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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 5 June 2007
STATE OF NORTH CAROLINA
ALBERT GALIN MANANOV
Appeal by Defendant from judgment entered 9 February 2006 by
Judge Laura J. Bridges in Superior Court, Buncombe County. Heard
in the Court of Appeals 27 March 2007.
Attorney General Roy Cooper, by Isaac T. Avery, III, Special
Counsel, for the State.
Bruce T. Cunningham, Jr., for Defendant-appellant.
This appeal arises from Defendant Albert Galin Mananov's
conviction on the charges of habitual impaired driving and driving
while license revoked. We find no error.
The facts of this case tend to show that on 10 May 2005, an
unnamed witness called the Asheville Police Department reporting a
suspicious vehicle and person walking on Old Haw Creek Road near
the intersection of Middlebrook Road. Officer Matthew Autry
responded and found Defendant's vehicle in the middle of the road
and Defendant walking down the street. Defendant informed Officer
Autry that he was headed home when his car ran out of gas.
Upon smelling alcohol coming from Defendant, Officer Autry
asked Defendant to perform several field sobriety tests. When
Defendant was unable to satisfactorily perform the tests, OfficerAutry concluded that Defendant was impaired, placed him under
arrest, transported him to the Buncombe County Detention Facility,
and observed him for a period of time. Defendant attempted to
secure a witness to observe the Intoxilyzer test, but was unable to
reach anyone. Subsequently, Defendant was charged with driving
while impaired and driving while license revoked.
At trial for driving while impaired and driving while license
revoked, the State arraigned Defendant on the charge of habitual
impaired driving and Defendant stipulated to his prior convictions.
After a jury trial finding Defendant guilty on all charges, the
trial court sentenced Defendant to a term of 19 to 23 months for
the charge of habitual impaired driving, and 120 days for the
charge of driving while license revoked. Defendant appeals
contending that the trial court erred because: (I) the essential
element for habitual impaired driving was stipulated to by
Defendant's counsel, therefore, Defendant was not properly
convicted of the felony; (II) the use of an unbifurcated verdict
sheet on the charge of driving while impaired violated Defendant's
right to a unanimous jury; and (III) the crime of habitual impaired
driving violates double jeopardy.
Defendant first argues that the trial court committed plain
error in imposing a sentence on the crime of habitual impaired
driving, when Defendant's counsel merely stipulated to the
existence of an element of the crime. Specifically, Defendant
argues that the stipulation was tantamount to a guilty plea of thehabitual impaired driving charge; and therefore, the trial court
was required to engage in a colloquy with Defendant in conjunction
with this stipulation.
For the reasons given in State v. Jernigan, 118 N.C. App. 240,
455 S.E.2d 163 (1995), we reject Defendant's argument. Similiar to
this case, the defendant in Jernigan contended that his
stipulation was ineffective because it was made by his attorney
without defendant's having been advised by the court of his rights
regarding the stipulation. Id. at 245, 455 S.E.2d at 166. The
defendant in that case equated the requirements of section 15A-
928(c) to the requirement that a guilty plea be made knowingly and
voluntarily. Id. This Court held:
However, it is clear that a defendant's
attorney may stipulate to an element of the
charged crime on behalf of the defendant, and
that the stipulation may be entered and read
to the jury. Moreover, there is no
requirement that the record show that the
defendant personally stipulated to the element
or that the defendant knowingly, voluntarily,
and understandingly consented to the
Id. (citations omitted).
Following the reasoning in Jernigan, we reject this assignment
Defendant next argues that the trial court committed plain
error and violated his right to a unanimous jury verdict.
Specifically, Defendant argues that the unbifurcated verdict sheet
allowed a verdict by greater than fifty percent because the sheetdid not set out both appreciable impairment and blood alcohol in
excess of 0.08, which are not theories but are elements.
In State v. Oliver, our Supreme Court held that:
[e]ven accepting defendant's argument as true,
that some jurors may have found defendant was
under the influence of an impairing substance
and that some jurors may have found
defendant's alcohol concentration was 0.08 or
more at some relevant time after driving, the
fact remains that jurors unanimously found
defendant guilty of the single offense of
343 N.C. 202, 215, 470 S.E.2d 16, 24 (1996). As in Oliver, we find
no error in the verdict sheet employed by the trial court.
Accordingly, defendant's assignment of error is without merit.
Defendant lastly urges this Court to reconsider State v.
, in which we held that the crime of habitual impaired
driving does not violate the Double Jeopardy Clause of the Fifth
Amendment to thee United States Constitution.
146 N.C. App. 381,
552 S.E.2d 697 (2001). However, we do not have the authority to do
so and, therefore, reject this assignment of error. In re Appeal
From Civil Penalty
, 324 N.C. 373, 379 S.E.2d 297 (1989).
Chief Judge MARTIN and Judge GEER concur.
Report per Rule 30(e).
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