               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-209

                                  Filed:7 May 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 dismiss defendant’s

ineffective assistance of counsel claim without prejudice and 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
                                   STATE V. WRIGHT

                                  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



                                         -2-
                                   STATE V. WRIGHT

                                  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-


                                         -3-
                                     STATE V. WRIGHT

                                     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


                                            -4-
                                 STATE V. WRIGHT

                                 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



                                        -5-
                                   STATE V. WRIGHT

                                   Opinion of the Court



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


                                          -6-
                      STATE V. WRIGHT

                      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


                             -7-
                                  STATE V. WRIGHT

                                  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


                                         -8-
                                   STATE V. WRIGHT

                                   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



                                          -9-
                                      STATE V. WRIGHT

                                      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.”

                                             - 10 -
                                   STATE V. WRIGHT

                                   Opinion of the Court



      Defendant argues “that he received ineffective assistance of counsel at

sentencing.” However, “[i]n general, claims of ineffective assistance of counsel should

be considered through motions for appropriate relief and not on direct appeal.” State

v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001). We dismiss defendant’s

ineffective assistance of counsel claim without prejudice to his right to assert his

claim in a motion for appropriate relief at the trial level.

                                 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



                                          - 11 -
                                 STATE V. WRIGHT

                                 Opinion of the Court



minimum and 15-17 months maximum. Defendant was sentenced in the aggravated

range as the State requested during sentencing:

                  On the possession with intent to sell or deliver
            marijuana, a Class I felony, that is an I block. So an active
            sentence cannot be imposed by law. However, I’d ask for at
            the top of the aggravated on that sentence would be eight
            to 19-month sentence with an extensive supervised
            probation.

Shortly thereafter, the trial court sentenced defendant within the aggravated range:

                   In Case No. 16CRS13374, the possession with intent
            to sell and deliver marijuana, it is the judgment of the
            Court that Case No. 16CRS13375, be consolidated in that
            case for purposes of sentencing. And that the Defendant be
            committed to the custody of the North Carolina
            Department of Corrections for a period of not less than
            seven months and no more than 18 months.

Therefore, box two should have been checked on the form indicating that:

            [The Court] makes the Determination of aggravating and
            mitigating factors on the attached AOC-CR-605.

      It is apparent from the transcript that the trial court sentenced defendant in

the aggravated range based upon the factor as stipulated.           In fact, defendant

expressed his displeasure with the sentence, but his comments show he was fully

aware of the aggravating factor, since he noted that he had done two years on

probation and “didn’t get violated till the end.        Till my last month getting off

probation. I got violated for a misdemeanor.”

      There is also a clerical error on the form arresting judgment (AOC-CR-305).



                                        - 12 -
                                   STATE V. WRIGHT

                                   Opinion of the Court



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
             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 dismiss his

ineffective assistance of counsel claim without prejudice and remand for the limited

purpose of correcting two clerical errors.




                                          - 13 -
                         STATE V. WRIGHT

                         Opinion of the Court



    NO ERROR IN PART; DISMISSED IN PART WITHOUT PREJUDICE;

REMANDED FOR CORRECTION OF CLERICAL ERRORS.

    Judges ZACHARY and MURPHY concur.




                                - 14 -
