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Criminal Practice –Aggravating Factors – State’s Late Notice – Waiver – First Impression

Even though the state technically only provided defendant 20 days’ notice – rather than the statutorily required 30 days’ notice – of its intent to prove an aggravating factor, since defendant’s trial lawyer stipulated that he had received the proper notice and seen the appropriate documents, and since defendant stipulated to the aggravating factor, defendant waived the notice requirements of G.S. § 15A-1340.16(a6).

Defendant received a fair trial, free of prejudicial error, but we remand for the correction of clerical errors.


Defendant was indicted on one set of charges, and the state gave defendant written notice of its intent to prove an aggravating factor. Defendant was then indicted on a second set of charges.

Twenty days before the trial of all charges (but more than a year after the original notice was issued), the state added the file numbers related to the second set of charges to a copy of its previous notice of intent to prove an aggravating factor. The amended notice was served on defense counsel.

Defendant was acquitted with respect to the first set of charges but convicted of the second set of charges. Defendant stipulated to an aggravating factor but now contends that he was not provided the required notice of the state’s intent to prove the factor.


Under G.S. § 15A-1340.16(a6), the state was required to give defendant 30 days’ notice of its intent to prove an aggravating factor. Although the state only gave defendant 20 days’ notice, defense counsel told the trial court that he was “provided the proper notice” and had “seen the appropriate documents.” Moreover, when asked directly by the trial court if he had talked to his lawyer about what the lawyer’s stipulation meant, defendant responded, “Yes, sir.”

We have not previously considered what constitutes waiver of the notice requirements of § 15A-1340.16(a6). We find the trial court’s colloquy satisfied the requirements of G.S. § 15A-1022.1.

Even though the state had not technically given “proper notice” because the additional file numbers were added to the notice only 20 days before trial instead of 30 days, defendant and his counsel had sufficient information to give an intentional relinquishment of a known right. 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 30-day advance notice of the state’s intent to use the aggravating factor.

Ineffective Assistance Claim

Even if we assume that defendant’s trial counsel erroneously believed the notice of intent to prove an aggravating factor was timely given, counsel’s assistance was nevertheless reasonable considering all of the circumstances of this case.

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 waiving the additional 10 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 (the subject of the aggravating factor) 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.

Defendant has not shown that his attorney’s conduct rose to the level of unreasonableness or that his attorney’s conduct prejudiced his trial. Defendant’s claim of ineffective assistance of counsel is without merit.

No error; remanded for correction of clerical errors.

State v. Wright (Lawyers Weekly No. 011-043-19, 17 pp.) (Donna Stroud, J.) Appealed from Mecklenburg County Superior Court (Linwood Foust, J.) Alexandra Hightower for the state; Jason Christopher Yoder for defendant. N.C. App.

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