State v. Midgett ( 1985 )

EAGLES, Judge.

I

The defendant first assigns error to the trial court’s denial of his motion to dismiss. Defendant argues that the plea agreement entered into between the defendant and the United States Attorney entitles him to immunity from prosecution in this case and urges this Court to honor his plea agreement. Defendant asserts that his governmental immunity is unique because the federal court approved his agreement. Defendant’s argument is without merit.

Imposing a federal plea agreement upon a State prosecutor impinges upon the longstanding concept of dual sovereignty in a State prosecution of an unrelated crime. State and federal governments derive their power from different sources. Each government represents a distinct and separate sovereign. Each may determine what shall be an offense against its authority. Each sovereign may punish those offenses by exercising its own power and this power is not dependent upon the actions of another sovereign. United States v. Wheeler, 435 U.S. 313, 55 L.Ed. 2d 303, 98 S.Ct. 1079 (1978).

Ignoring the concept of dual sovereignty, the defendant’s federal plea bargain cannot apply to bar this State prosecution. The plea agreement offers two assurances to the defendant. The first assurance made is that the State of North Carolina (along with the federal government) would not “bring additional charges against the defendant for any violation of law now known to the Government.” [Emphasis added.] This agreement was signed and approved 30 April 1984. As of that date, this State had already charged the defendant with the offense of driving while impaired. The defendant had been convicted in district court and appealed to the superior court. The driving while impaired charge does not constitute “additional charges.” Further, by letter dated 3 August 1984 to State District Attorney H. P. Williams, Jr., Assistant United States Attorney J. Douglas McCullough wrote that the charges contemplated in the plea bargain agreement were solely drug offenses and that at no time was his office aware of any driving while impaired charge. The second assurance made in the plea agreement is that the “Government” would “not indict or prosecute defendant for any criminal offenses that the Government” had knowledge of or that were under investigation. This language clearly contemplates that use of the word “Government” means the United States government and not the State of North Carolina.

For the reasons stated, defendant’s first assignment of error is overruled.

II.

By his second assignment of error, defendant argues that the trial court erred in overruling his objection to Officer Simmons’ testimony as to the results of chemical analysis of the defendant’s breath. We disagree.

Officer Simmons testified that defendant’s alcohol concentration was “0.14 grams of alcohol per 210 liters of breath.” Defense counsel objected to this testimony based on the language of the permit granting the officer authority “to perform chemical analysis of the breath to determine blood alcohol concentration.” Defendant contends that by the express language of the permit, Officer Simmons “was only competent to determine chemical analysis of the breath to determine blood alcohol concentration as opposed to alcohol breath concentration.”

Defendant does not challenge the officer’s certification to administer a chemical analysis of breath nor does defendant allege that the officer erred when performing the analysis. Defendant does not contest the 0.14 reading. The only dispute is whether Officer Simmons should have said “0.14 grams of alcohol per 100 milliliters of blood” rather than “0.14 grams of alcohol per 210 liters of breath.”

G.S. 20-4.01(0.2) defines alcohol concentration and provides that the concentration of alcohol in a person may be expressed either as:

a. Grams of alcohol per 100 milliliters of blood; or

b. Grams of alcohol per 210 liters of breath.

G.S. 20-4.01(3a) defines chemical analysis as “[a] chemical test of the breath or blood of a person to determine his alcohol concentration, performed in accordance with G.S. 20-139.1.” G.S. 20-4.01 (3b) defines chemical analyst as “[a] person granted a permit by the Department of Human Resources under G.S. 20-139.1 to perform chemical analyses.” Officer Arnold Simmons, Jr. was issued such a permit under the authority of G.S. 20-139.1(b) by the Department of Human Resources on 16 November 1982 with effective dates from 1 December 1982 through 1 December 1984. For purposes of this case, it is irrelevant whether the certificate states blood alcohol concentration or breath alcohol concentration because both are measured in the same manner and produce the same mathematical result which can be expressed in terms of 100 milliliters of blood or 210 liters of breath.

G.S. 20-4.01(0.2) allows Officer Simmons to express alcohol concentration in terms of 210 liters of breath. His permit authorizes him to perform that analysis. His testimony was competent.

Ill

Defendant’s last assignment of error is that the trial court erred by enhancing the defendant’s sentence following his conviction in a trial de novo. We disagree.

The due process clause of the Fourteenth Amendment does not prohibit increased sentences in a second trial. A violation occurs only when the court imposes an increased sentence motivated by actual vindictiveness toward the defendant for having exercised his guaranteed right to appeal. Wasman v. United States, 468 U.S. 559, 82 L.Ed. 2d 424, 104 S.Ct. 3217 (1984). A presumption of vindictiveness arises when the State offers no evidence or the sentencing court fails to explain or justify the increase. The State must rebut the presumption. Wasman, supra.

The presumption of vindictiveness does not apply in this case. There is ample evidence in the record that the defendant had been convicted of a federal drug offense in the intervening period between the district court trial and the superior court appeal. This intervening conviction justifies an enhanced sentence and amply rebuts any presumption of vindictiveness. Wasman, supra. Since the presumption of vindictiveness does not apply, the defendant must prove actual vindictiveness. Wasman, supra. This he has failed to do. The defendant contends that the trial judge sentenced defendant to seven months imprisonment after the defendant noted an appeal and that the trial judge increased the sentence only because the defendant chose to appeal. The evidence does not support this argument.

Defendant was subject to Level 2 punishment. “A defendant subject to Level Two punishment may be fined up to one thousand dollars ($1,000) and must be sentenced to a term of imprisonment of not less than seven days and not more than 12 months.” G.S. 20-179(h). The trial judge offered the defendant an option, he could serve a seven-month active sentence, or, if he could raise $1,000, which included a $400.00 fine plus costs and attorney’s fees, he could serve the mandatory seven-day term. The defendant requested the seven-month active sentence and the trial judge then noted the appeal.

For the reasons stated, defendant’s third assignment of error is overruled.

The defendant received a fair trial free from error.

No error.

Judges Whichard and Cozort concur.