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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-507


Filed: 4 December 2007


    v.                        Wake County
                            No. 05 CRS 001701

    Appeal by defendant from judgments entered 23 August 2006 by Judge Abraham Penn Jones in Wake County Superior Court. Heard in the Court of Appeals 30 November 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State.

    Russell J. Hollers III, for defendant-appellant.

    TYSON, Judge.

    Dennis Keith Groce, Jr. (“defendant”) appeals from judgments entered after a jury found him to be guilty of habitual impaired driving pursuant to N.C. Gen. Stat. § 20-138.5, driving while licensed revoked pursuant to N.C. Gen. Stat. § 20-28(a), and resisting a public officer pursuant to N.C. Gen. Stat. § 14-223. We find no error in part and remand in part.

I. Background

     On 12 January 2005, at approximately 11:00 p.m., Raleigh Police Officer L.G. Bear (“Officer Bear”) was traveling behind a blue Volkswagen Beetle (“Beetle”) with an expired personalized tag near the intersection of Glenwood Avenue and Brier Creek Parkway in Raleigh. Officer Bear activated the emergency equipment on hismarked patrol vehicle and initiated a traffic stop. The Beetle continued down Brier Creek Parkway approximately 100 yards, made a wide right turn onto Pooler Road, and began to accelerate rapidly. The Beetle pulled into the exit lane of a Wendy's restaurant and parked behind another vehicle. Officer Bear lost sight of the Beetle for approximately three seconds, but heard a car door slam and saw defendant sprint down Pooler Road toward a Winn-Dixie grocery store. Officer Bear began chasing defendant and yelled for him to stop. After running approximately 800 feet, defendant “came to a dead halt, turned around, and pumped his arms up to his side” and asked Officer Bear what he wanted. Officer Bear ordered defendant onto the ground and defendant refused. After a thirty-second wrestling match, Officer Bear successfully handcuffed defendant and placed him into his patrol car.
    Officer Bear observed defendant's eyes were bloodshot and detected a strong odor of alcohol on defendant's person. After securing defendant, Officer Bear observed a green beer bottle in the area where defendant's vehicle was parked. Officer Bear formed the opinion that defendant had consumed a sufficient quantity of an impairing substance, to appreciably impair defendant's ability to operate a vehicle based upon defendant's: (1) turning a wide right onto Pooler Road; (2) driving in the wrong direction into the Wendy's parking lot; (3) trying to elude him; (4) smelling strongly of alcohol; and (5) being non-compliant with his instructions. Officer Bear testified that defendant's level of impairment was “obvious.” Officer Bear placed defendant under arrest, charged himwith driving while license revoked and resisting, delaying, or obstructing a police officer. Officer Bear transported defendant to the City-County Bureau of Identification at the Wake County Public Safety Center for chemical analysis of defendant's blood alcohol content.
    At the City-County Bureau of Identification, Chemical Analyst Tamika Gilmer advised defendant of his Intoxilyzer rights. Defendant exercised his right to contact an attorney or a witness. At the expiration of the observation period, defendant verbally refused to submit a breath sample for chemical analysis. During her interactions with defendant, Chemical Analyst Gilmer observed defendant's eyes were red and glassy and she detected a mild odor of alcohol on his person.
    On 20 February 2006, defendant was indicted by a grand jury for the offenses of habitual impaired driving, driving while license revoked, and resisting, delaying, or obstructing a law enforcement officer.
    On 22 August 2006, a jury found defendant to be guilty of: driving while impaired; driving while license revoked; and resisting, delaying, or obstructing a law enforcement officer. After the jury returned its verdict, the trial court determined defendant had a prior record level II. On the habitual impaired driving charge, the trial court imposed an intermediate punishment and sentenced defendant in the presumptive range to a term of fifteen to eighteen months imprisonment. A portion of that sentence was suspended as part of special probation and defendantwas ordered to actively serve twelve months of his sentence. The trial court ordered defendant be placed on thirty-six months probation following completion of his active sentence. On the driving while license revoked and resisting a public officer charges, the trial court imposed consecutive sentences of 120 days and 60 days imprisonment respectively. The trial court suspended those sentences and placed defendant on supervised probation. Defendant appeals.
II. Issues

    Defendant argues the trial court erred by: (1) ordering him to serve twelve months active imprisonment under special probation in violation of N.C. Gen. Stat. § 15A-1351(a) and (2) placing him on thirty-six months probation for the misdemeanor community punishment sentences without making the proper findings of fact pursuant to N.C. Gen Stat. § 15A-1343.2(d).
III. Sentencing

A. Habitual Driving While Impaired

    Defendant argues, and the State purports to concede in its brief, that the trial court erred in ordering defendant to actively serve twelve months of imprisonment under special probation in violation of N.C. Gen. Stat. § 15A-1351(a). The State's brief agrees with defendant that “the 12 month required term for the habitual DWI conviction was not allowed as split sentence where the defendant only receive [sic] a maximum sentence of 18 months. N.C.G.S. § 15A-1351.” We disagree.    N.C. Gen. Stat. § 20-138.5(b) (2005) states that “[a] person convicted of [habitual impaired driving] shall be punished as a Class F felon and shall be sentenced to a minimum active term of not less than 12 months of imprisonment, which shall not be suspended.” (Emphasis supplied) N.C. Gen. Stat. § 15A-1351(a) (2005) allows a defendant convicted of habitual impaired driving to be sentenced to special probation. “Under a sentence of special probation, the court may suspend the term of imprisonment and place the defendant on probation . . . . The total of all periods of confinement imposed as an incident of special probation . . . may not exceed one-fourth the maximum sentence of imprisonment imposed for the offense . . . .” N.C. Gen. Stat. § 15A-1351(a) (emphasis supplied).
    As mandated by N.C. Gen. Stat. § 20-138.5(b), defendant was ordered to serve an active term of twelve months for habitual impaired driving. Under N.C. Gen. Stat. § 15A-1351(a), defendant could serve no more than one-fourth of the eighteen-month maximum punishment imposed for habitual impaired driving, or four and one- half months.
    The express terms of N.C. Gen. Stat. § 20-138.5(b) and N.C. Gen. Stat. § 15A-1351(a) appear to be in conflict.
        [W]here there are two acts on the same subject the rule is to give effect to both if possible, but if the two are repugnant the latter act and without any repealing clause operates to the extent of the repugnancy as a repeal of the former.

        And in determining whether there is a repugnancy, it is the approved rule here and elsewhere that the intent of the Legislaturemust be sought primarily in the language used, and where this is free from ambiguity and expresses plainly, clearly and distinctly the sense of the framers, a resort to other means of interpretation is not permitted.

Board of Road Comm'rs v. County Comm'rs of David County, 186 N.C. 202, 204, 119 S.E. 206, 207 (1923) (internal citations omitted) (emphasis supplied).
    Our Legislature enacted N.C. Gen. Stat. § 15A-1351 in 1977 and N.C. Gen. Stat. § 20-138.5 in 1989. N.C. Gen. Stat. § 20-138.5 was enacted after N.C. Gen. Stat. § 15A-1351, is more specific to defendant's habitual impaired driving conviction, and controls our analysis. Board of Road Comm'rs, 186 N.C. at 204, 119 S.E. at 207; see also Jones v. Shoji, 336 N.C. 581, 583-84, 444 S.E.2d 203, 204 (1994) (“The principle that the specific controls the general, often employed in statutory construction, informs our interpretation of this language.”). The trial court properly ordered defendant to serve a twelve-month active sentence under N.C. Gen. Stat. § 20-138.5. If the legislature intended for a defendant to actively serve no more than one-fourth of the maximum sentence imposed for habitual driving while impaired, further review of and revisions to N.C. Gen. Stat. § 20-138.5 may be necessary. This assignment of error is overruled.
B. Probation

    Defendant argues, and the State purports to concede in its brief, that the trial court erred by placing defendant on probation for thirty-six months for the remaining misdemeanor offenses. The State's brief agrees with defendant “that the imposition of thirty-six month periods of supervised probation for each of the two misdemeanor convictions was error that can only be corrected by a new sentencing hearing.”
    The maximum lengths of probationary periods are governed by N.C. Gen. Stat. § 15A-1343.2(d). “Unless the court makes specific findings that longer or shorter periods of probation are necessary, the length of the original period of probation for offenders . . . shall be as follows: (1) For misdemeanants sentenced to community punishment, not less than six nor more than 18 months; . . . (4) For felons sentenced to intermediate punishment, not less than 18 nor more than 36 months.” N.C. Gen. Stat. § 15A-1343.2(d) (2005).
    Here, the trial court imposed a 120-day consecutive sentence for driving while license revoked and a further consecutive 60-day sentence for resisting a public officer. Both offenses are misdemeanors for which the trial court imposed a community punishment. The trial court suspended these sentences and placed defendant on supervised probation for thirty-six months stating in its judgment that “defendant shall comply with the conditions set forth in [the habitual impaired driving judgment.]”
    While the judgments entered by the trial court on defendant's misdemeanor convictions specifically reference the habitual impaired driving judgment in the suspension of sentence section, it is unclear whether these probationary terms are additional probationary periods, separate and apart from that of the habitual impaired driving probationary term. The trial court's judgments did not state when the misdemeanor convictions' probationaryperiods were to be begin. Had the trial court stated that the probationary periods for the misdemeanor convictions were to begin at the expiration of defendant's habitual impaired driving active sentence, it would be clear that the trial court only imposed one thirty-six month probationary period for all three charges.
    We cannot determine, based on defendant's misdemeanor judgments, whether the trial court imposed one thirty-six month probationary period or three consecutive thirty-six month probationary periods. We remand this case to the trial court for a new sentencing hearing.
IV. Conclusion

    Under the express and specific terms of N.C. Gen. Stat. § 20- 138.5, the trial court properly ordered defendant to actively serve twelve months on his habitual driving while impaired sentence. The trial court's suspensions of defendant's misdemeanor convictions do not clearly state when the probationary period are to begin. We remand to the trial court for a new sentencing hearing to clarify whether defendant's misdemeanor convictions were suspended as part of the thirty-six month probationary period imposed with the habitual impaired driving conviction or whether defendant's misdemeanor convictions were suspended with additional probationary periods. If the trial court intended to impose additional probationary periods over and above the thirty-six month probation imposed for the habitual impaired driving, the trial court must comply with N.C. Gen. Stat. § 15A-1343.2(d).
    No Error in Part and Remanded in Part.
    Judges GEER and STEPHENS concur.
    Report per Rule 30(e).

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