State v. Dail , 255 N.C. App. 645 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1324
Filed: 19 September 2017
Guilford County, No. 15 CRS 73023
STATE OF NORTH CAROLINA
v.
TRAVIS TAYLOR DAIL
Appeal by defendant from judgment entered 17 November 2015 and order
entered 29 March 2016 by Judge Patrice A. Hinnant in Guilford County Superior
Court. Heard in the Court of Appeals 6 June 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
Hyde, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel L.
Spiegel, for defendant-appellant.
CALABRIA, Judge.
Where the trial court failed to consider evidence of defendant’s eligibility for
conditional discharge pursuant to N.C. Gen. Stat. § 90-96, the judgment is vacated
and the matter remanded for resentencing.
I. Factual and Procedural Background
On 17 November 2015, Travis Taylor Dail (“defendant”) pleaded guilty to
driving while impaired (“DWI”) and possession of lysergic acid diethylamide (“LSD”).
Per the plea agreement, defendant stipulated that he was a record level 1 for felony
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Opinion of the Court
sentencing purposes, a record level 5 for DWI sentencing purposes, and that he would
be placed on probation. In exchange, the State agreed to dismiss multiple additional
drug possession charges against defendant. Pursuant to this plea agreement, on 20
November 2015, the trial court sentenced defendant to a minimum of 3 months and
a maximum of 13 months’ imprisonment in the custody of the North Carolina
Department of Adult Correction on the possession of LSD offense. The trial court
suspended this sentence, instead sentencing defendant to 12 months of supervised
probation. For the DWI offense, the trial court entered a suspended sentence,
ordering defendant to be imprisoned for 30 days in the custody of the Misdemeanant
Confinement program, and to surrender his license. In both judgments, the trial
court entered findings on mitigating factors, finding that these outweighed any
aggravating factors.
On 25 November 2015, defendant filed a motion for appropriate relief (“MAR”),
alleging that, at the plea hearing, defendant requested to be placed on conditional
discharge probation pursuant to N.C. Gen. Stat. § 90-96, given that defendant had
not previously been convicted of a felony. In his MAR, defendant further alleged that
the trial court erred in both failing to permit conditional discharge, and in failing to
make findings as to why conditional discharge was inappropriate. Defendant
therefore moved to have his guilty plea withdrawn and the judgment stricken.
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Opinion of the Court
On 29 March 2016, the trial court entered an order on defendant’s MAR. The
trial court found that, pursuant to the plea agreement, defendant stipulated that he
was a record level 1 for felony purposes, record level 5 for DWI purposes, and that he
would be placed on probation. The trial court also noted that “the defendant enjoyed
the benefit of the dismissal of the following charges: felony possession of MDPV;
possession of marijuana up to 1/2 ounce; possession of drug paraphernalia; simple
possession of clonazepam 90-95 (D) (2); and, felony prescription and labeling 90-106.”
The trial court determined that defendant, in subsequently requesting conditional
discharge, was asking the trial court “to act outside of the plea agreement by placing
defendant on the 90-96 deferral program in contradiction to the terms of the plea
agreement, a term not negotiated with the State.” The trial court also stated that
“defendant could not then and cannot now argue for something outside of the plea
agreement. While the 90-96 program requires the consent of the defendant, the plea
undercuts or supersedes consent to the 90-96 program because the defendant
consented to probation as a term of his plea in lieu of the 90-96 program.” The trial
court concluded that defendant was barred from relief, and denied his MAR.
On 12 April 2016, defendant filed a petition for writ of certiorari, alleging that
the judgment against him was entered in error. Also on 12 April 2016, defendant
appealed the judgment and denial of his MAR. On 29 April 2016, this Court granted
defendant’s petition for writ of certiorari.
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Opinion of the Court
On 10 May 2016, the State filed a petition in the North Carolina Supreme
Court for writ of certiorari, alleging that this Court lacked jurisdiction to review the
denial of defendant’s MAR, and seeking review of the 29 April 2016 order granting
defendant’s petition for certiorari. The State also filed a petition for a writ of
supersedeas and motion for temporary stay, pending review of its petition for writ of
certiorari. The Supreme Court granted the motion for temporary stay on 16 May
2016.
On 19 August 2016, the Supreme Court entered its order on the State’s
motions. It dissolved the temporary stay, and denied supersedeas and certiorari.
Correspondingly, this Court entered an order recognizing the denial of supersedeas
and certiorari by the Supreme Court.
II. Standard of Review
“ ‘Questions of statutory interpretation are questions of law, which are
reviewed de novo by an appellate court.’ ” State v. Jones, 237 N.C. App. 526, 530, 767
S.E.2d 341, 344 (2014) (quoting State v. Largent, 197 N.C. App. 614, 617, 677 S.E.2d
514, 517 (2009)).
“[U]nder N.C.G.S. § 15A-1444(e), a defendant who has entered a plea of guilty
is not entitled to appellate review as a matter of right, unless the defendant is
appealing sentencing issues or the denial of a motion to suppress, or the defendant
has made an unsuccessful motion to withdraw the guilty plea.” State v. Pimental,
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Opinion of the Court
153 N.C. App. 69, 73, 568 S.E.2d 867, 870, disc. review denied, 356 N.C. 442, 573
S.E.2d 163 (2002).
III. Conditional Discharge
In his first argument, defendant contends that the trial court erred in entering
a suspended sentence rather than a conditional discharge. We agree.
Conditional discharge is an alternative sentence made available in N.C. Gen.
Stat. § 90-96 (2015). This statute provides that:
Whenever any person who has not previously been
convicted of (i) any felony offense under any state or federal
laws; (ii) any offense under this Article; or (iii) an offense
under any statute of the United States or any state relating
to those substances included in Article 5 or 5A of Chapter
90 or to that paraphernalia included in Article 5B of
Chapter 90 of the General Statutes pleads guilty to or is
found guilty of (i) a misdemeanor under this Article by
possessing a controlled substance included within
Schedules I through VI of this Article or by possessing drug
paraphernalia as prohibited by G.S. 90-113.22, or (ii) a
felony under G.S. 90-95(a)(3), the court shall, without
entering a judgment of guilt and with the consent of such
person, defer further proceedings and place him on
probation upon such reasonable terms and conditions as it
may require, unless the court determines with a written
finding, and with the agreement of the District Attorney,
that the offender is inappropriate for a conditional
discharge for factors related to the offense.
N.C. Gen. Stat. § 90-96(a).
In the instant case, during the plea hearing, defense counsel alleged mitigating
factors, and offered the following argument:
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Opinion of the Court
This is his first conviction of any kind. I don’t think he has
even had a speeding ticket. He’s eligible for 90-96, and I’d
ask The Court to allow him to participate in that. He will
be drug tested regularly while he is in that program, and
I’m confident he could stay away from controlled
substances. If he doesn’t, he will have a conviction on his
record.
After discussing some additional mitigating factors, defense counsel once again
requested that the trial court “allow [defendant] to participate in the 90-96
probation.” Defense counsel also offered to present the court with the paperwork
authorizing conditional discharge.
In ruling on the plea agreement, the trial court would not permit conditional
discharge, “in that [defendant] has already endured the benefit of dismissal for
something else[,]” namely the other drug-related charges. After the trial court orally
entered judgment, defense counsel once again raised the issue of conditional
discharge. The trial court declined to reconsider. At no point did the State offer any
opinion in favor of or against conditional discharge.
Defendant contends that he was eligible to participate in the conditional
discharge program, and that the trial court erred in refusing to let him participate in
the program. Citing the statute, defendant contends that he was a first-time offender,
and he consented to participation in the conditional discharge program, meaning that
the statutory language “the court shall” constituted a mandate that the trial court
could not ignore. In an affidavit filed after the trial court denied defendant’s MAR,
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Opinion of the Court
the assistant district attorney, Jodi Barlow (“Barlow”), also cited the statute, and
explained that the court made no written findings of fact at the time of sentencing as
to why defendant was an inappropriate candidate for sentencing under N.C. Gen.
Stat. § 90-96. In addition, the plea agreement did not contemplate that the defendant
could not be placed on probation pursuant to § 90-96. Finally, according to the
affidavit, Barlow also “[did] not agree that the defendant is an inappropriate
candidate for 90-96 probation[,]” in reference to the statutory requirement that the
trial court could only refuse conditional discharge with the agreement of the district
attorney.
“This Court has held that ‘use of the language ‘shall’ is a mandate to trial
judges, and that failure to comply with the statutory mandate is reversible error.’ ”
State v. Antone, 240 N.C. App. 408, 410, 770 S.E.2d 128, 130 (2015) (quoting In re
Eades, 143 N.C. App. 712, 713, 547 S.E.2d 146, 147 (2001)). It is clear, therefore, that
where an eligible first-time offender consents to sentencing under the conditional
discharge program, the “shall” language of N.C. Gen. Stat. § 90-96 constitutes a
“mandate to trial judges,” and that failure to comply with that mandate constitutes
reversible error.
It is undisputed that, at the plea hearing, defendant sought sentencing under
N.C. Gen. Stat. § 90-96, and that such a motion could constitute consent to the
statute’s provisions. The State contends, however, that defendant did not present
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Opinion of the Court
evidence that he qualified under N.C. Gen. Stat. § 90-96 for conditional discharge.
The State notes that N.C. Gen. Stat. § 90-96 does not explicitly state whether the
burden is on a defendant to show that he qualifies for conditional discharge, or on the
State to show that he does not. As such, the State contends that the burden is on the
defendant, and that in the instant case, defendant failed to meet that burden.
N.C. Gen. Stat. § 90-96 is in Chapter 90 of the General Statutes, a chapter
entitled “MEDICINE, ALLIED OCCUPATIONS[.]” The applicable article is Article
5, “CONTROLLED SUBSTANCES ACT[.]” See N.C. Gen. Stat. § 90-96. Our Court
has stated that
[t]his statute [, North Carolina General Statute § 90-96]
does not discuss in further detail the procedures the court
should follow when a defendant violates a term or
condition. In the absence of specifically enumerated
procedures, those procedures set forth in Article 82 of
Chapter 15A of our General Statutes regarding probation
violations should apply.
State v. Burns, 171 N.C. App. 759, 761, 615 S.E.2d 347, 349 (2005). While North
Carolina General Statute § 90-96 has been amended since 2005 when Burns was filed,
and this case does not deal with the violation portion of North Carolina General
Statute § 90-96, we still find Burns instructive because it indicates that the general
criminal sentencing statutes fill in the gaps in North Carolina General Statute § 90-
96. See id.
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Opinion of the Court
While the State relies upon a series of cases for its argument that the burden
of proving a prior record, including a prior expungement, should be upon the
defendant, none of the cases address sentencing under North Carolina General
Statute § 90-96 or prior record levels; in fact, but for three cases regarding mitigating
factors none of the cases are even regarding sentencing. Noticeably missing from the
State’s citation list is the controlling statute. See generally N.C. Gen. Stat. § 15A-
1340.14(f) (2015) (requiring the State to bear the burden of proving prior convictions).
The general sentencing statutes, which control here, see Burns, 171 N.C. App. at 761,
615 S.E.2d at 349, place the burden of demonstrating prior convictions on the State:
“The State bears the burden of proving, by a preponderance of the evidence, that a
prior conviction exists and that the offender before the court is the same person as
the offender named in the prior conviction.” N.C. Gen. Stat. § 15A-1340.14(f). We
hold that, pursuant to the logic in Burns, the Chapter 15A provisions control where
North Carolina General Statute § 90-96 is silent; therefore, the burden is on the State
to establish that defendant is not eligible for conditional discharge by proving
defendant’s prior record.
Notwithstanding the fact that the State had the burden at trial, it is clear that
the trial court did not afford either party the opportunity to establish defendant’s
eligibility or lack thereof. According to the transcript, since multiple charges against
defendant were dismissed pursuant to the plea agreement, the trial court had no
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Opinion of the Court
inclination to consider conditional discharge. At no point in the proceedings did the
trial court acknowledge defense counsel’s argument with respect to conditional
discharge, except for one remark, when the court stated that it “will not entertain the
deferred prosecution in that [defendant] has already endured the benefit of dismissal
for something else.” Since the trial court used the outdated term “deferred
prosecution” instead of “conditional discharge,” it is questionable whether the court
even recognized defense counsel’s argument with respect to N.C. Gen. Stat. § 90-96.
We therefore vacate the trial court’s judgment, and remand this matter to the
trial court for a new sentencing hearing. The trial court shall follow the procedure
for the consideration of eligibility for conditional discharge as prescribed by statute.
North Carolina General Statute § 90-96 addresses the procedure for
determining a defendant’s eligibility, as is reflected on Form AOC-CR-237, Rev.
12/15. See N.C. Gen. Stat. § 90-96. In fact, the form provides for the trial court to
request a report from the Administrative Office of the Courts to determine a
defendant’s eligibility for a conditional discharge under North Carolina General
Statue § 90-96. This report can be requested either in advance of a defendant’s trial
or guilty plea or at the time of a guilty plea or verdict, the latter situation being
applicable to this case. If the report is requested in advance of the trial or plea, both
the defendant and State must jointly complete the form for entry by the trial court.
This procedure ought to have been followed in the instant case, and upon remand,
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Opinion of the Court
the trial court shall request a report from the Administrative Office of the Courts, as
mandated by statute.
IV. Written Finding
In his second argument, defendant contends that the trial court erred in failing
to make a written finding regarding whether conditional discharge was appropriate
for defendant’s sentence. Because we vacate the trial court’s judgment, we need not
address this argument.
VACATED AND REMANDED.
Judge STROUD concurs.
Judge BRYANT concurs in separate opinion.
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No. COA16-1324 – State v. Dail
BRYANT, Judge, concurring by separate opinion.
I concur with the majority opinion that the trial court erred by failing to follow
the mandate of section 90-96. Because defendant met the eligibility requirements of
section 90-96 and the assistant district attorney (“ADA”) did not state that defendant
was “inappropriate for conditional discharge,” the statutory mandate required the
trial court to enter a conditional discharge.
I write separately to express my concern about how a trial judge can be
sandbagged by a defendant who enters a plea agreement that does not expressly
include conditional discharge. I use the term “sandbagged” here to mean that a
defendant may enter a plea before a judge pursuant to a plea agreement; the
agreement may place him within the eligibility requirements of section 90-96, even
though the plea agreement does not expressly reference the conditional discharge;
and (notwithstanding the judge’s desire) if the ADA does not agree that the
conditional discharge is inappropriate, the trial judge may be compelled to enter the
conditional discharge. Thus, if a section 90-96 conditional discharge is to be included
in a plea agreement between the prosecutor and a defendant, it should be made
known to the judge prior to entry of the plea. Otherwise, once a trial judge accepts
the plea of a defendant who is statutorily eligible for a section 90-96 conditional
discharge, even if the trial judge considers the defendant an inappropriate candidate
STATE V. DAIL
BRYANT, J., concurring in result only
due to factors related to the offense, the trial judge has no discretion but to allow the
conditional discharge, unless the ADA agrees that the offender is inappropriate.
In this case, defendant had prior charges for possessing a weapon on
educational property and reckless driving. Both charges were dismissed after
completing a deferral program. At the time of the plea agreement, defendant had
pending charges for DWI, felony possession of LSD, felony possession of MDPV, felony
prescription and labeling, possession of marijuana, possession of drug paraphernalia,
and simple possession of clonazepam. The plea agreement allowed defendant to plead
guilty to DWI and possession of LSD, and dismiss the remaining drug charges.
Because defendant had no prior felony or drug convictions, he was eligible for a
section 90-96 conditional discharge. Notwithstanding his technical eligibility, it is
clear that a reasonable trial judge could consider defendant inappropriate for a
section 90-96 conditional discharge because of his other drug charges (involving
different types of drugs), which were dismissed as part of the plea agreement and his
prior deferments.
As discussed in the majority opinion, there is a form procedure that can be used
to determine a defendant’s eligibility for the section 90-96 conditional discharge prior
to entry of a plea. It appears that District Court judges regularly use this process,
while Superior Court judges use it less so. Such a procedure should be used to help
ensure that errors of this type do not recur. Also, judges should be vigilant to make
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BRYANT, J., concurring in result only
sure they maintain their discretion to determine whether to accept or reject a plea by
understanding the full extent of the plea bargain. Otherwise, pursuant to the statute,
unless the prosecutor (and the defendant) agree that an eligible defendant is not
appropriate for a section 90-96 conditional discharge, once the plea is entered, the
trial judge must allow the conditional discharge.
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