in the Court of Appeals 19 September 2017.
by Defendant from judgment entered 25 May 2016 by Judge
Marvin K. Blount, III, in Pitt County No. 11 CRS 057539
Attorney General Joshua H. Stein, by Assistant Attorney
General Michelle D. Denning, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Nicholas C. Woomer-Deters, for Defendant-Appellant.
Gregory Armistead ("Defendant") appeals his
conviction following a jury verdict finding him guilty of
impaired driving with a finding of one aggravating factor.
Defendant argues that he was denied his constitutional right
to a speedy trial and that the trial court erred by denying
his motion to dismiss pursuant to N.C. Gen. Stat. §
15A-711. After careful review, we hold that Defendant has
failed to establish error.
and Procedural History
evidence at trial tended to show the following:
around 1:30 a.m. on 3 September 2011, Defendant was arrested
and cited for driving while impaired in Pitt County, North
Carolina. At the Pitt County Detention Center, Defendant
submitted a breath sample, which reported a blood alcohol
concentration of 0.15. Defendant was released on bail at
approximately 12:30 p.m. the same day.
January 2012, Defendant appeared in Pitt County District
Court, was appointed counsel, and his case was continued to
22 March 2012. The case was continued again to 3 May 2012 to
allow additional time for discovery.
May 2012, in an unrelated matter in Beaufort County,
Defendant was sentenced to an active prison term of 108 to
139 months in the custody of the North Carolina Department of
Adult Correction. Defendant began serving that sentence on
the same day.
result of his incarceration, Defendant did not appear in Pitt
County Superior Court on 3 May 2012. Neither Defendant's
appointed counsel nor the prosecutor was aware that Defendant
was incarcerated. The trial court issued an order for
about 26 June 2012, Defendant contacted his prison case
manager requesting a list of the case numbers for any pending
charges against him as well as addresses for the Pitt County,
Washington County, and Lenoir County Clerks of Court.
Defendant's case manager responded with the case numbers
and the addresses for the clerks of court in all three
July 2012, Defendant sent letters to the Washington and
Lenoir County Clerks of Court requesting resolution of the
charges pending against him in those counties. The letter
sent to Washington County, which referenced the case numbers
of the pending charges, was file stamped with the clerk's
office on 26 July 2012. The Lenoir County charges were
dismissed on 23 August 2012 and the Washington County charge
was dismissed on 1 October 2012.
September 2012, the prosecutor in Pitt County filed a
dismissal of the driving while impaired charge with leave to
prosecute the case later, citing Defendant's failure to
appear for the 3 May 2012 hearing and the prosecutor's
belief that Defendant could not readily be found.
October 2012 and 14 November 2012, respectively, Defendant
sent mail to "CSC Greenville" and "Admin Off
Cts, " but prison records do not indicate the substance
of the correspondence. On 29 November 2012, Defendant
drafted, and had notarized, a letter captioned "Motion
and Request for Dismissal." The letter, addressed to the
presiding or resident judge of the Pitt County Superior
Court, stated Defendant's case number as "11 CRS
57539" and requested dismissal of the case pursuant to
N.C. Gen. Stat. § 15A-711. Prison records indicate that
Defendant sent another letter to "Admin Off Cts."
on 30 November 2012, but again do not disclose the substance
of the correspondence. There is no court record indicating
that the clerk of court or district attorney in Pitt County
received any of these letters.
August 2015, Defendant's prison case manager contacted
the Pitt County District Attorney's Office to inquire
about the driving while impaired charge and was informed that
the charge remained pending and that Defendant would receive
notice when the case was next set for a hearing.
November 2015, Defendant wrote another letter to the Pitt
County Clerk of Court indicating that he had yet to receive a
response regarding his motion to dismiss the pending charge,
which Defendant correctly identified as case number
"11CR57539." It was through this letter that
Defendant's counsel learned of his incarceration and
contacted the District Attorney's Office to re-calendar
case proceeded to trial on 28 January 2016 in Pitt County
District Court. Defendant was convicted and sentenced as a
Level 3 offender to an active term of six months in prison.
Defendant appealed to the Pitt County Superior Court on the
same day and was released on $1.00 secured bond.
moved to dismiss the case pursuant to N.C. Gen. Stat. §
15A-711 on 25 April 2016. A pre-trial hearing was set on 23
May 2016 to address Defendant's motion. The trial court
denied Defendant's motion and the case proceeded to trial
before a jury.
trial, the State presented evidence of Defendant's
impairment through the testimony of the arresting officer and
the results of the Intoxalyzer test administered on the night
of his arrest. The jury convicted Defendant on 25 May 2016
for driving while impaired and found one aggravating
factor-that Defendant had an alcohol concentration of 0.15 or
more at the time of the offense, ...