in the Court of Appeals 3 October 2017.
by Defendant from judgments entered 26 October 2016 by Judge
Tanya T. Wallace in Johnston County Nos. 15CRS056170,
15CRS837 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Colin A. Justice, for the State.
Robinson, Bradshaw & Hinson, P.A., by Erik R. Zimmerman,
Habitual Impaired Driving Act requires the State to allege
three prior convictions of impaired driving. Unlike other
statutes, the Act does not require the three prior
convictions to be from different court dates. We hold, in
accordance with our case law and the differences between this
Act and other habitual statutes, the State is not required to
allege three prior convictions of impaired driving from
different court dates.
Warren Mayo, Jr. ("Defendant") appeals from
judgments convicting him of habitual impaired driving and
revoking his probation. On appeal, Defendant argues: (1) the
indictment for habitual impaired driving is facially invalid
because two of the underlying impairment convictions are from
the same court date; and (2) the trial court relied on an
invalid conviction in revoking Defendant's probation.
After careful review, we reject Defendant's arguments and
conclude he received a fair trial, free from error.
November 2015, Sergeant T.L. Avery of the Selma Police
Department arrested Defendant for impaired driving and
driving while license revoked. On 2 November 2015,
Defendant's probation officer filed a probation violation
report. In the report, the officer alleged Defendant violated
probation by driving while not being properly licensed and
being under the influence of alcohol on 1 November 2015.
December 2015, Defendant was indicted for habitual impaired
driving. In support of the habitual impaired driving charge,
the State alleged Defendant had been convicted of the
following charges: First, 15CRS000837, driving while impaired
on 26 November 2012. Defendant was convicted of this charge
on 30 September 2015 in Johnston County Superior Court.
Second, 12CR213930, driving while impaired on 22 June 2012.
Defendant was convicted of this charge on 20 December 2012 in
Wake County District Court. Third, 12CR213589, driving while
impaired on 18 June 2012. Defendant was convicted of this
charge on 20 December 2012 in Wake County District Court.
Defendant also stipulated to his three prior convictions for
driving while impaired. On 1 February 2016, Defendant was
indicted for being a habitual felon. On 26 February 2016,
Defendant's probation officer filed another probation
violation report. In the report, the officer alleged
Defendant violated probation because he "has not been
hooked up" to an alcohol consumption monitoring system.
(all caps in original).
and 25 October 2016, Defendant's case came to trial. On
25 October 2016, the jury found Defendant guilty of driving
while impaired. The trial court adjudicated Defendant as a
habitual impaired driver, in accordance with N.C. G.S. §
20-138.5 (2015). Defendant pled guilty to being a habitual
felon. The trial court also revoked Defendant's probation
in 15CRS837, a prior driving while impaired conviction, based
on two violation reports and Defendant being "found
guilty of habitual impaired driving on
10/25/2016-15CRS56170." (all caps in original). On 27
October 2016, Defendant's probation officer completed
another probation violation report, alleging Defendant
violated probation by committing a criminal offense.
Defendant filed timely notice of appeal.
Standard of Review
Court reviews challenges to the sufficiency of an indictment
using a de novo standard of review. Under a de
novo review, the court considers the matter anew and
freely substitutes its own judgment for that of the lower
tribunal." State v. Pendergraft, 238 N.C.App.
516, 521, 767 S.E.2d 674, 679 (2014) (internal citations and
quotation marks omitted).
review a trial court's revocation of probation for abuse
of discretion. State v. Tennant, 141 N.C.App. 524,
526, 540 S.E.2d 807, 808 (2000) (quoting State v.
Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960))
(" 'The findings of the judge, if supported by
competent evidence, and his judgment based thereon are not
reviewable on appeal, unless there is a manifest abuse of
discretion.' "). "Abuse of discretion results
where the court's ruling is manifestly unsupported by
reason or is so arbitrary that it could not have ...