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.
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.
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
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
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.
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.
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
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
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.
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
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.
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 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).
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
. (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
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-
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
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)
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.
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.
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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