in the Court of Appeals 6 June 2017.
by defendant from judgment entered 17 November 2015 and order
entered 29 March 2016 by Judge Patrice A. Hinnant in Guilford
County No. 15 CRS 73023 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Joseph L. Hyde, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Daniel L. Spiegel, for defendant-appellant.
the trial court failed to consider evidence of
defendant's eligibility for conditional discharge
pursuant to N.C. Gen. Stat. § 90-96, the judgment is
vacated and the matter remanded for resentencing.
Factual and Procedural Background
November 2015, Travis Taylor Dail ("defendant")
pleaded guilty to driving while impaired ("DWI")
and possession of lysergic acid diethylamide
("LSD"). Per the plea agreement, defendant
stipulated that he was a record level 1 for felony sentencing
purposes, a record level 5 for DWI sentencing purposes, and
that he would be placed on probation. In exchange, the State
agreed to dismiss multiple additional drug possession charges
against defendant. Pursuant to this plea agreement, on 20
November 2015, the trial court sentenced defendant to a
minimum of 3 months and a maximum of 13 months'
imprisonment in the custody of the North Carolina Department
of Adult Correction on the possession of LSD offense. The
trial court suspended this sentence, instead sentencing
defendant to 12 months of supervised probation. For the DWI
offense, the trial court entered a suspended sentence,
ordering defendant to be imprisoned for 30 days in the
custody of the Misdemeanant Confinement program, and to
surrender his license. In both judgments, the trial court
entered findings on mitigating factors, finding that these
outweighed any aggravating factors.
November 2015, defendant filed a motion for appropriate
relief ("MAR"), alleging that, at the plea hearing,
defendant requested to be placed on conditional discharge
probation pursuant to N.C. Gen. Stat. § 90-96, given
that defendant had not previously been convicted of a felony.
In his MAR, defendant further alleged that the trial court
erred in both failing to permit conditional discharge, and in
failing to make findings as to why conditional discharge was
inappropriate. Defendant therefore moved to have his guilty
plea withdrawn and the judgment stricken.
March 2016, the trial court entered an order on
defendant's MAR. The trial court found that, pursuant to
the plea agreement, defendant stipulated that he was a record
level 1 for felony purposes, record level 5 for DWI purposes,
and that he would be placed on probation. The trial court
also noted that "the defendant enjoyed the benefit of
the dismissal of the following charges: felony possession of
MDPV; possession of marijuana up to 1/2 ounce; possession of
drug paraphernalia; simple possession of clonazepam 90-95 (D)
(2); and, felony prescription and labeling 90-106." The
trial court determined that defendant, in subsequently
requesting conditional discharge, was asking the trial court
"to act outside of the plea agreement by placing
defendant on the 90-96 deferral program in contradiction to
the terms of the plea agreement, a term not negotiated with
the State." The trial court also stated that
"defendant could not then and cannot now argue for
something outside of the plea agreement. While the 90-96
program requires the consent of the defendant, the plea
undercuts or supersedes consent to the 90-96 program because
the defendant consented to probation as a term of his plea in
lieu of the 90-96 program." The trial court concluded
that defendant was barred from relief, and denied his MAR.
April 2016, defendant filed a petition for writ of
certiorari, alleging that the judgment against him was
entered in error. Also on 12 April 2016, defendant appealed
the judgment and denial of his MAR. On 29 April 2016, this
Court granted defendant's petition for writ of
May 2016, the State filed a petition in the North Carolina
Supreme Court for writ of certiorari, alleging that this
Court lacked jurisdiction to review the denial of
defendant's MAR, and seeking review of the 29 April 2016
order granting defendant's petition for certiorari. The
State also filed a petition for a writ of supersedeas and
motion for temporary stay, pending review of its petition for
writ of certiorari. The Supreme Court granted the motion for
temporary stay on 16 May 2016.
August 2016, the Supreme Court entered its order on the
State's motions. It dissolved the temporary stay, and
denied supersedeas and certiorari. Correspondingly, this
Court entered an order recognizing the denial of supersedeas
and certiorari by the Supreme Court.