Opinion
No. COA11–1256.
2012-04-17
STATE of North Carolina v. Sidney Wayne WILLIAMS.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde and Special Deputy Attorney General Robert C. Montgomery, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for Defendant–Appellee.
Appeal by the State from judgment entered 6 July 2011 by Judge H. William Constangy in Mecklenburg County Superior Court. Heard in the Court of Appeals 7 March 2012. Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde and Special Deputy Attorney General Robert C. Montgomery, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for Defendant–Appellee.
ERVIN, Judge.
The State appeals from an order entered by the trial court granting Defendant Sidney Wayne Williams' motion to preclude the admission of any evidence at his resentencing hearing tending to prove that Defendant was on probation at the time he committed the offense of attempted robbery with a dangerous weapon. On appeal, the State contends that the trial court erred by concluding that (1) Defendant had not waived his challenge to the admission of evidence relating to his probationary status; and (2) the State had failed at the sentencing hearing to provide timely written notice of its intent to prove Defendant's probationary status. After careful consideration of the State's challenge to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.
I. Factual Background
On 13 September 2007, a magistrate's order was issued charging Defendant with robbery with a dangerous weapon. On 1 October 2007, the Mecklenburg County grand jury returned a bill of indictment charging Defendant with attempted robbery with a dangerous weapon. During pre-trial discovery, the State provided the Defendant with a prior record level worksheet indicating that Defendant should be awarded an additional prior record point for committing an offense “while on supervised or unsupervised probation, parole, or post-release supervision” and that Defendant was a Level IV offender.
A detailed description of the facts underlying Defendant's conviction can be found in State v. Williams, ––– N.C.App. –––, 709 S.E.2d 602, 2011 WL 532363, *1–2 (2011) (unpublished). We need not provide a description of the facts underlying Defendant's conviction in order to resolve the issues that are before us in this case.
The charge against Defendant came on for trial before Judge Timothy L. Patti and a jury at the 11 March 2009 criminal session of the Mecklenburg County Superior Court. On 12 March 2009, the jury returned a verdict finding Defendant guilty of attempted robbery with a dangerous weapon. In light of the jury's verdict, Judge Patti determined that Defendant should be sentenced as a Level IV offender and ordered that Defendant be imprisoned for 117 to 150 months.
After the entry of judgment, Defendant noted an appeal to this Court. On appeal, Defendant contended that the State had failed to prove his prior convictions by a preponderance of the evidence and that Defendant should have been sentenced as a Level III rather than a Level IV offender. Williams, 2011 WL 532363 at *2. On 15 February 2011, this Court filed an opinion holding that the State had failed to adequately establish the existence of Defendant's alleged prior conviction for possession of drug paraphernalia and remanded this case to the Mecklenburg County Superior Court for resentencing. Id. at *4.
Prior to the resentencing hearing, Defendant filed a motion alleging that the State had failed to provide sufficient notice of its intent to attempt to establish the existence of the additional prior record point authorized by N.C. Gen.Stat. § 15A–1340.14(b)(7) and requesting that the State be prohibited from introducing any evidence concerning Defendant's probationary status at the resentencing hearing. On 25 May 2011, the trial court orally announced its intention to grant Defendant's motion. On 6 July 2011, the trial court entered an order concluding that (1) the prior record level worksheet that the State had provided to Defendant in discovery did not constitute written notice of the State's intent to prove that Defendant had committed the offense for which he was being sentenced while on probation; (2) the State had failed to provide “ ‘specific, written, proper, and timely’ “ notice that it intended to attempt to prove that Defendant should be awarded the additional prior record point authorized by N.C. Gen.Stat. § 15A–1340.14(b)(7) as required by N.C. Gen.Stat. § 15A–1340.16(a6); and (3) the resulting prejudice to Defendant warranted exclusion of any evidence concerning Defendant's probationary status at the resentencing hearing. In reaching these conclusions, the trial court made the following findings of fact:
1. N.C. Gen.Stat. § 15A–1340.16 (a6) requires Notice of Intent to Use Aggravating Factors or Prior Record Level Points be given to a defendant at least 30 days before trial.
2. The defendant was originally represented by Attorney Timothy D. Smith, Esq. (Attorney Smith) of the Mecklenburg County Bar.
3. Attorney Smith began representing the defendant months prior to the original trial and remained his attorney up to and through the original trial and subsequent sentencing.
4. New counsel was appointed after the defendant's original sentence was vacated and remanded for re-sentencing by the Court of Appeals.
5. Mr. Williams moved the Court in Limine to exclude evidence of certain probationary points for sentencing located on the Prior Record Level Worksheet (“Worksheet”) because it violated N.C. Gen. Stat § 15A-[1340].16(a6).
6. The Worksheet had an additional point handwritten on it and trial counsel for Mr. Williams testified that he knew the State added that point for sentencing purposes.
7. Attorney Smith testified that the proposed Worksheet, given to the defendant's trial counsel at least 30 days before trial, demonstrated a 1 Prior Record Level point and had a case number on the basis that the offense was committed while on probation. (State's Exhibit A).
8. Attorney Smith also testified that [ ], and the court finds:
i. That at no point throughout his representation did Attorney Smith receive a “Notice of Intent” to prove an additional point for the defendant being on probation at the time of offense (probation point).
ii. At no point did the defendant execute any waiver of his right to receive written “Notice of Intent” to prove the probation point.
iii. Attorney Smith has received various forms from various prosecutors providing knowledge to Attorney Smith that the State would be seeking aggravating factors and prior record level points including but not limited to the AOC form designated as such. (Form AOC–CR–614).
iv. Attorney Smith received a packet referred to as “Discovery” which included documents such as lab results, and defendant's statements.
v. That after receiving the Discovery and Worksheet, Attorney Smith knew about the probation point and a prior record level 4 for sentencing.
vi. That without the proposed probation point, the defendant would otherwise be a prior record level 3 based on his prior convictions.
vii. That Attorney Smith advised the defendant of the Level 4 prior record level.
viii. That the Defendant's probationary status is also referred to in other portions of Discovery.
9. The State offered no evidence of AOC form CR–614 (titled “Notice of Aggravating Factors”) as ever being provided to or served upon Attorney Smith.
10. The State offered no evidence of any non-AOC form as being provided to or served upon Attorney Smith that demonstrated a “Notice of Intent to Use or Prove” the existence of any point(s).
On the same date, the trial court entered a judgment finding that Defendant was a Level III offender and sentencing him to 95 to 123 months imprisonment. The State noted an appeal to this Court from the trial court's judgment and order.
II. Legal Analysis
A. Motion to Dismiss
As an initial matter, we must address Defendant's motion to dismiss the State's appeal. According to Defendant, since the State claims to have the right to appeal the trial court's judgment and order based on N.C. Gen.Stat. § 15A–1445(a)(3)(a), the challenged judgment and order must have “[r]esult[ed] from an incorrect determination of the [D]efendant's prior record level....” N.C. Gen.Stat. § 15A–1445(a)(3)(a). In Defendant's view, the argument that the State has advanced on appeal involves a challenge to the 6 July 2011 order rather than to the trial court's calculation of Defendant's prior record level. For that reason, Defendant contends that the State has failed to demonstrate the existence of a right to appeal the trial court's judgment and order pursuant to N.C. Gen.Stat. § 15A–1445(a)(3)(a). We do not find this argument persuasive.
“ ‘The [S]tate's right of appeal in a criminal proceeding is entirely statutory; it had no such right at the common law. [Accordingly, s]tatutes granting a right of appeal to the [S]tate must be strictly construed.’ “ State v. Fowler, 197 N.C.App. 1, 5, 676 S.E.2d 523, 531 (2009) (quoting State v. Murrell, 54 N .C.App. 342, 343, 283 S.E.2d 173, 173 (1981), disc. review denied, 304 N.C. 731, 288 S.E.2d 804 (1982)), appeal dismissed and disc. review denied,364 N.C. 129, 696 S.E.2d 695 (2010). N.C. Gen.Stat. § 15A–1445 provides, in pertinent part, that:
(a) Unless the rule against double jeopardy prohibits further prosecution, the State may appeal from the superior court to the appellate division:
....
(3) When the State alleges that the sentence imposed:
a. Results from an incorrect determination of the defendant's prior record level under G.S. 15A–1340.14 or the defendant's prior conviction level under G.S. 15A–1340.21.
According to the notice filed by the State in this case, the State is attempting to appeal the trial court's order granting Defendant's motion to preclude the admission of any evidence concerning the extent to which Defendant was on probation at the time that he committed the offense for which he is being sentenced and the judgment entered at the conclusion of the resentencing proceeding. Although the State's challenge to the trial court's judgment does focus on the trial court's decision to preclude the admission of evidence concerning the extent to which Defendant was on probation at the time of the attempted robbery for which he was being sentenced, the essential thrust of the State's argument is that “[t]he trial court erred in sentencing Defendant at a prior record Level III when it precluded the State from presenting evidence that Defendant was on probation at the time he committed the offense.” Thus, the State's argument rests on a contention that the trial court incorrectly determined Defendant's prior record level by erroneously precluding the State from establishing that Defendant should be awarded the additional prior record point authorized by N.C. Gen.Stat. § 15A–1340.14(b)(7). As a result, we conclude that the State's challenge to the trial court's judgment and order is properly before this Court and that Defendant's motion to dismiss the State's appeal should be denied.
In view of the fact that the State noted an appeal from the trial court's judgment and the fact that the trial court's judgment rested on its decision to exclude evidence concerning Defendant's status as a probationer, we need not determine whether the trial court's order ruling on Defendant's motion was separately appealable and express no opinion concerning that subject.
B. Waiver
In challenging the trial court's decision to preclude the State from attempting to establish the existence of the prior record point authorized by N.C. Gen.Stat. § 15A–1340.14(b)(7), the State initially contends that the trial court erred by failing to conclude that Defendant had waived his right to contest the introduction of evidence tending to show that he was on probation at the time of the attempted robbery. According to the State, the appropriateness of assessing the challenged prior record point had been addressed by this Court in the course of deciding Defendant's appeal from the original judgment entered by Judge Patti and resolved in the State's favor. In attempting to persuade us of the validity of this argument, the State notes the statement in our earlier opinion to the effect that Defendant had admitted at the initial sentencing hearing that “he was on probation at the time of the offense,” Williams, 2011 WL 532363 at *1, points out that Defendant had not argued that the State had failed to give him proper notice of its intent to establish the existence of the prior record point authorized by N.C. Gen.Stat. § 15A–1340.14(b)(7) in the brief submitted in support of his prior appeal, and argues that these two factors work a waiver of Defendant's right to challenge the adequacy of the notice that he received based on the “law of the case” doctrine. The State's argument lacks merit.
“Under the law of the case doctrine, ‘when an appellate court passes on a question and remands the cause for further proceedings, the questions there settled become the law of the case, both in subsequent proceedings in the trial court and on subsequent appeal, provided the same facts and the same questions which were determined in the previous appeal are involved in the second appeal.’ “ State v. Dorton, 182 N.C.App. 34, 39, 641 S.E.2d 357, 361 (quoting Hayes v. City of Wilmington, 243 N.C. 525, 536, 91 S.E.2d 673, 681–82 (1956)), disc. review denied,361 N.C. 571, 651 S.E.2d 225 (2007). As we have previously noted in analyzing an appellant's ability to advance an argument in a second appeal despite the fact that this argument could have been, but was not, advanced in an earlier appeal, “the law of the case doctrine is ‘specifically limited ... to points actually presented and necessary for the determination of the case.’ “ Id. at 40, 641 S.E.2d at 361 (quoting Taylor v. Abernethy, 174 N.C.App. 93, 102, 620 S.E.2d 242, 249 (2005), cert. denied,360 N.C. 367, 630 S.E.2d 454 (2006)). Thus, the relevant question for purposes of evaluating the validity of the State's “law of the case” argument is the extent, if any, to which we actually addressed and decided the present notice issue in the course of evaluating Defendant's challenge to Judge Patti's judgment.
The only issue addressed in our prior opinion was the extent to which the State had failed to adequately establish the existence of Defendant's prior convictions as required by N.C. Gen.Stat. § 15A–1340.14(f) at the sentencing hearing held before Judge Patti. Williams, 2011 WL 532363 at *2. After carefully examining the record, we conclude that the issue of whether the State gave sufficient notice of its intent to prove the existence of the prior record point authorized by N.C. Gen.Stat. § 15A–1340.16(a6) was neither presented to nor addressed by this Court in our prior opinion. Instead, the language upon which the State relies was descriptive in nature and did not reflect any decision actually made by this Court for the purpose of addressing Defendant's challenge to Judge Patti's judgment. For that reason, we further conclude that “the law of the case doctrine [could not have] ... preclude[ed Defendant] from raising the issue at resentencing.” Dorton, 182 N.C.App. at 40, 641 S.E.2d at 361(holding that the “law of the case” doctrine did not preclude the State from challenging the trial court's determination of the defendant's prior record level at a resentencing hearing despite the fact that the correctness of the trial court's prior record level determination had not been raised in the defendant's initial appeal); Taylor, 174 N.C.App. at 102, 620 S.E.2d at 245(holding that the defendant's failure to challenge certain of the trial court's rulings in an earlier appeal did not preclude him from raising those issues during a subsequent appeal because they had not been actually decided in and were not necessary to the decision of the defendant's first appeal); Creech v. Melnik, 147 N.C.App. 471, 474, 556 S.E.2d 587, 589–90 (2001) (holding that the “law of the case” doctrine did not apply to dicta included in earlier appellate opinions in a given case and that the “law of the case” doctrine only operated to bar further consideration of issues that had, in fact, been presented for the court's consideration and necessarily had to be addressed in order for the court to decide the initial appeal), disc. review denied,355 N.C. 490, 561 S.E.2d 498 (2002). As a result, we conclude that the “law of the case” doctrine does not operate to bar Defendant from raising the issue of whether the State had provided sufficient notice of its intent to prove the existence of the prior record point authorized by N.C. Gen.Stat. § 15A–1340.14(b)(7).
C. Notice
Finally, the State contends that the trial court erred by concluding that the State failed to provide adequate notice that it intended to prove that Defendant was on probation at the time that he committed the offense for which he was being sentenced. In support of this assertion, the State argues that the prior record level worksheet provided to Defendant during pre-trial discovery constituted sufficient written notice of its intent to prove the existence of the prior record point authorized by N.C. Gen.Stat. § 15A–1340.16(a6) and that the trial court erred by reaching a contrary conclusion. More specifically, the State contends that the trial court made factual findings that lack evidentiary support and conclusions of law that reflected an incorrect understanding of the applicable statutory provisions. Once again, we conclude that the State's argument lacks merit.
At the hearing on Defendant's motion, Defendant's former trial counsel testified that, at least thirty days prior to Defendant's trial, he had received, in the course of discovery, a proposed prior record level worksheet that included a handwritten “1” in the block relating to whether the offense with which Defendant was charged had been committed while Defendant was on probation and that he “knew about the probation point and a prior record level [IV] for sentencing.” However, Defendant's former trial counsel also stated that adequate notice as required by N.C. Gen.Stat. § 15A–1340.16(a6) is a writing placing someone on notice and that, while the proposed record level worksheet provided him actual notice of the possible probationary point, it “did not necessarily tell [him] ... whether or not the State intended to use that as an aggravating factor for sentencing.” In addition, Defendant's former trial counsel testified that he had received a “motion for protective order and motion for [d]iscovery” from the State which contained no reference to any prior record level point calculation and that he had never been given written notice that the State intended to attempt to establish that Defendant should be awarded an additional prior record point because the crime for which he had been charged had been committed while Defendant was on probation. As a result, based on this logic, Defendant's trial counsel claimed that he did not “receive notice of intent to use the prior record level points for the probationary status in ... Discovery, before Discovery or after the Discovery thirty days before trial.”
A trial court's decision to grant or deny a motion in limine is essentially the same as a trial court's decision to grant or deny a motion to suppress and should be reviewed on appeal in a similar manner. “Our review of a trial court's denial of a motion to suppress is strictly limited to a determination of whether [the trial court's] findings are supported by competent evidence, and in turn, whether the findings support the trial court's ultimate conclusion.” State v. Allison, 148 N.C.App. 702, 704, 559 S.E.2d 828, 829 (2002) (citation omitted). Assuming that the trial court's factual findings have adequate evidentiary support, they are conclusive for purposes of appellate review even if the record contains conflicting evidence. State v. Crudup, 157 N.C.App. 657, 659, 580 S.E.2d 21, 23 (2003). “Once [we] conclude [ ] that the trial court's findings of fact are supported by the evidence, [our] next task ‘is to determine whether the trial court's conclusion [s] of law [are] supported by the findings.’ “ State v. Steen, 352 N.C. 227, 237, 536 S.E.2d 1, 7–8 (2000) (quoting State v. Hyde, 352 N.C. 37, 45, 530 S.E.2d 281, 288 (2000), cert. denied, 531 U.S. 1114, 121 S.Ct. 862, 148 L.Ed.2d 775 (2001)), cert. denied, 531 U.S. 1167, 121 S.Ct. 1131, 148 L.Ed.2d 997 (2001). The trial court's conclusions of law are subject to de novo review. State v. Edwards, 185 N.C.App. 701, 702, 649 S.E.2d 646, 648,disc. review denied,362 N.C. 89, 656 S.E.2d 281 (2007). As a result of the fact that the trial court's findings of fact have adequate evidentiary support, the only remaining question is whether the trial court correctly concluded that the State failed to provide the notice required by N.C. Gen.Stat. § 15A–1340.16(a6).
In challenging the adequacy of the record support for the trial court's findings of fact, the State argues that the trial court's findings ignore the “admission” by Defendant's former trial counsel that he received notice that the State intended to prove that Defendant should be awarded the prior record point authorized by N.C. Gen.Stat. § 15A–1340.14(b)(7) and fail to treat the delivery of the prior record worksheet as adequate compliance with N .C. Gen.Stat. § 15A–1340.16(a6). We do not, however, read the record as containing such an “admission” by Defendant's former trial counsel. Instead, the relevant testimony consists of an acknowledgement that Defendant's former trial counsel knew that the assignment of the prior record point authorized by N.C. Gen.Stat. § 15A–1340.14(b)(7) was a possibility coupled with a claim that Defendant's former trial counsel had never received a formal notice of the type that he believed to be required by N.C. Gen.Stat. § 15A–1340.16(a6). Thus, given that the relevant testimony is consistent with, rather than contrary to, the trial court's findings and given that the trial court's treatment of the prior record worksheet delivered to Defendant's former trial counsel involves an issue of law instead of an issue of fact, we believe that the State's challenge to the trial court's findings of fact lacks merit.
“Under the Structured Sentencing Act, before imposing a felony sentence, the sentencing judge must determine a defendant's prior record level pursuant to [N.C. Gen.Stat.] § 15A–1340.14.” State v. Alexander, 359 N.C. 824, 827, 616 S.E.2d 914, 916–17 (2005) (citing N.C. Gen.Stat. § 15A–1340.13(b)). “The prior record level of a felony offender is determined by calculating the sum of the points assigned to each of the offender's prior convictions.” N.C. Gen.Stat. § 15A–1340.14(a). The trial court may award an additional prior record point to the defendant if sufficient proof is offered that the offense for which the defendant was convicted “was committed while the [defendant] was on supervised or unsupervised probation, parole, or post-release supervision ....“ N.C. Gen.Stat. § 15A–1340.14(b)(7). As a prerequisite for the assessment of the additional prior record point authorized by N.C. Gen.Stat. § 15A–1340.14(b)(7), “[t]he State must provide a defendant with written notice of its intent to prove the existence [of that prior record point] at least 30 days before trial or the entry of a guilty or no contest plea” unless the defendant waives his or her right to receive such a notice. N.C. Gen.Stat. § 15A–1340.16(a6). “The State ha[s] at its disposal a form [, Form No. AOC–CR–614,] routinely used by prosecutors to comply with this minimal requirement.” State v. Mackey, ––– N.C.App. –––, –––, 708 S.E.2d 719, 722 (2011).
As we have already noted, the State contends that the fact that Defendant's trial counsel received a prior record worksheet which contained a prior record level calculation that incorporated the prior record point authorized by N.C. Gen.Stat. § 15A–1340.14(b)(7) and indicated that Defendant should be sentenced as a Level IV offender constituted adequate compliance with the notice requirements of N.C. Gen.Stat. § 15A–1340.16(a6). However, “the statutory notice required to notify the defendant of the State's intent to use aggravating factors [or offer proof of a defendant's probationary status at the time of the offense] requires the State to give the defendant notice pursuant to N.C. Gen.Stat. § 15A–1340.16(a6).” Mackey, ––– N.C.App. at ––––, 708 S.E.2d at 722. The prior record worksheet upon which the State relies is devoid of any explicit assertion that the State intended to prove that Defendant committed the crime for which he was being sentenced while on probation. At most, this prior record worksheet constituted a possible calculation of Defendant's prior record level and did not provide affirmative notice that the State intended to prove the existence of the prior record point authorized by N.C. Gen.Stat. § 15A–1340.14(b)(7) as required by N.C. Gen.Stat. § 15A–1340 .16(a6). Id. (holding that the delivery of a document embodying a plea offer which contained a list of aggravating factors and the defendant's prior record level did not constitute substantial compliance with N.C. Gen.Stat. § 15A1340.16(a6) on the grounds that the proffered plea offer did not acknowledge that the purpose of the document was to provide notice that the State intended to prove the existence of the relevant statutory aggravating sentencing factors, that the document may not have been properly served, and that the State had Form No. AOC–CR–614 at its disposal). As was the case in Mackey, the State “had the ability to comply with the statute using regular forms promulgated for this specific purpose by the Administrative Office of the Courts.” ––– N.C.App. at –––, 708 S.E.2d at 722. Moreover, the State could have provided written notice of its intention to seek to prove Defendant's probationary status as a sentence enhancing factor by means other than using Form No. AOC–CR–614, but failed to do so. Id. at –––, 708 S.E.2d at 721 (stating that “[t]he plain language of the statute requires the State to provide written notice at least 30 days prior to trial of each aggravating factor [or the probationary status] it seeks to prove”). As a result, given that competent evidence supported the trial court's findings of fact that (1) Defendant's trial counsel did not receive adequate notice of the State's intent to prove that Defendant was on probation at the time that he committed the offense for which he had been convicted and (2) the State had not offered any evidence tending to show that Defendant had been served with a notice indicating the State's intent to attempt to prove the existence of the prior record point authorized by N.C. Gen.Stat. § 15A–1340.14(b)(7) and given that the trial court's findings of fact adequately supported its conclusions of law that the “[w]orksheet did not constitute written notice of intent to prove the probation point during sentencing” and that “[t]he State [had] failed to provide [Defendant] or his trial counsel with ‘specific, written, proper, and timely notice’ of its intent to prove the probation point ... under [N.C. Gen.Stat.] § 15A–1340.16(a6),” the trial court did not err by precluding the State from offering evidence tending to show that Defendant had been on probation at the time that he committed the offense for which he was being sentenced.
III. Conclusion
As a result, for the reasons set forth above, we conclude that the trial court correctly precluded the State from attempting to establish the existence of the prior record point authorized by N.C. Gen.Stat. § 15A–1340.14(b)(7). Thus, the trial court's judgment should be, and hereby is, affirmed.
AFFIRMED. Judges CALABRIA and THIGPEN concur.
Report per Rule 30(e).