                                 NO. COA13-1188

                    NORTH CAROLINA COURT OF APPEALS

                              Filed: 15 July 2014


STATE OF NORTH CAROLINA

    v.                                     Forsyth County
                                           No. 10 CRS 53412
JERROD STEPHON HILL,
          Defendant.


    Appeal by defendant from judgments entered 9 August 2011 by

Judge Mark E. Klass in Forsyth County Superior Court.              Heard in

the Court of Appeals 19 February 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Nancy D. Hardison, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate
    Defender Anne M. Gomez, for defendant-appellant.


    GEER, Judge.


    Defendant Jerrod Stephon Hill appeals from his convictions

of attempted robbery with a firearm and assault with a deadly

weapon inflicting serious injury ("ADWISI").               The trial court

sentenced    defendant   in    the    aggravated   range   based   upon   the

jury's determination that two aggravating factors existed.                 On

appeal,     defendant    makes       several   arguments    regarding     the

sentencing phase of the trial.          We agree with defendant that the

trial court erred when it failed to hold a charge conference
                                     -2-
prior to instructing the jury during the sentencing phase of the

trial and, therefore, vacate defendant's judgment and remand for

a new trial on sentencing.

                                    Facts

       The State's evidence tended to show the following facts.

On 16 March 2010, Howard Moore was with his friend Little Rick

when Rick received a phone call from defendant.              Defendant told

Rick that he had a plan to rob Michael Dyer, defendant's friend

from high school.        According to the plan, defendant, Howard, and

Rick would go to Mr. Dyer's house and Howard would ask to use

his bathroom.      Once they were inside, they would pin Mr. Dyer

down and rob him.        Defendant and his friend Jamal Smith had been

to the house earlier that day and had seen Mr. Dyer sleeping on

the couch.

       A few minutes later, defendant and Jamal picked up Howard

and Rick in a SUV driven by Jamal, and they headed to Mr. Dyer's

house.    On the way there, defendant showed Howard a .22 caliber

rifle that he had wrapped in a black shirt.

       The men arrived at Mr. Dyer's house around 1:00 p.m.              Mr.

Dyer   saw   the   SUV    pulling   into    his   driveway   and   recognized

defendant, who had been to his house a few months earlier to

smoke marijuana.         Mr. Dyer met defendant and Howard, whom Mr.

Dyer did not recognize, at the door.              Defendant asked Mr. Dyer
                                        -3-
if Howard could use his bathroom, and Mr. Dyer let them inside.

After showing Howard to the bathroom, Mr. Dyer heard someone

behind him say, "Hey, homey."               He turned around and saw Rick,

whom he did not recognize, pointing a .22 caliber rifle at his

head.     Then, defendant punched Mr. Dyer in the face, blind-

siding    him.       Howard   came    out   of   the    bathroom,     and   Howard,

defendant, and Rick began beating Mr. Dyer.                   Rick hit Mr. Dyer

in the head with the butt of the rifle with such force that the

rifle broke apart.

    Mr. Dyer attempted to fight back, at one point throwing

defendant over a chair.         Mr. Dyer then pulled out a pocket knife

and stabbed Howard in the side and in the buttock.                          At that

point, defendant said "Oh, shit.               White boy has a knife[,]" and

defendant, Howard, and Rick ran out of the house.                      Mr. Dyer's

mother arrived shortly thereafter and called 911.                   Mr. Dyer was

hospitalized and required extensive medical treatment including

surgery    for   a    fractured      orbital     bone   and   cheek    bone,    and

stitches for lacerations to his head and face.                  He continues to

have problems with the vision in his right eye.

    Police officers recovered from Mr. Dyer's house the broken

pieces of the butt of the rifle used to beat Mr. Dyer, the knife

used to stab Howard, a ski mask, a doo rag with Jamal's DNA on

it, and defendant's cell phone.             Police questioned Mr. Dyer, who
                                            -4-
identified      defendant        as   one    of     the   suspects.       Later     that

afternoon, police were alerted when Howard went to the hospital

to seek treatment for his stab wounds.                         Howard was interviewed

by police at the hospital, and, although he initially denied any

knowledge      of     the        incident,     he      eventually       confessed     to

participating.         Howard agreed to plead guilty to a charge of

common   law    burglary         in   exchange      for    his     testimony    against

defendant.

       Defendant was indicted on 7 June 2010 for attempted robbery

with a dangerous weapon, ADWISI, and assault inflicting serious

bodily injury.         On 6 July 2011, the State provided defendant

with   notice       that    it    also      intended      to    prove   the    following

aggravating factors at trial: that defendant (1) induced others

to participate in the commission of the offense or occupied a

position of leadership or dominance of other participants in the

commission of the offense, and (2) joined with more than one

other person in committing the offense and was not charged with

committing a conspiracy.

       At trial, defendant testified in his own defense that on 16

March 2010, he was coming out of a corner store when he saw Rick

and offered to pay Rick for a ride home.                       Howard, whom defendant

did not know, was also in the car.                     As they were driving, Rick

asked defendant if he knew where they could get some marijuana.
                                            -5-
Defendant directed them to Mr. Dyer's house.                            When they got

there,      defendant      and     Howard    met      Mr.   Dyer    on     the    porch.

Defendant asked Mr. Dyer if he had any weed, and Howard asked if

he   could    use    the    bathroom.        Mr.     Dyer   let    them    inside,      and

defendant and Mr. Dyer discussed marijuana while Howard went to

the bathroom.

       Defendant testified that Howard came out of the bathroom

and blind-sided Mr. Dyer by punching him in the face.                             At the

same time, Rick came in with a gun pointed at Mr. Dyer's face

and said, "Give it up."            Defendant stood there in shock at first

while Howard and Rick began beating Mr. Dyer.                        Then, defendant

tried to break up the fight.                  When Mr. Dyer stabbed Howard,

defendant heard Rick yell, "White boy got a knife."                           Defendant

ran out of the house, and as he was running down the driveway,

Rick and Howard pulled up in the car and Rick told defendant,

"Get your ass in the car."              Defendant got in because Rick had a

pistol in his lap, and he felt threatened.                         Defendant denied

that   he    saw    the    rifle   before     the    assault      occurred,      that    he

punched Mr. Dyer, or that he intended to rob him.

       On cross-examination, the State asked defendant about his

interview     with    Detective       Rick        Shelton   of    the     Winston-Salem

Police Department when he was first arrested.                           When the State

asked if defendant told Detective Shelton that he only got into
                                          -6-
the car because Rick threatened him with a pistol, defendant

claimed that he did say that to Detective Shelton.                          Defendant

also denied telling the detective initially that he did not know

Mr. Dyer and then saying, "Oh, yeah, yeah, yeah. I saw Michael

at a party on Sunday night in Clemmons where a fight broke out."

       The   State    then    called      Detective   Shelton     as    a    rebuttal

witness      and    played    the    videotaped       recording    of       Detective

Shelton's      interview      with     defendant.         Detective         Shelton's

testimony and the recording showed that defendant never told

Detective Shelton that Rick threatened him with a pistol and

revealed other inconsistencies in defendant's testimony.

       At the close of all the evidence, the State voluntarily

dismissed     the    charge    of    assault      inflicting      serious      bodily

injury.      The jury found defendant guilty of attempted robbery

with a dangerous weapon and ADWISI.               The court then proceeded to

the sentencing phase of the trial to allow the jury to render a

verdict on the aggravating factors.                   Neither party presented

additional evidence on the aggravating factors.                   After each side

gave   closing      arguments,      the   court   instructed      the   jury     with

respect to the aggravating factors.               The jury returned a verdict

finding that both aggravating factors were present.

       Defendant did not argue that the trial court should find

any mitigating factors, and the trial court sentenced him in the
                                       -7-
aggravated range to a term of 100 to 129 months imprisonment for

attempted robbery with a dangerous weapon and to a consecutive

presumptive-range    term   of    26    to   41   months   imprisonment    for

ADWISI.     Defendant filed a petition for writ of certiorari on 24

January 2013, which this Court granted on 4 February 2013.

                                 Discussion

    Defendant first argues that the trial court violated N.C.

Gen. Stat. § 15A-1231(b) (2013) by failing to hold a charge

conference prior to instructing the jury in the sentencing phase

of the trial.      Although defendant did not raise this issue at

trial, he argues that this issue is preserved because "when a

trial court acts contrary to a statutory mandate and a defendant

is prejudiced thereby, the right to appeal the court's action is

preserved,    notwithstanding     defendant's      failure   to   object    at

trial."     State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659

(1985).

    Defendant contends that holding a charge conference is a

statutory mandate under N.C. Gen. Stat. § 15A-1231(b), which

provides:

            Before the arguments to the jury, the judge
            must   hold   a   recorded  conference   on
            instructions out of the presence of the
            jury.    At the conference the judge must
            inform the parties of the offenses, lesser
            included offenses, and affirmative defenses
            on which he will charge the jury and must
            inform them of what, if any, parts of
                                   -8-
           tendered instructions will be given.       A
           party is also entitled to be informed, upon
           request,   whether  the   judge  intends  to
           include other particular instructions in his
           charge to the jury.      The failure of the
           judge to comply fully with the provisions of
           this subsection does not constitute grounds
           for appeal unless his failure, not corrected
           prior to the end of the trial, materially
           prejudiced the case of the defendant.

    With respect to whether holding a charge conference is a

statutory mandate, this Court has noted that "'ordinarily, the

word "must" and the word "shall," in a statute, are deemed to

indicate   a   legislative   intent   to    make   the   provision    of   the

statute mandatory[.]'"       State v. Inman, 174 N.C. App. 567, 570,

621 S.E.2d 306, 309 (2005) (quoting State v. House, 295 N.C.

189, 203, 244 S.E.2d 654, 662 (1978)).               Nevertheless, "'the

legislative intent is to be derived from a consideration of the

entire   statute'"   including   "'the     importance    of   the   provision

involved.'"    Id. (quoting House, 295 N.C. at 203, 244 S.E.2d at

661, 662).     "'Generally speaking, those provisions which are a

mere matter of form, or which are not material, do not affect

any substantial right, and do not relate to the essence of the

thing to be done so that compliance is a matter of convenience

rather than substance, are considered to be directory.'"                   Id.

(quoting House, 295 N.C. at 203, 244 S.E.2d at 661-62).

    The purpose of a charge conference is to allow the parties

to discuss the proposed jury instructions to "insure that the
                                           -9-
legal    issues      are     appropriately       clarified       in     a    manner        that

assists the jury in understanding the case and in reaching the

correct verdict,"            Irving Joyner, Criminal Procedure in North

Carolina § 11.17 (3d ed. 2005), and "to enable counsel to know

what instructions will be given so that counsel will be in a

position to argue the facts in light of the law to be charged to

the jury."

State v. Wilson, 354 N.C. 493, 524, 556 S.E.2d 272, 292 (2001)

(Butterfield,        J.,    concurring),     overruled      on       other       grounds      by

State v. Millsaps, 356 N.C. 556, 572 S.E.2d 767 (2002).                                    After

considering N.C. Gen. Stat. § 15A-1231(b) as a whole, including

the importance of allowing the parties an opportunity to be

heard    regarding         jury   instructions      and   the        use    of       the   word

"must,"       we    conclude      that    holding    a    charge           conference        is

mandatory, and a trial court's failure to do so is reviewable on

appeal even in the absence of an objection at trial.

       The State       argues, however, that             N.C. Gen. Stat. § 15A-

1231(b) should not apply to trials regarding the existence of

aggravating factors in non-capital cases.                            The State asserts

that N.C. Gen. Stat. § 15A-1340.16(a1) (2013) sets forth all the

procedural         requirements     for     sentencing      a        defendant        in     the

aggravated range and, because N.C. Gen. Stat. § 15A-1340.16(a1)

does    not    specifically       require    the    court       to    hold       a   separate
                                    -10-
charge conference, the trial court was not required to do so.

We disagree.

      N.C. Gen. Stat. § 15A-1340.16(a1) provides, in pertinent

part, that if the defendant does not admit to the existence of

an    aggravating   factor,    "only    a    jury    may   determine   if   an

aggravating    factor   is    present   in   an     offense."   The    statute

further provides:

           The jury impaneled for the trial of the
           felony   may,  in   the   same   trial,  also
           determine if one or more aggravating factors
           is present, unless the court determines that
           the interests of justice require that a
           separate sentencing proceeding be used to
           make that determination.       If the court
           determines that a separate proceeding is
           required, the proceeding shall be conducted
           by the trial judge before the trial jury as
           soon as practicable after the guilty verdict
           is returned. . . .      If the trial jury is
           unable to reconvene for a hearing on the
           issue of whether one or more aggravating
           factors exist after having determined the
           guilt of the accused, the trial judge shall
           impanel a new jury to determine the issue.
           A jury selected to determine whether one or
           more aggravating factors exist shall be
           selected in the same manner as juries are
           selected for the trial of criminal cases.

Id.

      The statute goes on to address the procedure to be followed

(1) when a defendant admits the aggravating factor, (2) when a

defendant pleads guilty to the underlying felony but contests

the existence of an aggravating factor, and (3) when the State
                                       -11-
seeks to establish a prior record level point under N.C. Gen.

Stat. § 15A-1340.14(b)(7) (2013).               See N.C. Gen. Stat. § 15A-

1340.16(a2), (a3), (a5).           The statute also sets out requirements

for pleading or giving notice of an intent to use aggravating

factors or seek addition of prior record level points.                    See N.C.

Gen. Stat. § 15A-1340.16(a4), (a5), (a6).

       Nothing in the statute addresses the specifics of how the

trial   court    should      conduct   a   separate     sentencing      proceeding

before the jury that decided the underlying felony charge or a

separate sentencing proceeding before a newly empanelled jury.

N.C.    Gen.    Stat.    §   15A-1340.16      simply    does     not    attempt   to

regulate   how     the   trial     court   should      conduct    the   sentencing

proceedings, and we can glean no intent to mandate a different

procedure than that which governs trials of criminal offenses.

Accordingly, we hold that N.C. Gen. Stat. § 15A-1231 applies to

sentencing proceedings under N.C. Gen. Stat. § 15A-1340.16(a1).

       If, as occurred in this case, the trial court decides to

hold a separate sentencing proceeding on aggravating factors as

permitted by N.C. Gen. Stat. § 15A-1340.16(a1), and the parties

did not address aggravating factors at the charge conference for

the guilt-innocence phase of the trial, N.C. Gen. Stat. § 15A-

1231    requires    that     the   trial   court    hold   a     separate   charge

conference before instructing the jury as to the aggravating
                                        -12-
factor issues.         The trial court's failure to do so in this case

was error.

      We     note,   however,    that    N.C.    Gen.    Stat.     §    15A-1231(b)

(emphasis added) provides that "[t]he failure of the judge to

comply fully with the provisions of this subsection does not

constitute grounds for appeal unless his failure, not corrected

prior to the end of the trial, materially prejudiced the case of

the defendant."         In this case, however, the trial court did not

comply with N.C. Gen. Stat. § 15A-1231(b) at all.

      This     Court    considered      the    failure      to   hold    a   charge

conference     under    a    prior   version    of   N.C.   Gen.   Stat.     §   15A-

1231(b) in State v. Clark, 71 N.C. App. 55, 57, 322 S.E.2d 176,

177 (1984), disapproved of on other grounds by State v. Moore,

327 N.C. 378, 395 S.E.2d 124 (1990).                 That version included the

same requirement of a showing of material prejudice if the trial

court failed to "'fully'" comply with the requirement for a

recorded charge conference.           Id. (quoting N.C. Gen. Stat. § 15A-

1231(b) (1983)).            However, the 1983        statute only required a

recorded charge conference if one of the parties requested it.

Id.

      In Clark, the Court held that because the defense counsel

had requested a charge conference, the trial court was "mandated

. . . to conduct a recorded instruction conference under G.S. §
                                    -13-
15A-1231(b)."    Id. at 58, 322 S.E.2d at 178.          As in this case,

the trial court, however, failed to hold any conference at all,

recorded or otherwise.        Id.   Without requiring any showing of

prejudice, this Court held "that the trial court's failure to

hold a jury instruction conference requires a new trial."          Id.

      Under the current version of N.C. Gen. Stat. § 15A-1231(b),

the trial court was mandated to hold a charge conference even

without a request.         Therefore, under Clark, the trial court's

failure to hold the mandated conference "requires a new trial."

71 N.C. App. at 58, 322 S.E.2d at 178.

      Even if Clark were not controlling, we hold that defendant

has   shown   sufficient    prejudice.     Here,   in   addition   to   not

holding a charge conference, the trial court, contrary to the

General Rules of Practice, did not, following his charge to the

jury, give counsel an opportunity to object to the charge.               See

Gen. R. Pract. Super. and Dist. Ct. 21 ("At the conclusion of

the charge and before the jury begins its deliberations, and out

of the hearing, or upon request, out of the presence of the

jury, counsel shall be given the opportunity to object on the

record to any portion of the charge, or omission therefrom[.]").

As a result, defense counsel was unable to have any input into

the jury instructions at all.
                                         -14-
       Because of the importance of jury instructions, the role

the charge conference plays in ensuring that the instructions

are clear and correct and framed in the most effective way for a

particular       party,    and   the    ambiguities       and    omissions         in    the

instructions and verdict sheet that defendant has pointed out

that could have been corrected during a charge conference, we

believe    that     defendant     has   shown        material   prejudice.                We,

therefore,       vacate    defendant's    judgment        and   remand       for     a   new

sentencing proceeding.

       Given our disposition of this appeal, we need not address

defendant's        specific      arguments          regarding    the        instructions

because they are unlikely to be repeated on remand.                         We do note,

however, that while defendant has argued on appeal that the

trial    court     erred   in    submitting     the     N.C.    Gen.    Stat.      §     15A-

1340.16(d)(2) aggravating factor when he was likely convicted of

attempted armed robbery under an acting in concert theory, the

Supreme Court has recently rejected that argument in State v.

Facyson, ___ N.C. ___, ___, 758 S.E.2d 359, 364 (2014) (holding

that     because    N.C.    Gen.    Stat.       §     15A-1340.16(d)(2)         requires

evidence that defendant joined with at least two other people to

commit the offense while acting in concert requires only one

person, "[a]ny evidence that defendant joined with more than one

person    [is]     'additional     evidence'         unnecessary       to    prove       that
                                      -15-
defendant acted in concert in committing the [offense]" (quoting

State   v.   Thompson,   309   N.C.    421,   422,   307   S.E.2d   156,   158

(1983)).


    Vacated and remanded.

    Judges ROBERT C. HUNTER and McCULLOUGH concur.
