Opinion
No. COA12–46.
2012-08-21
STATE of North Carolina v. Matthew Saad PHAIR.
Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State. Don Willey for defendant-appellant.
Appeal by defendant from judgments entered 16 June 2011 by Judge James M. Webb in Guilford County Superior Court. Heard in the Court of Appeals 23 May 2012. Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State. Don Willey for defendant-appellant.
BRYANT, Judge.
Where the trial court acted in accordance with sentencing guidelines under the Motor Vehicle Act in enhancing defendant's sentence for Driving While Impaired on the basis of a contemporaneous conviction for Felony Fleeing to Elude Arrest, we hold no error.
Matthew Saad Phair (defendant) appeals from judgments entered on 16 June 2011 sentencing him to five to six months in the custody of the Department of Correction for Felony Fleeing to Elude Arrest followed by 24 months of supervised probation for driving while impaired. The trial court found that the Driving While Impaired charge was aggravated by the conviction for Felony Fleeing to Elude Arrest. For the following reasons, we affirm the trial court.
Facts and Procedural History
At 3 a.m. on 10 October 2010, officers with the Greensboro Police Department conducting a patrol of the area around High Point Road received a call that possible shots had been fired in the area. A Mercedes, gray or silver, accelerated as it turned onto High Point Road. The officers attempted to overtake the vehicle which led them on a 1.7 mile-long chase. The Mercedes reached speeds between 115 and 120 miles per hour in a 35 mile per hour speed zone.
The chase ended when the vehicle stopped in a residential area, the officers surrounded defendant's vehicle, and removed defendant from within. The officers did not request that defendant take any field sobriety tests at the scene but noted a strong odor of alcohol and defendant's red, glassy eyes. Upon searching the vehicle, the officers found spent shell casings in the driver's seat.
The officers took defendant to the police department where they were met by a certified chemical analyst. The chemical analyst also noted a strong alcohol odor, red eyes, and that defendant kept “dozing off.” Defendant refused any chemical testing and was charged with Felony Fleeing to Elude Arrest with a Motor Vehicle, Resisting a Public Officer, Discharging a Weapon Within City Limits, and Driving While Impaired (DWI).
On 29 November 2010, a Guilford County Grand Jury returned true bills of indictment against defendant for one count of Felony Fleeing to Elude Arrest with a Motor Vehicle and DWI. Following a trial commenced during the 13 June 2011 Criminal Court Session of Guilford County Superior Court, a jury returned verdicts of guilty on both charges.
On the conviction of Felony Fleeing to Elude, the trial court sentenced defendant to an active term of five to six months. The trial court found that the DWI conviction was aggravated by the conviction for Felony Fleeing to Elude and sentenced defendant as a level 3 DWI offender. Defendant was sentenced to six months for the DWI offense to be served consecutive to the sentence for Felony Fleeing to Elude. The trial court then suspended the six month active DWI sentence and ordered 24 months of supervised probation following defendant's release from serving the active sentence for Fleeing to Elude. Defendant appeals.
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On appeal, defendant contends that the imposition of an active sentence for his conviction for Fleeing to Elude as well as the use of the same conviction to aggravate the sentence imposed for DWI violates the (A) Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and (B) N.C. Gen.Stat. § 15A–1340.16—Aggravated and mitigated sentences pursuant to felony sentencing under Structured Sentencing. Defendant failed to raise an objection to his sentence before the trial court.
“Generally, a defendant's failure to enter an appropriate and timely motion or objection results in a waiver of his right to assert the alleged error upon appeal.” State v. McDougall, 308 N.C. 1, 9, 301 S.E.2d 308, 314 (1983) (citations omitted). “Even alleged errors arising under the Constitution of the United States are waived if defendant does not raise them in the trial court.” State v. Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600 (2003) (citations and quotations omitted). However, our General Assembly has listed under General Statutes, section 15A–1446(d), “[e]rrors ... which are asserted to have occurred, [that] may be the subject of appellate review even though no objection, exception or motion has been made in the trial division.” N.C. Gen.Stat. § 15A–1446(d) (2011). Pursuant to section 15A–1446(d)(18), such an error occurs where “[t]he sentence imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law.” N.C. Gen.Stat. § 15A1446 (d)(18) (2011).
While General Statutes section 15A–1446(d) lists grounds wherein errors are preserved for appellate review as a matter of law, our Supreme Court has held that “[t]he Constitution of North Carolina provides that ‘[t]he Supreme Court shall have exclusive authority to make rules of practice and procedure for the Appellate Division.’ N .C. Const. Art. IV § 13(2).” State v. Elam, 302 N.C. 157, 160, 273 S.E.2d 661, 664 (1981). “Pursuant to said constitutional authority our Supreme Court promulgated the Appellate Rules of Procedure.” State v. O'Neal, 77 N.C.App. 600, 603, 335 S.E.2d 920, 923 (1985) (citing Elam, 302 N.C. 157, 273 S.E.2d 661). Considering our Rules of Appellate Procedure, “[w]here there have been conflicts between subsections of G.S. 15A–1446 and Rule 10 [Preservation of issues at trial; proposed issues on appeal], the North Carolina Supreme Court has unequivocably stated that the Rules of Appellate Procedure should control.” Id.
Rule 10(a) provides generally that an issue may not be reviewed on appeal if it was not properly preserved at the trial level or unless the alleged error has been “deemed preserved” “by rule or law.” N.C. R.App. P. 10(a)(1). Here subdivision [N.C.G.S. § 15A–1446](d)(18) states that an argument that “[t]he sentence imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law” may be reviewed on appeal even without a specific objection before the trial court. This provision does not conflict with any specific provision in our appellate rules and operates as a “rule or law” under Rule 10(a)(1), which permits review of [an] issue.
State v. Mumford, 364 N.C. 394, 403, 699 S.E.2d 911, 917 (2010).
Though an argument that “[a] sentence imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law[,]” “ may be the subject of appellate review[,]” it remains for us to consider whether the argument is not otherwise precluded. N.C.G.S. § 15A–1446(d)(18) (emphasis added). Having failed to object at his sentencing hearing, defendant contends on appeal that the sentence imposed violates the Double Jeopardy Clause of the Fifth Amendment and N.C. Gen.Stat. § 15A–1340.16. In particular, we consider whether defendant's constitutional argument should be heard.
A
In State v. Davis, our Supreme Court affirmed the Court of Appeals in holding that a defendant who did not raise a Fifth Amendment double jeopardy argument at the sentencing phase did not preserve his issue for appellate review. 364 N.C. 297, 301, 698 S.E .2d 65, 67 (2010) (quoting State v. Tirado, 358 N.C. 551, 571, 599 S.E.2d 515, 529 (2004) (holding that “ [c]onstitutional questions not raised and passed on by the trial court will not ordinarily be considered on appeal.”)), aff'g in part197 N.C.App. 738, 678 S.E.2d 385 (2009). Like the defendant in Davis, defendant in the case at hand did not raise the issue of double jeopardy at the sentencing phase, and thus, the issue is not properly preserved for our review. Therefore, this Court will not consider the issue on appeal.
But, even were we to reach this issue, our Supreme Court has “made clear [ ... ], double jeopardy does not prohibit multiple punishment[s] for two offenses-even if one is included within the other under the [ ] test [set forth in Blockburger v. United States, 284 U.S. 299, 76 L.Ed. 306 (1932) ]-if both are tried at the same time and the legislature intended for both offenses to be separately punished.” State v. Ezell, 159 N.C.App. 103, 107, 582 S.E.2d 679, 682 (2003), referencing Missouri v. Hunter, 459 U.S. 359, 368–369, 103 S.Ct. 673, 674 (1983). The Ezell court explained that “clear indication of legislative intent” provides that “the defendant may, in a single trial, be convicted of and punished for both crimes if it is found that the legislature so intended.” Ezell, 159 N.C.App. at 107, 582 S.E.2d at 683.
Pursuant to North Carolina General Statutes, section 20–179(d), entitled “Sentencing hearing after conviction for impaired driving; determination of grossly aggravating and mitigating factors; punishments[,]”
[t]he judge, or the jury in superior court, shall determine before sentencing ... whether any of the aggravating factors listed below apply to the defendant[:]
...
(6) Conviction under G.S. 20–141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.
...
[T]he conduct constituting the aggravating factor[, including section 6,] shall occur during the same transaction or occurrence as the impaired driving offense.
N.C. Gen.Stat. § 20–179(d) (2011) (emphasis added). This appears to be a clear indication of the legislature's intent to allow the use of a conviction for felony fleeing to elude arrest to be used as an aggravating factor in a DWI conviction that occurred at the same time and, therefore, is not a violation of double jeopardy. See Ezell, 159 N.C.App. at 107, 582 S.E.2d at 683.
B
Defendant next contends that the trial court's imposition of consecutive sentences, whereby the sentence for the DWI conviction was aggravated by the contemporaneous conviction for speeding to elude arrest, violated Structured Sentencing under Article 81B of Chapter 15A of our General Statutes. Defendant argues that under N.C. Gen.Stat. § 15A–1340.16, and even under its predecessor—G.S. § 15A–1340.4(a)(1) the Fair Sentencing Act (repealed 1 January 1995), “evidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation.” N.C.G.S. § 15A–1340.4(a)(1). Defendant's argument is misplaced.
Currently, Structured Sentencing of Persons Convicted of Crimes under Article 81B “applies to criminal offenses in North Carolina, other than impaired driving under G.S. § 20–138.1 ....“ N.C. Gen.Stat. § 15A–1340.10 (2011) (emphasis added). Defendant was convicted of impaired driving under G.S. § 20–138.1. And, pursuant to the sentencing statute applicable to convictions for impaired driving violations—G.S. § 20–179—a defendant may be simultaneously convicted and sentenced for fleeing to elude arrest and DWI where the DWI sentence is aggravated by the conviction for fleeing to elude arrest. SeeN.C.G.S. § 20–179(d)(6). Therefore, we overrule defendant's argument that his sentencing violates structured sentencing under Structured Sentencing of Persons Convicted of Crimes under Article 81B of Chapter 15A.
No error. Judges STEPHENS and THIGPEN concur.
Report per Rule 30(e).