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State v. Lu

Court of Appeals of North Carolina

November 19, 2019

STATE OF NORTH CAROLINA,
v.
WEIPENG "JIMMY" LU, Defendant.

          Heard in the Court of Appeals 5 June 2019.

          Appeal 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.

          The Epstein Law Firm, PLLC, by Drew Nelson, for defendant-appellant.

          MURPHY, JUDGE

         A jury 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.

         BACKGROUND

         At a 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.[1] 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 Lorazepam tablet.

         Defendant 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 paraphernalia.

         The 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.

         ANALYSIS

         A. Probation Sentencing Error and Clerical Error

         Defendant 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.

         We 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).

         Here, 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.

         Defendant 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 ...


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