in the Court of Appeals 13 March 2019.
by Defendant from judgment entered 18 April 2018 by Judge
Marvin P. Pope, Jr. in Transylvania County No. 17CRS50770
Attorney General Joshua H. Stein, by Assistant Attorney
General Yvonne B. Ricci, for the State.
Kimberly P. Hoppin for Defendant-Appellant.
the State fails to give notice of its intent to use
aggravating sentencing factors as required by N.C. Gen. Stat.
§ 20-179(a1)(1), the trial court's use of those
factors in determining a defendant's sentencing level is
Brian Keith Hughes ("Defendant") appeals from a
judgment finding him guilty of impaired driving and imposing
a level one punishment based upon two grossly aggravating
sentencing factors. Because the State failed to notify
Defendant of its intent to seek an enhanced sentence based on
those factors we vacate the judgment and remand to the trial
court to resentence Defendant.
AND PROCEDURAL HISTORY
May 2017, Brevard Police Department Officer Timothy Reinhart
("Officer Reinhart") observed Defendant's
vehicle roll through a stop sign and then come to an abrupt
stop when it appeared Defendant noticed the officer's
patrol car. Officer Reinhart ran the vehicle's license
plate, verified that Defendant's driving privileges had
been suspended, and initiated a traffic stop. During this
stop, Officer Reinhart and another officer performed standard
field sobriety tests on Defendant. The officers concluded
that Defendant had consumed a sufficient amount of alcohol to
impair his mental and physical faculties and arrested him for
driving while impaired.
was tried for impaired driving in Transylvania County
District Court. The district court found Defendant guilty,
and determined that the State had proven the existence of two
grossly aggravating sentencing factors: (1) that Defendant
"drove, at the time of the current offense, while [his]
drivers license was revoked" and (2) that Defendant had
"been convicted of a prior offense involving impaired
driving which conviction occurred within seven (7) years
before the date of this offense." Accordingly, the
district court imposed level one punishment.
then appealed to the Transylvania County Superior Court.
Defendant was tried by jury, and the jury returned a verdict
of guilty of driving while impaired. The jury was discharged,
and the superior court proceeded to a sentencing hearing.
During the sentencing hearing, the State introduced evidence
of Defendant's driving record over Defendant's
objection that the State had failed to provide notice of its
intent to seek an aggravated sentence. The superior court
again imposed a level one punishment, based on the same
factors applied in Defendant's district court sentencing.
argues that the State failed to notify him, as required by
Section 20-179(a1)(1) of our General Statutes, of its intent
to prove aggravating factors for sentencing in the superior
court proceeding. Alleged statutory errors are questions of
law and, as such, are reviewed de novo. State v.
Mackey, 209 N.C. App 116, 120, 708 S.E.2d 719, 721
(2011) (internal citations omitted). Under de novo
review, the appellate court considers the matter anew and
freely substitutes its own judgment for that of the lower
court. Sutton v. N.C. Dep't of Labor, 132
N.C.App. 387, 389, 511 S.E.2d 340, 341 (1999).
State intends to provide evidence of aggravating factors at
an impaired driving sentencing hearing, it must provide