Criminal Practice  –  Constitutional – Ineffective Assistance – Aggravating Factor – Counsel’s Admission

Even though the state failed to notify defendant that it would seek to prove the aggravating factor that defendant was on probation at the time he committed perjury, defense counsel nevertheless admitted to the aggravating factor. Defense counsel’s failure to object to the lack of notice fell below an objective standard of reasonableness, and it prejudiced defendant by subjecting him to harsher punishment.

We reverse judgment entered upon defendant’s conviction for perjury and remand for resentencing.

Although the state notified defendant that the state intended “to prove the existence of an additional prior record point” based on the fact that defendant “[was] on supervised or unsupervised probation, parole, or post-release supervision” at the time he committed the offenses, the state did not seek to add a record level point at sentencing. Moreover, the addition of one record-level point to defendant’s prior record level would not have changed his prior record level1 and, thus, could not have resulted in an enhanced sentence. G.S. § 15A-1340.14(b)(7). Accordingly, defense counsel erred by failing to object to the lack of notice of the aggravating factor the state sought to prove at sentencing.

Defendant contends that his counsel’s failure to object to the lack of notice prejudiced him because he would not have received an aggravated sentence had the objection been made. We agree. Had defendant’s counsel objected to the lack of notice, the state could not have proceeded on that aggravating factor and defendant could not have received an aggravated sentence.

Vacated and remanded for resentencing.

Concurrence

(Tyson, J.) The trial court’s failure to inquire into a knowing and voluntarily waiver of defendant’s rights appears to have prejudiced defendant. Under G.S. § 15A-1022.1(c) and (d), we must reconcile the express language that “A defendant may admit to the existence of an aggravating factor … before or after the trial of the underlying felony” with “Before accepting an admission to the existence of an aggravating factor … the court shall determine that there is a factual basis for the admission, and that the admission is the result of an informed choice by the defendant.”

My review of relevant case and statutory authority fails to disclose any authority interpreting § 15A-1022.1(d) as writing out a defendant’s admission under § 15A-1022.1(c). Reconciling both subsections with Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), a defendant can admit an aggravating factor or prior record level both before and after the guilt-innocence phase after being provided the applicable protections of G.S. § 15A-1022.1(a)-(c), Blakely, and Apprendi. These protections are “that there is a factual basis for the admission, and that the admission is the result of an informed choice by the defendant.” § 15A-1022.1(c). Generally, these protections must be addressed to and waived by the defendant, not by defendant’s counsel.

The indictment failed to allege, the state never proved, and the jury never found the aggravating factor to exist, as is required by Apprendi, Blakely, and § 15A-1340.16(a1). Even if counsel’s waiver of the state’s prior notice to use the aggravating factor was invited error by the stipulation, counsel’s post-trial concession and the trial court’s failure to address defendant personally was error.

Upon remand, G.S. § 15A-1022.1(a)-(e) sets out the procedures for the disposition for resentencing, not § 15A-1340.16(a4). 

State v. Gleason (Lawyers Weekly No. 011-244-20, 17 pp.) (Allegra Collins, J.) (John Tyson, J., concurring in the result) Appealed from Mecklenburg County Superior Court (Donnie Hoover, J.) Brenda Eaddy for the state; Christopher Heaney for defendant. N.C. Ap