State v. Khan

• Decision Date: 08 March 2013
• Docket Number: No. 45A12.,45A12.
• Citation: 738 S.E.2d 167
• Parties: STATE of North Carolina v. Aadil Shahid KHAN.
• Court: North Carolina Supreme Court

738 S.E.2d 167

STATE of North Carolina

v.Aadil Shahid KHAN.

No. 45A12.

Supreme Court of North Carolina.

March 8, 2013.

Appeal pursuant to N.C.G.S. § 7A–30(2) from the unpublished decision of a divided panel of the Court of Appeals, ––– N.C.App. ––––, 721 S.E.2d 409 (2012), affirming in part and vacating and remanding in part judgments entered on 15 November 2010 by Judge Paul C. Ridgeway in Superior Court, Wake County. Heard in the Supreme Court on 15 October 2012.

Roy Cooper, Attorney General, by Laura E. Parker and Teresa M. Postell, Assistant Attorneys General, for the State-appellant.

Tharrington Smith, L.L.P., Raleigh, by Douglas E. Kingsbery, Wade M. Smith, and Derick R. Vollrath, for defendant-appellee.

EDMUNDS, Justice.

Defendant was named in two indictments and entered a negotiated plea in each. We consider in this appeal whether the trial court properly imposed an aggravated sentence for defendant's convictions on one of these indictments. We find that defendant unambiguously stipulated to application of the aggravating factor for both indictments and that application of the aggravating factor for both indictments was supported beyond a reasonable doubt by the evidence. Accordingly, we reverse the holding of the Court of Appeals to the contrary.

The record indicates that the victim named in each indictment, Matthew Silliman, was a friend of defendant. In late October 2008, Ryan Hare devised a plan to kill Silliman and solicited defendant and others to help. On 25 November 2008, defendant and the coconspirators lured the unsuspecting victim into an automobile and drove him to a remote area where defendant was to use a Taser to incapacitate the victim while the others strangled him. Although the Taser failed to function and the attempt to kill Silliman was aborted mid-struggle, the victim remained with defendant and his other assailants because the victim still believed they were his friends. Defendant and the others convinced Silliman that a fictitious “Roger” was hunting him and wanted to kill him. They then helped Silliman hide from “Roger” by taking the victim to an abandoned house, where he stayed for the next five days. On 30 November 2008, defendant and the other coconspirators inveigled Silliman into drinking a concoction of wine and horse tranquilizers. When Silliman fell unconscious, his mouth was taped and a plastic bag tied over his head, asphyxiating him.

On 16 December 2008, defendant was charged in indictment 08 CRS 85094 with murder and conspiracy to commit murder (“the 2008 indictment”). This indictment was based upon the events of 30 November 2008. Later, on 9 February 2010, defendant was charged in indictment 10 CRS 652 with attemptedfirst-degree murder and conspiracy to commit first-degree murder (“the 2010 indictment”). This second indictment alleged the events of 25 November 2008.

Defendant and the State negotiated a plea agreement. The terms of the plea were set out in a written Transcript of Plea form provided by the Administrative Office of the Courts, form AOC–CR–300. In the portion of the Transcript of Plea titled “Plea Arrangement,” the prosecutor, defendant, and defense counsel initialed their agreement that the two counts in the 2010 indictment would be consolidated for judgment. In addition, the first-degree murder count in the 2008 indictment would be reduced to second-degree murder, and this reduced charge would be consolidated for judgment with the other count in that indictment. The agreement provided that the sentence imposed on the 2008 indictment would run consecutively to the sentence imposed on the 2010 indictment. This portion of the agreement also contained terms relating to continuation of judgment and defendant's anticipated cooperation.

Elsewhere in the Transcript of Plea form, Question 15 was checked so that the preprinted portion read, “Have you admitted the existence of the aggravating factors?” The answer, “Yes,” is handwritten on the form beside the question, and in the space provided below the question was typewritten: “# 15—The defendant took advantage of a position of trust or confidence to commit the offense.” Similarly, Question 16 was checked so that it read, “Do you agree that the State has provided you with appropriate notice about the aggravating factors and/or sentencing points in your case?” The handwritten answer, “Yes,” is entered beside the question. Question 17 was checked, indicating that defendant understood that the State was stipulating to three mitigating factors, which were typewritten below this question. Question 26 was checked so that it read, “Do you agree that there are facts to support your plea and admission to aggravating factors, and do you consent to the Court hearing a summary of the evidence?” Again, the answer, “Yes,” is handwritten beside the question. The agreement implicitly left to the judge the balancing of the aggravating and mitigating factors, as well as the length of the sentence that would be imposed under each indictment.

Defendant entered his plea at a hearing held on 25 August 2010, at which time the Transcript of Plea was signed by the judge and ordered recorded. At the hearing, the trial judge asked defendant whether he understood that, under the plea agreement, the charge of first-degree murder would be reduced to second-degree murder, the two counts in each indictment would be consolidated for judgment, and the “[s]entence imposed in [the 2008 indictment] is to run at the expiration of the sentence imposed in [the 2010 indictment].” When defendant answered, “Yes,” the trial court asked, “Is that what you understand to be your entire agreement with the [S]tate?” Defendant again responded, “Yes.” Later in the colloquy, the trial judge asked defendant: “You also stipulate that there is—to the existence of aggravating factor number 15, that you took advantage of a position of trust or confidence to commit the offense?”, to which defendant responded, “Yes.” The prosecutor then presented the factual basis for the plea, adding that “[a]s far as the aggravating factors, to put that in the record, ... [defendant] was a close friend of [the victim]. I've read numerous computer transactions between them, and quite frequently they refer to each other as ‘twins.’ ” The trial judge accepted defendant's guilty plea and continued judgment until after the conclusion of the trial of one of defendant's coconspirators.

Defendant was sentenced on 15 November 2010. The prosecutor presented testimony from several of the victim's family and friends, then asked the trial court to “find that this is an aggravated crime” and to sentence defendant “in the aggravated range to a sentence of 196 to 245 [months] followed by another sentence of 196 to 245 [months],” adding that the “plea agreement contemplates such an arrangement” and that defendant “has already received the benefit in not being tried for first-degree murder. I'd ask that you sentence him to the maximum time allowed.” Although defendant presented two mitigating witnesses and made extensive arguments in favor of a mitigated sentence, defense counsel acknowledged the aggravating factor, stating that “I do not disagree that there was an abuse of trust here, and we've agreed to that absolutely.” The trial judge found the mitigating factors to which the parties had stipulated, but also found beyond a reasonable doubt the aggravating factor that defendant took advantage of a position of trust, then sentenced defendant in the aggravated range for the convictions on both indictments:

In File Number 10–CRS–652, for the conspiracy to commit murder and attempted murder of [the victim], occurring on or about November 25, 2008, I order you incarcerated for a term of 196 months minimum, 245 months maximum.

In the file 08–CRS–85094, for the conspiracy to commit murder and the murder of [the victim] in the second degree, I order you incarcerated for a minimum term of 196 months and a maximum term of 245 months.

The trial judge prepared two judgments, one for each indictment, along with two corresponding “Felony Judgment Findings of Aggravating and Mitigating Factors.” In the latter forms, the trial judge made separate findings as to the sentence imposed on each indictment. He determined that the aggravating factor was supported beyond a reasonable doubt and that the aggravating factor outweighed the mitigating factors, justifying an aggravated sentence on each indictment.

Defendant appealed to the Court of Appeals, arguing, inter alia, that he had stipulated to the aggravating factor in the 2008 indictment only and that the trial court erred in imposing an aggravated sentence on the 2010 indictment because he had entered no stipulation in that case. In a divided opinion, the Court of Appeals majority found that the Transcript of Plea was ambiguous. State v. Khan, ––– N.C.App. ––––, 721 S.E.2d 409, 2012 WL 121230, at *3 (2012). The majority noted that the “File No.” box at the top of the Transcript of Plea form listed the single file number of the 2008 indictment, even though each of the charges in the 2008 and 2010 indictments were listed individually in the body of the plea agreement. Khan, 2012 WL 121230, at *2. The majority also pointed out that the trial court referred to “the offense,” in the singular, when questioning defendant about the aggravating factor. Id. at *2–3. The Court of Appeals majority determined that defendant reasonably could have believed the aggravating factor to which he stipulated would apply only to the 2008 indictment. Id. at *3. Asserting that “the State [is held] to a higher degree of responsibility than the defendant for any ambiguities in the plea agreement,” the majority concluded that the ambiguities should be construed against the State. Id. (citing State v. Blackwell, 135 N.C.App. 729, 731, 522 S.E.2d 313, 315 (1999), remanded per curiam,353 N.C. 259, 538 S.E.2d 929 (2000)). The majority vacated the sentence imposed on the 20...