State v Culross

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-462 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 STATE OF NORTH CAROLINA v. Wake County No. 08 CRS 8004 AMANDA BAILEY CULROSS Appeal by Defendant from judgment entered 16 September 2010 by Judge R. Allen Baddour in Superior Court, Wake County. Heard in the Court of Appeals 11 October 2011. Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State. Guy J. Loranger for Defendant. McGEE, Judge. Amanda Bailey Culross (Defendant) was convicted of driving while impaired and was sentenced at punishment level four on 16 September 2010. Defendant Defendant appeals. argues that the trial court, based upon its finding of an aggravating factor, erred by sentencing her at level four because the State had failed to provide proper notice of its intent to use the aggravating factor in violation of N.C. -2Gen. Stat. § 20-179(a1)(1). After review, we remand for resentencing. I. Factual Background The Cary Police Department cited Defendant on 9 February 2008 for driving while impaired (DWI) and for failure to reduce speed to avoid a collision. Defendant was found guilty of both offenses in Wake County District Court on 17 April 2009. district court found no aggravating, or grossly The aggravating, factors but did find two mitigating factors pursuant to N.C. Gen. Stat. § 20-179(e): (1) that Defendant had a safe driving record and (2) that after being charged with impaired driving, Defendant facility voluntarily for treatment an submitted assessment recommended by and the herself to voluntarily facility. a mental health participated Based on in this determination, the district court imposed level five punishment. Defendant appealed the judgment of the district court to superior court. At trial, Defendant was found guilty of DWI and failure to reduce speed. trial court During the sentencing phase, the State asked the to find the aggravating factor that Defendant's driving was "especially reckless[,]" under N.C. Gen. Stat. § 20179(d)(2). The trial court found that aggravating factor. The State also stipulated to the two mitigating factors that had -3been found by the district court. After making the above findings, the trial court concluded that the one aggravating factor was substantially counterbalanced by the two mitigating factors and imposed level four punishment. II. As argument a Preservation of Issue preliminary that matter, Defendant we failed must to address preserve the this State's issue for appellate review because she did not object to the aggravating factor. The dismissed. State argues that Defendant's appeal must be We disagree. We note that Defendant is challenging the sentence imposed by the trial court, based on the trial court's finding of an aggravating factor for which the State did not give Defendant notice of its intent to pursue. "Our Supreme Court has held that an error at sentencing is not considered an error at trial for the purpose of Appellate Rule 10(b)(1)." State v. Chivers, 180 N.C. App. 275, 278, 636 S.E.2d 590, 593 (2006); see State v. Canady, 330 Accordingly, N.C. 398, though 402, Defendant 410 did S.E.2d not 875, preserve 878 the (1991). issue by motion or objection, the issue is nevertheless preserved for appellate review. See, e.g. State v. Owens, ___ N.C. App. ___, ___, 695 S.E.2d 823, 828 (2010) ("Although [the] defendant did not preserve this issue by motion or objection, 'an error at -4sentencing is not considered an error at trial for the purpose of N.C. Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure.'"). In its brief, the State contends that the rule applied in Owens, i.e. that a Defendant need not preserve errors during sentencing by objection or motion, is based on misinterpretation supra. of our Supreme Court's this Court's opinion in The State's argument is misplaced, however. misinterpretation or not, this Court has Canady, Whether a "repeatedly applied Canady to reject contentions that a challenge to a sentence on appeal is precluded by a failure to object below." State v. Freeman, 185 N.C. App. 408, 421, 648 S.E. 2d 876, 885, (2007) (Geer, J., concurring in part, dissenting in part), appeal dismissed, 362 N.C. 178, 657 S.E.2d 663, reconsideration denied, 362 N.C. 178, 657 S.E.2d 666 (2008). Court of Appeals has decided the "Where a panel of the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, court." 373, unless it has been overturned by a higher In the Matter of Appeal from Civil Penalty, 324 N.C. 384, 379 S.E.2d 30, 37 (1989). Further, "[w]hile we recognize that a panel of the Court of Appeals may disagree with, or even find error in, an opinion by a prior panel . . . the panel is bound by that prior decision until it is overturned -5by a higher court." State v. Jones, 358 N.C. 473, 487, 598 S.E.2d 125, 134 (2004). Therefore, despite Defendant's failure to object to the State's not providing proper notice of its intent to prove an aggravating factor under N.C. Gen. Stat. § 20-179(a1)(1), whether the trial court's finding of the aggravating factor at sentencing was error is an issue that is preserved without objection. III. Standard of Review Defendant alleges a violation of a statutory mandate, and "[a]lleged statutory errors are questions of law." State v. Mackey, ___ N.C. App. ___, ___, 708 S.E.2d 719, 721 (2011). question of law is reviewed de novo. State v. Fraley, 182 N.C. App. 683, 691, 643, S.E.2d 39, 44 (2007). standard, the Court "'considers substitutes its own judgment' A the matter Under the de novo anew and freely for that of the lower" court. State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citation omitted). IV. Discussion Pursuant to N.C. Gen. Stat. § 20-179(a1)(1), if a defendant appeals a DWI conviction to superior court and the State intends to use one or more aggravating factors under N.C. Gen. Stat. § 20-179(c) or (d), then the State is required to "provide the -6defendant with notice of its intent . . . no later than 10 days prior to trial." N.C. Gen. Stat. § 20-179(a1)(1) (2009). In the present case, the record reveals that the State failed to provide notice to Defendant aggravating factors. that notice was of its intent to pursue any In its brief, the State does not argue provided, but argues instead failed to preserve this issue for appeal. that Defendant As we have discussed above, we disagree. The State also argues that "by [Defendant's] own actions and the actions of her attorney, [Defendant] effectively stipulated to the factual existence of the aggravating factor." In its brief, the State cites State v. Wade, 181 N.C. App. 295, 298, 639 S.E.2d 82, 85 (2007), and argues that a "stipulation does not require an affirmative statement and silence may be deemed assent in some circumstances, particularly if the defendant had an opportunity to object and failed to do so." However, reviewing circumstances that the record suggest on Defendant appeal, we stipulated find no to the challenged aggravating factor, thereby waiving the requirement of notice. It is evident that the State failed to provide Defendant with the statutorily required notice of its intention to use an aggravating factor under N.C. Gen. Stat. § 20-179(d). We must therefore vacate Defendant's sentence and remand to the -7trial court for resentencing. See Mackey, ___ N.C. App. at ___, 708 S.E.2d at 722 ("Accordingly, we hold that the trial court erred by sentencing defendant in the aggravated range based upon the State's failure to provide proper written notice to defendant. We therefore reverse the sentence of the trial court as to defendant's convictions of discharging a weapon into an occupied property and remand to the trial resentencing."). Remanded for resentencing. Judge HUNTER, Robert C. and CALABRIA concur. Report per Rule 30(e). court for

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