State v. Mayo , 256 N.C. App. 298 ( 2017 )


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  •                 IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA17-340
    Filed: 7 November 2017
    Johnston County, No. 15CRS056170, 15CRS837
    STATE OF NORTH CAROLINA
    v.
    GLENN WARREN MAYO, JR., Defendant.
    Appeal by Defendant from judgments entered 26 October 2016 by Judge Tanya
    T. Wallace in Johnston County Superior Court. Heard in the Court of Appeals 3
    October 2017.
    Attorney General Joshua H. Stein, by Assistant Attorney General Colin A.
    Justice, for the State.
    Robinson, Bradshaw & Hinson, P.A., by Erik R. Zimmerman, for Defendant-
    Appellant.
    MURPHY, Judge.
    The Habitual Impaired Driving Act requires the State to allege three prior
    convictions of impaired driving. Unlike other statutes, the Act does not require the
    three prior convictions to be from different court dates. We hold, in accordance with
    our case law and the differences between this Act and other habitual statutes, the
    State is not required to allege three prior convictions of impaired driving from
    different court dates.
    STATE V. MAYO
    Opinion of the Court
    Glenn Warren Mayo, Jr. (“Defendant”) appeals from judgments convicting him
    of habitual impaired driving and revoking his probation. On appeal, Defendant
    argues: (1) the indictment for habitual impaired driving is facially invalid because
    two of the underlying impairment convictions are from the same court date; and (2)
    the trial court relied on an invalid conviction in revoking Defendant’s probation.
    After careful review, we reject Defendant’s arguments and conclude he received a fair
    trial, free from error.
    I. Background
    On 1 November 2015, Sergeant T.L. Avery of the Selma Police Department
    arrested Defendant for impaired driving and driving while license revoked. On 2
    November 2015, Defendant’s probation officer filed a probation violation report. In
    the report, the officer alleged Defendant violated probation by driving while not being
    properly licensed and being under the influence of alcohol on 1 November 2015.
    On 7 December 2015, Defendant was indicted for habitual impaired driving.
    In support of the habitual impaired driving charge, the State alleged Defendant had
    been convicted of the following charges: First, 15CRS000837, driving while impaired
    on 26 November 2012. Defendant was convicted of this charge on 30 September 2015
    in Johnston County Superior Court. Second, 12CR213930, driving while impaired on
    22 June 2012. Defendant was convicted of this charge on 20 December 2012 in Wake
    County District Court. Third, 12CR213589, driving while impaired on 18 June 2012.
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    STATE V. MAYO
    Opinion of the Court
    Defendant was convicted of this charge on 20 December 2012 in Wake County District
    Court. Defendant also stipulated to his three prior convictions for driving while
    impaired. On 1 February 2016, Defendant was indicted for being a habitual felon.
    On 26 February 2016, Defendant’s probation officer filed another probation violation
    report. In the report, the officer alleged Defendant violated probation because he “has
    not been hooked up” to an alcohol consumption monitoring system. (all caps in
    original).
    On 24 and 25 October 2016, Defendant’s case came to trial. On 25 October
    2016, the jury found Defendant guilty of driving while impaired. The trial court
    adjudicated Defendant as a habitual impaired driver, in accordance with N.C.G.S. §
    20-138.5 (2015). Defendant pled guilty to being a habitual felon. The trial court also
    revoked Defendant’s probation in 15CRS837, a prior driving while impaired
    conviction, based on two violation reports and Defendant being “found guilty of
    habitual impaired driving on 10/25/2016-15CRS56170.” (all caps in original). On 27
    October 2016, Defendant’s probation officer completed another probation violation
    report, alleging Defendant violated probation by committing a criminal offense.
    Defendant filed timely notice of appeal.
    II. Standard of Review
    “This Court reviews challenges to the sufficiency of an indictment using a de
    novo standard of review. Under a de novo review, the court considers the matter
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    STATE V. MAYO
    Opinion of the Court
    anew and freely substitutes its own judgment for that of the lower tribunal.” State v.
    Pendergraft, 
    238 N.C. App. 516
    , 521, 
    767 S.E.2d 674
    , 679 (2014) (internal citations
    and quotation marks omitted).
    We review a trial court’s revocation of probation for abuse of discretion. State
    v. Tennant, 
    141 N.C. App. 524
    , 526, 
    540 S.E.2d 807
    , 808 (2000) (quoting State v.
    Guffey, 
    253 N.C. 43
    , 45, 
    116 S.E.2d 148
    , 150 (1960)) (“ ‘The findings of the judge, if
    supported by competent evidence, and his judgment based thereon are not reviewable
    on appeal, unless there is a manifest abuse of discretion.’ ”). “Abuse of discretion
    results where the court’s ruling is manifestly unsupported by reason or is so arbitrary
    that it could not have been the result of a reasoned decision.” State v. Hennis, 
    323 N.C. 279
    , 285, 
    372 S.E.2d 523
    , 527 (1988) (citation omitted).
    III. Analysis
    Defendant presents two arguments: (1) the habitual impaired driving
    indictment is invalid because two of the underlying convictions were obtained on the
    same court date; and (2) the trial court erred in revoking his probation because it
    relied on Defendant’s habitual impaired driving conviction.        We address these
    arguments in turn.
    A. Habitual Impaired Driving Indictment
    Defendant first argues the trial court lacked jurisdiction over the habitual
    impaired driving charge because two of the underlying convictions are from the same
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    STATE V. MAYO
    Opinion of the Court
    court date. Defendant contends N.C.G.S. § 20-138.5, the statute governing habitual
    impaired driving, is ambiguous because “[i]t does not explain how to determine
    whether a defendant has been convicted of three or more offenses involving impaired
    driving, and does not directly address whether multiple convictions from the same
    date may be considered when making that determination.” Defendant analogizes this
    statute to N.C.G.S. § 14-7.1 (2015) (Persons defined as habitual felons) and N.C.G.S.
    § 15A-1340.14(d) (2015) (Prior record level for felony sentencing). Defendant argues
    the in pari materia statutory construction canon requires our Court to read into the
    statute a rule regarding convictions obtained in one court week because the other
    “similar” statutes have a specific rule for the timing of multiple convictions. We
    disagree.
    “If the language of the statute is clear and is not ambiguous, we must conclude
    that the legislature intended the statute to be implemented according to the plain
    meaning of its terms.” State v. Watterson, 
    198 N.C. App. 500
    , 505, 
    679 S.E.2d 897
    ,
    900 (2009) (brackets, quotation marks, and citation omitted). “Thus, in effectuating
    legislative intent, it is the duty of the courts to give effect to the words actually used
    in a statute and not to delete words used or to insert words not used.” 
    Id. at 505,
    679
    S.E.2d at 900 (citing N.C. Dep’t of Corr. v. N.C. Med. Bd., 
    363 N.C. 189
    , 201, 
    675 S.E.2d 641
    , 649 (2009)).
    -5-
    STATE V. MAYO
    Opinion of the Court
    If a statute is ambiguous, our Court must determine the legislature’s intent.
    In re Hall, 
    238 N.C. App. 322
    , 324, 
    768 S.E.2d 39
    , 42 (2014). In discerning the intent
    of the legislature “ ‘statutes in pari materia should be construed together and
    harmonized whenever possible. In pari materia is defined as upon the same matter
    or subject.’ ” 
    Id. at 324-325,
    768 S.E.2d at 42 (quoting In re Borden, 
    216 N.C. App. 579
    , 581, 
    718 S.E.2d 683
    , 685 (2011)). “Portions of the same statute dealing with the
    same subject matter are ‘to be considered and interpreted as a whole, and in such
    case it is the accepted principle of statutory construction that every part of the law
    shall be given effect if this can be done by any fair and reasonable intendment . . . . ’ ”
    Huntington Props., LLC v. Currituck Cty., 
    153 N.C. App. 218
    , 224, 
    569 S.E.2d 695
    ,
    700 (2002) (quoting In re Hickerson, 
    235 N.C. 716
    , 721, 
    71 S.E.2d 129
    , 132 (1952)).
    N.C.G.S. § 20-138.5 governs habitual impaired driving and states:
    (a) A person commits the offense of habitual impaired
    driving if he drives while impaired as defined in G.S. 20-
    138.1 and has been convicted of three or more offenses
    involving impaired driving as defined in G.S. 10-4.01(24a)
    within 10 years of the date of this offense.
    
    Id. In State
    v. Allen, 
    164 N.C. App. 665
    , 
    596 S.E.2d 261
    (2004), our Court
    addressed the consideration of prior convictions for habitual impaired driving. In
    Allen, defendant argued the habitual impaired driving statute must be applied
    similarly to habitual felon statutes. 
    Id. at 672,
    596 S.E.2d at 265. The Habitual Felon
    -6-
    STATE V. MAYO
    Opinion of the Court
    Act “prevents the use of multiple offenses consolidated for judgment as more than one
    predicate offense.” 
    Id. at 672,
    596 S.E.2d at 265. Defendant alleged “it is reasonable
    to infer that the legislature intended similar structural limitations” in the habitual
    impaired driving statutes. 
    Id. at 672,
    596 S.E.2d at 265. We explicitly held “the
    determination of what qualifies as a predicate conviction is carried out differently
    under the Habitual Impaired Driving statute and the Habitual Felon Act.” 
    Id. at 672,
    596 S.E.2d at 265.
    While not binding precedent, we are persuaded by Judge, now Justice, Ervin’s
    unpublished opinion in State v. Stanley, No. COA10-554, 
    2011 WL 705131
    (unpublished) (N.C. Ct. App. Mar. 1, 2011), where this Court addressed this issue. In
    Stanley, defendant argued the indictment charging him with habitual impaired
    driving was fatally defective because two of the three prior convictions had been
    obtained during a single day of court. 
    Id. at *1-*2.
    This Court first determined
    defendant had no right to appeal. 
    Id. at *3.
    Then, the Court turned to whether
    defendant’s petition for a writ of certiorari should be granted. 
    Id. at *3.
    Relying on
    Allen, this Court dismissed defendant’s petition for a writ of certiorari, concluding
    defendant’s argument and appeal had no merit. 
    Id. at *3.
    N.C.G.S. § 20-138.5 contains no requirement regarding the timing of the three
    prior impaired driving convictions, except that they occurred within the ten years
    prior to the current driving while impaired charge. We decline “to insert words not
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    STATE V. MAYO
    Opinion of the Court
    used.” Watterson, 198 N.C. App. at 
    505, 679 S.E.2d at 900
    (citation omitted). While
    the in pari materia canon requires this Court to harmonize statutes dealing with the
    same subject, our Court has already ruled that “the determination of what qualifies
    as a predicate conviction is carried out differently under the Habitual Impaired
    Driving statute and the Habitual Felon Act.” Allen, 164 N.C. App. at 
    672, 596 S.E.2d at 265
    . We hold Defendant has failed to show error in his habitual impaired driving
    indictment.
    B. Probation Revocation
    Defendant next argues the trial court abused its discretion in revoking
    Defendant’s probation.      Defendant contends the trial court relied on an invalid
    conviction—the habitual impaired driving conviction—because the indictment for the
    charge is invalid. We disagree. As 
    stated supra
    , the habitual impaired driving
    indictment is valid.     Accordingly, the trial court did not abuse its discretion in
    revoking his probation in 15CRS837, and this argument is without merit.
    Accordingly, we hold the trial court did not err in revoking Defendant’s probation.
    IV. Conclusion
    For the reasons stated above, we hold Defendant received a fair trial, free from
    error.
    NO ERROR.
    Judges BRYANT and ARROWOOD concur.
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