State v. Wood ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedure.
NO. COA 13-1187
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
STATE OF NORTH CAROLINA
v. Johnston County
No. 11 CRS 56615
JAMES DANIEL WOOD
Appeal by defendant from judgment entered 4 June 2013 by
Judge Ebern T. Watson, III, in Johnston County Superior Court.
Heard in the Court of Appeals 5 March 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Ellen A. Newby, for the State.
Narron, O'Hale and Whittington, P.A., by John P. O'Hale,
for the defendant.
McCullough, Judge.
Defendant James Daniel Wood appeals from the trial court’s
sentence upon his conviction of careless and reckless driving, a
Class II misdemeanor. Specifically, Defendant contends that the
judge committed reversible error by imposing an unauthorized
sentence when the court imposed a sentence of twenty-four (24)
months’ probation without making specific findings that a longer
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period of probation was necessary as the statute only authorizes
a punishment of eighteen (18) months otherwise. As the State
concedes error we will remand for re-sentencing.
I. Background
On the afternoon of 8 April 2011 at approximately 2:15 p.m.
three (3) motorcyclists were riding south on Highway 50 in
Johnston County. As Defendant made a right turn onto the
highway the motorcycle riders began to pass Defendant’s slower
moving automobile. The second rider, Kevin Conroy, now
deceased, collided with the left hand rear portion of
Defendant’s automobile. Defendant’s car struck Conroy’s
motorcycle at four (4) points on the right handlebar as well as
the lower portion of the motorcycle. Conroy’s cycle left the
road where Conroy suffered the injuries he later died of.
Eventually, Defendant was charged with involuntary manslaughter
and indicted by a Johnston County Grand Jury on that charge on 2
April 2012. Defendant later pled guilty to careless and
reckless driving pursuant to an Alford plea as authorized by
North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970).
The sentencing judge entered a judgment of thirty (30) days
suspended for a period of twenty-four (24) months and as a
condition of probation ordered Defendant to surrender his
driver’s license without directing the Clerk of Superior Court
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to transmit the license to the Department of Motor Vehicles.
Defendant alleges both actions are erroneous and the case should
be remanded for re-sentencing, a position the State agrees with.
II. Standard of Review
Statutory errors involving sentencing issues are issues of
law and are reviewed de novo. State v. Mackie, 209 N.C. App.
116, 120, 708 S.E.2d 719, 721 (2011). Such errors are preserved
even if Defendant failed to object at the sentencing hearing and
this Court is free to hear and correct such errors. State v.
Morgan, 164 N.C. App. 298, 304, 595 S.E.2d 804, 809 (2004).
III. Discussion
On 23 May 2013, Defendant entered his plea of guilty
admitting he violated N.C. Gen. Stat. § 20-140(b) (2013) which
provides: “Any 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.” The statute further classifies reckless driving as a
Class 2 misdemeanor. N.C. Gen. Stat. § 20-240(d). The North
Carolina scheme for structured sentences is applicable to this
offense. N.C. Gen. Stat. § 15A-1340.10 (2013). Pursuant to
N.C. Gen. Stat. § 15A-1343.2(d)(1) a probationary period must be
no less than six months nor longer than 18 months unless the
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sentencing judge makes specific findings as to why such a
shorter or longer period of probation is applicable. That
statute reads as follows:
d) Lengths of Probation Terms Under
Structured Sentencing. - Unless the court
makes specific findings that longer or
shorter periods of probation are
necessary, the length of the original
period of probation for offenders
sentenced under Article 81B shall be as
follows:
(1) For misdemeanants sentenced to
community punishment, not less than
six nor more than 18 months[.]
N.C. Gen Stat. § 15A-1343.2(d)(1) (2013).
In a case with nearly identical facts this Court held in
State v. Mucci, 163 N.C. App 615, 625, 594 S.E.2d 411, 418
(2004), that when longer periods of probation are entered than
what is authorized by the appropriate subsection then specific
findings must be made. In Mucci, the defendant was a felon
being punished with community punishment pursuant to N.C. Gen.
Stat. § 15A-1343.2(d)(3) which limited his period of probation
to 30 months unless findings were made. The trial judge in
Mucci had imposed a probationary period of thirty-six (36)
months but had made no specific findings as mandated by the
statute. This court remanded for re-sentencing saying:
First, defendant argues the trial court
erred in sentencing him to a thirty-six
month probation term. We agree. N.C. Gen.
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Stat. § 15A–1343.2(d)(3) clearly mandates
that where a felon is sentenced to community
punishment, as was the case here, probation
may not be for more than thirty months,
unless the trial court specifically finds
that a longer term is required. N.C. Gen.
Stat. § 15A–1343.2(d)(3) (2003). The trial
court in this case made no such finding,
thus it was error to make defendant’s
probation term exceed thirty months. As a
result, we must remand this case for
resentencing in order for the trial court to
either impose a probation term consistent
with the statute or to make the appropriate
finding of fact that a longer probationary
period is necessary. See State v. Lambert,
146 N.C. App. 360, 366, 553 S.E.2d 71, 76
(2001).
Id. at 624-25, 594 S.E.2d at 418.
The State has conceded that its reading of the statute and
the Mucci case require it to concede error and agree the
Defendant should be re-sentenced. Accordingly, the Defendant’s
sentence is vacated and his case is hereby remanded for re-
sentencing.
Remanded for re-sentencing.
Judges HUNTER, Robert C. and GEER concur.
Report per Rule 30(e).