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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-1130


Filed: 5 June 2007


v .                         Buncombe County
                            No. 05CRS056186

    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.

    WYNN, Judge.

    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 stipulation.

Id. (citations omitted).
    Following the reasoning in Jernigan, we reject this assignment of error.
    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 impaired driving.

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. Vardiman, 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).
    No error.
    Chief Judge MARTIN and Judge GEER concur.
    Report per Rule 30(e).

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