Case Summary - N.C. Court of Appeals (September 15, 2020)

This post summarizes an opinion issued by the North Carolina Court of Appeals on September 15, 2020. Defendant received ineffective assistance of counsel where his attorney failed to object to a non-statutory aggravating factor that was not alleged in the indictment. State v. Gleason, __ N.C. App. __ (Sept. 15, 2020) The defendant was indicted for stalking, violating a domestic violence protective order, and making a false report to law enforcement. The state gave notice of two statutory aggravating factors under G.S. 15A-1340.16(d)(5) (disrupting enforcement of laws) and 1340.16(d)(15) (taking advantage of position of trust), and notice that the state would seek to prove the existence of an additional prior record level point under G.S. 15A-1340.14(b)(7) (defendant was on probation at the time of the offense) for sentencing purposes. The state filed superseding indictments alleging additional offenses, and the defendant was ultimately convicted at trial of one count of perjury and one count of violating a DVPO. At sentencing, the state asked to proceed only on an “aggravating factor” for the defendant being on probation at the time of the offense, and defense counsel admitted that the defendant was on probation. The trial judge found it as an aggravating factor under the catch-all provision in G.S. 15A-1340.16(d)(20) for “any other aggravating factor reasonably related to the purposes of sentencing” and entered an aggravated judgment. On appeal, the defendant argued he received ineffective assistance of counsel based on his attorney’s failure to object to the aggravating factor, and the appellate court agreed. [...]