IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-209
Filed:19 February 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 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
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Opinion of the Court
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
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Opinion of the Court
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-
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Opinion of the Court
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
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Opinion of the Court
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
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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
ten-year period prior to the commission of the offense for
which the Defendant is being sentenced been found by a
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Opinion of the Court
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.
THE COURT: And have you had an opportunity to talk
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Opinion of the Court
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
record, defendant responded, “Yes, sir.” We find the trial court’s colloquy satisfied
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Opinion of the Court
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.”).
Defendant compares this case to State v. Mackey, 209 N.C. App. 116, 708
S.E.2d 719 (2011), but we find the facts of this case to be distinct. In Mackey, the
defendant objected at trial to the use of the aggravating factor based upon the lack of
proper written notice. Id. at 119, 708 S.E.2d at 721. The issue in Mackey was whether
a letter regarding a plea offer could be used to provide notice, and, based upon the
contents of the letter, we held it did not give the notice as required by N.C. Gen. Stat.
§ 15A-1340.16(a6). Id. at 126, 708 S.E.2d at 725. The letter simply communicated a
plea offer but did not “acknowledge that the purpose of the document was to both give
notice of aggravating factors and communicate an offer.” Id. at 121, 708 S.E.2d at
722. In addition, there was a question in Mackey regarding proper service of the
letter, which was served by facsimile, and defense counsel “represented that he had
received the offer, but no notice of the aggravating factors.” Id. This Court also noted
that the State could have used the form created by the Administrative Office of the
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Opinion of the Court
Courts (AOC–CR–614) specifically to give the required notice. Id. Here, there is no
issue as to the form of the notice, the content of the notice, or the method of service
of the notice, and, therefore, we do not find Mackey to be controlling.
This case can also 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 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
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.”
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Opinion of the Court
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
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
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Opinion of the Court
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.
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.
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Opinion of the Court
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
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
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Opinion of the Court
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
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
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Opinion of the Court
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 Errors
Defendant argues that the judgment contains clerical errors 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
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
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Opinion of the Court
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.”
There is also a clerical error on the form arresting judgment (AOC-CR-305).
At trial, the State clarified which count for file number 16 CRS 13373 was the sale
and which was the delivery:
MR. PIERRIE: Count 1 is the sale. In 13373,
Count 1 is indicted as sale of marijuana. And Count 2 of
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16CRS13373 is indicted as delivery.
The jury found defendant guilty of both counts, and the trial court arrested judgment
for the second count:
The jury having returned verdicts of guilty in Cases
16CRS13373, counts one and two . . . . The Court arrest
judgment in Count 2 of Case No. 16CRS13373.
However, on AOC-CR-305 the trial court mistakenly arrested judgment for count one,
“ATTEMPTED SELL MARIJUANA.”
We remand for the limited purpose of 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. In addition, the AOC-CR-305 for file number 16 CRS 013373 should
be corrected on remand to reflect that judgment was arrested for attempted delivery
of marijuana.
V. Conclusion
Defendant received a fair trial, free of prejudicial error, but we remand for the
limited purpose of correcting two clerical errors.
NO ERROR; REMANDED FOR CORRECTION OF CLERICAL ERRORS.
Judges ZACHARY and MURPHY concur.
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State v. WrightÂ
Court: Court of Appeals of North Carolina
Date filed: 2019-02-19
Citations: 825 S.E.2d 1
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