in the Court of Appeals 5 June 2019.
by Defendant from judgments entered 18 September 2018 by
Judge Gregory R. Hayes in Catawba County Superior Court No.
13 CRS 056704.
Attorney General Joshua H. Stein, by Assistant Attorney
General Matthew Kraus, for the State.
Epstein Law Firm, PLLC, by Drew Nelson, for
found Defendant, Weipeng "Jimmy" Lu, guilty of
felony possession of a Schedule I controlled substance
(Methylone), misdemeanor possession of marijuana, and
misdemeanor possession of drug paraphernalia. Defendant
argues that his probation terms exceed the statutory maximum
and that the trial court committed plain error by giving jury
instructions that vary from the indictment. After careful
review, we vacate and remand for resentencing and hold that
the trial court did not commit plain error.
traffic checkpoint, Sergeant Amanda Efird ("Efird")
screened a vehicle in which Defendant was a passenger. Efird
detected "[t]he overwhelming odor of marijuana emitting
from the vehicle," and Defendant confirmed the presence
of marijuana. Efird proceeded to search the vehicle with
another officer's assistance. Defendant told Efird that
the marijuana was located "in a bag behind the
driver's seat," and Efird located a drawstring bag,
which Defendant professed to own along with its
contents. Within the drawstring bag, the officer
discovered two sealable plastic bags containing marijuana, a
hookah, a "snort straw," and a beer can. The beer
can had been altered to serve as an unscrewable container,
and inside Efird found "two white crystallized
substances"-later identified as Methylone-and a
was indicted on three offenses, and one indictment specified
"an altered beer can" as the sole basis for a
possession of drug paraphernalia charge. At trial, the judge
gave instructions regarding the possession of drug
paraphernalia charge, and, although only the "altered
beer can" was named in the paraphernalia indictment, the
instructions did not specify the item(s) deemed to be drug
jury found Defendant guilty of all charges, including
possession of drug paraphernalia. He received a suspended
sentence of 6-17 months for the felony. Defendant also
received two consecutive sentences of 120 days for the two
misdemeanor possession offenses. Each sentence was suspended
pending a probation period of 36 months and a 12-day split
active sentence was imposed for the felony. If activated, the
sentences were to run consecutively: the felony sentence
first and then the misdemeanor possession sentences.
Probation Sentencing Error and Clerical Error
argues the trial court violated N.C. G.S. §
15A-1343.2(c)(2) when it placed him on 36 months'
probation for his misdemeanor convictions. We agree.
review alleged statutory errors de novo. State v.
Wilkerson, 223 N.C.App. 195, 200, 733 S.E.2d 181, 184
(2012). On review, "[w]hen a trial court acts contrary
to a statutory mandate, the error ordinarily is not waived by
the defendant's failure to object at trial."
State v. Hucks, 323 N.C. 574, 579, 374 S.E.2d 240,
244 (1988) (emphasis omitted). The statutory mandate, in this
case, restricts the probationary period for misdemeanants
sentenced to intermediate punishment, and that time must be
between 12 and 24 months "[u]nless the court makes
specific findings that longer or shorter periods of probation
are necessary . . . ." N.C. G.S. § 15A-1343.2(d)(2)
(2017). When a "trial court [does] not make specific
findings that a longer period of probation [is]
necessary," we remand. State v. Wheeler, 202
N.C.App. 61, 71, 688 S.E.2d 51, 57 (2010); see also State
v. Love, 156 N.C.App. 309, 576 S.E.2d 709 (2003).
Defendant argues that the record lacks specific findings to
justify a 36-month probation period. The State does not
disagree and our review of the record supports
Defendant's argument. Thus, the probation period set at
trial is vacated and remanded.
also argues that the trial court erred by issuing written
judgments containing clerical errors, including misnumbering
the prior conviction points and conviction numbers. The State
does not oppose this argument. However, if a judgment
containing a clerical error is vacated, then the clerical
error is moot. See Shaner v. Shaner, 216 N.C.App.
409, 410, 717 S.E.2d 66, 68 n.2 (2011) (noting "this
clerical error has no impact on our minimum contacts analysis
and, in light of our reversal of the order, [defendant]'s
argument on this point ...