NO. COA13-887
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
STATE OF NORTH CAROLINA
v. Yancey County
No. 10-CRS-304
ROMY VERDAE GEISSLERCRAIN
Appeal by Defendant from judgments entered 10 April 2013 by
Judge Marvin P. Pope, Jr., in Yancey County Superior Court.
Heard in the Court of Appeals 12 December 2013.
Attorney General Roy Cooper, by Special Deputy Attorney
General Hal F. Askins, for the State.
Charlotte Gail Blake, for Defendant.
DILLON, Judge.
Romy Verdae Geisslercrain (“Defendant”) appeals from
judgments convicting her of impaired driving and reckless
driving to endanger, alleging errors in her sentencing and
challenging the trial court’s denial of her motion to dismiss
for insufficiency of the evidence. We find no error, in part,
and we vacate and remand, in part.
I. Background
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The evidence of record tends to show the following: On the
evening of 16 July 2010, Defendant was involved in a single
vehicle accident on Highway 19 near Burnsville. After Defendant
had been transported to the hospital, State Trooper Jeremy
Carver arrived at the scene where he found Defendant’s damaged
Ford Ranger truck in the middle of the highway. Trooper Carver
believed that Defendant had likely driven off the right side of
the road, after which she tried to jerk her truck back onto the
road too quickly, resulting in the truck rolling several times
and sustaining approximately $7,000.00 in damage. Trooper
Carver thought the truck may have been going too fast for a
curve in the road.
Trooper Carver went to the hospital to speak with
Defendant, who told him she had taken medications either the day
of the incident or the day before – including Methadone,
Clonazepam, and Adderall. She also admitted to Trooper Carver
that she had been drinking alcohol. Trooper Carver believed
that Defendant had consumed a sufficient quantity of impairing
substances to appreciably impair her mental and physical
faculties.
Defendant was indicted on charges of impaired driving and
reckless driving to endanger. After her conviction in District
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Court, Defendant appealed to Superior Court, where a jury found
her guilty of both charges.
During sentencing, the trial court determined, without
submitting the question to a jury, that an aggravating factor
existed, specifically, that “[t]he negligent driving of
[D]efendant led to an accident causing property damage of
$1,000.00 or more[.]” The trial court further determined that a
mitigating factor existed, specifically, that “[D]efendant has a
safe driving record[.]” The trial court determined that the
aggravating factor was substantially counterbalanced by the
mitigating factor, and, therefore, declared that “a Level Four
punishment shall be imposed.”
The trial court entered two written judgments, one for each
conviction. The written judgment for the impaired driving
conviction reflects that the trial court was sentencing
Defendant as a Level Four offender, but then actually sentenced
her to a minimum and maximum sentence of twelve months
incarceration, which is above the range of Level Four
punishments. Nonetheless, as reflected on the written judgment,
the trial court suspended the active sentence on the condition
that she be placed on twelve months supervised probation.
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The trial court also entered a written judgment on
Defendant’s reckless driving to endanger conviction, sentencing
her to ten days incarceration, which the trial court suspended
on the condition that she be placed on twelve months supervised
probation, to be served concurrently with the sentence for her
impaired driving conviction. Defendant appeals from both
judgments.
II. Analysis
Defendant argues on appeal that the trial court erred in
denying her motion to dismiss her impaired driving conviction
and also committed errors with regard to her sentence. We
address each argument below.
A: Motion to Dismiss
Defendant argues that the trial court erred by denying her
motion to dismiss the charge of reckless driving. We disagree.
“This Court reviews the trial court’s denial of a motion to
dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007). “Upon defendant’s motion for dismissal,
the question for the Court is whether there is substantial
evidence (1) of each essential element of the offense charged,
or of a lesser offense included therein, and (2) of defendant’s
being the perpetrator of such offense. If so, the motion is
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properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526
S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150
(2000) (citation and quotation marks omitted). “Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” State v. Smith,
300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). “In making its
determination, the trial court must consider all evidence
admitted, whether competent or incompetent, in the light most
favorable to the State, giving the State the benefit of every
reasonable inference and resolving any contradictions in its
favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223
(1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).
N.C. Gen. Stat. § 20-140(a) and (b) provide two definitions
of reckless driving. A person may violate N.C. Gen. Stat. § 20-
140 by either of the courses of conduct defined in subsection
(a) and (b), or in both respects. State v. Dupree, 264 N.C.
463, 142 S.E.2d 5 (1965). Most pertinent to this case,
subsection (b) provides the following: “Any person who drives
any vehicle upon a highway or any public vehicular area without
due caution and circumspection and at a speed or in a manner so
as to endanger or be likely to endanger any person or property
shall be guilty of reckless driving.” Id.
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On appeal, Defendant specifically argues the trial court
erroneously denied her motion to dismiss because the evidence
shows that she merely failed to keep a reasonable lookout.
“Mere failure to keep a reasonable lookout does not constitute
reckless driving[;] [t]o this must be added dangerous speed or
perilous operation.” State v. Dupree, 264 N.C. 463, 466, 142
S.E.2d 5, 7 (1965). We disagree and believe that there was
substantial evidence in this case to support the elements of
reckless driving, and, when viewed in the light most favorable
to the State, that there was more than a mere failure to keep a
reasonable lookout. Specifically, the State presented evidence
that Defendant was intoxicated; that all four tires of
Defendant’s vehicle had gone off the road; that distinctive
“yaw” marks were left on the road indicating that Defendant had
lost control of the vehicle; that Defendant’s vehicle overturned
twice; and that the vehicle traveled 131 feet from the point it
went off the road before it flipped, and another 108 feet after
it flipped. Therefore, the trial court did not err by denying
Defendant’s motion. See, e.g., State v. Coffey, 189 N.C. App.
382, 387, 658 S.E.2d 73, 77 (2008); see generally Bank v.
Lindsey, 264 N.C. 585, 587, 142 S.E.2d 357, 360 (1965) (stating
that “operation of [a vehicle] in a drunken condition
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constituted a driving of it upon the public highway without due
caution and circumspection and in a manner so as to endanger
persons or property, and was reckless driving within the intent
and meaning of G.S. § 20-140(b)”). Accordingly, Defendant’s
argument is overruled.
B: Sentencing
Defendant contends that there were reversible errors
regarding the sentencing on her impaired driving conviction as a
Level Four offender. Specifically, Defendant argues that (1)
the trial court erred in determining the existence of an
aggravating factor, rather than submitting this issue to the
jury; (2) she did not receive proper notice that the State would
be seeking aggravating factors; and (3) her sentence was outside
(above) the Level Four punishment range. We address each
argument below.
i. Trial Court’s Finding of Aggravating Factor
Defendant argues the trial court committed reversible error
by determining, itself, that an aggravating factor existed,
rather than submitting the aggravating factor to the jury for
determination, citing the United States Supreme Court decision
Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004) in
which that Court applied the rule it stated in Apprendi v. New
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Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000) – that
“[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed maximum
must be submitted to the jury and proved beyond a reasonable
doubt” – to aggravating factors. Blakely, 542 U.S. at 301, 159
L. Ed. 2d at 412. We agree.
Sentencing defendants convicted of impaired driving is
governed by N.C. Gen. Stat. § 20-179 (2011). Under G.S. § 20-
179, there are six sentencing ranges. Like the sentencing
scheme found in the Structured Sentencing Act, codified at N.C.
Gen. Stat. § 15A-1340.16 (2011), a defendant’s sentencing range
under N.C. Gen. Stat. § 20-179 is determined by the existence
and balancing of aggravating and mitigating factors. However,
the trial court is afforded much less discretion in sentencing
under N.C. Gen. Stat. § 20-179 than under the Structured
Sentencing Act. See State v. Weaver, 91 N.C. App. 413, 415-16,
371 S.E.2d 759, 760 (1988) (stating that the sentencing scheme
found in N.C. Gen. Stat. § 20-179 is “quite systematic and
tiered, thus leaving little room to exercise discretion”).
The three most severe punishment levels under N.C. Gen.
Stat. § 20-179, which are Aggravated Level One, Level One, and
Level Two, are imposed only where a “grossly aggravating factor”
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is found to exist. Where there are no grossly aggravating
factors present, a defendant convicted of impaired driving must
be sentenced in one of the three remaining ranges, namely,
either under Level Three, Level Four, or Level Five. See id.
In the present case, no grossly aggravating factors were
found to exist, so the trial court was required to determine
whether a Level Three, Level Four, or Level Five punishment was
appropriate by weighing those factors pursuant to N.C. Gen.
Stat. § 20-179(f). Under N.C. Gen. Stat. § 20-179(f)(1), if the
trial court determines that “[t]he aggravating factors
substantially outweigh any mitigating factors,” the trial court
must impose a Level Three punishment. We also believe that if
there are only aggravating factors present – and no mitigating
factors present – then the aggravating factors “substantially
outweigh” the mitigating factors (as there are none) as a matter
of law, and the trial court must impose a Level Three
punishment. See id.
Likewise, if the trial court determines that “[t]he
mitigating factors substantially outweigh any aggravating
factors,” the trial court must impose a Level Five punishment.
N.C. Gen. Stat. § 20-179(f)(3). And if there are only
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mitigating factors present – and no aggravating factors present
– the trial court must impose a Level Five punishment. See id.
If there are no aggravating or mitigating factors present
or, alternatively, if the aggravating and mitigating factors are
“substantially counterbalanced,” then the trial court must
impose a Level Four punishment. N.C. Gen. Stat. § 20-179(f)(2).
In this case, the trial court sentenced Defendant to a
Level Four punishment, concluding that the single aggravating
factor, which the trial court, and not the jury, found, was
substantially counterbalanced by the single mitigating factor.
If the aggravating factor had not been considered by the trial
court, then there would have been only the single mitigating
factor present; and the trial court would have been required to
sentence Defendant to a Level Five punishment. See N.C. Gen.
Stat. § 20-179(f)(3). Accordingly, the aggravating factor in
this case, which was improperly found by the judge, “increase[d]
the penalty for [the] crime beyond the prescribed maximum,”
Blakely, supra, and Defendant’s Level Four punishment must be
vacated.
The State, however, argues that no Blakely error occurred
because a Level Four punishment is similar to a defendant being
sentenced within the presumptive range under the Structured
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Sentencing Act. Our Supreme Court has held that, in the context
of a defendant sentenced under the Structured Sentencing Act,
Blakely is not implicated when a trial court improperly finds
aggravating factors, rather than submitting those factors to the
jury, so long as the defendant is sentenced within the
presumptive range, reasoning that a trial judge “does not exceed
his proper authority until he inflicts [enhanced] punishment . .
. the jury’s verdict alone does not allow.” State v. Norris,
360 N.C. 507, 514, 517, 630 S.E.2d 915, 919, 921, cert. denied,
549 U.S. 1064, 166 L. Ed. 2d 535 (2006) (holding that “[t]he
trial court did not violate defendant’s Sixth Amendment right to
a jury trial when it found a statutory aggravating factor but
sentenced defendant within the presumptive range”)(citation and
quotation marks omitted).
Norris is not applicable to the present case. Under the
Structured Sentencing Act the trial court has the discretion to
sentence a defendant within the presumptive range even where
only mitigating factors are properly found. However, in the
context of the sentencing scheme in N.C. Gen. Stat. § 20-179,
the trial court does not have the discretion to sentence a
defendant to a Level Four punishment where only mitigating
factors are properly found, but rather, it is required to
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sentence the defendant to a Level Five punishment. In other
words, where a defendant is sentenced under the Structured
Sentencing Act within the presumptive range where mitigating
factors are present, Blakely is not implicated if the trial
court itself – and not the jury – finds aggravating factors to
exist as well. This is because the trial court had the
authority to sentence the defendant within the presumptive range
even without finding aggravating factors to counterbalance the
mitigating factors. However, under G.S. § 20-179, the trial
court has no discretion to sentence a defendant to a Level Four
punishment where only mitigating factors are properly found to
exist. Therefore, in this case, Blakely has been implicated
because, without the presence of an aggravating factor, the
trial court was required to sentence Defendant to a Level Five
punishment, a sentence which could not have been enhanced to a
Level Four punishment without the jury finding the aggravating
factor - which had been improperly found by the trial court -
beyond a reasonable doubt.
The State also argues that we are bound by our decision in
State v. Green, 209 N.C. App. 669, 707 S.E.2d 715 (2011). Green
involved a prosecution for impaired driving where two
aggravating factors and two mitigating factors were found to
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exist, and the defendant was sentenced to a Level Four
punishment. Id. at 681, 707 S.E.2d at 723-24. On appeal, the
defendant argued that the trial court had inappropriately found
one of the two aggravating factors instead of submitting that
factor to the jury. Id. The defendant made no argument that the
trial court inappropriately found the other aggravating factor,
which involved the defendant’s driving record1. Id. Accordingly,
the defendant was effectively arguing that there was only one
valid aggravating factor, instead of two, which, by itself, did
not substantially counterbalance the two mitigating factors. Id.
at 681-82, 707 S.E.2d at 723-24. This Court, specifically
relying on the rationale in Norris, expressly held that the
“level four punishment imposed by the trial court [under G.S. §
20-179] was tantamount to a sentence within the presumptive
range [in a structured sentencing case], so that the trial court
did not enhance defendant’s sentence even after finding
aggravating factors [and, therefore,] Blakely is not
implicated.” Id. at 681-82, 707 S.E.2d at 724.
We hold Green is distinguishable from the present case. In
Green, even with the error, there remained one valid aggravating
1
We note that Blakely is not implicated where the fact found by
the trial court, and not the jury, which is used to enhance a
defendant’s punishment is the existence of a prior conviction.
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factor to counterbalance the two mitigating factors. See id.
Even where only one aggravating factor, rather than two, is
found along with two mitigating factors, the trial court still
has the discretion to sentence the defendant to a Level Four
punishment since it could have determined, within its
discretion, that the one aggravating factor “substantially
counterbalanced” the two mitigating factors. However, in the
present case, without any aggravating factors properly found,
the trial court had no discretion but to sentence Defendant to a
Level Five punishment. Accordingly, we believe that this
Court’s rationale in Green does not apply.
ii. Notice
Defendant contends the State failed to provide notice that
it intended to seek aggravating factors as required by N.C. Gen.
Stat. § 20-179(a1)(1). We agree that the State’s failure to
provide the required notice was error.
N.C. Gen. Stat. § 20-179(a1)(1) provides the following with
regard to notice of aggravating factors:
If the defendant appeals to superior court,
and the State intends to use one or more
aggravating factors under subsections (c) or
(d) of this section, the State must provide
the defendant with notice of its intent. The
notice shall be provided no later than 10
days prior to trial and shall contain a
plain and concise factual statement
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indicating the factor or factors it intends
to use under the authority of subsections
(c) and (d) of this section. The notice must
list all the aggravating factors that the
State seeks to establish.
On appeal, the State does not dispute that it failed to provide
proper notice; but rather, since Defendant was sentenced to a
Level Four punishment, which the State argues is a “presumptive”
sentence, the State’s failure to provide notice was harmless
error. However, because we have concluded that a Level Four
punishment in this case was inappropriate, the State’s argument
must fail.
Generally, when the State has failed to provide proper
notice pursuant to N.C. Gen. Stat. § 20-179(a1)(1), this Court
has vacated Defendant’s sentence and remanded for resentencing.
State v. Reeves, __ N.C. __, 721 S.E.2d 317 (2012). In Reeves,
this Court stated, “[i]t is evident that the State failed to
provide Defendant with the statutorily required notice of its
intention to use an aggravating factor under N.C.G.S. § 20-
179(d). We must therefore vacate Defendant’s sentence as to the
DWI charge and remand to the trial court for resentencing.” Id.
at __, 721 S.E.2d at 322.
Following our rationale in Reeves and other decisions of
this Court, we believe the proper resolution in the present case
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is to remand the matter to the trial court, directing it to
resentence Defendant to a Level Five punishment.
iii. Sentence Outside the Level Four Punishment Range
Defendant argues that the trial court improperly sentenced
her to a punishment outside the Level Four range. However,
having concluded that Defendant’s punishment must be vacated and
this matter remanded for resentencing in the Level Five range,
we conclude that Defendant’s argument is moot and, therefore, do
not address its merits.
III. Conclusion
Based on the foregoing, the trial court erred by sentencing
Defendant to a Level Four punishment on her conviction of
impaired driving. Accordingly, we vacate and remand the
judgment on this charge only, directing the trial court to
resentence Defendant to a Level Five punishment. Otherwise, we
find no error.
NO ERROR, in part; VACATED and REMANDED, in part.
Judge STROUD and Judge HUNTER, JR. concur.