An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

                                  &nb sp;         
NO. COA04-103


Filed: 16 August 2005


v .                      Pitt County
                         No. 02 CRS 5685,02 CRS 5687-88
                         02 CRS 54018


    Appeal by defendant from judgment dated 24 July 2003 by Judge Cy A. Grant in Pitt County Superior Court. Heard in the Court of Appeals 3 November 2004.

    Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State.

    Jarvis John Edgerton, IV for defendant-appellant.

    BRYANT, Judge.

    Chaumon Marte Webb (defendant) appeals a judgment dated 24 July 2003, entered consistent with his convictions by jury verdicts for attempted murder, assault with a deadly weapon with intent to kill, robbery with a dangerous weapon, and possession of a handgun by a convicted felon.
    The State's evidence tended to show that co-defendant Michael McCotter robbed a Kash & Karry convenience store in Grifton, North Carolina, at 9:00 p.m. on 13 March 2002. Wearing a ski mask, McCotter brandished a black or dark-colored revolver at the store clerk and demanded “all the money.” When the clerk had difficulty opening the cash register, McCotter fired the gun. McCotter tookthe money from the register and fled, running outside toward the back of the store. During his escape, McCotter shot out the driver's side window of a Pitt County Sheriff's Department vehicle, driven by Detective Johnny Craft as he pulled into the store's back driveway. McCotter shot Detective Craft's vehicle a second time in the rear.
    Detective Craft took a written statement from defendant on 1 April 2002, in which he gave the following account of the Kash & Karry robbery:
        I know [McCotter] got out of the vehicle and said he'll be back. True, I about knew what he were going to do. So I told him, and I quote, I don't know anything if you get caught for something, unquote. So when I heard shooting, I left because I didn't want anything to do with it. True, I drove, . . . . He kept saying he was seeking or looking for crack and I -- I was like he get the money. However he did. That's his business. He called me later that night and I went and got him. I didn't want to leave anybody out regardless what they did.

    Police recovered a .32-caliber bullet from the inside of the Kash & Karry, and a second .32-caliber bullet from Craft's vehicle. Police later found a box of .32-caliber bullets underneath the bed in defendant's apartment.
    At trial, the State introduced evidence of a similar robbery committed by McCotter on the night of 10 March 2002. McCotter used a nine-millimeter handgun to rob James Daniel Manning, a clerk at SAK's Convenient Mart (SAK's) on State Highway 102 near Ayden, North Carolina, located five miles from Grifton, North Carolina (the location of the robbery at issue). Wearing a ski mask ortoboggan, McCotter entered SAK's, held the gun to Manning's head, and demanded money. When Manning ducked behind the counter, McCotter fired a single shot that missed Manning's head by inches. McCotter exited SAK's with $959.00 from the cash drawer and a .32-caliber pistol belonging to the store's owner.
    On 12 April 2002, defendant dictated the following statement regarding the SAK's robbery to Major John W. Burrus of the Greene County Sheriff's Department:
        [Defendant] and Michael McCotter went to a store outside of Ayden on a highway going towards Washington. He ([defendant]) dropped off McCotter at a house no one lived in just down from the store. McCotter went in with a silver 9 MM handgun and ski mask to rob the store. [Defendant] . . . waited at the driveway of the house, and McCotter returned running a few minutes later with approximately $350. That McCotter gave him ([defendant]) $100.

Defendant also stated that McCotter “had an old black revolver[,]” which he had given to Calvert Hart, but McCotter did not tell defendant about the shooting in the store. The statement was signed by defendant, as witnessed by Major Burrus and a deputy sheriff.
    Further, the State introduced evidence of two additional armed robberies of convenience stores which occurred in the area during the same time period. The first robbery took place at 8:45 p.m. on 25 February 2002, at the 264 Country Mart in Walstonburg, North Carolina. The second robbery occurred the following week at approximately 9:00 p.m. at the Creek Side Convenient Mart (Creek Side) in Pitt County. Defendant dictated statements to MajorBurrus regarding these two robberies, claiming that on each occasion he drove McCotter to a location near the store and waited while McCotter robbed the store using a black ski mask and a silver nine-millimeter handgun. Defendant further stated that McCotter gave him $150.00 after the 264 Country Mart robbery and $50.00 after the Creek Side robbery.
    At trial, defendant acknowledged giving Detective Craft the statement concerning the Kash & Karry robbery; however, defendant denied any involvement in the SAK's robbery and further denied giving statements to police regarding the robberies at SAK, 264 Country Mart, and Creek Side.
    Defendant was found guilty of robbery with a dangerous weapon, attempted murder, possession of a handgun by a convicted felon, and assault with a deadly weapon with intent to kill. The trial court consolidated the charges and entered judgment, sentencing defendant in the aggravated range to a minimum of 392 months and a maximum of 480 months imprisonment. Defendant gave notice of appeal in open court.


    The issues on appeal are whether: (I) the trial court erred in failing to dismiss the charge of possession of a handgun by a convicted felon; (II) defendant's sentence in the aggravated range deprived him of the right to a jury trial pursuant to Blakely v. Washington.
I Sufficiency of the Evidence
    N.C. Gen. Stat. § 14-415.1 states: “It shall be unlawful forany person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any handgun or other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches, or any weapon of mass death and destruction as defined in G.S. 14-288.8(c).” N.C.G.S. § 14- 415.1(a) (2003).
    In ruling on a motion to dismiss, the trial court must interpret the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor. State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981). To withstand a motion to dismiss for insufficiency of the evidence, the State must present substantial evidence of each of the essential elements of the crime charged. State v. Workman, 309 N.C. 594, 598, 308 S.E.2d 264, 267 (1983). Substantial evidence means more than a scintilla. State v. Thomas, 65 N.C. App. 539, 541, 309 S.E.2d 564, 566 (1983). The jury must resolve conflicts and contradictions within the testimony. State v. Thompson, 37 N.C. App. 628, 636, 246 S.E.2d 827, 833 (1978).
    Defendant moved to dismiss all the charges at the close of the State's evidence and at the close of all the evidence. At trial, defendant stipulated he had been convicted of a felony prior to commission of the offenses for which he was being tried. Defendant's contention, on appeal, is that there is insufficient evidence to show he actually possessed a handgun during thecommission of the robbery.   (See footnote 1)  Further, defendant argues there exists no evidence of his constructive possession of the handgun. We disagree.
    The North Carolina Supreme Court has recently reaffirmed the doctrine of acting in concert:
        “[I]f 'two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.'”

State v. Mann, 355 N.C. 294, 306, 560 S.E.2d 776, 784, (citation omitted), cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002).
    Defendant conceded at trial that he drove McCotter to the Kash & Karry store and dropped him off “80 to 100 feet” from the store. Defendant initially waited for McCotter but drove away after hearing gun fire. When stopped by a police officer, defendant gave the officer a false driver's license. The officer told defendant that his vehicle matched the description of a vehicle suspected in connection with a robbery and shooting. Early the next morning, notwithstanding having learned of the possible shooting, defendant picked up McCotter and drove him to Greene County.
    Despite the above evidence, defendant contends the evidence is insufficient to connect him to a common plan or scheme to commitarmed robbery or the shootings. We find defendant's argument to be without merit. To hold the trial court erred in failing to grant defendant's motion to dismiss, this Court would have to find defendant's presence at the Kash & Karry store at the time of the armed robbery and shootings was coincidental, and defendant was ignorant of McCotter's illicit intentions. The facts are to the contrary.
    We find defendant acted in concert with McCotter to commit the offense of armed robbery. Therefore, possession of the gun is imputed to defendant through his acting in concert to commit armed robbery. Moreover, we find defendant's reliance on State v. Williams, 136 N.C. App. 218, 523 S.E.2d 428 (1999), to be misguided, as that case dealt with the theory of constructive possession as applied to drug offenses. State v. Walker, however, dealt squarely with the theory of constructive possession as applied to handgun offenses. In Walker, the defendant's presence at the scene of a burglary and robbery was sufficient to establish that he acted in concert with his co-defendants and possession of a gun used by one of the co-defendants was therefore properly imputed to the defendant. State v. Walker, 154 N.C. App. 645, 650, 572 S.E.2d 866, 870 (2002). This assignment of error is overruled.
II Motion For Appropriate Relief
    In defendant's subsequent motion for appropriate relief, defendant argues the trial court's imposition of a sentence in the aggravated range (defendant committed the offense while on pre- trial release on another charge) was done in violation of Blakelyv. Washington, 542 U.S. ___, 159 L. Ed. 2d 403 (2004). The State, in its response to defendant's motion for appropriate relief, addresses inter alia a clerical error appearing on the judgment form.
a. Clerical Error
    In State v. Jarman, 140 N.C. App. 198, 535 S.E.2d 875 (2000), this Court stated:
        “Clerical error” has been defined recently as: “An error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.” Although this definition has not been adopted by our courts, and we do not adopt it now, the concept of “judicial reasoning or determination” as a component of a judicial action has been implicitly recognized in numerous appellate decisions. In reviewing criminal convictions, our courts have found harmless clerical errors to include the inadvertent checking of a box finding an aggravating factor on a judgment form.

Jarman, 140 N.C. App. at 202, 535 S.E.2d at 878 (citations omitted).
    In State v. Sellers, 155 N.C. App. 51, 574 S.E.2d 101 (2002), this Court recognized that a finding by the trial court in open court as reflected in the transcript is dispositive when there is a discrepancy between the court's announced finding and the written judgment form. The Sellers Court held:
        The transcript reveals the trial court stated, “[t]he Court finds that the factors, factors in aggravation outweigh the factors in mitigation, and that an aggravated sentence is justified in the judgments to be entered.” The form, however, leaves unchecked this important finding. From the transcript and the aggravated sentence imposed, it is clearthat the court intended to have this box checked. Clerical errors are properly addressed with correction upon remand because of the importance that the records “'speak the truth.'”

Sellers, 155 N.C. App. at 59, 574 S.E.2d at 106-07 (citations omitted).
    In the instant case, the trial court found in open court the aggravating factor set forth in N.C. Gen. Stat. § 15A- 1340.16(d)(12) (defendant committed the offense while on pre-trial release on another charge). However, the aggravating factor checked on the judgment form was N.C. Gen. Stat. § 15A- 1340.16(d)(1) (defendant induced others to participate in the commission of the offense).
    In keeping with this Court's precedents, this matter should be corrected upon remand to the trial court.
b. Application of Blakely v. Washington
The U.S. Supreme Court recently held that the “statutory maximum” for any offense is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely v. Washington, 542 U.S. ___, ___, 159 L. Ed. 2d 403, 413 (2004). The Court further explained that “the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely, 542 U.S. at ___, 159 L. Ed. 2d at 413-14. Thus, any additional findings that may be used to increase a defendant's sentence, but not found by the jury, are otherwise made in violation ofdefendant's Sixth Amendment Right to trial by jury. Blakely, 542 U.S. at ___, 159 L. Ed. 2d at 414-15. The only exception to this would be if the defendant has stipulated to those facts which have increased his sentence, or waived his right to a jury. Blakely, 542 U.S. at ___, 159 L. Ed. 2d at 417-18.
In State v. Allen, 166 N.C. App. 139, 601 S.E.2d 299 (2004), aff'd in part and modified in part, 2005 N.C. LEXIS 695 (N.C., July 1, 2005), our Court accepted the principles announced in Blakely as applicable to North Carolina's sentencing scheme concerning a trial court's ability to enhance a defendant's sentence by finding aggravating factors. See N.C.G.S. § 15A-1340.16 (2003). In Allen our Court held, pursuant to Blakely, that the defendant was denied his Sixth Amendment right to a jury trial when the trial court unilaterally found an aggravating factor. Allen, 166 N.C. App. at 150, 601 S.E.2d at 306. More recently, in State v. Harris, 166 N.C. App. 386, 602 S.E.2d 697 (2004), appeal docketed, No. 548A04 (N.C. Oct. 21, 2004), our Court held:
        [P]ursuant to Allen and Blakely, should the court at any new trial use a factor in aggravation to impose a sentence beyond the presumptive term for which defendant has been found guilty, the fact must be found by the following: beyond a reasonable doubt by the jury, stipulated to by defendant, or defendant shall have waived his right to a jury such that judicial fact finding would be appropriate.

Harris, 166 N.C. App. at 394-95, 602 S.E.2d at 702 (emphasis added).
c. Effectiveness of Stipulation
    It is well settled that a waiver of the constitutional rightto a jury trial must be knowing and voluntary in order to be valid. State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985). To establish voluntariness, the record must demonstrate that defendant is “fully aware of the direct consequences” of his stipulation. Brady v. United States, 397 U.S. 742, 755, 25 L. Ed. 2d 747, 760 (1970). Failure to establish defendant knowingly and voluntarily relinquished his constitutional rights constitutes prejudicial error. See Id.
    At the sentencing hearing, the following transpired:
        THE COURT: What says the State?
        [PROSECUTOR]: Your Honor, first of all, I would like to allege one aggravation factor.
        THE COURT: All right.
        [PROSECUTOR]: That being the Defendant was out on bond -- pretrial release at the time of these offenses, Your Honor. . . .
        If you want me to hand these file[s] up, Judge. The Defendant may stipulate he was out on bond.
        [DEFENSE COUNSEL]: He was.
        THE COURT: All right.
        . . .
        The Court finds that the Defendant has one aggravating factor. That is, he was on pretrial release at the time of the commission of these offenses. The Court finds no factors in mitigation. The Court finds that the factor in the aggravation outweighs no factor in mitigation.

    The State contends that the admission by counsel or defendant of the fact that he was on pre-trial release at the time of the offenses at issue constitutes a knowing and voluntary waiver of hisSixth Amendment right to a jury trial. However, the record is void of any evidence that defendant, his counsel, or the trial court was aware of the fact that a stipulation would be tantamount to a waiver of the right to a jury trial, especially in light of the fact that Blakely was decided subsequent to judgment being entered in the instant case. We hold there is no factual basis upon which to find a knowing and voluntary waiver of the right to a jury trial. Accordingly, defendant's motion for appropriate relief is granted and this matter is remanded for resentencing as mandated by Blakely, Allen, and Harris.
    No error in trial; remanded for resentencing.
    Judges McGEE and THORNBURG concur.
    Report per Rule 30(e).
    Judge THORNBURG concurred in this opinion prior to 31 December 2004.

Footnote: 1
     Defendant has failed to present any argument regarding whether the trial court erred in failing to dismiss the remaining charges of attempted murder, assault with a deadly weapon with intent to kill, and robbery with a dangerous weapon. Accordingly, these issues are deemed abandoned. See N.C.R. P. 28(a) (2005).

*** Converted from WordPerfect ***