                               NO. COA13-518

                      NORTH CAROLINA COURT OF APPEALS

                          Filed: 7 January 2014


STATE OF NORTH CAROLINA


     v.                                Wake County
                                       Nos. 10 CRS 230038, 39
EMANUEL EDWARD SNELLING, JR.



     Appeal by defendant from judgment entered 23 August 2012 by

Judge Carl R. Fox in Wake County Superior Court.        Heard in the

Court of Appeals 20 November 2013.


     Attorney General Roy Cooper, by Assistant Attorney General
     Elizabeth N. Strickland, for the State.

     Attorney Anna S. Lucas, for defendant.


     Elmore, Judge.


     On 23 August 2012, a jury found Emanuel Edward Snelling, Jr.

(defendant), guilty of larceny from the person, robbery with a

dangerous weapon, and second degree kidnapping.     The trial court

sentenced defendant as a prior record level III offender (PRL III)

to consecutive terms of active imprisonment of 26 to 41 months

(second degree kidnapping) and 84 to 110 months (robbery with a

dangerous weapon), with 6 to 8 months (larceny from the person) to

be served concurrently.    Defendant now appeals and raises as error
                                  -2-
the trial court’s: 1.) failure to answer a jury question and 2.)

determination that he was a PRL III.     After careful consideration,

we conclude that there was no trial error as to the jury question,

but we vacate the sentence of the trial court and remand for a new

sentencing hearing.

                                  I. Facts

     During the deliberation phase of trial, the jury indicated

that it had a question about the robbery with a dangerous weapon

charge.    Initially, the trial court instructed the jury on the

sixth and seventh elements of robbery with a dangerous weapon as

follows:

           Sixth, that the defendant had a firearm in his
           possession at the time he obtained the
           property, or that it reasonably appeared to
           the victim that a firearm was being used, in
           which case you may infer that the said
           instrument was what the defendant’s conduct .
           . . seventh, that the defendant obtained the
           property by endangering or threatening the
           life of [victim] with a pistol or firearm.


     Thereafter,   the   trial   court   realized   that   the   initial

instruction was incomplete and told the jury:

           If you’ll turn back to the robbery with a
           firearm, the sixth element, doesn’t have the
           ending language on it and it should read: In
           – let’s see. Read me -- read it again. Sixth,
           that the defendant had a firearm in his
           possession at the time he obtained the
           property or that it reasonably appeared to the
                                -3-
          victim that a firearm was being used, in which
          case you may infer that the said instrument
          was what the defendant’s conduct represented
          it to be. It should have “be” at the end. I’ve
          learned there aren’t any English majors on the
          Pattern Jury Instructions committee. Anybody
          have any questions about that remaining
          language? Okay. Thank you.

     A short time later, the jury posed this question to the trial

court: “does the [S]tate have to prove physical presence of a

pistol for the seventh bullet of robbery with a firearm or is it

simply that she had to believe the presence of a pistol and feel

threatened?”    Over   defendant’s    objection,   the   trial   court

responded:

          TRIAL COURT: When I read the instruction for
          number six, that the defendant had a firearm
          in his possession at the time he obtained the
          property or that he was reasonably or
          reasonably appeared to the victim that a
          firearm was being used, in which case you may
          infer that the said instrument was what the
          defendant's conduct represented it to be.
          That carries over into any reference to a
          pistol in the instructions, so number seven,
          when it refers to a pistol, you can take it in
          context of the fact that the statement about
          a firearm and the representation of a firearm
          from number six. Okay, six. Does that answer
          the question?

          JUROR NO. 6: I believe so.

(Emphasis added).   Thereafter, the jury continued deliberating and

reached a unanimous verdict of guilty as to all charges.            At

sentencing, the parties stipulated that defendant had 6 prior
                                -4-
record level points and was thus a PRL III.   It is also undisputed

that 1 of the 6 points was assigned to defendant because he was on

probation (the probation point) at the time these offenses were

committed.   At no time did the trial court: 1.) advise defendant

of his rights to prove mitigating factors and have a jury decide

the existence of the probation point; or 2.) determine whether

written notice was given to defendant by the State of its intent

to seek the probation point.

                           II. Analysis

a.) Answer to Jury Question

     Defendant first argues that the trial court erred in its

answer to a jury question about whether the State must prove the

actual presence of a firearm on the charge of robbery with a

dangerous weapon.   We disagree.

          On appeal, this Court considers a jury charge
          contextually and in its entirety. The charge
          will be held to be sufficient if it presents
          the law of the case in such manner as to leave
          no reasonable cause to believe the jury was
          misled or misinformed. The party asserting
          error bears the burden of showing that the
          jury was misled or that the verdict was
          affected by an omitted instruction. Under such
          a standard of review, it is not enough for the
          appealing party to show that error occurred in
          the jury instructions; rather, it must be
          demonstrated that such error was likely, in
          light of the entire charge, to mislead the
          jury.
                                  -5-
Hammel v. USF Dugan, Inc., 178 N.C. App. 344, 347, 631 S.E.2d 174,

178 (2006) (citations and quotation marks omitted).         The trial

court has the duty to “declare and explain the law arising on the

evidence relating to each substantial feature of the case.”     State

v. Hockett, 309 N.C. 794, 800, 309 S.E.2d 249, 252 (1983) (citation

and quotation omitted).

     In support of his argument that the trial court failed to

answer the jury’s question, defendant relies on Hockett, which

also involved a robbery with a dangerous weapon charge.       Id.   In

Hockett, the jury asked the trial court during its deliberation if

“the threat of harm or force with a deadly weapon [is] the same as

actually having or using a weapon?”     Id.   Instead of answering the

jury’s question or reviewing the elements of the charge, the trial

court instructed the jury to continue its deliberation.        Id. at

801-02, 309 S.E.2d at 252-53. Our Supreme Court ruled that because

“the jury did not understand . . . how the presence or absence of

a gun would affect the degree of guilt[,]” the trial court’s

failure to answer the jury’s question of law was prejudicial error.

Id. at 802, 309 S.E. 2d at 253.

     Defendant’s reliance on Hockett is misplaced.          Unlike in

Hockett, the trial court in the present case answered the jury’s

legal question, and the jury indicated that it understood the trial
                                          -6-
court’s answer. The trial court told the jury to interpret element

numbers six and seven of the robbery with a dangerous weapon charge

in   tandem        rather   than     as   mutually    exclusive   requirements.

Specifically, the trial court’s answer properly clarified that the

jury must find either that 1.) defendant actually possessed a

firearm;      or    2.)     victim   reasonably      believed   that   defendant

possessed a firearm, in which case the jury could infer that the

object was a firearm.          See State v. Lee, 128 N.C. App. 506, 510,

495 S.E.2d 373, 376 (1998) (“The State need only prove that the

defendant represented that he had a firearm and that circumstances

led the victim reasonably to believe that the defendant had a

firearm and might use it.”); see also State v. Bartley, 156 N.C.

App. 490, 496, 577 S.E.2d 319, 323 (2003) (“Proof of armed robbery

requires that the victim reasonably believed that the defendant

possessed . . .           a firearm in the perpetration of the crime[;]”

State v. Fleming, 148 N.C. App. 16, 22, 557 S.E.2d 560, 564 (2001)

(“If there is some evidence that the implement used was not a

firearm . . . a permissive inference[] [permits] but does not

require the jury to infer that the instrument used was in fact a

firearm[.]”).        Thus, the trial court did not err in its answer to

the jury.

b.) Sentencing Procedure Pursuant to N.C. Gen. Stat. 15A-1022.1
                                        -7-
      Defendant also argues that the trial court erred in sentencing

defendant as a PRL III because it failed to comply with N.C. Gen.

Stat. § 15A-1022.1 (2011).        We disagree.

       “[We review alleged sentencing errors for] ‘whether [the]

sentence is supported by evidence introduced at the trial and

sentencing hearing.’”       State v. Deese, 127 N.C. App. 536, 540, 491

S.E.2d 682, 685 (1997) (quoting N.C. Gen. Stat. § 15A-1444(a1)

(Cum. Supp. 1996)). However, “[t]he determination of an offender’s

prior record level is a conclusion of law that is subject to de

novo review on appeal.”        State v. Bohler, 198 N.C. App. 631, 633,

681 S.E.2d 801, 804 (2009) (citation omitted).                     The PRL for a

felony offender during sentencing is determined by “the sum of the

points assigned to each of the offender’s prior convictions[.]”

N.C. Gen. Stat. § 15A-1340.14 (2011).                  A PRL II offender has

between 2-5 points, whereas a PRL III offender has at a minimum of

6 and no more than 9 points.                  Id.     A sentencing error that

improperly increases a defendant’s PRL is prejudicial.                  State v.

Hanton, 175 N.C. App. 250, 260, 623 S.E.2d 600, 607 (2006).

      Under N.C. Gen. Stat § 15A-1340.14 (b)(7) (2011), a defendant

shall be assigned one point “[i]f the offense was committed while

the   offender   was   on    supervised       or    unsupervised   probation[.]”

“[T]he   jury    shall      determine     whether      the   point    should   be
                                -8-
assessed[,]” unless the defendant admits to it.    N.C. Gen. Stat.

§ 15A-1340.16 (2011).   In such cases, the point will be treated as

though it was found by the jury.       Id.   These admissions are

generally constrained by the procedures set out in N.C. Gen. Stat.

15A-1022.1, which mandates that the trial court

          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.

     N.C. Gen. § 15A-1022.1 (2011).     However, these procedural

requirements are not mandatory when “the context clearly indicates

that they are inappropriate.”   Id.

     In State v. Marlow, the defendant was sentenced at a PRL II.

State v. Marlow, ___ N.C. App. ___, ___, 747 S.E.2d 741, 748

(2013).   One of his points was determined pursuant to N.C. Gen.

Stat. § 15A-1340.14(b)(7) because of a conviction while he was on

probation.   Id.   Even though the trial court did not make any of

the inquiries mandated by N.C. Gen. Stat. § 15A-1022.1, this Court

held that “conducting a statutorily mandated colloquy with [the

defendant] . . . would have been inappropriate and unnecessary”

where: 1.) the defendant stipulated to his prior record level; 2.)

the defendant’s counsel could have “inform[ed] [the defendant] of
                                       -9-
the repercussions of conceding certain prior offenses[;]” 3.) the

“defendant had the opportunity to interject had he not known such

repercussions[;]” and 4.) the additional point was a mere “routine

determination” by the trial court based on the circumstances.                  Id.

at ___, 747 S.E.2d at 747-48.

       Similarly,   in    the   case   at    bar,    it    is   uncontested   that

defendant stipulated to being on probation when he committed

larceny from the person, robbery with a dangerous weapon, and

second degree kidnapping.         The prosecutor and defendant’s counsel

signed the prior record level worksheet “agree[ing] with the

defendant’s   prior      record   level[.]”         At    sentencing,   defendant

stipulated that he was a PRL III: two points for a Class H Felony

conviction, three points for three class one misdemeanors, and one

probation point.         Defendant admitted at trial that he was on

probation at the time these offenses occurred, and his attorney

also    alluded     to    defendant’s       probation       during   sentencing.

Moreover, the trial court spoke at sentencing, without resistance

from defendant, about his having “just been placed on probation”

when he committed these offenses.             Thus, the trial court ruled

that defendant’s PRL was stipulated by the parties resulting in

six prior record points at a PRL III. Despite defendant’s numerous

opportunities to oppose the finding of the probation point, he did
                                -10-
not.    Under the circumstances, the determination of defendant’s

probation point was routine and a non-issue.    Accordingly, we hold

that within the context of defendant’s sentencing hearing, the

procedures specified by N.C. Gen. Stat. § 15A-1022.1 would have

been inappropriate.    See Marlow, supra.

c.) Sentencing Procedure Pursuant to        N.C. Gen. Stat. § 15A-

1340.16(a6)

       In his final argument on appeal, defendant avers that the

trial court erred in sentencing defendant as a PRL III because it

failed to comply with N.C. Gen. Stat § 15A-1340.16(a6).     We agree.

       N.C. Gen. Stat. § 15A-1340.16(a6) requires the State

           to 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) (2011).      The statute is clear

that unless defendant waives the right to such notice, the State

must provide defendant with advanced written notice of its intent

to establish: 1.) any of the twenty aggravating factors listed in

N.C. Gen. Stat. § 15A-1340.16(d); or 2.) a probation point pursuant

to N.C. Gen. Stat. 15A-1340.14(b)(7).    Id.   The trial court shall
                                    -11-
determine if the State provided defendant with sufficient notice

or whether defendant waived his right to such notice.            N.C. Gen.

Stat. § 15A-1022.1 (2011).

     Here, 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.     Moreover, the record does not indicate that

defendant waived his right to receive such notice. Thus, the trial

court erred by including the probation point in its sentencing of

defendant as a PRL III.      This error was prejudicial because the

probation point raised defendant’s PRL from a PRL II to a PRL III.

See Hanton, supra.

                                  III. Conclusion

     In sum, the trial court did not err in its answer to a jury

question about whether the State must prove the actual presence of

a firearm on the charge of robbery with a dangerous weapon.

Similarly, the trial court did not err in failing to conduct a

statutorily mandated colloquy with defendant pursuant to N.C. Gen.

Stat § 15A-1022.1.    However, the trial court committed prejudicial

error by including the probation point in sentencing defendant as

a PRL III without determining if the State provided sufficient
                              -12-
notice of its intent to seek the probation point or whether

defendant waived such statutory requirements per N.C. Gen. Stat.

§ 15A-1340.16(a6).   As such, we vacate defendant’s sentence and

remand to the trial court for resentencing in accordance with this

opinion.

     Remanded for new sentencing hearing.

     Judges McCULLOUGH and DAVIS concur.
