State v. Khan , 366 N.C. 448 ( 2013 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 45A12
FILED 8 MARCH 2013
STATE OF NORTH CAROLINA
v.
AADIL SHAHID KHAN
Appeal pursuant to N.C.G.S. § 7A-30(2) from the unpublished decision of a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., 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
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Opinion of the Court
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 attempted first-degree
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Opinion of the Court
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
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Opinion of the Court
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.”
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Opinion of the Court
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:
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Opinion of the Court
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
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Opinion of the Court
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 2010 indictment and remanded the
case for a new sentencing hearing on that indictment. Id.The dissenting judge disagreed. 2012 WL 121230, at *4 (Steelman, J.,
concurring in part and dissenting in part). While acknowledging that only one
indictment number was listed at the top of the Transcript of Plea, the dissenter
pointed out that the document was a “general plea form” promulgated by AOC “to
be used when a defendant pleads to one offense or to multiple offenses.” Id.Accordingly, a reviewing court should consider “the totality of the document.” Id.Both indictments and all four charges were detailed in the body of the agreement
under Question 12, in which defendant was asked if he “under[stood] that [he was]
pleading guilty to the charges shown below.” Id. In addition, the preprinted
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Opinion of the Court
language of the Transcript of Plea in Question 15 referred to “aggravating factors,”
while “[t]he language of the aggravating factor,” added by the attorneys under
Question 15, was “taken verbatim from [N.C.G.S.] § 15A-1340.16(d)(15), including
the language referencing to ‘the offense’ in the singular.” Id. The dissenting judge
further observed that defendant acknowledged in the Transcript of Plea both that
he had received proper notice of the aggravating factor and that there were facts
supporting it. 2012 WL 121230, at *4-5. As a result, the dissenting judge concluded
that “[t]here is absolutely nothing in the plea transcript limiting this aggravating
factor to [the 2008 indictment].” Id. at *4. The dissenting judge would have
determined the Transcript of Plea was not ambiguous and upheld the sentence
imposed by the trial court. Id. at *5.
The State appealed to this Court on the basis of the dissent and argues that
the Transcript of Plea was not ambiguous. Defendant responds that the Transcript
of Plea and the colloquy at the plea hearing were fatally ambiguous. Defendant also
raises additional arguments challenging the validity of the sentence imposed by the
trial court. First, he argues that the State failed to present sufficient evidence to
support imposition of the aggravating factor as to the 2010 indictment. Second, he
argues that the trial court failed to follow statutorily mandated procedures during
the hearing when the plea was taken. We begin by considering whether the
Transcript of Plea was ambiguous, then turn to the other issues raised by
defendant.
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Opinion of the Court
Whether a document is ambiguous is a question of law. See, e.g., River Birch
Assocs. v. City of Raleigh, 326 N.C. 100, 123, 388 S.E.2d 538, 551 (1990). We review
questions of law de novo. See, e.g., In re Greens of Pine Glen Ltd. P’ship, 356 N.C.
642, 647, 576 S.E.2d 316, 319 (2003).
The use of plea agreements has been approved by the General Assembly.
Article 58 of Chapter 15A of the General Statutes of North Carolina (“Procedures
Relating to Guilty Pleas in Superior Court”) regulates resolution of criminal charges
when pleas of guilty are negotiated. Recognizing that a pleading defendant
surrenders rights guaranteed under the constitutions of North Carolina and of the
United States, the individual statutes in Article 58 set out a procedure that is
transparent to the parties and to the public. See State v. Agnew, 361 N.C. 333, 335,
643 S.E.2d 581, 583 (2007) (“Because a guilty plea waives certain fundamental
constitutional rights such as the right to a trial by jury, our legislature has enacted
laws to ensure guilty pleas are informed and voluntary.”).
The record establishes that the plea agreement here was negotiated,
memorialized in the Transcript of Plea, and executed in accordance with the
applicable statutes. Although defendant argues that the Court of Appeals majority
correctly found that the Transcript of Plea was ambiguous, the only evidence of
ambiguity we see is that the top line of the Transcript of Plea form lists the file
number of the 2008 indictment but not that of the 2010 indictment. However, if the
stipulation to the aggravating factor was to apply to the 2008 indictment only, it
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Opinion of the Court
follows that a separate Transcript of Plea form covering the 2010 indictment would
also have been executed, omitting that stipulation. Instead, Question 12 of the
Transcript of Plea asks, “Do you understand that you are pleading guilty to the
charges shown below?” Beneath this question, the two counts in the 2010
indictment are set out individually, as are the two counts in the 2008 indictment.
The word, “Yes,” is handwritten in response to this question. The parties skirmish
in their briefs over the fact that the paperwork, the judge, and attorneys referred
sometimes to “the offense” and other times to “the offenses,” but we do not find this
differing wording persuasive. Instead, we conclude that, in light of the evidence
found within the Transcript of Plea, along with the facts of the case and the
behavior of the parties, defendant unambiguously stipulated that the aggravating
factor would apply to both indictments.
Even if defendant initially misunderstood the plea or if the Transcript of Plea
were ambiguous, the sentencing hearing ultimately provided clarity. Although
defendant argues that the prosecutor’s language at the sentencing hearing
preserved the purported ambiguity in the Transcript of Plea because the prosecutor
did not explicitly ask that both sentences be aggravated on the basis of the
stipulation, the record indicates that the prosecutor sought aggravated sentences
for each consolidated offense, asking 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],” the
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Opinion of the Court
maximum aggravated sentences available. See N.C.G.S. § 15A-1340.17 (2007).
Moreover, defendant’s presentation to the trial court at the sentencing hearing
concerning the application of mitigating factors to the two indictments indicated an
expectation that both the mitigating and aggravating factors to which the parties
stipulated would be applied in each indictment. After asking the court to find three
more mitigating factors in addition to the three to which the State had stipulated,
defendant said: “I ask [the court] to find the presence of these six statutory factors
in mitigation and that you find them present in both of those cases. My view of the
matter is that when you add all those things up, they do outweigh the one
aggravating factor.” (Emphasis added.). Defendant never argued that the sentence
on the 2010 indictment should not be aggravated; instead he argued that mitigating
factors outweighed the stipulated aggravating factor. We believe defendant could
have had little doubt that the Transcript of Plea’s terms and conditions applied to
all the charges brought against him.
Additionally, any belief on defendant’s part that he had stipulated to an
aggravated sentence only on the 2008 indictment was revealed to be mistaken when
the trial court stated that “an aggravated sentence is justified for these offenses,”
then imposed consecutive aggravated sentences on both indictments. Despite
defendant’s contention that he did not have time to object after sentence was
imposed because the judge immediately left the bench, the record shows defendant
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Opinion of the Court
had ample opportunity to bring any confusion to the attention of the trial court
during the sentencing hearing.
Defendant next contends that he did not realize that the sentence on the
2010 indictment was aggravated on the basis of the stipulation until he saw the
corresponding “Felony Judgment Findings of Aggravating and Mitigating Factors”
signed by the judge after the completion of the sentencing hearing. According to
defendant, until he saw the form he believed the sentence in the 2010 indictment
was aggravated because of the facts of the case, not the stipulation. Leaving aside
the question whether the judge could have imposed an aggravated sentence without
a jury finding or a stipulation, we note that this form was signed on 15 November
2010, the same day as the sentencing hearing. So even if defendant left the
sentencing hearing without realizing the trial court’s basis for aggravating the
sentence on the 2010 indictment, the information that would have permitted him to
file a timely Motion for Appropriate Relief pursuant to N.C.G.S § 15A-1414 or take
other appropriate remedial action was available shortly thereafter. Accordingly, we
are not persuaded that defendant did not have an opportunity to object to the
sentence.
Having concluded that the Transcript of Plea was not ambiguous, we now
consider the other arguments raised by defendant. Defendant argues that the trial
court did not follow the statutory requirements for taking a plea because it failed to
determine whether the State intended to seek an aggravated sentence for each
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Opinion of the Court
indictment, in accordance with N.C.G.S. § 15A-1022.1(a). The record indicates that
at the plea hearing the trial court went over the terms of the plea agreement with
defendant and asked defendant directly if he understood its terms, and defendant
responded, “Yes.” During the hearing, the trial court also asked defendant if he
stipulated to the aggravating factor, and defendant again answered, “Yes.” We find
the trial court’s procedure satisfied the requirements of section 15A-1022.1.
Finally, defendant contends that the State failed to present sufficient
evidence to support an aggravated sentence for the offenses listed in the 2010
indictment. However, the evidence proffered to the trial court indicated that
defendant, who referred to the victim in e-mails as his “twin,” was brought into the
conspiracy as a friend of the victim, participated in hatching the details of the plan
to strangle the victim, and agreed to incapacitate the victim so the others could
finish him off. This evidence was sufficient to establish that, as to the evidence
supporting both indictments, defendant took advantage of his position of trust or
confidence to place the victim in a vulnerable position.
We find no evidence that defendant misunderstood the plea agreement, that
he stipulated that the aggravating factor would be applied only to the 2008
indictment, or that the sentence was unlawfully imposed. We reverse the portion of
the Court of Appeals opinion that vacated defendant’s sentence on the 2010
indictment. We remand to the Court of Appeals to reinstate the original sentence
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Opinion of the Court
imposed by the trial court and to consider the remaining issues raised by defendant
on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Justice BEASLEY did not participate in the consideration or decision of this
case.
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