State v. Mayo
State v. Mayo
Opinion
*298 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.
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 *299 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 *656 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. 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.
*300 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 anew and freely substitutes its own judgment for that of the lower tribunal."
State v. Pendergraft
,
We review a trial court's revocation of probation for abuse of discretion.
State v. Tennant
,
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 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
*657
implemented
*301
according to the plain meaning of its terms."
State v. Watterson
,
If a statute is ambiguous, our Court must determine the legislature's intent.
In re Hall
,
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.
In
State v. Allen
,
*302
While not binding precedent, we are persuaded by Judge, now Justice, Ervin's unpublished opinion in
State v. Stanley
, No. COA10-554,
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 used."
Watterson
,
B. Probation Revocation
Defendant next argues the trial court abused its discretion in revoking Defendant's *658 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.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.