRL II to a PRL III.
See Hanton, supra.III. Conclusion
In sum, the trial court did not err in its answer to a jury
question about whether the State must prove the actual presence of
a firearm on the charge of robbery with a dangerous weapon.
Similarly, the trial court did not err in failing to conduct a
statutorily mandated colloquy with defendant pursuant to N.C. Gen.
Stat § 15A-1022.1. However, the trial court committed prejudicial
error by including the probation point in sentencing defendant as
a PRL III without determining if the State provided sufficient
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notice of its intent to seek the probation point or whether
defendant waived such statutory requirements per N.C. Gen. Stat.
§ 15A-1340.16(a6). As such, we vacate defendant’s sentence and
remand to the trial court for resentencing in accordance with this
opinion.
Remanded for new sentencing hearing.
Judges McCULLOUGH and DAVIS concur.