State v. Ogburn

Annotate this Case

Download PDF

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA12-408 NORTH CAROLINA COURT OF APPEALS Filed: 6 November 2012 STATE OF NORTH CAROLINA v. Moore County No. 10 CRS 52458 ROGER JOHN OGBURN Appeal by defendant from judgment entered 16 September 2011 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 27 September 2012. Attorney General Roy Cooper, by Assistant Attorney General Stephanie A. Brennan, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defenders Jon H. Hunt and Benjamin Dowling-Sendor, for defendant appellant. McCULLOUGH, Judge. Roger John Ogburn ( defendant ) appeals from the trial court s judgment imposing a community punishment prohibiting him from operating a motor vehicle in the State of North Carolina for a period of 30 days and granting his probation officer the discretion remainder to of allow his him to operate probationary a period. motor vehicle For the for the following -2reasons, we vacate defendant s judgment and remand for resentencing consistent with this opinion. I. Background On 27 November 2010, defendant was arrested and charged with assault with a deadly weapon by using his vehicle to repeatedly force the prosecuting witness into the median of a highway parked and attempting vehicle with to his strike vehicle the prosecuting while she was witness s calling 911. Defendant was tried and convicted in Moore County District Court on 21 April 2011. Defendant appealed from the district court judgment to the superior court. On 16 September 2011, a unanimous jury found guilty of the assault with a deadly weapon charge. defendant The trial court entered judgment on the verdict and sentenced defendant as a prior record level II offender to 75 days imprisonment. The trial court suspended defendant s sentence and imposed a community punishment of 24 months supervised probation. As a special condition of probation, the trial court ordered that defendant shall not operate a motor vehicle in North Carolina for 30 days and thereafter may operate a motor vehicle in North Carolina for the balance of the probationary period only with the permission of the probation officer[.] Defendant filed -3written notice of appeal from the trial court s judgment on 19 September 2011. II. Revocation of Driving Privileges as Condition of Probation Defendant s only argument on appeal is that the trial court erred in granting full discretionary power to his probation officer to revoke his driving privileges as a special condition of probation. N.C. Gen. Stat. § 15A-1343(a) (2011) authorizes the trial court to impose conditions of probation reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so. Id. Specifically, N.C. Gen. Stat. § 15A-1343(b1)(4) authorizes the trial court to impose a special condition [s]urrender his of or probation her requiring driver's license the to defendant the clerk to of superior court, and not operate a motor vehicle for a period specified by the court. Id. (emphasis added). Defendant contends that, although N.C. Gen. Stat. § 15A-1343(b1)(4) allows the trial court to suspend his driving privileges as a special condition of probation, the statute requires the trial court to judicially determine the length of that suspension. Defendant contends that because the statute at issue plainly requires the court driving to specify privileges the are period during suspended, which the the trial defendant s court cannot -4delegate that authority to the probation officer. defendant contends probation officer the to trial court determine the interpretation. (2010), our argument presents in length suspension following the 30-day period. Defendant s erred of Therefore, allowing his his driving We agree. a question of statutory In State v. Davis, 364 N.C. 297, 698 S.E.2d 65 Supreme Court reiterated the cardinal rules of statutory interpretation: The intent of the Legislature controls the interpretation of a statute. When a statute is unambiguous, this Court will give effect to the plain meaning of the words without resorting to judicial construction. [C]ourts must give [an unambiguous] statute its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein. Id. at 302, 698 S.E.2d at 68 (alterations in original) (internal quotation marks and citations omitted). have repeatedly noted strictly construed. that [c]riminal Further, our Courts statutes must be State v. Cleary, ___ N.C. App. ___, ___, 712 S.E.2d 722, 726 (2011) (quoting State v. Green, 348 N.C. 588, 596, 502 S.E.2d 819, 824 (1998)). The statute at issue in the present case, N.C. Gen. Stat. § 15A-1343, details the conditions of probation which may imposed when a defendant receives a suspended sentence. be The -5numerous provisions of this statute often differentiate between obligations of the court and those of the probation officer. For example, as a regular condition of probation, a defendant must not leave his county of residence or the State of North Carolina unless granted written court or his probation officer. added). permission leave by the Id. § 15A-1343(b)(2) (emphasis Similarly, a defendant must [r]eport as directed by the court or his probation officer[.] (emphasis support to added). and other The defendant family must obligations Id. § 15A-1343(b)(3) also as [s]atisfy required child by the court[,] and he cannot possess a firearm without the written permission of the court. added). Id. § 15A-1343(b)(4), (5) (emphasis Thus, the statute plainly differentiates between the court and the probation officer. Here, the special condition of probation imposed on defendant by the trial court plainly states that defendant shall not operate a motor vehicle for a period specified court. Id. § 15A-1343(b1)(4) (emphasis added). by the The Legislature did not state the period could be specified by the court or the probation officer. Thus, given the plain and unambiguous statutory language and considering the statute as a whole, we must construe this provision as requiring the court to -6definitively determine the period during driving privileges shall be suspended. reinforced by the 1343.2(e), the fact that Legislature under which defendant s This interpretation is N.C. provided Gen. Stat. the delegation for § 15Aof certain authority by the court to the probation officer when the defendant has been sentenced to a community punishment. Notably, none of these provisions allow for the trial court to delegate authority to the probation officer with respect to a defendant s driving privileges. Thus, we hold the plain meaning of the statutory provision at issue here requires the trial court to specify a definite period during which defendant s driving privileges shall be suspended, and such authority cannot be delegated to defendant s probation officer. In so holding, we are persuaded by the Third Circuit s reasoning in United States v. Pruden, 398 F.3d 241 (3d Cir. 2005): Probation officers have broad statutory authority to advise and supervise probationers, and to perform any other duty that the court may designate. But the breadth of these powers is limited by the probation officer's status as a nonjudicial officer. The most important limitation is that a probation officer may not decide the nature or extent of the punishment imposed upon a probationer. This limitation extends not only to the -7length of a prison term imposed, but also to the conditions of probation or supervised release. Id. at 250 (internal quotation marks and citations omitted). In addition, the Fourth Circuit, in considering a statute requiring the court to fix the terms of restitution and to determine the amount and language timing as of fine prohibiting payments, the likewise court from construed delegating determination to a defendant s probation officer. the that United States v. Miller, 77 F.3d 71, 78 (4th Cir. 1996) ( Like restitution, the statutory duty imposed upon district courts to fix the terms of a fine must be read as exclusive because the imposition of a sentence, including the terms of probation or supervised release, is a core judicial function. ). Although we are not bound by federal court decisions, we nonetheless find Pruden and Miller persuasive. Indeed, the reasoning in Pruden and Miller is consistent with our Supreme Court s holdings that [t]he functions of the court in regard to the punishment of crimes are to determine the guilt or innocence of the accused, and, if that determination be one of guilt, then to pronounce the punishment or penalty prescribed by law[,] Jernigan v. State, 279 N.C. 556, 563-64, 184 S.E.2d 259, 265 -8(1971), and that [j]udicial power cannot be delegated. State v. Jefferson, 66 N.C. 309, 313 (1872). In the present case, the trial court is vested with the statutory authority to judicially determine the length of the suspension of defendant s condition of probation. delegated to the driving Such probation language of the statute. privileges judicial officer, as a authority according to special cannot the be plain Therefore, we must vacate that portion of the trial court s order allowing the probation officer to determine when defendant may operate a motor vehicle in this State following the initial 30-day suspension period. We remand to the trial court for entry of a specific period of time during which defendant s driving privileges shall be suspended during the length of his probation. Furthermore, we note that although neither defendant nor the State have raised the issue in their brief, it appears from the record that the length of defendant s probation in this case exceeds the statutorily prescribed maximum. Here, defendant was sentenced for an A1 misdemeanor to a community punishment, and according to the judgment form, the trial court made no finding that a statute longer was period of necessary. probation Under than N.C. that Gen. prescribed Stat. § by 15A- -91343.2(d)(1), [f]or misdemeanants sentenced to community punishment, the original period of probation shall be not less than six nor more than 18 months[.] Id. The judgment form in the present case indicates defendant s sentence is a community punishment. Therefore, his probationary period may not exceed 18 months, absent a specific finding by the trial court that a longer probationary period is necessary. Therefore, we must likewise vacate that portion of defendant s probation exceeding the 18-month statutorily prescribed maximum. Vacated and remanded for resentencing. Judges HUNTER, JR., (Robert N.), and ERVIN concur. Report per Rule 30(e).

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.