State v. Mulder , 233 N.C. App. 82 ( 2014 )

NO. COA13-672
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
STATE OF NORTH CAROLINA
v. Lee County
Nos. 11 CRS 78
11 CRS 277
11 CRS 50049–58
EDWARD EARL1 MULDER
Appeal by Defendant from judgments entered 15 October 2012
by Judge Carl R. Fox in Lee County Superior Court. Heard in the
Court of Appeals 7 November 2013.
Attorney General Roy Cooper, by Special Deputy Attorney
General Karen A. Blum, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Mary Cook, for Defendant.
STEPHENS, Judge.
Procedural History and Evidence
Defendant began a dating relationship with Brenda Swann
approximately seven years before the trial of this case. When
the relationship ended, Swann obtained a Domestic Violence
1
The transcript lists Defendant’s middle name as “Everett.”
Relying on the judgments entered in the trial court, however, we
use the middle name “Earl.”
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Protective Order (“DVPO”) against Defendant. This appeal arises
from the domestic disturbance and car chase that followed.
On 6 January 2011, around 7:00 p.m., Swann heard a loud
noise outside her home. Swann’s son went to the front door to
investigate. From that vantage point, the son observed Defendant
striking Swann’s car with a hammer. Defendant was wearing a
black ski mask, which was “kind of rolled up [and] pulled . . .
over his head.” The son confronted Defendant and asked him what
he was doing. Without responding or releasing the hammer,
Defendant began approaching the son. Concerned for his mother’s
safety, the son returned to the house and attempted to close the
door. Defendant pushed back on the door, and the two began
struggling. During the struggle, the son told Swann to call the
police. The son eventually succeeded in closing the door, and
Defendant left the premises. The police arrived two to three
minutes later.
While police officers were speaking with Swann and her son,
Sergeant Scott Norton was on nearby patrol. After learning about
the disturbance, he observed Defendant’s vehicle driving down
the road. Norton activated his lights and began following the
car. Defendant then turned his vehicle around, swerved into a
yard, jumped over a curb, and accelerated away. According to
-3-
Norton, “[i]t was obvious that [Defendant] was running [and]
wasn’t going to surrender.” Norton requested backup and
continued pursuit. Defendant eventually stopped at the top of a
bridge, leading Norton to believe that he was finished fleeing.
When Norton opened his door, however, Defendant “accelerated,
squealing tires,” and left. Norton commented at trial that
Defendant appeared to be “swerve[ing] . . . as if he was trying
to hit [civilian cars]. . . . Just innocent people on the
highway.”
Other police cars joined in the chase and tried to “box in”
Defendant. During the attempt, Defendant swerved toward Norton,
missing him, and escaped. As the pursuit wore on, the vehicles
reached speeds in excess of 100 miles per hour, and officers
observed Defendant toss papers and other objects out the car
window.2 After a time, another officer drove down the road in the
opposite direction of Defendant. Defendant then exited the road,
veered off the right-hand shoulder, and overcorrected. Next, he
went over to the left-hand side of the road, “slammed on the
brakes,” and came back across the road, heading toward Norton’s
vehicle.
2
A black ski mask was later recovered from the area.
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Instead of hitting Norton, Defendant’s car “went into a
ditch.” Officers then tried to “box [Defendant] in” a second
time. They were unsuccessful, and Defendant drove out of the
ditch, “ramm[ing]” another officer’s vehicle in the process.
Worried that Defendant would cause injury or further damage to
the other officer’s car, Norton then used his own vehicle to
“ram[ D]efendant’s car in the driver’s side door.”
After striking Defendant’s car, Norton exited his vehicle
and approached Defendant. Norton had his gun out and told
Defendant to raise his hands and turn off the car. In response,
Defendant reached out the window, slapped Norton’s pistol, and
said “shoot me, mother[]fucker.” Norton then reached into
Defendant’s car and attempted to pull him out. At the same time,
Defendant “[shifted his car into] reverse and accelerate[d]
while [Norton was] hanging in the driver’s side window . . . .”
The other officer was hanging in the passenger side window, and
more officers began to approach from behind. Before Defendant
was able to make contact with the approaching officers, the
passenger-side officer reached inside Defendant’s car, put it
into park, and shut off the engine. Defendant remained
“[u]ncooperative, belligerent, cussing at us, [and] trying to
fight” as he was pulled from the vehicle and arrested.
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Defendant was later indicted for (1) one count of failure
to heed light or siren, (2) one count of first-degree burglary,
(3) two counts of violating a DVPO, (4) one count of speeding,
(5) one count of reckless driving to endanger, (6) one count of
littering, (7) one count of failure to maintain lane control,
(8) five counts of assault with a deadly weapon on a government
officer (“AWDWOGO”), (9) one count of speeding to elude arrest
with a motor vehicle,3 (10) one count of injury to personal
property, and (11) one count of breaking or entering. The case
came on for trial beginning 8 October 2012.
On 15 October 2012, the jury found Defendant guilty on all
counts except first-degree burglary. Instead of burglary,
Defendant was found guilty of the lesser-included offense of
misdemeanor breaking and entering. Afterward, the trial court
imposed consecutive sentences of 15–18 months in prison for the
first two counts of AWDWOGO; 19–23 months in prison for the next
three counts of AWDWOGO; 6–8 months in prison for the
consolidated offenses of speeding, reckless driving, speeding to
3
The indictment refers to this charge as “FLEE/ELUDE ARREST WITH
A MOTOR VEHICLE.” The cited statute, however, describes the
crime as “Speeding to elude arrest[.]” N.C. Gen. Stat. § 20-
141.5 (2013). Thus, for purposes of consistency with the
legislature, we refer to this charge as “speeding to elude
arrest.”
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elude arrest, failure to heed light or siren, failure to
maintain lane control, and littering; and 75 days in prison for
the DVPO violations, the injury to personal property offense,
and the breaking or entering offense. Defendant gave notice of
appeal in open court.
Discussion
On appeal, Defendant argues that the trial court erred in
failing to arrest judgment on the speeding and reckless driving
convictions because each of those offenses is a lesser-included
offense of felony speeding to elude arrest and, therefore,
subjects Defendant to double jeopardy. Alternatively, Defendant
argues that the speeding and reckless driving convictions must
be vacated because the State failed to present sufficient
evidence distinguishing them from the aggravating factors
applied to enhance Defendant’s speeding to elude arrest
conviction from a misdemeanor to a felony. We arrest judgment on
the speeding and reckless driving convictions and remand for re-
sentencing.
I. Appellate Review
As a preliminary matter, we address the State’s argument
that Defendant is barred from seeking to arrest judgment on
double jeopardy grounds because he admittedly failed to raise
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the double jeopardy issue at trial. In response, Defendant
contends (1) that a motion to arrest judgment based on a fatal
error or defect in the record may be raised for the first time
on appeal or, in the alternative, (2) that this Court should
invoke Rule 2 of the North Carolina Rules of Appellate Procedure
and review this issue in order to prevent manifest injustice. We
hold that Defendant waived his right to appellate review by
failing to raise the double jeopardy issue at trial, but elect
to review the issue nonetheless under Rule 2 of the North
Carolina Rules of Appellate Procedure.
A. Arrest of Judgment
As a general rule, “constitutional questions not raised and
passed on by the trial court will not ordinarily be considered
on appeal.” State v. Davis, 364 N.C. 297, 301, 698 S.E.2d 65, 67
(2010) (citations, internal quotation marks, and brackets
omitted) (declining to review the defendant’s double jeopardy
argument because he failed to raise it at trial). Furthermore,
our appellate rules require a party to make “a timely request,
objection, or motion [at trial], stating the specific grounds
for the [desired] ruling” in order to preserve an issue for
appellate review. N.C.R. App. P. 10(a)(1).
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Despite this general rule, Defendant contends that we
should review his argument seeking arrest of judgment on double
jeopardy grounds pursuant to our Supreme Court’s opinion in
State v. Sellers, 273 N.C. 641, 645, 161 S.E.2d 15, 18 (1968)
and our opinion in State v. Wilson, 128 N.C. App. 688, 691, 497
S.E.2d 416, 419 (1998) (citing Sellers). We disagree.
In Sellers, our Supreme Court stated that
[a] motion in arrest of judgment predicated
upon some fatal error or defect appearing on
the face of the record proper may be made at
any time in any court having jurisdiction of
the matter. This is true even though the
motion is made for the first time . . . at
the hearing of the appeal from the judgment
of the Superior Court.
Sellers, 273 N.C. at 645, 161 S.E.2d at 18. Applying Sellers,
Defendant contends that the alleged double jeopardy problem in
this case constitutes a fatal defect on the face of the record
and, therefore, may be raised for the first time on appeal. This
is incorrect.
A double jeopardy problem is distinct from a “fatal flaw
which appears on the face of the record.” See State v. Pakulski,
326 N.C. 434, 439, 390 S.E.2d 129, 132 (1990). In Pakulski, our
Supreme Court confirmed that a fatal flaw on the face of the
record is akin to a “substantive error on the indictment,” which
is separate and apart from a double jeopardy issue. See id.
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(“When judgment is arrested because of a fatal flaw which
appears on the face of the record, such as a substantive error
on the indictment, the verdict itself is vacated . . . . [W]hen
judgment is arrested on predicate felonies in a felony murder
case to avoid a double jeopardy problem, [however,] the guilty
verdicts on the underlying felonies remain on the docket
. . . .”). Therefore, Defendant’s double jeopardy argument
cannot be raised for the first time on appeal on a motion for
arrest of judgment because a double jeopardy problem does not
constitute a fatal defect on the face of the record. See id.
Accordingly, Defendant’s double jeopardy argument is waived
pursuant to the general rule described above.
B. Rule 2
Despite the rule disallowing appellate review of issues not
raised at trial, our Supreme Court has stated that the appellate
courts may elect to review an unpreserved double jeopardy issue
on appeal pursuant to our “supervisory power over the trial
divisions [and] Rule 2 of the North Carolina Rules of Appellate
Procedure . . . .” State v. Dudley, 319 N.C. 656, 659, 356
S.E.2d 361, 364 (1987); N.C.R. App. P. 2 (“To prevent manifest
injustice to a party . . . either court of the appellate
division may . . . suspend or vary the requirements or
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provisions of any of these rules in a case pending before it
upon application of a party or upon its own initiative, and may
order proceedings in accordance with its directions.”). The
decision to review an unpreserved argument relating to double
jeopardy is entirely discretionary. See, e.g., State v.
McLaughlin, 321 N.C. 267, 272, 362 S.E.2d 280, 283 (1987)
(declining to review the defendant’s double jeopardy argument
because the defendant failed to raise that issue at trial and
thus waived appellate review); Dudley, 319 N.C. at 659, 356
S.E.2d at 364 (reviewing the defendant’s double jeopardy
argument even though it was waived); State v. Mebane, 106 N.C.
App. 516, 532–33, 418 S.E.2d 245, 255–56 (declining to review
the defendant’s double jeopardy argument because it was not
raised at trial and noting that “[e]ven if we opted to review
the double jeopardy issue . . . , we [would conclude that
Defendants failed to establish] . . . . error on appeal”), disc.
review denied, 332 N.C. 670, 424 S.E.2d 414 (1992). After a
careful review of Defendant’s double jeopardy argument in this
case, we elect to suspend the rules and review the issue under
Rule 2.
II. Double Jeopardy
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“Both the fifth amendment to the United States Constitution
and article I, section 19 of the North Carolina Constitution
prohibit multiple punishments for the same offense absent clear
legislative intent to the contrary.” State v. Etheridge, 319
N.C. 34, 50, 352 S.E.2d 673, 683 (1987) (citation omitted;
certain emphasis added). In State v. Ezell, we described the
double jeopardy doctrine as follows:
For decades, the Supreme Court of the United
States has applied . . . the Blockburger
test in analyzing multiple offenses for
double jeopardy purposes. The Court in
Blockburger v. United States, 284 U.S. 299,
76 L. Ed. 306 (1932), held as follows:
The applicable rule is that, where
the same act or transaction
constitutes a violation of two
distinct statutory provisions, the
test to be applied to determine
whether there are two offenses or
only one is whether each provision
requires proof of a fact which the
other does not.
If what purports to be two offenses is
actually one under the Blockburger test,
double jeopardy prohibits prosecution for
both.
159 N.C. App. 103, 106–07, 582 S.E.2d 679, 682 (2003) (certain
citations omitted). The United States Supreme Court has
clarified, however, that
double jeopardy does not prohibit multiple
punishment for two offenses — even if one is
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included within the other under the
Blockburger test — if both are tried at the
same time and the legislature intended for
both offenses to be separately
punished . . . .
Id. at 107, 582 S.E.2d at 682 (citing, inter alia, Missouri v.
Hunter, 459 U.S. 359, 74 L. Ed. 2d 535 (1983)). The North
Carolina Supreme Court has relied on both Blockburger and Hunter
when determining whether double jeopardy applies under article
I, section 19 of the North Carolina Constitution. See, e.g.,
State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986). Thus, a
defendant convicted of multiple criminal offenses in the same
trial is only protected by double jeopardy principles if (1)
those criminal offenses constitute the “same offense” under
Blockburger and (2) the legislature did not intend for the
offenses to be punished separately. See id. at 454–55, 340
S.E.2d at 709.
Here, Defendant argues that the judgments against him
violate principles of double jeopardy because he was separately
convicted of speeding and reckless driving and also convicted of
felony speeding to elude arrest, which was raised from a
misdemeanor to a felony because Defendant was speeding and
driving recklessly. Therefore, pursuant to the test articulated
above, we must first determine whether Defendant’s convictions
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for speeding and reckless driving in addition to felony speeding
to elude arrest constitute punishments for the same offense. If
so, we must then determine whether the legislature intended for
those offenses to be punished alternatively or separately. After
a thorough review, we conclude that Defendant’s convictions
constitute the same offense for purposes of double jeopardy and,
further, that the legislature intended for them to be punished
alternatively, not separately.
A. The Same Offense
As discussed above, the applicable test to determine
whether double jeopardy attaches in a single prosecution is
“whether each statute requires proof of a fact which the others
do not.” Etheridge, 319 N.C. at 50, 352 S.E.2d at 683 (citing
Blockburger).
By definition, all essential elements of a
lesser[-]included offense are also elements
of the greater offense. Invariably then, a
lesser[-]included offense requires no proof
beyond that required for the greater
offense, and the two crimes are considered
identical for double jeopardy purposes. If
neither crime constitutes a
lesser[-]included offense of the other, the
convictions will fail to support a plea of
double jeopardy.
Id. (citations omitted).
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In this case, as discussed above, Defendant was convicted
of speeding, reckless driving, and felony speeding to elude
arrest based on the aggravating factors of speeding and reckless
driving. The essential elements of speeding under section 20-
141(j1) are: (1) driving (2) a vehicle (3) on a highway (4) more
than 15 miles per hour over the speed limit or over 80 miles per
hour. N.C. Gen. Stat. § 20-141(j1) (2013). The essential
elements of reckless driving under section 20-140(b) are: (1)
driving (2) any vehicle (3) on a highway or any public vehicular
area (4) without due caution and circumspection and (5) at a
speed or in a manner so as to endanger or be likely to endanger
any person or property. N.C. Gen. Stat. § 20-140(b) (2013). The
essential elements of misdemeanor speeding to elude arrest under
section 20-141.5(a) are: (1) operating a motor vehicle (2) on a
street, highway, or public vehicular area (3) while fleeing or
attempting to elude a law enforcement officer (4) who is in the
lawful performance of his duties. N.C. Gen. Stat. § 20-141.5(a).
The elements of the two aggravating factors used to raise the
crime to a felony in this case are (i)(1) speeding (2) in excess
of 15 miles per hour over the legal speed limit and (ii)
“reckless driving as proscribed in G.S. 20-140.” Both of these
factors contain the same essential elements as the separate
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crimes listed above. Therefore, whether Defendant was subjected
to multiple punishments for the “same offense” turns on whether
these aggravating factors are considered “essential elements” of
the felony speeding to elude arrest conviction in this case. We
hold that they are.
In its brief, the State argues that Defendant has not been
punished for the same offense because the aggravating factors
used to raise speeding to elude arrest from a misdemeanor to a
felony are not essential elements of that offense. In so
arguing, the State relies on the following language from this
Court’s opinion in State v. Funchess:
Although many of the enumerated aggravating
factors [for speeding to elude arrest] are
in fact separate crimes under various
provisions of our General Statutes, they are
not separate offenses . . . , but are merely
alternate ways of enhancing the punishment
for speeding to elude arrest from a
misdemeanor to a Class H felony.
141 N.C. App. 302, 309, 540 S.E.2d 435, 439 (2000). The State
misapplies this language to the circumstances presented by this
case.
In Funchess, the defendant was indicted for felonious
speeding to elude arrest based on three of the eight listed
aggravating factors. Id. at 306, 540 S.E.2d at 438. At trial,
the court instructed the jury that the State was required to
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prove “two or more” of those three factors in order to convict
the defendant of felony speeding to elude arrest. Id. On appeal,
the defendant argued that the trial court’s instruction violated
the constitutional provision requiring a unanimous jury verdict
because it did not tell the jury to “unanimously agree on the
same two factors[.]” Id. at 307, 540 S.E.2d at 438. In finding
that the trial court did not violate the unanimity requirement,
we held that the aggravating factors enumerated in section 20-
141.5 did not constitute separate criminal offenses when used to
elevate the misdemeanor offense of speeding to elude arrest to a
felony and, therefore, did not allow the jury to separately
convict the defendant of more than one possible crime. Id. Thus,
we determined that the aggravating factors — while they might
constitute criminal offenses in other sections of the code —
could not be separately punished in the context of section 20-
141.5. This holding has no direct bearing on whether the listed
aggravating factors may be considered “essential elements” of
felony speeding to elude arrest for purposes of double jeopardy.
In addition, the United States Supreme Court has clarified
that “the existence of any fact (other than a prior conviction)
[which] increases the maximum punishment that may be imposed on
a defendant . . . — no matter how the State labels it —
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constitutes an element [of the offense]” for purposes of the
Sixth Amendment right to a jury trial. Sattazahn v.
Pennsylvania, 537 U.S. 101, 111, 154 L. Ed. 2d 588, 598 (2003)
(citing Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435
(2000)); see also Ring v. Arizona, 536 U.S. 584, 609, 153 L. Ed.
2d 556, 577 (2002) (holding that aggravating circumstances that
make a defendant eligible for the death penalty “operate as the
functional equivalent of an element of a greater offense” for
purposes of the Sixth Amendment’s jury trial guarantee)
(citation and internal quotation marks omitted). The Court also
commented that there is “no principled reason to distinguish,
[in the context of a capital case], between what constitutes an
offense for purposes of the Sixth Amendment’s jury-trial
guarantee and what constitutes an ‘offence’4 for purposes of the
Fifth Amendment’s Double Jeopardy Clause.” Sattazahn, 537 U.S.
at 111–12, 154 L. Ed. 2d at 599 (citation omitted).
Pursuant to the Supreme Court opinions discussed above and
because the speeding and reckless driving factors increased the
maximum penalty for speeding to elude arrest from 45 days to 10
4
The Fifth Amendment uses the archaic spelling of the word
offense, writing it with a “c.” See U.S. Const. amend. V; see
generally Webster’s Third New International Dictionary of the
English Language Unabridged 1566 (3d ed. 2002).
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months, see N.C. Gen. Stat. §§ 15A-1340.17, 1340.23 (2013), we
conclude that those factors constituted elements of speeding to
elude arrest in this case for double jeopardy purposes.
Therefore, we hold that Defendant was twice subjected to
punishment for the “same offense” under Blockburger when he was
convicted of speeding, reckless driving, and felony speeding to
elude arrest.
B. The Intent of the Legislature
Even when a defendant is punished twice in the same trial
for the “same offense,” however, our Supreme Court has stated
that relief under double jeopardy principles is only available
if the legislature did not intend for multiple punishments to be
imposed. Citing the United States Supreme Court’s opinion in
Hunter, 459 U.S. at 368–69, 74 L. Ed. 2d at 544, our Supreme
Court has described the intention doctrine as follows:
The Double Jeopardy Clause plays only a
limited role in deciding whether cumulative
punishments may be imposed under different
statutes at a single criminal proceeding —
that role being only to prevent the
sentencing court from prescribing greater
punishments than the legislature
intended. . . . [W]here our legislature
specifically authorizes cumulative
punishment under two statutes, regardless of
whether those two statutes proscribe the
“same” conduct under Blockburger, a court’s
task of statutory construction is at an end
and the prosecutor may seek and the trial
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court or jury may impose cumulative
punishment under such statutes in a single
trial.
Gardner, 315 N.C. at 460–62, 340 S.E.2d at 712–13 (citations and
certain quotation marks omitted; emphasis added) (determining
that the defendant could be punished for the crimes of felony
larceny and breaking or entering because those crimes deal with
“separate and distinct social norms” and were placed in
different articles and subchapters of the criminal code, which
were entitled “Offenses Against the Habitation and Other
Buildings” and “Offenses Against Property,” respectively); see
also State v. Pipkins, 337 N.C. 431, 434–35, 446 S.E.2d 360,
362–63 (1994) (holding that the defendant’s convictions and
punishments for trafficking in cocaine by possession and
felonious possession of cocaine did not violate the principles
of double jeopardy because the legislature intended the
punishments to protect against two distinct “perceived evils” —
the use of cocaine in the possession offense and the “growing
concern regarding the gravity of illegal drug activity in North
Carolina” in the trafficking offense). But see Ezell, 159 N.C.
App. at 110–11, 582 S.E.2d at 684–85 (holding that the defendant
was impermissibly subjected to double jeopardy when — in the
same case — he was convicted of assault with a deadly weapon
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with intent to kill inflicting serious injury and assault
inflicting serious bodily injury because the legislature
intended the offenses to allow alternative punishments, not
separate ones). In addition, our Supreme Court has noted that
the presumption raised by the Blockburger
test . . . may be rebutted by a clear
indication of legislative intent; and, when
such intent is found, it must be respected,
regardless of the outcome of the application
of the Blockburger test. That is, even if
the elements of the two statutory crimes are
identical and neither requires proof of a
fact that the other does not, the defendant
may, in a single trial, be convicted of and
punished for both crimes if it is found that
the legislature so intended.
Gardner, 315 N.C. at 455, 340 S.E.2d at 709 (citations omitted).
Given our jurisprudence on this doctrine, we must determine
whether the legislature intended for the crimes of speeding and
reckless driving to be punished separately, or alternatively,
from felony speeding to elude arrest when the latter is based on
the aggravating factors of speeding and reckless driving. After
careful review, we conclude that the legislature intended the
latter.
The speeding charge in this case is prohibited under
section 20-141(j1) of the North Carolina General Statutes. In
determining the legislature’s purpose for enacting section 20-
141, we have commented that the section was created “for the
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protection of persons and property and in the interest of public
safety[] and the preservation of human life.” State v. Bennor, 6
N.C. App. 188, 190, 169 S.E.2d 393, 394 (1969) (citation and
internal quotation marks omitted). In addition, our Supreme
Court has stated more generally that speeding laws are intended
to protect both “those traveling on arterial highways and those
entering them from intersecting roads[] from the dangers arising
because of the frequency of travel along the through highway.”
Groome v. Davis, 215 N.C. 510, 515, 2 S.E.2d 771, 774 (1939).
Therefore, the speeding statute was enacted to protect against
harm to persons and property.
Reckless driving is prohibited under section 20-140(b) of
the North Carolina General Statutes. Subsection (b) provides
that “[a]ny person who drives any vehicle upon a highway or any
public vehicular area without due caution and circumspection and
at a speed or in a manner so as to endanger or be likely to
endanger any person or property shall be guilty of reckless
driving.” N.C. Gen. Stat. § 20-140(b). As with speeding, our
Supreme Court has stated that this conduct was prohibited by the
legislature “for the protection of persons and property and in
the interest of public safety[] and the preservation of human
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life.” State v. Norris, 242 N.C. 47, 53, 86 S.E.2d 916, 920
(1955).
Speeding to elude arrest is prohibited under section 20-
141.5 of the North Carolina General Statutes. Subsection (a)
provides that “[i]t shall be unlawful for any person to operate
a motor vehicle on a street, highway, or public vehicular area
while fleeing or attempting to elude a law enforcement officer
who is in the lawful performance of his duties.” Subsection (b)
raises that offense from a misdemeanor to a felony in the
presence of two or more of the following factors: (1) speeding,
(2) gross impairment while driving, (3) reckless driving, (4)
negligent driving leading to an accident causing property damage
or personal injury, (5) driving while license revoked, (6)
speeding on school property or in an area designated as a school
zone or a highway work zone, (7) passing a stopped school bus,
or (8) driving with a child under 12 years old. N.C. Gen. Stat.
§ 20-141.5(a)–(b). Our appellate courts have not offered a
distinct legislative rationale for this statute. Nonetheless,
the statute’s own terms state that an individual in violation of
subsection (a) whose act results in “the death of any person”
shall be subject to a higher penalty. N.C. Gen. Stat. § 20-
141.5(b1) (emphasis added). In addition, by transforming the
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crime from a misdemeanor into a felony for actions like
speeding, reckless driving, causing property damage or personal
injury, and endangering the lives of children, the plain
language of the statute suggests that the legislature intended
to deter actions subjecting persons, property, and public safety
to greater risk. Thus, at least to the extent that speeding to
elude arrest is raised from a misdemeanor to a felony pursuant
to the aggravating factors of speeding and reckless driving, we
see no reason to conclude that the legislature intended this
crime to permit a separate punishment from speeding and reckless
driving.
In Gardner, as noted above, our Supreme Court determined
that the defendant’s convictions for larceny and breaking or
entering did not invoke principles of double jeopardy because
the legislature intended for those offenses to prohibit “two
separate and distinct social norms, the breaking into or
entering the property of another and the stealing and carrying
away of another’s property.” Gardner, 315 N.C. at 461, 340
S.E.2d at 712. In so holding, the Court pointed out that this
was evidenced by the fact that the two offenses were placed in
different articles and subchapters of the criminal code. Id. at
462, 340 S.E.2d at 713.
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In this case, the crimes of speeding, reckless driving, and
felony speeding to elude arrest (when supported by the
aggravating factors of speeding and reckless driving) all seek
to deter the same conduct — driving on public roads in a way
that might endanger public safety or property. In addition,
unlike the statutes in Gardner, each offense is listed in
approximately the same section of the Motor Vehicle Act —
Chapter 20 (Motor Vehicles), Article 3 (The Motor Vehicle Act of
1937), Part 10 (Operation of Vehicles and Rules of the Road).
Therefore, pursuant to the rationale employed in Gardner, it is
apparent that the legislature intended for the offenses of
“speeding” and “reckless driving” to permit alternative, not
separate, punishments to “felony speeding to elude arrest” when
supported by the aggravating factors of speeding and reckless
driving.
Accordingly, we hold that Defendant was unconstitutionally
subjected to double jeopardy when he was convicted of speeding
and reckless driving in addition to felony fleeing to elude
arrest based on speeding and reckless driving. As a result, we
need not address Defendant’s second, alternative, argument on
appeal. For the foregoing reasons, we arrest judgment on the
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speeding and reckless driving convictions in 11 CRS 500495 and
remand for resentencing.
JUDGMENT ARRESTED; REMANDED FOR RESENTENCING.
Judges GEER and ERVIN concur.
5
The speeding and reckless driving convictions were consolidated
for sentencing purposes with other convictions, including felony
speeding to elude arrest. As a result, Defendant was sentenced
to 6 to 8 months in prison. This is within the presumptive range
for felony speeding to elude arrest, alone, when the defendant
has a prior record level II, as here. See N.C. Gen. Stat. §§
15A-1340.17, 20-141.5(b). Though the State does not argue that
resentencing would be unnecessary in this case, we nonetheless
point out that the judgment must be remanded because we cannot
assume that the trial court’s consideration of the speeding and
reckless driving convictions had no effect on the sentence
imposed. State v. Brown, 350 N.C. 193, 213, 513 S.E.2d 57, 69–70
(1999) (“[W]e . . . conclude that the judgment on this offense
must be remanded for resentencing because the trial court
consolidated it with the solicitation conviction, which we have
now vacated, in imposing a single sentence of thirty years, and
we cannot assume that the trial court’s consideration of two
offenses, as opposed to one, had no affect [sic] on the sentence
imposed.”); see also State v. Williams, 150 N.C. App. 497, 505–
06, 563 S.E.2d 616, 621 (2002) (arresting judgment on the crime
of first degree trespass, when that conviction was consolidated
for trial with the crime of resisting a public officer, and
remanding for resentencing on the resisting crime even though
both crimes had a presumptive sentence of 60 days because
“whether the crime warrants the sentence imposed in connection
with the two consolidated crimes is a matter for the trial court
to reconsider”) (citation omitted).