State v. Wood

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. 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. judge committed Specifically, Defendant contends that the 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 -2period 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) Johnston motorcyclists County. As were riding Defendant south made a on right Highway turn 50 onto in the highway the motorcycle riders began to pass Defendant s slower moving automobile. deceased, collided Defendant s The with second the automobile. rider, left Kevin hand Defendant s Conroy, rear car now portion struck of Conroy s motorcycle at four (4) points on the right handlebar as well as the lower portion of the motorcycle. road where Conroy suffered the Conroy s cycle left 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 suspended for a period condition of probation of twenty-four ordered of thirty (30) days (24) Defendant months to and surrender as a his driver s license without directing the Clerk of Superior Court -3to 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 sentencing shorter judge or longer makes -4specific findings period of probation is as to why such applicable. a 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 of had imposed a probationary period 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. -5Stat. § 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 Defendant should be re-sentenced. concede error and agree the Accordingly, the Defendant s sentence is vacated and his case is hereby remanded for resentencing. Remanded for re-sentencing. Judges HUNTER, Robert C. and GEER concur. Report per Rule 30(e).

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