IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-340
Filed: 7 November 2017
Johnston County, No. 15CRS056170, 15CRS837
STATE OF NORTH CAROLINA
v.
GLENN WARREN MAYO, JR., Defendant.
Appeal by Defendant from judgments entered 26 October 2016 by Judge Tanya
T. Wallace in Johnston County Superior Court. Heard in the Court of Appeals 3
October 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Colin A.
Justice, for the State.
Robinson, Bradshaw & Hinson, P.A., by Erik R. Zimmerman, for Defendant-
Appellant.
MURPHY, Judge.
The Habitual Impaired Driving Act requires the State to allege three prior
convictions of impaired driving. Unlike other statutes, the Act does not require the
three prior convictions to be from different court dates. We hold, in accordance with
our case law and the differences between this Act and other habitual statutes, the
State is not required to allege three prior convictions of impaired driving from
different court dates.
STATE V. MAYO
Opinion of the Court
Glenn Warren Mayo, Jr. (“Defendant”) appeals from judgments convicting him
of habitual impaired driving and revoking his probation. On appeal, Defendant
argues: (1) the indictment for habitual impaired driving is facially invalid because
two of the underlying impairment convictions are from the same court date; and (2)
the trial court relied on an invalid conviction in revoking Defendant’s probation.
After careful review, we reject Defendant’s arguments and conclude he received a fair
trial, free from error.
I. Background
On 1 November 2015, Sergeant T.L. Avery of the Selma Police Department
arrested Defendant for impaired driving and driving while license revoked. On 2
November 2015, Defendant’s probation officer filed a probation violation report. In
the report, the officer alleged Defendant violated probation by driving while not being
properly licensed and being under the influence of alcohol on 1 November 2015.
On 7 December 2015, Defendant was indicted for habitual impaired driving.
In support of the habitual impaired driving charge, the State alleged Defendant had
been convicted of the following charges: First, 15CRS000837, driving while impaired
on 26 November 2012. Defendant was convicted of this charge on 30 September 2015
in Johnston County Superior Court. Second, 12CR213930, driving while impaired on
22 June 2012. Defendant was convicted of this charge on 20 December 2012 in Wake
County District Court. Third, 12CR213589, driving while impaired on 18 June 2012.
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Opinion of the Court
Defendant was convicted of this charge on 20 December 2012 in Wake County District
Court. Defendant also stipulated to his three prior convictions for driving while
impaired. On 1 February 2016, Defendant was indicted for being a habitual felon.
On 26 February 2016, Defendant’s probation officer filed another probation violation
report. In the report, the officer alleged Defendant violated probation because he “has
not been hooked up” to an alcohol consumption monitoring system. (all caps in
original).
On 24 and 25 October 2016, Defendant’s case came to trial. On 25 October
2016, the jury found Defendant guilty of driving while impaired. The trial court
adjudicated Defendant as a habitual impaired driver, in accordance with N.C.G.S. §
20-138.5 (2015). Defendant pled guilty to being a habitual felon. The trial court also
revoked Defendant’s probation in 15CRS837, a prior driving while impaired
conviction, based on two violation reports and Defendant being “found guilty of
habitual impaired driving on 10/25/2016-15CRS56170.” (all caps in original). On 27
October 2016, Defendant’s probation officer completed another probation violation
report, alleging Defendant violated probation by committing a criminal offense.
Defendant filed timely notice of appeal.
II. Standard of Review
“This Court reviews challenges to the sufficiency of an indictment using a de
novo standard of review. Under a de novo review, the court considers the matter
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STATE V. MAYO
Opinion of the Court
anew and freely substitutes its own judgment for that of the lower tribunal.” State v.
Pendergraft, 238 N.C. App. 516, 521, 767 S.E.2d 674, 679 (2014) (internal citations
and quotation marks omitted).
We review a trial court’s revocation of probation for abuse of discretion. State
v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000) (quoting State v.
Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960)) (“ ‘The findings of the judge, if
supported by competent evidence, and his judgment based thereon are not reviewable
on appeal, unless there is a manifest abuse of discretion.’ ”). “Abuse of discretion
results where the court’s ruling is manifestly unsupported by reason or is so arbitrary
that it could not have been the result of a reasoned decision.” State v. Hennis, 323
N.C. 279, 285, 372 S.E.2d 523, 527 (1988) (citation omitted).
III. Analysis
Defendant presents two arguments: (1) the habitual impaired driving
indictment is invalid because two of the underlying convictions were obtained on the
same court date; and (2) the trial court erred in revoking his probation because it
relied on Defendant’s habitual impaired driving conviction. We address these
arguments in turn.
A. Habitual Impaired Driving Indictment
Defendant first argues the trial court lacked jurisdiction over the habitual
impaired driving charge because two of the underlying convictions are from the same
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STATE V. MAYO
Opinion of the Court
court date. Defendant contends N.C.G.S. § 20-138.5, the statute governing habitual
impaired driving, is ambiguous because “[i]t does not explain how to determine
whether a defendant has been convicted of three or more offenses involving impaired
driving, and does not directly address whether multiple convictions from the same
date may be considered when making that determination.” Defendant analogizes this
statute to N.C.G.S. § 14-7.1 (2015) (Persons defined as habitual felons) and N.C.G.S.
§ 15A-1340.14(d) (2015) (Prior record level for felony sentencing). Defendant argues
the in pari materia statutory construction canon requires our Court to read into the
statute a rule regarding convictions obtained in one court week because the other
“similar” statutes have a specific rule for the timing of multiple convictions. We
disagree.
“If the language of the statute is clear and is not ambiguous, we must conclude
that the legislature intended the statute to be implemented according to the plain
meaning of its terms.” State v. Watterson, 198 N.C. App. 500, 505, 679 S.E.2d 897,
900 (2009) (brackets, quotation marks, and citation omitted). “Thus, in effectuating
legislative intent, it is the duty of the courts to give effect to the words actually used
in a statute and not to delete words used or to insert words not used.” Id. at 505, 679
S.E.2d at 900 (citing N.C. Dep’t of Corr. v. N.C. Med. Bd., 363 N.C. 189, 201, 675
S.E.2d 641, 649 (2009)).
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STATE V. MAYO
Opinion of the Court
If a statute is ambiguous, our Court must determine the legislature’s intent.
In re Hall, 238 N.C. App. 322, 324, 768 S.E.2d 39, 42 (2014). In discerning the intent
of the legislature “ ‘statutes in pari materia should be construed together and
harmonized whenever possible. In pari materia is defined as upon the same matter
or subject.’ ” Id. at 324-325, 768 S.E.2d at 42 (quoting In re Borden, 216 N.C. App.
579, 581, 718 S.E.2d 683, 685 (2011)). “Portions of the same statute dealing with the
same subject matter are ‘to be considered and interpreted as a whole, and in such
case it is the accepted principle of statutory construction that every part of the law
shall be given effect if this can be done by any fair and reasonable intendment . . . . ’ ”
Huntington Props., LLC v. Currituck Cty., 153 N.C. App. 218, 224, 569 S.E.2d 695,
700 (2002) (quoting In re Hickerson, 235 N.C. 716, 721, 71 S.E.2d 129, 132 (1952)).
N.C.G.S. § 20-138.5 governs habitual impaired driving and states:
(a) A person commits the offense of habitual impaired
driving if he drives while impaired as defined in G.S. 20-
138.1 and has been convicted of three or more offenses
involving impaired driving as defined in G.S. 10-4.01(24a)
within 10 years of the date of this offense.
Id.
In State v. Allen, 164 N.C. App. 665, 596 S.E.2d 261 (2004), our Court
addressed the consideration of prior convictions for habitual impaired driving. In
Allen, defendant argued the habitual impaired driving statute must be applied
similarly to habitual felon statutes. Id. at 672, 596 S.E.2d at 265. The Habitual Felon
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STATE V. MAYO
Opinion of the Court
Act “prevents the use of multiple offenses consolidated for judgment as more than one
predicate offense.” Id. at 672, 596 S.E.2d at 265. Defendant alleged “it is reasonable
to infer that the legislature intended similar structural limitations” in the habitual
impaired driving statutes. Id. at 672, 596 S.E.2d at 265. We explicitly held “the
determination of what qualifies as a predicate conviction is carried out differently
under the Habitual Impaired Driving statute and the Habitual Felon Act.” Id. at 672,
596 S.E.2d at 265.
While not binding precedent, we are persuaded by Judge, now Justice, Ervin’s
unpublished opinion in State v. Stanley, No. COA10-554, 2011 WL 705131
(unpublished) (N.C. Ct. App. Mar. 1, 2011), where this Court addressed this issue. In
Stanley, defendant argued the indictment charging him with habitual impaired
driving was fatally defective because two of the three prior convictions had been
obtained during a single day of court. Id. at *1-*2. This Court first determined
defendant had no right to appeal. Id. at *3. Then, the Court turned to whether
defendant’s petition for a writ of certiorari should be granted. Id. at *3. Relying on
Allen, this Court dismissed defendant’s petition for a writ of certiorari, concluding
defendant’s argument and appeal had no merit. Id. at *3.
N.C.G.S. § 20-138.5 contains no requirement regarding the timing of the three
prior impaired driving convictions, except that they occurred within the ten years
prior to the current driving while impaired charge. We decline “to insert words not
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Opinion of the Court
used.” Watterson, 198 N.C. App. at 505, 679 S.E.2d at 900 (citation omitted). While
the in pari materia canon requires this Court to harmonize statutes dealing with the
same subject, our Court has already ruled that “the determination of what qualifies
as a predicate conviction is carried out differently under the Habitual Impaired
Driving statute and the Habitual Felon Act.” Allen, 164 N.C. App. at 672, 596 S.E.2d
at 265. We hold Defendant has failed to show error in his habitual impaired driving
indictment.
B. Probation Revocation
Defendant next argues the trial court abused its discretion in revoking
Defendant’s probation. Defendant contends the trial court relied on an invalid
conviction—the habitual impaired driving conviction—because the indictment for the
charge is invalid. We disagree. As stated supra, the habitual impaired driving
indictment is valid. Accordingly, the trial court did not abuse its discretion in
revoking his probation in 15CRS837, and this argument is without merit.
Accordingly, we hold the trial court did not err in revoking Defendant’s probation.
IV. Conclusion
For the reasons stated above, we hold Defendant received a fair trial, free from
error.
NO ERROR.
Judges BRYANT and ARROWOOD concur.
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