Opinion
No. COA14–237.
2014-11-18
STATE of North Carolina v. Franklin Roosevelt CHISHOLM, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Janelle E. Varley, for the State.Appellant Defender Staples Hughes, by Assistant Appellant Defender John F. Carella, for Defendant-appellant.
Appeal by Defendant from judgment entered 5 March 2013 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals on 27 August 2014. Attorney General Roy A. Cooper, III, by Assistant Attorney General Janelle E. Varley, for the State. Appellant Defender Staples Hughes, by Assistant Appellant Defender John F. Carella, for Defendant-appellant.
DILLON, Judge.
Franklin Roosevelt Chisholm (“Defendant”) appeals from convictions for larceny of a motor vehicle, fleeing to elude arrest with a motor vehicle, reckless driving, and attaining the status of habitual felon. For the following reasons, we find no error in part, arrest judgment on Defendant's reckless driving conviction, and remand for resentencing and correction of a clerical error.
I. Background
Defendant was indicted for larceny of a motor vehicle, felonious speeding to elude arrest, possession of a stolen vehicle, breaking and entering a motor vehicle, reckless driving, and attaining the status of habitual felon. The State's evidence at trial tended to show the following: In the early morning of 2 June 2012, a police officer was in his marked patrol car in the parking lot of a hotel, located on Griffith Road in Charlotte, when he observed Defendant standing next to a pickup truck in the parking lot. They exchanged greetings, as Defendant entered the truck. While driving past the truck, the officer noticed that a “window was busted out of the truck” and observed the presence of glass on the ground beside the truck. Suspecting a theft of the truck was in progress, the officer blocked the truck with his patrol car, exited his patrol car, approached the truck, and ordered Defendant to put his hands where he could see them. Defendant did not comply; rather, he started the truck, drove over the parking lot curb, across the sidewalk and the grass, and turned onto Griffith Road, where the speed limit is 25 MPH. As Defendant drove across the grass, he was spinning the tires such that “the grass and reeds were coming back.” Also, as Defendant turned onto Griffith Road, he continued spinning the tires and took off at a high rate of speed, exceeding the speed limit.
After calling dispatch, the officer pulled onto Griffith Road where he observed the truck's taillights about a quarter or half mile away, going over hills and around a curve. The officer pursued the truck, but he was unable to catch up with Defendant. At an intersection approximately one mile from the hotel, the officer turned around whereupon he saw that the truck had been in a severe accident and was resting within the fenced-in yard of a business. The officer noted that the truck was smoking, appeared to have flipped several times before coming to a stop, and had crashed through a metal, chain link fence.
The officer observed that Defendant was still in the truck and was severely injured and unable to exit. After the fire department removed Defendant from the vehicle, Defendant was transported to the hospital for treatment.
The owner of the truck testified that Defendant did not have permission to drive his truck and that the truck was worth approximately $18,000.00.
At the close of the State's evidence, Defendant moved to dismiss the charges, which was denied by the trial court. Defendant did not present any evidence at trial. At the close of all evidence, Defendant renewed his motion to dismiss, which was again denied.
The jury found Defendant guilty of (1) larceny of a motor vehicle, (2) fleeing to elude arrest with a motor vehicle, (3) possession of a stolen motor vehicle, and (4) reckless driving. Defendant pled guilty to attaining the status of habitual felon. The trial court arrested judgment on the possession of a stolen motor vehicle conviction, consolidated the remaining convictions, and sentenced Defendant to a term of 111 to 143 months of imprisonment. The judgment was subsequently amended nunc pro tunc for a correction, increasing Defendant's sentence to 111 to 146 months imprisonment. Defendant appeals.
II. Analysis
On appeal, Defendant contends that the trial court erred (1) by violating his right against double jeopardy as to two of the convictions; (2) by denying his motion to dismiss the charge of felony speeding to elude arrest; and (3) by making a clerical error in entering the incorrect offense class on the judgment.
A. Double Jeopardy
Defendant, citing State v. Mulder, ––– N.C.App. ––––, 755 S.E.2d 98 (2014), argues that the trial court violated his constitutional right against double jeopardy by entering judgment for both (1) felony speeding to elude arrest and (2) reckless driving. The State concedes that the ruling in State v. Mulder is applicable and “judgment should be arrested on the reckless driving conviction.”
In Mulder, the defendant was convicted of, inter alia, speeding, reckless driving, and felony speeding to elude arrest. Id. at ––––, 755 S.E.2d at 100. On appeal, the defendant argued that his convictions amounted to double jeopardy. Id. This Court noted that the defendant had failed to raise his constitutional double jeopardy argument at trial, but chose to invoke N.C.R.App. P. 2 “[t]o prevent manifest injustice” to consider the defendant's unpreserved double jeopardy argument. Id. at ––––, 755 S.E.2d at 101–02. It first looked to the essential elements of speeding (N.C.Gen.Stat. § 20–141(j1) (2013)), reckless driving (N.C.Gen.Stat. § 20–140(b) (2013)), and misdemeanor speeding to elude arrest (N.C.Gen.Stat. § 20–141.5(a)), including the “two aggravating factors used to raise the crime to a felony in this case ... (i)(1) speeding (2) in excess of 15 miles per hour over the legal speed limit and (ii) ‘reckless driving as proscribed in G.S. 20–140.’ “ Id. at ––––, 755 S.E.2d at 103. This Court determined that these aggravating factors were essential elements of felony speeding to elude arrest and the factors contained the essential elements of the separate crimes of speeding and reckless driving, subjecting the defendant to multiple punishment for the same offense when he was convicted of all three crimes. Id. This Court concluded that our General Assembly did not intend for felony speeding to elude arrest to be a separate punishment from speeding and reckless driving. Id. at ––––, 755 S.E.2d at 105–06. The Court held “that Defendant was unconstitutionally subjected to double jeopardy when he was convicted of speeding and reckless driving in addition to felony fleeing to elude arrest based on speeding and reckless driving ” and arrested judgment on the speeding and reckless driving convictions. Id. at ––––, 755 S.E.2d at 106 (emphasis added).
We agree with the parties that the present case is controlled by this Court's decision in Mulder. Defendant failed to raise any double jeopardy argument at trial; however, as in Mulder, we choose to consider Defendant's argument. Defendant was convicted of both reckless driving and felony fleeing to elude arrest based on the aggravating factors of reckless driving and negligent destruction of property. Based on the same reasoning in Mulder, we arrest judgment on Defendant's conviction for reckless driving.
B. Insufficiency of the Evidence
Defendant next contends that the trial court erred by denying his motion to dismiss the charge of felony speeding to elude arrest because there was insufficient evidence to support the essential element that his reckless driving occurred on a “public street or highway.”
While the criminal statute provides that the reckless driving must occur “on a street, highway, or public vehicular area,” see N .C. Gen.Stat. § 20–141.5(a)(2), in the present case, the trial judge omitted the phrase “public vehicular area” from the jury instruction. Defendant argues that though there was evidence that he was driving recklessly in the hotel parking lot and that the lot is a “public vehicular area,” since the trial omitted the phrase, his conviction must be set aside because there was not sufficient evidence that he drove recklessly on a “street” or “highway.” We disagree.
The standard of review for a trial court's denial of a defendant's motion to dismiss for insufficiency of the evidence is well established:
A defendant's motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant's being the perpetrator of the charged offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.
State v. Johnson, 203 N.C.App. 718, 724, 693 S.E.2d 145, 148 (2010) (citations and quotation marks omitted). Additionally, “[t]he Court must consider the evidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.” State v. Phillpott, 213 N.C.App. 468, 478, 713 S.E.2d 202, 209 (2011) (citation omitted), disc. review denied, 365 N.C. 544, 720 S.E.2d 393 (2012).
Here, in addition to evidence of reckless driving in the parking lot, there was also evidence of reckless driving on Griffith Road. Specifically, the officer testified that he observed Defendant enter Griffith Road from the sidewalk instead of a driveway and was spinning tires on Griffith Road, as he accelerated away at a high rate of speed, in excess of the speed limit. Also, when the officer found Defendant in the wrecked truck, Defendant had driven through a metal, chain link fence, flipping the truck several times, strewing “stuff” across the ground in the area. Viewing this evidence in the light most favorable to the State, we hold that there was sufficient evidence of recklessness on a street or highway to allow this charge to go to the jury. Defendant's argument is overruled.
C. Clerical Error
Lastly, Defendant contends, and the State concedes, that there is a clerical error in the entry of the offense class on the judgment. The amended judgment lists the offense class for habitual felon as Class E and the punishment class for larceny of a motor vehicle and felony speeding to elude arrest as Class E felonies. Larceny of a motor vehicle and felony speeding to elude arrest are both Class H felonies. N.C. Gen.Stat. §§ 14–72(a), 20–141.5(b) (2012). N.C. Gen.Stat. § 14–7.6 (2012) states, in pertinent part, that a habitual felon must “be sentenced at a felony class level that is four classes higher than the principal felony for which the person was convicted; but under no circumstances shall an habitual felon be sentenced at a level higher than a Class C felony.” Therefore, rather than Class E as the judgment states, the correct punishment was Class D, which is four levels above Class H, the class of felonies for which Defendant was convicted.
Defendant pled guilty to attaining the status of habitual felon, and the trial court correctly told him that he would be sentenced in the Class D range. The trial court's imposition of an active minimum term of 111 months was the maximum presumptive sentence for a Class D felony with five prior record points, see N.C. Gen.Stat. § 15A–1340.17(c) (2012), and the sentencing range of 111 to 146 months imprisonment was the correct minimum and maximum range. See N.C. Gen.Stat. § 15A–1340.17(e). Defendant and the State agree that this sentencing class designation as Class E on the amended judgment amounted to a clerical error, and we agree. See State v. Smith, 188 N.C.App. 842, 845, 656 S.E.2d 695, 696–97 (2008) (stating that “[w]hen, on appeal, a clerical error is discovered in the trial court's judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record speak the truth”). As such, we remand the case for correction of the clerical error to change the felony class designation from Class “E” to Class “D”.
V. Conclusion
We find no error in Defendant's trial as to the larceny of a motor vehicle, felony speeding to elude arrest, and habitual felon convictions. However, we arrest judgment on the reckless driving conviction and, since the trial court consolidated Defendant's convictions when it sentenced him, we remand to the trial court for resentencing and to correct the clerical error.
NO ERROR IN PART; JUDGMENT ARRESTED IN PART; REMAND IN PART. Judges HUNTER, ROBERT C. and DAVIS concur.
Report Per Rule 30(e).