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State v. Mayo

Court of Appeals of North Carolina

November 7, 2017

STATE OF NORTH CAROLINA
v.
GLENN WARREN MAYO, JR., Defendant.

          Heard in the Court of Appeals 3 October 2017.

         Appeal 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, for Defendant-Appellant.

          MURPHY, JUDGE.

         The 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.

         Glenn 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.

         I. Background

         On 1 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.

         On 7 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).

         On 24 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.

         II. Standard of Review

         "This 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).

         We 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 ...


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