State v. Wright, ___ N.C. App. ___, 826 S.E.2d 833 (May. 7, 2019)

Because the defendant waived his right to have a jury determine the presence of an aggravating factor, there was no error with respect to the defendant’s sentence. The defendant was arrested for selling marijuana on 7 August 2015. He was arrested a second time for the same conduct on 15 October 2015. On 11 January 2016, the defendant was indicted for charges arising from the second arrest. On 14 April 2016, the State served the defendant with the notice of intent to prove aggravating factors for the charges arising from the second arrest. On 2 May 2016, the defendant was indicted for charges in connection with the first arrest. Over a year later, but 20 days prior to trial on all of the charges, the State added the file numbers related to the defendant’s first arrest to a copy of the previous notice of intent to prove aggravating factors. The trial began on 21 August 2017 for all of the charges. The defendant was found guilty only on charges from the first arrest. When the State informed the court that it intended to prove an aggravating factor, defense counsel stated that he received proper notice and the defendant stipulated to the aggravating factor. The trial court sentenced the defendant in the aggravated range and the defendant appealed. On appeal the defendant argued that the trial court erred by sentencing him to an aggravated sentence when the State did not provide 30 days written notice of its intent to prove an aggravating factor for the charges arising from the first arrest, and that the defendant did not waive his right to such notice. Here, the defendant was tried on all pending charges and prior to sentencing stipulated to the existence of the aggravating factor. G.S. 15A-1022.1 requires the trial court, during sentencing, to determine whether the State gave the defendant the required notice or if the defendant waived his right to that notice. Here, when the trial court inquired about the notice of the aggravating factor, defense counsel informed the trial court that he was provided proper notice and had seen the appropriate documents. The trial court also asked the defendant if he had had an opportunity to speak with his lawyer about the stipulation and what it means. The defendant responded in the affirmative. The trial court’s colloquy satisfied the requirements of G.S. 15A-1022.1 and the 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.