Statev. Williams
| Decision Date | 17 April 2012 |
| Docket Number | No. COA11–1256.,COA11–1256. |
| Citation | 723 S.E.2d 584 |
| Parties | STATE of North Carolina v. Sidney Wayne WILLIAMS. |
| Court | North Carolina Court of Appeals |
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.
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.
On 13 September 2007, a magistrate's order was issued charging Defendant with robbery with a dangerous weapon.1 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.
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.
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.
“ 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) (), 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.2 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...
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State v. Crook
...The State's position, however, has already been rejected by this Court in State v. Williams, No. COA11–1256, –––N.C.App. ––––, 723 S.E.2d 584, 2012 WL 1317821 (N.C.Ct.App. Apr. 17, 2012).In Williams, the defendant filed a motion alleging that the State had failed to provide sufficient notic......