State v. Mulder

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NO. COA13-672 NORTH CAROLINA COURT OF APPEALS Filed: 18 March 2014 STATE OF NORTH CAROLINA v. Lee County Nos. 11 CRS 78 11 CRS 277 11 CRS 50049 58 EDWARD EARL1 MULDER Appeal by Defendant from judgments entered 15 October 2012 by Judge Carl R. Fox in Lee County Superior Court. Heard in the Court of Appeals 7 November 2013. Attorney General Roy Cooper, by Special General Karen A. Blum, for the State. Deputy Attorney Appellate Defender Staples Hughes, by Assistant Appellate Defender Mary Cook, for Defendant. STEPHENS, Judge. Procedural History and Evidence Defendant began a dating relationship with Brenda Swann approximately seven years before the trial of this case. When the 1 relationship ended, Swann obtained a Domestic Violence The transcript lists Defendant s middle name as Everett. Relying on the judgments entered in the trial court, however, we use the middle name Earl. -2Protective Order ( DVPO ) against Defendant. This appeal arises from the domestic disturbance and car chase that followed. On 6 January 2011, around 7:00 p.m., Swann heard a loud noise outside her home. Swann s son went to the front door to investigate. From that vantage point, the son observed Defendant striking Swann s car with a hammer. Defendant was wearing a black ski mask, which was kind of rolled up [and] pulled . . . over his head. The son confronted Defendant and asked him what he was doing. Without responding or releasing the hammer, Defendant began approaching the son. Concerned for his mother s safety, the son returned to the house and attempted to close the door. Defendant pushed back on the door, and the two began struggling. During the struggle, the son told Swann to call the police. The son eventually succeeded in closing the door, and Defendant left the premises. The police arrived two to three minutes later. While police officers were speaking with Swann and her son, Sergeant Scott Norton was on nearby patrol. After learning about the disturbance, he observed Defendant s vehicle driving down the road. Norton activated his lights and began following the car. Defendant then turned his vehicle around, swerved into a yard, jumped over a curb, and accelerated away. According to -3Norton, [i]t was obvious that [Defendant] was running [and] wasn t going to surrender. Norton requested backup and continued pursuit. Defendant eventually stopped at the top of a bridge, leading Norton to believe that he was finished fleeing. When Norton opened his door, however, Defendant accelerated, squealing tires, and left. Norton commented at trial that Defendant appeared to be swerve[ing] . . . as if he was trying to hit [civilian cars]. . . . Just innocent people on the highway. Other police cars joined in the chase and tried to box in Defendant. During the attempt, Defendant swerved toward Norton, missing him, and escaped. As the pursuit wore on, the vehicles reached speeds in excess of 100 miles per hour, and officers observed Defendant toss papers and other objects out the car window.2 After a time, another officer drove down the road in the opposite direction of Defendant. Defendant then exited the road, veered off the right-hand shoulder, and overcorrected. Next, he went over to the left-hand side of the road, slammed on the brakes, and came back across the road, heading toward Norton s vehicle. 2 A black ski mask was later recovered from the area. -4Instead of hitting Norton, Defendant s car went into a ditch. Officers then tried to box [Defendant] in a second time. They were unsuccessful, and Defendant drove out of the ditch, ramm[ing] another officer s vehicle in the process. Worried that Defendant would cause injury or further damage to the other officer s car, Norton then used his own vehicle to ram[ D]efendant s car in the driver s side door. After striking Defendant s car, Norton exited his vehicle and approached Defendant. Norton had his gun out and told Defendant to raise his hands and turn off the car. In response, Defendant reached out the window, slapped Norton s pistol, and said shoot me, mother[]fucker. Norton then reached into Defendant s car and attempted to pull him out. At the same time, Defendant [shifted his car into] reverse and accelerate[d] while [Norton was] hanging in the driver s side window . . . . The other officer was hanging in the passenger side window, and more officers began to approach from behind. Before Defendant was able to make contact with the approaching officers, the passenger-side officer reached inside Defendant s car, put it into park, and shut off the engine. Defendant remained [u]ncooperative, belligerent, cussing at us, [and] trying to fight as he was pulled from the vehicle and arrested. -5Defendant was later indicted for (1) one count of failure to heed light or siren, (2) one count of first-degree burglary, (3) two counts of violating a DVPO, (4) one count of speeding, (5) one count of reckless driving to endanger, (6) one count of littering, (7) one count of failure to maintain lane control, (8) five counts of assault with a deadly weapon on a government officer ( AWDWOGO ), (9) one count of speeding to elude arrest with a motor vehicle,3 (10) one count of injury to personal property, and (11) one count of breaking or entering. The case came on for trial beginning 8 October 2012. On 15 October 2012, the jury found Defendant guilty on all counts except first-degree burglary. Instead of burglary, Defendant was found guilty of the lesser-included offense of misdemeanor breaking and entering. Afterward, the trial court imposed consecutive sentences of 15 18 months in prison for the first two counts of AWDWOGO; 19 23 months in prison for the next three counts of AWDWOGO; 6 8 months in prison for the consolidated offenses of speeding, reckless driving, speeding to 3 The indictment refers to this charge as A MOTOR VEHICLE. The cited statute, crime as Speeding to elude arrest[.] 141.5 (2013). Thus, for purposes of legislature, we refer to this charge arrest. FLEE/ELUDE ARREST WITH however, describes the N.C. Gen. Stat. § 20consistency with the as speeding to elude -6elude arrest, failure to heed light or siren, failure to maintain lane control, and littering; and 75 days in prison for the DVPO violations, the injury to personal property offense, and the breaking or entering offense. Defendant gave notice of appeal in open court. Discussion On appeal, Defendant argues that the trial court erred in failing to arrest judgment on the speeding and reckless driving convictions because each of those offenses is a lesser-included offense of felony speeding to elude arrest and, therefore, subjects Defendant to double jeopardy. Alternatively, Defendant argues that the speeding and reckless driving convictions must be vacated evidence applied because the distinguishing to enhance State them failed from Defendant s to the present sufficient aggravating speeding to elude factors arrest conviction from a misdemeanor to a felony. We arrest judgment on the speeding and reckless driving convictions and remand for resentencing. I. Appellate Review As a preliminary matter, we address the State s argument that Defendant is barred from seeking to arrest judgment on double jeopardy grounds because he admittedly failed to raise -7the double jeopardy issue at trial. In response, Defendant contends (1) that a motion to arrest judgment based on a fatal error or defect in the record may be raised for the first time on appeal or, in the alternative, (2) that this Court should invoke Rule 2 of the North Carolina Rules of Appellate Procedure and review this issue in order to prevent manifest injustice. We hold that Defendant waived his right to appellate review by failing to raise the double jeopardy issue at trial, but elect to review the issue nonetheless under Rule 2 of the North Carolina Rules of Appellate Procedure. A. Arrest of Judgment As a general rule, constitutional questions not raised and passed on by the trial court will not ordinarily be considered on appeal. State v. Davis, 364 N.C. 297, 301, 698 S.E.2d 65, 67 (2010) (citations, internal quotation marks, and brackets omitted) (declining to review the defendant s double jeopardy argument because he failed to raise it at trial). Furthermore, our appellate rules require a party to make a timely request, objection, or motion [at trial], stating the specific grounds for the [desired] ruling in order to preserve an issue for appellate review. N.C.R. App. P. 10(a)(1). -8Despite this general rule, Defendant contends that we should review his argument seeking arrest of judgment on double jeopardy grounds pursuant to our Supreme Court s opinion in State v. Sellers, 273 N.C. 641, 645, 161 S.E.2d 15, 18 (1968) and our opinion in State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (1998) (citing Sellers). We disagree. In Sellers, our Supreme Court stated that [a] motion in arrest of judgment predicated upon some fatal error or defect appearing on the face of the record proper may be made at any time in any court having jurisdiction of the matter. This is true even though the motion is made for the first time . . . at the hearing of the appeal from the judgment of the Superior Court. Sellers, 273 N.C. at 645, 161 S.E.2d at 18. Applying Sellers, Defendant contends that the alleged double jeopardy problem in this case constitutes a fatal defect on the face of the record and, therefore, may be raised for the first time on appeal. This is incorrect. A double jeopardy problem is distinct from a fatal flaw which appears on the face of the record. See State v. Pakulski, 326 N.C. 434, 439, 390 S.E.2d 129, 132 (1990). In Pakulski, our Supreme Court confirmed that a fatal flaw on the face of the record is akin to a substantive error on the indictment, which is separate and apart from a double jeopardy issue. See id. -9( When judgment is arrested because of a fatal flaw which appears on the face of the record, such as a substantive error on the indictment, the verdict itself is vacated . . . . [W]hen judgment is arrested on predicate felonies in a felony murder case to avoid a double jeopardy problem, [however,] the guilty verdicts on . . . . ). the underlying Therefore, felonies Defendant s remain double on the jeopardy docket argument cannot be raised for the first time on appeal on a motion for arrest of judgment because a double jeopardy problem does not constitute a fatal defect on the face of the record. See id. Accordingly, Defendant s double jeopardy argument is waived pursuant to the general rule described above. B. Rule 2 Despite the rule disallowing appellate review of issues not raised at trial, our Supreme Court has stated that the appellate courts may elect to review an unpreserved double jeopardy issue on appeal pursuant to our supervisory power over the trial divisions [and] Rule 2 of the North Carolina Rules of Appellate Procedure . . . . State v. Dudley, 319 N.C. 656, 659, 356 S.E.2d 361, 364 (1987); N.C.R. App. P. 2 ( To prevent manifest injustice to division may a party . . . . . . suspend either or court vary the of the appellate requirements or -10provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions. ). The decision to review an unpreserved argument relating to double jeopardy is McLaughlin, entirely 321 N.C. discretionary. 267, 272, 362 See, e.g., S.E.2d 280, State 283 v. (1987) (declining to review the defendant s double jeopardy argument because the defendant failed to raise that issue at trial and thus waived appellate review); Dudley, 319 S.E.2d at 364 (reviewing the defendant s N.C. at 659, 356 double jeopardy argument even though it was waived); State v. Mebane, 106 N.C. App. 516, 532 33, 418 S.E.2d 245, 255 56 (declining to review the defendant s double jeopardy argument because it was not raised at trial and noting that [e]ven if we opted to review the double jeopardy issue . . . , we [would conclude that Defendants failed to establish] . . . . error on appeal ), disc. review denied, 332 N.C. 670, 424 S.E.2d 414 (1992). After a careful review of Defendant s double jeopardy argument in this case, we elect to suspend the rules and review the issue under Rule 2. II. Double Jeopardy -11 Both the fifth amendment to the United States Constitution and article I, section 19 of the North Carolina Constitution prohibit multiple punishments for the same offense absent clear legislative intent to the contrary. State v. Etheridge, 319 N.C. 34, 50, 352 S.E.2d 673, 683 (1987) (citation omitted; certain emphasis added). In State v. Ezell, we described the double jeopardy doctrine as follows: For decades, the Supreme Court of the United States has applied . . . the Blockburger test in analyzing multiple offenses for double jeopardy purposes. The Court in Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306 (1932), held as follows: The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. If what purports to be two offenses is actually one under the Blockburger test, double jeopardy prohibits prosecution for both. 159 N.C. App. 103, 106 07, 582 S.E.2d 679, 682 (2003) (certain citations omitted). The United States Supreme Court clarified, however, that double jeopardy does not prohibit multiple punishment for two offenses even if one is has -12included within the other under the Blockburger test if both are tried at the same time and the legislature intended for both offenses to be separately punished . . . . Id. at 107, 582 S.E.2d at 682 (citing, inter alia, Missouri v. Hunter, 459 U.S. 359, 74 L. Ed. 2d 535 (1983)). The North Carolina Supreme Court has relied on both Blockburger and Hunter when determining whether double jeopardy applies under article I, section 19 of the North Carolina Constitution. See, e.g., State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986). Thus, a defendant convicted of multiple criminal offenses in the same trial is only protected by double jeopardy principles if (1) those criminal Blockburger offenses to and be offenses (2) constitute the same offense the legislature did not intend punished separately. See id. under for the at 454 55, 340 judgments against him S.E.2d at 709. Here, Defendant argues that the violate principles of double jeopardy because he was separately convicted of speeding and reckless driving and also convicted of felony speeding misdemeanor to to a elude felony arrest, because which was Defendant raised was from speeding a and driving recklessly. Therefore, pursuant to the test articulated above, we must first determine whether Defendant s convictions -13for speeding and reckless driving in addition to felony speeding to elude arrest constitute punishments for the same offense. If so, we must then determine whether the legislature intended for those offenses to be punished alternatively or separately. After a thorough review, we conclude that Defendant s convictions constitute the same offense for purposes of double jeopardy and, further, that the legislature intended for them to be punished alternatively, not separately. A. The Same Offense As whether discussed double above, jeopardy the applicable attaches in a test single to determine prosecution is whether each statute requires proof of a fact which the others do not. Etheridge, 319 N.C. at 50, 352 S.E.2d at 683 (citing Blockburger). By definition, all essential elements of a lesser[-]included offense are also elements of the greater offense. Invariably then, a lesser[-]included offense requires no proof beyond that required for the greater offense, and the two crimes are considered identical for double jeopardy purposes. If neither crime constitutes a lesser[-]included offense of the other, the convictions will fail to support a plea of double jeopardy. Id. (citations omitted). -14In this case, as discussed above, Defendant was convicted of speeding, reckless driving, and felony speeding to elude arrest based on the aggravating factors of speeding and reckless driving. The essential elements of speeding under section 20141(j1) are: (1) driving (2) a vehicle (3) on a highway (4) more than 15 miles per hour over the speed limit or over 80 miles per hour. N.C. Gen. Stat. § 20-141(j1) (2013). The essential elements of reckless driving under section 20-140(b) are: (1) driving (2) any vehicle (3) on a highway or any public vehicular area (4) without due caution and circumspection and (5) at a speed or in a manner so as to endanger or be likely to endanger any person or property. N.C. Gen. Stat. § 20-140(b) (2013). The essential elements of misdemeanor speeding to elude arrest under section 20-141.5(a) are: (1) operating a motor vehicle (2) on a street, highway, or public vehicular area (3) while fleeing or attempting to elude a law enforcement officer (4) who is in the lawful performance of his duties. N.C. Gen. Stat. § 20-141.5(a). The elements of the two aggravating factors used to raise the crime to a felony in this case are (i)(1) speeding (2) in excess of 15 miles per hour over the legal speed limit and (ii) reckless driving as proscribed in G.S. 20-140. Both of these factors contain the same essential elements as the separate -15crimes listed above. Therefore, whether Defendant was subjected to multiple punishments for the same offense turns on whether these aggravating factors are considered essential elements of the felony speeding to elude arrest conviction in this case. We hold that they are. In its brief, the State argues that Defendant has not been punished for the same offense because the aggravating factors used to raise speeding to elude arrest from a misdemeanor to a felony are not essential elements of that offense. In so arguing, the State relies on the following language from this Court s opinion in State v. Funchess: Although many of the enumerated aggravating factors [for speeding to elude arrest] are in fact separate crimes under various provisions of our General Statutes, they are not separate offenses . . . , but are merely alternate ways of enhancing the punishment for speeding to elude arrest from a misdemeanor to a Class H felony. 141 N.C. App. 302, 309, 540 S.E.2d 435, 439 (2000). The State misapplies this language to the circumstances presented by this case. In Funchess, the defendant was indicted for felonious speeding to elude arrest based on three of the eight listed aggravating factors. Id. at 306, 540 S.E.2d at 438. At trial, the court instructed the jury that the State was required to -16prove two or more of those three factors in order to convict the defendant of felony speeding to elude arrest. Id. On appeal, the defendant argued that the trial court s instruction violated the constitutional provision requiring a unanimous jury verdict because it did not tell the jury to unanimously agree on the same two factors[.] Id. at 307, 540 S.E.2d at 438. In finding that the trial court did not violate the unanimity requirement, we held that the aggravating factors enumerated in section 20141.5 did not constitute separate criminal offenses when used to elevate the misdemeanor offense of speeding to elude arrest to a felony and, therefore, did not allow the jury to separately convict the defendant of more than one possible crime. Id. Thus, we determined that the aggravating factors while they might constitute criminal offenses in other sections of the code could not be separately punished in the context of section 20141.5. This holding has no direct bearing on whether the listed aggravating factors may be considered essential elements of felony speeding to elude arrest for purposes of double jeopardy. In addition, the United States Supreme Court has clarified that the existence of any fact (other than a prior conviction) [which] increases the maximum punishment that may be imposed on a defendant . . . no matter how the State labels it -17constitutes an element [of the offense] for purposes of the Sixth Amendment right to a jury trial. Sattazahn v. Pennsylvania, 537 U.S. 101, 111, 154 L. Ed. 2d 588, 598 (2003) (citing Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000)); see also Ring v. Arizona, 536 U.S. 584, 609, 153 L. Ed. 2d 556, 577 (2002) (holding that aggravating circumstances that make a defendant eligible for the death penalty operate as the functional equivalent of an element of a greater offense for purposes of the Sixth Amendment s jury trial guarantee) (citation and internal quotation marks omitted). The Court also commented that there is no principled reason to distinguish, [in the context of a capital case], between what constitutes an offense for purposes of the Sixth Amendment s jury-trial guarantee and what constitutes an offence 4 for purposes of the Fifth Amendment s Double Jeopardy Clause. Sattazahn, 537 U.S. at 111 12, 154 L. Ed. 2d at 599 (citation omitted). Pursuant to the Supreme Court opinions discussed above and because the speeding and reckless driving factors increased the maximum penalty for speeding to elude arrest from 45 days to 10 4 The Fifth Amendment uses the archaic spelling of the word offense, writing it with a c. See U.S. Const. amend. V; see generally Webster s Third New International Dictionary of the English Language Unabridged 1566 (3d ed. 2002). -18months, see N.C. Gen. Stat. §§ 15A-1340.17, 1340.23 (2013), we conclude that those factors constituted elements of speeding to elude arrest Therefore, we in this hold case that for Defendant double was jeopardy twice purposes. subjected to punishment for the same offense under Blockburger when he was convicted of speeding, reckless driving, and felony speeding to elude arrest. B. The Intent of the Legislature Even when a defendant is punished twice in the same trial for the same offense, however, our Supreme Court has stated that relief under double jeopardy principles is only available if the legislature did not intend for multiple punishments to be imposed. Citing the United States Supreme Court s opinion in Hunter, 459 U.S. at 368 69, 74 L. Ed. 2d at 544, our Supreme Court has described the intention doctrine as follows: The Double Jeopardy Clause plays only a limited role in deciding whether cumulative punishments may be imposed under different statutes at a single criminal proceeding that role being only to prevent the sentencing court from prescribing greater punishments than the legislature intended. . . . [W]here our legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the same conduct under Blockburger, a court s task of statutory construction is at an end and the prosecutor may seek and the trial -19court or jury may impose cumulative punishment under such statutes in a single trial. Gardner, 315 N.C. at 460 62, 340 S.E.2d at 712 13 (citations and certain quotation marks omitted; emphasis added) (determining that the defendant could be punished for the crimes of felony larceny and breaking or entering because those crimes deal with separate and distinct social norms and were placed in different articles and subchapters of the criminal code, which were entitled Offenses Against the Habitation and Other Buildings and Offenses Against Property, respectively); see also State v. Pipkins, 337 N.C. 431, 434 35, 446 S.E.2d 360, 362 63 (1994) punishments (holding for that trafficking the defendant s in cocaine convictions and possession and by felonious possession of cocaine did not violate the principles of double jeopardy because the legislature intended the punishments to protect against two distinct perceived evils the use of cocaine in the possession offense and the growing concern regarding the gravity of illegal drug activity in North Carolina in the trafficking offense). But see Ezell, 159 N.C. App. at 110 11, 582 S.E.2d at 684 85 (holding that the defendant was impermissibly subjected to double jeopardy when in the same case he was convicted of assault with a deadly weapon -20with intent inflicting intended to kill serious the inflicting bodily offenses to serious injury allow injury because alternative the and assault legislature punishments, not separate ones). In addition, our Supreme Court has noted that the presumption raised by the Blockburger test . . . may be rebutted by a clear indication of legislative intent; and, when such intent is found, it must be respected, regardless of the outcome of the application of the Blockburger test. That is, even if the elements of the two statutory crimes are identical and neither requires proof of a fact that the other does not, the defendant may, in a single trial, be convicted of and punished for both crimes if it is found that the legislature so intended. Gardner, 315 N.C. at 455, 340 S.E.2d at 709 (citations omitted). Given our jurisprudence on this doctrine, we must determine whether the legislature intended for the crimes of speeding and reckless driving to be punished separately, or alternatively, from felony speeding to elude arrest when the latter is based on the aggravating factors of speeding and reckless driving. After careful review, we conclude that the legislature intended the latter. The speeding charge in this case is prohibited under section 20-141(j1) of the North Carolina General Statutes. In determining the legislature s purpose for enacting section 20141, we have commented that the section was created for the -21protection of persons and property and in the interest of public safety[] and the preservation of human life. State v. Bennor, 6 N.C. App. 188, 190, 169 S.E.2d 393, 394 (1969) (citation and internal quotation marks omitted). In addition, our Supreme Court has stated more generally that speeding laws are intended to protect both those traveling on arterial highways and those entering them from intersecting roads[] from the dangers arising because of the frequency of travel along the through highway. Groome v. Davis, 215 N.C. 510, 515, 2 S.E.2d 771, 774 (1939). Therefore, the speeding statute was enacted to protect against harm to persons and property. Reckless driving is prohibited under section 20-140(b) of the North Carolina General Statutes. Subsection (b) provides that [a]ny 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. N.C. Gen. Stat. § 20-140(b). As with speeding, our Supreme Court has stated that this conduct was prohibited by the legislature for the protection of persons and property and in the interest of public safety[] and the preservation of human -22life. State v. Norris, 242 N.C. 47, 53, 86 S.E.2d 916, 920 (1955). Speeding to elude arrest is prohibited under section 20141.5 of the North Carolina General Statutes. Subsection (a) provides that [i]t shall be unlawful for any person to operate a motor vehicle on a street, highway, or public vehicular area while fleeing or attempting to elude a law enforcement officer who is in the lawful performance of his duties. Subsection (b) raises that offense from a misdemeanor to a felony in the presence of two or more of the following factors: (1) speeding, (2) gross impairment while driving, (3) reckless driving, (4) negligent driving leading to an accident causing property damage or personal injury, (5) driving while license revoked, (6) speeding on school property or in an area designated as a school zone or a highway work zone, (7) passing a stopped school bus, or (8) driving with a child under 12 years old. N.C. Gen. Stat. § 20-141.5(a) (b). Our appellate courts have not offered a distinct legislative rationale for this statute. Nonetheless, the statute s own terms state that an individual in violation of subsection (a) whose act results in the death of any person shall be subject to a higher penalty. N.C. Gen. Stat. § 20141.5(b1) (emphasis added). In addition, by transforming the -23crime from a misdemeanor into a felony for actions like speeding, reckless driving, causing property damage or personal injury, and endangering the lives of children, the plain language of the statute suggests that the legislature intended to deter actions subjecting persons, property, and public safety to greater risk. Thus, at least to the extent that speeding to elude arrest is raised from a misdemeanor to a felony pursuant to the aggravating factors of speeding and reckless driving, we see no reason to conclude that the legislature intended this crime to permit a separate punishment from speeding and reckless driving. In Gardner, as noted above, our Supreme Court determined that the defendant s convictions for larceny and breaking or entering did not invoke principles of double jeopardy because the legislature intended for those offenses to prohibit two separate and distinct social norms, the breaking into or entering the property of another and the stealing and carrying away of another s property. Gardner, 315 N.C. at 461, 340 S.E.2d at 712. In so holding, the Court pointed out that this was evidenced by the fact that the two offenses were placed in different articles and subchapters of the criminal code. Id. at 462, 340 S.E.2d at 713. -24In this case, the crimes of speeding, reckless driving, and felony speeding to elude arrest (when supported by the aggravating factors of speeding and reckless driving) all seek to deter the same conduct driving on public roads in a way that might unlike the endanger public statutes in approximately the same safety Gardner, section or property. each offense of the Motor In is addition, listed Vehicle in Act Chapter 20 (Motor Vehicles), Article 3 (The Motor Vehicle Act of 1937), Part 10 (Operation of Vehicles and Rules of the Road). Therefore, pursuant to the rationale employed in Gardner, it is apparent that speeding and the legislature reckless intended driving to for permit the offenses alternative, of not separate, punishments to felony speeding to elude arrest when supported by the aggravating factors of speeding and reckless driving. Accordingly, we hold that Defendant was unconstitutionally subjected to double jeopardy when he was convicted of speeding and reckless driving in addition to felony fleeing to elude arrest based on speeding and reckless driving. As a result, we need not address Defendant s second, alternative, argument on appeal. For the foregoing reasons, we arrest judgment on the -25speeding and reckless driving convictions in 11 CRS 500495 and remand for resentencing. JUDGMENT ARRESTED; REMANDED FOR RESENTENCING. Judges GEER and ERVIN concur. 5 The speeding and reckless driving convictions were consolidated for sentencing purposes with other convictions, including felony speeding to elude arrest. As a result, Defendant was sentenced to 6 to 8 months in prison. This is within the presumptive range for felony speeding to elude arrest, alone, when the defendant has a prior record level II, as here. See N.C. Gen. Stat. §§ 15A-1340.17, 20-141.5(b). Though the State does not argue that resentencing would be unnecessary in this case, we nonetheless point out that the judgment must be remanded because we cannot assume that the trial court s consideration of the speeding and reckless driving convictions had no effect on the sentence imposed. State v. Brown, 350 N.C. 193, 213, 513 S.E.2d 57, 69 70 (1999) ( [W]e . . . conclude that the judgment on this offense must be remanded for resentencing because the trial court consolidated it with the solicitation conviction, which we have now vacated, in imposing a single sentence of thirty years, and we cannot assume that the trial court s consideration of two offenses, as opposed to one, had no affect [sic] on the sentence imposed. ); see also State v. Williams, 150 N.C. App. 497, 505 06, 563 S.E.2d 616, 621 (2002) (arresting judgment on the crime of first degree trespass, when that conviction was consolidated for trial with the crime of resisting a public officer, and remanding for resentencing on the resisting crime even though both crimes had a presumptive sentence of 60 days because whether the crime warrants the sentence imposed in connection with the two consolidated crimes is a matter for the trial court to reconsider ) (citation omitted).

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