                   IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 45A12

                              FILED 8 MARCH 2013

STATE OF NORTH CAROLINA

              v.

AADIL SHAHID KHAN


        Appeal pursuant to N.C.G.S. § 7A-30(2) from the unpublished decision of a

divided panel of the Court of Appeals, ___ N.C. App. ___, 721 S.E.2d 409 (2012),

affirming in part and vacating and remanding in part judgments entered on 15

November 2010 by Judge Paul C. Ridgeway in Superior Court, Wake County.

Heard in the Supreme Court on 15 October 2012.


        Roy Cooper, Attorney General, by Laura E. Parker and Teresa M. Postell,
        Assistant Attorneys General, for the State-appellant.

        Tharrington Smith, L.L.P., by Douglas E. Kingsbery, Wade M. Smith, and
        Derick R. Vollrath, for defendant-appellee.


        EDMUNDS, Justice.


        Defendant was named in two indictments and entered a negotiated plea in

each.   We consider in this appeal whether the trial court properly imposed an

aggravated sentence for defendant’s convictions on one of these indictments. We

find that defendant unambiguously stipulated to application of the aggravating

factor for both indictments and that application of the aggravating factor for both
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indictments was supported beyond a reasonable doubt by the evidence.

Accordingly, we reverse the holding of the Court of Appeals to the contrary.

      The record indicates that the victim named in each indictment, Matthew

Silliman, was a friend of defendant. In late October 2008, Ryan Hare devised a

plan to kill Silliman and solicited defendant and others to help. On 25 November

2008, defendant and the coconspirators lured the unsuspecting victim into an

automobile and drove him to a remote area where defendant was to use a Taser to

incapacitate the victim while the others strangled him. Although the Taser failed to

function and the attempt to kill Silliman was aborted mid-struggle, the victim

remained with defendant and his other assailants because the victim still believed

they were his friends. Defendant and the others convinced Silliman that a fictitious

“Roger” was hunting him and wanted to kill him. They then helped Silliman hide

from “Roger” by taking the victim to an abandoned house, where he stayed for the

next five days.   On 30 November 2008, defendant and the other coconspirators

inveigled Silliman into drinking a concoction of wine and horse tranquilizers. When

Silliman fell unconscious, his mouth was taped and a plastic bag tied over his head,

asphyxiating him.

      On 16 December 2008, defendant was charged in indictment 08 CRS 85094

with murder and conspiracy to commit murder (“the 2008 indictment”).           This

indictment was based upon the events of 30 November 2008. Later, on 9 February

2010, defendant was charged in indictment 10 CRS 652 with attempted first-degree


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murder and conspiracy to commit first-degree murder (“the 2010 indictment”). This

second indictment alleged the events of 25 November 2008.

      Defendant and the State negotiated a plea agreement. The terms of the plea

were set out in a written Transcript of Plea form provided by the Administrative

Office of the Courts, form AOC-CR-300. In the portion of the Transcript of Plea

titled “Plea Arrangement,” the prosecutor, defendant, and defense counsel initialed

their agreement that the two counts in the 2010 indictment would be consolidated

for judgment. In addition, the first-degree murder count in the 2008 indictment

would be reduced to second-degree murder, and this reduced charge would be

consolidated for judgment with the other count in that indictment. The agreement

provided that the sentence imposed on the 2008 indictment would run consecutively

to the sentence imposed on the 2010 indictment. This portion of the agreement also

contained terms relating to continuation of judgment and defendant’s anticipated

cooperation.

      Elsewhere in the Transcript of Plea form, Question 15 was checked so that

the preprinted portion read, “Have you admitted the existence of the aggravating

factors?” The answer, “Yes,” is handwritten on the form beside the question, and in

the space provided below the question was typewritten: “#15 – The defendant took

advantage of a position of trust or confidence to commit the offense.” Similarly,

Question 16 was checked so that it read, “Do you agree that the State has provided

you with appropriate notice about the aggravating factors and/or sentencing points


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in your case?”   The handwritten answer, “Yes,” is entered beside the question.

Question 17 was checked, indicating that defendant understood that the State was

stipulating to three mitigating factors, which were typewritten below this question.

Question 26 was checked so that it read, “Do you agree that there are facts to

support your plea and admission to aggravating factors, and do you consent to the

Court hearing a summary of the evidence?”               Again, the answer, “Yes,” is

handwritten beside the question. The agreement implicitly left to the judge the

balancing of the aggravating and mitigating factors, as well as the length of the

sentence that would be imposed under each indictment.

      Defendant entered his plea at a hearing held on 25 August 2010, at which

time the Transcript of Plea was signed by the judge and ordered recorded. At the

hearing, the trial judge asked defendant whether he understood that, under the

plea agreement, the charge of first-degree murder would be reduced to second-

degree murder, the two counts in each indictment would be consolidated for

judgment, and the “[s]entence imposed in [the 2008 indictment] is to run at the

expiration of the sentence imposed in [the 2010 indictment].”       When defendant

answered, “Yes,” the trial court asked, “Is that what you understand to be your

entire agreement with the [S]tate?” Defendant again responded, “Yes.” Later in

the colloquy, the trial judge asked defendant: “You also stipulate that there is – to

the existence of aggravating factor number 15, that you took advantage of a position

of trust or confidence to commit the offense?”, to which defendant responded, “Yes.”


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The prosecutor then presented the factual basis for the plea, adding that “[a]s far as

the aggravating factors, to put that in the record, . . . [defendant] was a close friend

of [the victim]. I’ve read numerous computer transactions between them, and quite

frequently they refer to each other as ‘twins.’ ” The trial judge accepted defendant’s

guilty plea and continued judgment until after the conclusion of the trial of one of

defendant’s coconspirators.

      Defendant was sentenced on 15 November 2010. The prosecutor presented

testimony from several of the victim’s family and friends, then asked the trial court

to “find that this is an aggravated crime” and to sentence defendant “in the

aggravated range to a sentence of 196 to 245 [months] followed by another sentence

of 196 to 245 [months],” adding that the “plea agreement contemplates such an

arrangement” and that defendant “has already received the benefit in not being

tried for first-degree murder. I’d ask that you sentence him to the maximum time

allowed.”   Although defendant presented two mitigating witnesses and made

extensive arguments in favor of a mitigated sentence, defense counsel acknowledged

the aggravating factor, stating that “I do not disagree that there was an abuse of

trust here, and we’ve agreed to that absolutely.”         The trial judge found the

mitigating factors to which the parties had stipulated, but also found beyond a

reasonable doubt the aggravating factor that defendant took advantage of a position

of trust, then sentenced defendant in the aggravated range for the convictions on

both indictments:


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                    In File Number 10-CRS-652, for the conspiracy to
              commit murder and attempted murder of [the victim],
              occurring on or about November 25, 2008, I order you
              incarcerated for a term of 196 months minimum, 245
              months maximum.

                    In the file 08-CRS-85094, for the conspiracy to
              commit murder and the murder of [the victim] in the
              second degree, I order you incarcerated for a minimum
              term of 196 months and a maximum term of 245 months.

      The trial judge prepared two judgments, one for each indictment, along with

two corresponding “Felony Judgment Findings of Aggravating and Mitigating

Factors.”   In the latter forms, the trial judge made separate findings as to the

sentence imposed on each indictment. He determined that the aggravating factor

was supported beyond a reasonable doubt and that the aggravating factor

outweighed the mitigating factors, justifying an aggravated sentence on each

indictment.

      Defendant appealed to the Court of Appeals, arguing, inter alia, that he had

stipulated to the aggravating factor in the 2008 indictment only and that the trial

court erred in imposing an aggravated sentence on the 2010 indictment because he

had entered no stipulation in that case. In a divided opinion, the Court of Appeals

majority found that the Transcript of Plea was ambiguous. State v. Khan, ___ N.C.

App. ___, 721 S.E.2d 409, 2012 WL 121230, at *3 (2012). The majority noted that

the “File No.” box at the top of the Transcript of Plea form listed the single file

number of the 2008 indictment, even though each of the charges in the 2008 and



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2010 indictments were listed individually in the body of the plea agreement. Khan,

2012 WL 121230, at *2. The majority also pointed out that the trial court referred

to “the offense,” in the singular, when questioning defendant about the aggravating

factor.    Id. at *2-3.   The Court of Appeals majority determined that defendant

reasonably could have believed the aggravating factor to which he stipulated would

apply only to the 2008 indictment. Id. at *3. Asserting that “the State [is held] to a

higher degree of responsibility than the defendant for any ambiguities in the plea

agreement,” the majority concluded that the ambiguities should be construed

against the State. Id. (citing State v. Blackwell, 135 N.C. App. 729, 731, 522 S.E.2d

313, 315 (1999), remanded per curiam, 353 N.C. 259, 538 S.E.2d 929 (2000)). The

majority vacated the sentence imposed on the 2010 indictment and remanded the

case for a new sentencing hearing on that indictment. Id.

          The dissenting judge disagreed.     2012 WL 121230, at *4 (Steelman, J.,

concurring in part and dissenting in part).        While acknowledging that only one

indictment number was listed at the top of the Transcript of Plea, the dissenter

pointed out that the document was a “general plea form” promulgated by AOC “to

be used when a defendant pleads to one offense or to multiple offenses.”            Id.

Accordingly, a reviewing court should consider “the totality of the document.” Id.

Both indictments and all four charges were detailed in the body of the agreement

under Question 12, in which defendant was asked if he “under[stood] that [he was]

pleading guilty to the charges shown below.”          Id.   In addition, the preprinted


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language of the Transcript of Plea in Question 15 referred to “aggravating factors,”

while “[t]he language of the aggravating factor,” added by the attorneys under

Question 15, was “taken verbatim from [N.C.G.S.] § 15A-1340.16(d)(15), including

the language referencing to ‘the offense’ in the singular.” Id. The dissenting judge

further observed that defendant acknowledged in the Transcript of Plea both that

he had received proper notice of the aggravating factor and that there were facts

supporting it. 2012 WL 121230, at *4-5. As a result, the dissenting judge concluded

that “[t]here is absolutely nothing in the plea transcript limiting this aggravating

factor to [the 2008 indictment].”        Id. at *4.    The dissenting judge would have

determined the Transcript of Plea was not ambiguous and upheld the sentence

imposed by the trial court. Id. at *5.

      The State appealed to this Court on the basis of the dissent and argues that

the Transcript of Plea was not ambiguous. Defendant responds that the Transcript

of Plea and the colloquy at the plea hearing were fatally ambiguous. Defendant also

raises additional arguments challenging the validity of the sentence imposed by the

trial court. First, he argues that the State failed to present sufficient evidence to

support imposition of the aggravating factor as to the 2010 indictment. Second, he

argues that the trial court failed to follow statutorily mandated procedures during

the hearing when the plea was taken.               We begin by considering whether the

Transcript of Plea was ambiguous, then turn to the other issues raised by

defendant.


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      Whether a document is ambiguous is a question of law. See, e.g., River Birch

Assocs. v. City of Raleigh, 326 N.C. 100, 123, 388 S.E.2d 538, 551 (1990). We review

questions of law de novo. See, e.g., In re Greens of Pine Glen Ltd. P’ship, 356 N.C.

642, 647, 576 S.E.2d 316, 319 (2003).

      The use of plea agreements has been approved by the General Assembly.

Article 58 of Chapter 15A of the General Statutes of North Carolina (“Procedures

Relating to Guilty Pleas in Superior Court”) regulates resolution of criminal charges

when pleas of guilty are negotiated.        Recognizing that a pleading defendant

surrenders rights guaranteed under the constitutions of North Carolina and of the

United States, the individual statutes in Article 58 set out a procedure that is

transparent to the parties and to the public. See State v. Agnew, 361 N.C. 333, 335,

643 S.E.2d 581, 583 (2007) (“Because a guilty plea waives certain fundamental

constitutional rights such as the right to a trial by jury, our legislature has enacted

laws to ensure guilty pleas are informed and voluntary.”).

      The record establishes that the plea agreement here was negotiated,

memorialized in the Transcript of Plea, and executed in accordance with the

applicable statutes. Although defendant argues that the Court of Appeals majority

correctly found that the Transcript of Plea was ambiguous, the only evidence of

ambiguity we see is that the top line of the Transcript of Plea form lists the file

number of the 2008 indictment but not that of the 2010 indictment. However, if the

stipulation to the aggravating factor was to apply to the 2008 indictment only, it


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follows that a separate Transcript of Plea form covering the 2010 indictment would

also have been executed, omitting that stipulation. Instead, Question 12 of the

Transcript of Plea asks, “Do you understand that you are pleading guilty to the

charges shown below?”      Beneath this question, the two counts in the 2010

indictment are set out individually, as are the two counts in the 2008 indictment.

The word, “Yes,” is handwritten in response to this question. The parties skirmish

in their briefs over the fact that the paperwork, the judge, and attorneys referred

sometimes to “the offense” and other times to “the offenses,” but we do not find this

differing wording persuasive. Instead, we conclude that, in light of the evidence

found within the Transcript of Plea, along with the facts of the case and the

behavior of the parties, defendant unambiguously stipulated that the aggravating

factor would apply to both indictments.

      Even if defendant initially misunderstood the plea or if the Transcript of Plea

were ambiguous, the sentencing hearing ultimately provided clarity.        Although

defendant argues that the prosecutor’s language at the sentencing hearing

preserved the purported ambiguity in the Transcript of Plea because the prosecutor

did not explicitly ask that both sentences be aggravated on the basis of the

stipulation, the record indicates that the prosecutor sought aggravated sentences

for each consolidated offense, asking the trial court to “find that this is an

aggravated crime” and to sentence defendant “in the aggravated range to a sentence

of 196 to 245 [months] followed by another sentence of 196 to 245 [months],” the


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maximum aggravated sentences available.          See N.C.G.S. § 15A-1340.17 (2007).

Moreover, defendant’s presentation to the trial court at the sentencing hearing

concerning the application of mitigating factors to the two indictments indicated an

expectation that both the mitigating and aggravating factors to which the parties

stipulated would be applied in each indictment. After asking the court to find three

more mitigating factors in addition to the three to which the State had stipulated,

defendant said: “I ask [the court] to find the presence of these six statutory factors

in mitigation and that you find them present in both of those cases. My view of the

matter is that when you add all those things up, they do outweigh the one

aggravating factor.” (Emphasis added.). Defendant never argued that the sentence

on the 2010 indictment should not be aggravated; instead he argued that mitigating

factors outweighed the stipulated aggravating factor. We believe defendant could

have had little doubt that the Transcript of Plea’s terms and conditions applied to

all the charges brought against him.

      Additionally, any belief on defendant’s part that he had stipulated to an

aggravated sentence only on the 2008 indictment was revealed to be mistaken when

the trial court stated that “an aggravated sentence is justified for these offenses,”

then imposed consecutive aggravated sentences on both indictments.            Despite

defendant’s contention that he did not have time to object after sentence was

imposed because the judge immediately left the bench, the record shows defendant




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had ample opportunity to bring any confusion to the attention of the trial court

during the sentencing hearing.

      Defendant next contends that he did not realize that the sentence on the

2010 indictment was aggravated on the basis of the stipulation until he saw the

corresponding “Felony Judgment Findings of Aggravating and Mitigating Factors”

signed by the judge after the completion of the sentencing hearing. According to

defendant, until he saw the form he believed the sentence in the 2010 indictment

was aggravated because of the facts of the case, not the stipulation. Leaving aside

the question whether the judge could have imposed an aggravated sentence without

a jury finding or a stipulation, we note that this form was signed on 15 November

2010, the same day as the sentencing hearing.            So even if defendant left the

sentencing hearing without realizing the trial court’s basis for aggravating the

sentence on the 2010 indictment, the information that would have permitted him to

file a timely Motion for Appropriate Relief pursuant to N.C.G.S § 15A-1414 or take

other appropriate remedial action was available shortly thereafter. Accordingly, we

are not persuaded that defendant did not have an opportunity to object to the

sentence.

      Having concluded that the Transcript of Plea was not ambiguous, we now

consider the other arguments raised by defendant. Defendant argues that the trial

court did not follow the statutory requirements for taking a plea because it failed to

determine whether the State intended to seek an aggravated sentence for each


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indictment, in accordance with N.C.G.S. § 15A-1022.1(a). 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.

      Finally, defendant contends that the State failed to present sufficient

evidence to support an aggravated sentence for the offenses listed in the 2010

indictment.   However, the evidence proffered to the trial court indicated that

defendant, who referred to the victim in e-mails as his “twin,” was brought into the

conspiracy as a friend of the victim, participated in hatching the details of the plan

to strangle the victim, and agreed to incapacitate the victim so the others could

finish him off. This evidence was sufficient to establish that, as to the evidence

supporting both indictments, defendant took advantage of his position of trust or

confidence to place the victim in a vulnerable position.

      We find no evidence that defendant misunderstood the plea agreement, that

he stipulated that the aggravating factor would be applied only to the 2008

indictment, or that the sentence was unlawfully imposed. We reverse the portion of

the Court of Appeals opinion that vacated defendant’s sentence on the 2010

indictment. We remand to the Court of Appeals to reinstate the original sentence




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imposed by the trial court and to consider the remaining issues raised by defendant

on appeal.

        AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

        Justice BEASLEY did not participate in the consideration or decision of this

case.




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