State v. Gleason, 273 N.C. App. 483 (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. To pursue one of the enumerated aggravating factors listed in G.S. 15A-1340.16(d), the state must give notice of its intent, but the factor does not have to be pleaded in the indictment. However, aggravating factors under the catch-all provision in section (d)(20) must be “included in an indictment or other charging instrument.” G.S. 15A-1340.16(a4). Defense counsel erred by failing to object to the factor used at sentencing since it was not alleged in any of the indictments, and the defendant suffered prejudice because he otherwise could not have received an aggravated sentence. Even if the state had offered the factor as originally indicated in its notice to add 1 point to defendant’s prior record under G.S. 15A-1340.14(b)(7), it would not have changed his record level and therefore did not expose him to a higher sentence. The appellate court vacated the judgment and remanded for resentencing.

Judge Tyson concurred with the majority opinion, but wrote separately because he also would have found that the trial court erred by accepting a stipulation from defense counsel, instead of addressing the defendant personally to ensure that it was a knowing and voluntary waiver of his right to have the factor proved beyond a reasonable doubt.