IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA 20

- 80 Filed: 15 September 2020 Mecklenburg County, No s . 18CR S0 10447, 212079, 212081 STATE OF NORTH CAROLINA

v. BRIAN ROBERT GLEASON
Appeal by Defendant from judgment s entered 2 9 July 2019 by Judge Donnie Hoover in Mecklenburg County Superior Court. Heard in the Court of Appeals 11 August 20 20

. Joshua H. Stein, by Assistant Attorney General Brenda Eaddy , for State

Appellee

. North Carolina Prisoner Legal Services, Inc., by Christopher J. Heaney , for Defendant

- Appellant

.
COLLINS , Judge.

Defendant Brian Robert Gleason appeals from judgment s entered upon jury verdict s of guilty of perjury and violating a civil domestic violen ce protection order. Defendant contends the trial court erred by sentencing him in the aggravated range for his felony perjury conviction . We reverse judgment entered upon his conviction for perjury and remand for resentencing.S TATE V
. G LEASON Opinion of the Court

- 2

- I. Background On 30 April 2018, Defendant was indicted for stalking, making a false report
to a law enforcement officer or agency, and violating a civil domestic violence protective order (“DVPO”)

. On 22 September 2018, the State filed a N otice of I ntent
to P rove A ggra vating F actors or P rior R ecord L evel P oint. The notice indicated that the State intended to present evidence of the following two aggravating factors: (1) “[ t ] he offense was committed to disrupt or hinder the lawful exercise of any government al function o r the enforcement of law s [,] ” which corresponds to N.C. Gen. Stat. § 1340.16(d)(5) (2019) ; and (2) “[ t ] he Defendant took advantage of a position of trust or confidence, including a domestic relationship, to commit the offense [,] ” which corresponds to N.C. Gen. Stat. § 1340.16(d)(15) (2019). The notice also indicated that the State intended “to prove the existence of an additional prior record level point under N.C.G.S. § 15A

- 1340 (b)(7), specifically, that the offense was committed while the Defendant

. . . [w ] as on supervised or unsupervised probation, parole, or post

release supervision [.] ” The State obtained superseding indictments on 22 October 2018 for stalking, making a false report to a law enforcement officer or agency, and two counts of perjury. The State obtained a superseding indictment on 22 October 2018 for violating a DVPO . The State obtained a superseding indictment on 8 July 2019 for obstruction of justice and two counts of per jury. At the 22 July 2019 trial, the StateS TATE V
. G LEASON Opinion of the Court

- 3

- moved to join the charges for stalking, perjury, and violating a DVPO , and dismissed the first and third counts of obstruction of justice and perjury. The jury found Defendant guilty of perjury and violating a D VPO . The jury could not reach a verdict on stalking ; the trial court declared a mistrial

. During sentencing proceedings, the State informed the trial court that “[t]he State has previously filed notice of an aggravating factor” and stated that “the aggravating factor would be that the Defendant was on supervised probation during the commission of this offense.” The State then said to the trial court, “if [ d efense counsel ] still plans to admit to the aggravating factor, that would be, of course, a necessary step. Otherwise, we’ll prove to the Court beyond a reasonable doubt that the Defendant was on probation at the time of the offense.” Defen se counsel then stated, “Yeah. We do admit to that, Your Honor. . . . [W] e do admit that he was on
pro bation.” On form AOC

- CR

- 605 , felony judgment findings of aggravating and mitigating factors, the trial court marked the check box next to aggravating factor 20, “Additional written findings of factors in aggravation: DEFENDANT WAS ON PROBATION AT THE TI ME OF THE OFFENSE .” The trial court “ma[de] no findings of any mitigating factors” and found that “the factors in aggravation outweigh the factors in mitigation and that an aggravated sentence is justified.” The trial court determined Defendant to be a Pr ior RecordS TATE V
. G LEASON Opinion of the Court

- 4

- Level II for felony sentencing purposes, with 2 prior record level points, and sentenced Defendant to an aggravated sentence of 21 to 35 months ’ imprisonment for perjury

. The trial court also determined Defendant to be a Prior Record Level II for misdemeanor sentencing purposes, with 2 prior record level points, and s entenced D efendant to a consecutive term of 75 days ’ imprisonment for violating a DVPO. Defendant gave o ral notice of appeal. II. Discussion Defendant argues that he received ineffective assistance of counsel because his counsel failed to object to a lack of notice of the aggravating factor argued by the State at sentencing and, as a result of this failu re, his sentence was increased. On appeal, this Court reviews de novo whether a defendant was denied effective assistance of counsel. State v. Wilson , 236 N.C. App. 472, 475, 762 S.E.2d 894, 896 (2014). In general, “claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal.” State v. Stroud , 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001). However, an ineffective assistance of counsel claim brought on direct review “will be dec ided on the merits when the cold record reveals that no further investigation is required.” State v. Fair , 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001). Here, the cold record reveals that no further investigation is required; therefore, we will decide t he merits of the claim.S TATE V
. G LEASON Opinion of the Court

- 5

- “When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel ’ s conduct fell below an objective standard of reasonableness.” State v. Braswell , 312 N.C. 553, 561

– 62, 324 S.E.2d 2 41, 248 (1985). To meet this burden, the d efendant must satisfy the following two

- pronged
test : First, the defendant must show that “counsel ’ s performance was deficient. This requires showing that counsel made errors so serious that counsel was not func tioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington , 466 U.S. 668, 687 (1984). Second, the defendant “must show that the deficient performance . . . [was] so serious as to deprive the defendant of a fair tr ial, a trial whose result is reliable.” Id. Thus, the “fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel’s errors, there would have been

a different result in the proceedings.” Braswell , 312 N.C. at 563, 324 S.E.2d at 248. As to the first prong, Defendant argues that his counsel’s performance was deficient because counsel failed to object to the lack of notice of the aggravating factor

ar gued by the State at sentencing. We agree. Subsection (d) of N.C. Gen. Stat. § 15A

- 1340.16 enumerates 28 specific aggravating factors that, if proven beyond a reasonable doubt, can be considered by a trial court in determining whether to impose an aggravated sentence. N.C. Gen. Stat. § 15A

- 1340.16(a) , (d) (2019). Additionally, N.C. Gen. Stat. § 15A

- 1340.16(d)(20)S TATE V
. G LEASON Opinion of the Court

- 6

- includes a catchall provision for “[a]ny other aggravating factor reasonably related t o the purposes of sentencing.” N.C. Gen. Stat. § 15A

- 1340.16(d)(20). A ggravating factors specifically enumerated in subsection (d) of N.C. Gen. Stat. § 15A

- 1340.16 “ need not be included in an indictment or other charging instrument

. ” N.C. Gen. Stat. § 15A

- 1340.16(a4) (2019). Under N.C. Gen. Stat. § 15A

- 1340.16 (a6) ,

[t] he State must provide a defendant with written notice of its intent to prove the existence of one or more aggravating factors under subsection (d) of this section or a prior record level point under [N.C. Gen. Stat. §] 15A

- 1340.14(b)(7) at least 30 days before trial or the entry of a guilty or no contest plea. A defendant may waive the right to receive such notice. The notice shall list all the aggravating factors the State seeks to esta blish. Id. at § 15A

- 1340.16(a6) (2019). However, any aggravating factor alleged under the catchall provision in subsection (d)(20) of N.C. Gen. Stat. § 15A

- 1340.16 “shall be included in an indictment or other charging instrument, as specified in [N.C. G en. Stat. §] 15A

- 924.” Id. at § 15A

- 1340.16(a4). Specifically under N.C. Gen. Stat. § 15A

- 924, “[a] criminal pleading must contain . . . [a] statement that the State intends to use one or more aggravating factors under G.S. 15A

- 1340.16(d)(20), with a pla in and concise factual statement indicating the factor or factors it intends to use under the authority of that subdivision.” N.C. Gen. Stat. § 15A

- 924(a)(7) (2019). In State v. Ross , 216 N.C. App. 337, 720 S.E.2d 403 (2011), disc. review denied , 366 N.C. 400, 735 S.E.2d 174 (2012), this Court reversed defendant’s judgment andS TATE V
. G LEASON Opinion of the Court

- 7

- remanded it for resentencing where the State “simply served defendant with notice of its intent to prove the existence of” non

- statutory aggravating factors but did not include them in an indictment. Id . at 350, 720 S.E.2d at 412. Similarly, in State v. Ortiz , 238 N.C. App. 508, 768 S.E.2d 322 (2014), this Court explained and held as follows:

The plain language of N.C. Gen. Stat. § 15A

- 1340.16(a4) requires the non

- statutory aggravating factor to be included in the indictment and the State ’ s failure to do so rendered it unusable by the State in its prosecution. Considering the plain language of N.C. Gen. Stat. § 15A

1340.16(a4), this Court ’ s holding in Ross , and in the absenc e of authority to the contrary, we conclude that simply providing notice in compliance with N.C. Gen. Stat. § 15A

- 1340.16(a6) was insufficient to allow the State to proceed on the non

- statutory aggravating factor and it was error for the trial court to so allow. Id. at 514, 768 S.E.2d at 326

. In this case, the State presented to the trial court at sentencing that “the aggravating factor would be that the Defendant was on supervised probation during the commission of this offense.” In its judgment, the tri al court marked the check box next to aggravating factor 20

– which corresponds to the catchall provision in N.C. Gen. Stat. § 15A

- 1340.16(d)(20)

– “Additional written findings of factors in aggravation: DEFENDANT WAS ON PRO BATION AT THE TIME O F THE OFFEN SE .” B eing on probation at the time of the offense is not one of the factors specifically enumerated in subsection (d) of N.C. Gen. Stat. § 15A

- 1340.16 . Thus, theS TATE V
. G LEASON Opinion of the Court

- 8

- plain language of N.C. Gen. Stat. § 15A

- 1340.16(a4) requires this alleged aggravating facto r to be included in an indictment or other charging instrument . N.C. Gen. Stat. § 15A

- 1340.16(a4). T he State obtained a superseding indictment for the felony perjury offense for which Defendant was found guilty. Nowhere in th e indictment is it alleged th at Defendant was on probation at the time of the offense. Accordingly, as in Ross and Ortiz , the State’s failure to so allege rendered that aggravating factor unusable by the State in its prosecution. Ortiz , 238 N.C. App. at 514 , 768 S.E.2d at 326. We note that the State notified Defendant in accordance with N.C. Gen. Stat. § 15A

- 1340.16(a6) that the State intended to prove the existence of the aggravating factors specifically enumerated in N.C. Gen. Stat. § 1340.16(d)(5) and (d)(15). However, the S tate did not proceed at sentencing on either of these factors. Moreover,

even had the State included the aggravating factor “ Defendant was on supervised probation during the commission of this offense” in this notice, “simply providing notice in complianc e with N.C. Gen. Stat. § 15A

- 1340.16(a6) [would have been] insufficient to allow the State to proceed on the non

- statutory aggravating factor and it [would have been] error for the trial court to so allow.” Ortiz , 238 N.C. App. at 514, 768 S.E.2d at 326. A lthough the State notified Defen dant that the State intended “to prove the existence of an additional prior record point” based on the fact that Defendant “ [wa]sS TATE V
. G LEASON Opinion of the Court

- 9

- on supervised or unsupervised probation, parole, or post

- release supervision” at the time he committed the offenses, the State did not seek to add a record level point at sentencing. Moreover, the addition of one record

- level point to Defendant’s prior record level would not have changed his prior record level 1 and, thus, could not have resulted in an enhanced sentence. See N.C. Gen. Stat. § 15A

- 1340.14(b)(7) (2019). Accordingly, Defense counsel erred by failing to object to the lack of notice of the aggravating factor the State sought to prove at sentencing

. As to prong two, Defendant contends that his counsel’s failure to object to the lack of notice prejudiced him because he would not have received an aggravated sentence had the objection been made. We agree. Had Defendant’s counsel objected to the lack of notice, the State could not have
p roceeded on that aggravating factor and Defendant could not have received an aggravated sentence. Ortiz , 238 N.C. App. at 514, 768 S.E.2d at 326; Ross , 216 N.C. App. at 350, 720 S.E.2d at 412. Accordingly, we vacate the trial court’s judgment and remand the matter for resentencing. Id

.

1 Defendant had one prior felony class H or I conviction, giving him 2 points, which puts him at prior conviction level II. If he had received an additional point for committing an offense while on probation, he wo uld have 3 points, which still puts him at prior conviction level II.S TATE V
. G LEASON Opinion of the Court

- 10

- III. Conclusion For the reasons stated above, we conclude that Defendant received ineffective assistance of counsel. We vacate Defendant’s sentence and remand to the trial court for resentencing. VACATED AND REMANDED FOR RES ENTENCING

. Chief Judge McGEE concurs. Judge TYSON concurs in the result by separate opinion.No. COA20

- 80

– State v. Gleason

TYSON, Judge, concurring in the result.
I concur in the result reached by the majority’s opinion. The “catch all” aggravating factor the State proceeded upon at sentencing, and to which his counsel stipulated, was not alleged in an indictment nor found by the ju ry. N.C. Gen. Stat. § 15A

- 1340.16(d20) (2019). The enhanced sentence entered beyond the presumptive range constitutes prejudicial error to vacate Defendant’s sentence. Defendant argues, and has shown, he received ineffective assistance of counsel (“IAC”) . I concur with the majority’s analysis of the requisite factors to show IAC. I also vote to vacate the sentence and remand for resentencing for the reasons below. I. N.C. Gen. Stat. § 15A

- 1022.1 The Due Process Clause of the Fifth Amendment and the notice and jury trial protections of the Sixth Amendment guarantee “[a]ny fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Appren di v. New Jersey , 530 U.S. 466, 476, 147 L. Ed. 2d 435, 446 (2000) (citations omitted). These protections are codified under N.C. Gen. Stat. § 15A

- 1340.16 (2019). The State provided prior notice of intent to show Defendant was under probation supervision when the underlying crime occurred to enhance his prior record level points and introduced that fact as an aggravating factor post

- conviction, but prior to sentencing. During the guilt

- innocence phase the jury did not find any aggravating factors and was dismissed after a guilty verdict on the underlying offense. After theS TATE V
. G LEASON
TYSON , J., concurring in the result

2 State offered to prove the aggravating factor beyond a reasonable doubt, Defendant’s counsel conceded to Defendant’s probationary status when the underlying crime was committed. The t rial court properly found this fact could serve as a “catch

- all” aggravating factor. N.C. Gen. Stat. § 15A

- 1340.16(d20) (” Any other aggravating factor reasonably related to the purposes of sentencing”); see State v. Moore , 188 N.C. App. 416, 429, 656 S.E.2 d 287, 295 (2008). Absent Defendant’s counsel’s concession or putting the State to its proof, Defendant would not be subject to an enhanced sentence from this aggravating factor at sentencing. The Supreme Court of the United States in Blakely v. Washingt on applied Apprendi’s requirements to the sentencing phase following a guilty plea. 542 U.S. 296, 305, 159 L. Ed. 403, 414 (2004). Our statutes codify Blakely’s protections in N.C. Gen. Stat. § 15A

- 1022.1 (a)

- (e), which provide:

(a) Before accepting a pl ea of guilty or no contest to a felony, the court shall determine whether the State intends to seek a sentence in the aggravated range. If the State does intend to seek an aggravated sentence, the court shall determine which factors the State seeks to esta blish. The court shall determine whether the State seeks a finding that a prior record level point should be found under G.S. 15A

1340.14(b)(7). The court shall also determine whether the State has provided the notice to the defendant required by G.S. 15A

- 1340.16(a6) or whether the defendant has waived his or her right to such notice. (b) In all cases in which a defendant admits to the existence of an aggravating factor or to a finding that a prior recordS TATE V
. G LEASON
TYSON , J., concurring in the result

3 level point should be found under G.S. 15A

- 1340.14 (b)(7), the court shall comply with the provisions of G.S. 15A

1022(a). In addition, the court shall address the defendant personally and advise the defendant that : (1) He or she is entitled to have a jury determine the existence of any aggravating factors or points under G.S. 15A

- 1340.14(b)(7); and (2) He or she has the right to prove the existence of any mitigating factors at a sentencing hearing before the sentencing judge. (c) Before accepting an admission to the existence of an aggravating factor or a prior record level point under G.S. 15A

- 1340.14(b)(7), the court shall determine that there is a factual basis for the admission, and that the admission is the result of an informed choice by the defendant. The court may base its determination on the fact ors specified in G.S. 15A

- 1022(c), as well as any other appropriate information. (d ) A defendant may admit to the existence of an aggravating factor or to the existence of a prior record level point under G.S. 15A

- 1340.14(b)(7) before or after the trial of the underlying felony. (e) The procedures specified in this Article for the hand ling of pleas of guilty are applicable to the handling of admissions to aggravating factors and prior record points under G.S. 15A

- 1340.14(b)(7) , unless the context clearly indicates that they are inappropriate. N.C. Gen. Stat. § 15A

- 1022.1 (a)

- (e) (2019) (emphasis supplied). Our General Assembly provided additional protections above t hose established in Blakely by extending its protections to the admission of aggravating factors or prior record level points even in the absence of an underlying guilty plea. See id. The transcript shows the trial court failed to address Defendant personally.S TATE V
. G LEASON
TYSON , J., concurring in the result

4 This Court has interpreted N.C. Gen. Stat. § 15A

- 1022.1 to “require[] a trial court to inform a defendant of his or her right to have a jury determine the existence of an aggrav ating factor, and the right to prove the existence of any mitigating factor.” State v. Wilson

- Angeles , 251 N.C. App. 886, 902, 795 S.E.2d 657, 669 (2017) (citation omitted). Unlike the requirements of N.C. Gen. Stat. § 15A

- 1340.16(a4) cited by the majority’s opinion, the trial court’s failure to inquire into a knowing and voluntarily waiver of Defendant’s rights appear to have prejudiced Defendant. Under subsections (c) and (d), we must reconcile the express language that: “A defendant may admit to the existence of an aggravating factor . . . before or after the trial of the underlying felony ” with “Before accepting an admission to the existence of an aggravating factor . . . , the court shall determine that there is a factual basis fo r the admission, and that the admission is the result of an informed choice by the defendant.” N.C. Gen. Stat. § 15A

- 1022.1 (c), (d) (emphasis supplied). A. Canons of Construction “The principal goal of statutory construction is to accomplish the legisla tive intent.” Lenox, Inc. v. Tolson , 353 N.C. 659, 664, 548 S.E.2d 513, 517 (2001) (citation omitted). “The best indicia of that intent are the [plain meanings of the] language of the statute . . ., the spirit of the act and what the act seeks to accompli sh.” CoastalS TATE V
. G LEASON
TYSON , J., concurring in the result

5 Ready

- Mix Concrete Co. v. Bd. of Comm’rs , 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980) (citations omitted). “When construing legislative provisions, this Court looks first to the plain meaning of the words of the statute itself.” State v. Wa rd , 364 N.C. 157, 160, 694 S.E.2d 729, 731 (2010). “Interpretations that would create a conflict between two or more statutes are to be avoided, and statutes should be reconciled with each other whenever possible.” Taylor v. Robinson , 131 N.C. App. 337, 3 38, 508 S.E.2d 289, 291 (1998) (citation, internal quotation marks, and ellipses omitted). “‘[S]tatutes in pari materia must be read in context with each other.’” Publishing v. Hospital System, Inc. , 55 N.C. App. 1, 7, 284 S.E.2d 542, 546 (1981) (quotin g Cedar Creek Enters. Inc. v. Dep’t of Motor Vehicles , 290 N.C. 450, 454, 226 S.E.2d 336, 338 (1976)). “‘ In pari materia’ is defined as ‘[u]pon the same matter or subject.’” Id. at 7

- 8, 284 S.E.2d at 546 (quoting Black’s Law Dictionary 898 (4th ed. 1968))

. My review of relevant case and statutory authority fails to disclose any authority interpreting N.C. Gen. Stat. § 15A

- 1022.1(d) as writing out a defendant’s admission under N.C. Gen. Stat. § 15A

- 1022.1(c). Reconciling both subsections with Blakely and Apprendi , a defendant can admit an aggravating factor or prior record level both before and after the guilt

- innocence phase after being provided the applicable protections of N.C. Gen. Stat. § 15A

- 1022.1(a)

- (c), Blakely , and Apprendi

.S TATE V
. G LEASON
TYSON , J., concurring in the result

6 These protections a re: “that there is a factual basis for the admission, and that the admission is the result of an informed choice by the defendant.” N.C. Gen. Stat. § 15A

- 1022.1(c). Generally, these protections must be addressed to and waived by the defendant, not by defe ndant’s counsel. B. Cases Distinguished The State presents several cases to support their argument of a lack of error and prejudice. In State v. Edmonds , this Court found a trial court’s failure to personally address a defendant to be harmless error, b ecause the defendant had failed to put on mitigating evidence contesting the sole aggravating factor. 236 N.C. App. 588, 600, 763 S.E.2d 552, 560 (2014). Here, Defendant’s counsel presented six mitigating factors, all of which were rejected by the trial c ourt prior to sentencing. This Court’s decision in State v. Marlow , 229 N.C. App. 593, 747 S.E.2d 741 (2013), is also not controlling to the outcome here. While this Court found the lack of a personal colloquy with defendant was missing when the defend ant’s counsel stipulated to the prior record level, defendant was personally asked by the court about his prior convictions. Id. at 602, 747 S.E.2d at 748. This Court held no error occurred. “Defense counsel had the opportunity to inform defendant of the repercussions of conceding certain prior offenses and defendant had the opportunity to interject had he not known such repercussions. Yet,S TATE V
. G LEASON
TYSON , J., concurring in the result

7 even after being informed, defendant neither objected to nor hesitated when asked about such convictions.” Id. Th e transcript shows Defendant was neither informed of these rights nor gave a knowing and voluntary waiver. The trial court did not personally address Defendant on any matter regarding the aggravating factor nor was there any collateral examination as in M arlow. Unlike Edmonds , Defendant did not concede the mitigating evidence to the aggravating factor. II. Conclusion The indictment failed to allege, the State never proved, and the jury never found the aggravating factor to exist, as is required by Appr endi, Blakely, and N.C. Gen. Stat. § 15A

- 1340.16(a1). Even if counsel’s waiver of the State’s prior notice to use the aggravating factor was invited error by the stipulation, counsel’s post

- trial concession and the trial court’s failure to address Defendant personally w as error. Upon remand, N.C. Gen. Stat. § 15A

- 1022.1(a)

- (e) sets out the procedures for the disposition for resentencing, not N.C. Gen. Stat. § 15A

- 1340.16(a4). This stipulation and error by counsel allowed the court to impose the maximum aggravated senten ce, constitutes prejudice and shows ineffective assistance of counsel. The sentence is properly vacated. I concur in the result to remand to the trial court for resentencing.