              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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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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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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              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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            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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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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             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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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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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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      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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             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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                    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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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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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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            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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