Opinion
No. COA10-434
Filed 4 January 2011 This case not for publication
Appeal by defendant from judgment entered 10 November 2009 by Judge William Z. Wood, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 29 November 2010.
Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. Jon W. Myers for defendant-appellant.
Guilford County No. 07 CRS 95539.
Jamaal Abdul-Saleem Muhammad (defendant) appeals from the judgment entered after a jury found him guilty of driving while impaired. Defendant contends that the trial court erred by imposing a level one punishment based on a finding of two grossly aggravating factors because he never validly stipulated to those factors. We find no error.
At approximately 3:00 a.m. on 22 July 2007, University of North Carolina at Greensboro (UNCG) Police Department Officer Dillard Burnette, Jr., was on patrol in his marked police car when he saw a gray car traveling on a road near UNCG. Officer Burnette noticed that the driver was hunched close to the steering wheel, as if he was having difficulty seeing. Officer Burnette followed the car and observed it straddle the center line and swerve across other lanes while the driver made a turn without signaling. Officer Burnette activated his blue light and stopped the car. Defendant gave Officer Burnette his driver's license and registration and admitted to having consumed a beer. UNCG Officer Marcus Graves arrived on the scene and had defendant perform various field sobriety tests. When defendant got out of his car, Officer Graves observed that defendant's eyes were bloodshot and glassy, that he was unsteady on his feet, and that he smelled like alcohol. Defendant's speech was also slurred. In Officer Graves's opinion, defendant was intoxicated, and Officer Graves arrested defendant for driving while impaired. Defendant refused to take an intoxilyzer test.
When the case came on for trial, the trial court and the parties discussed grossly aggravating factors at the outset to determine whether the guilt and sentencing phases of the trial should be bifurcated. Defense counsel informed the trial court, "We'll stipulate to the gross aggravator of driving while license revoked so that doesn't have to be submitted to the jury, Your Honor." Defendant also stipulated to the grossly aggravating factor that he had been convicted of another impaired driving offense within the past seven years. The State sought to introduce evidence that defendant offered a paper license that listed his driving restrictions to Officer Burnette, but the trial court excluded that evidence because defendant had stipulated that he was driving while his license was revoked.
Defendant did not testify or present any other evidence, and the trial court denied his motion to dismiss. The jury found defendant guilty of driving while impaired.
Following the verdict, the trial court revisited the issue of defendant's stipulation to the two grossly aggravating factors with assistant public defenders Brent Boyce and John Nieman:
COURT: Okay. As I understand it, there were two aggra — y'all stipulated at the start of the trial as to two aggravating factors, is that right, Mr. Boyce?
MR. BOYCE: Yes. I would like to —
COURT: Two gross — I think they're called grossly aggravating, is the proper —
MR. BOYCE: Before we proceed, I would like to see a general driving —
[. . .]
THE COURT: Thank you. So as to grossly aggravating factors, by stipulation, the defendant was driving while his license was revoked because he was outside the hours of the limited permit, is that right?
MR. BOYCE: Yes, I believe he was, but I believe — I don't know whether —
THE COURT: I've not seen any limited permits that allow driving at 3:10 a.m. I'm sure there's one somewhere.
MR. NIEMAN: If the jury has found him guilty, he would be outside his —
MR. BOYCE: Yeah.
THE COURT: And he has a prior driving while impaired conviction within seven years of the date of this offense, which is July 22nd of 2007?
MR. BOYCE: Yes.
MR. HILL: Yes, sir.
Following the stipulation, the trial court found as grossly aggravating factors that defendant had a prior impaired driving conviction within the past seven years and that defendant was driving while his license was revoked. The trial court imposed a level one punishment of two years' imprisonment, suspended the sentence, and imposed thirty months of supervised probation. Defendant was also required to serve an active term of thirty days in the county jail. Defendant gave written notice of appeal.
Defendant's sole argument on appeal is that the trial court erred by finding the two grossly aggravating factors and sentencing him to a level one punishment in the absence of a valid stipulation. We disagree.
The trial court has discretion to control the presentation of evidence of aggravating factors. State v. Wooten, 344 N.C. 316, 337, 474 S.E.2d 360, 372 (1996) (citing State v. Jones, 339 N.C. 114, 151, 451 S.E.2d 826, 846 (1994). "A trial court may be reversed for abuse of discretion only upon the showing that its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision." Id.
Grossly aggravating factors in a driving while impaired case must be determined in accord with Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), meaning that they must be found beyond a reasonable doubt by a jury or proven by stipulation of the defendant. See State v. Cruz, 173 N.C. App. 689, 698-99, 620 S.E.2d 251, 257 (2005) (citing State v. Speight, 359 N.C. 602, 614 S.E.2d 262 (2005), vacated on other grounds, North Carolina v. Speight, 548 U.S. 923, 165 L. Ed. 2d 983 (2006)).
"[W]hile there is no particular form to be followed for a stipulation, the terms, nevertheless, must be definite and certain, and must be assented to by the parties." State v. Mullican, 95 N.C. App. 27, 29, 381 S.E.2d 847, 848 (1989). "'Admissions may take a variety of forms, including guilty pleas and stipulations, a defendant's own statements in open court, and representations by counsel[.]'" State v. Everette, 361 N.C. 646, 655, 652 S.E.2d 241, 247 (2007) (quoting United States v. Revels, 455 F.3d 448, 450 (2006) (internal citations omitted)).
Here, after reviewing the transcript of defendant's trial and sentencing, we conclude that defendant properly stipulated through counsel to the existence of the grossly aggravating factors. Defendant first stipulated to the existence of both factors before the trial began, when the trial court considered bifurcation. As to the grossly aggravating factor of driving while license revoked, defendant's attorney told the trial court, "We'll stipulate to the gross aggravator of driving while license revoked so that doesn't have to be submitted to the jury, Your Honor." (emphasis added). Immediately thereafter, trial counsel also stipulated that defendant had a prior impaired driving conviction within the past seven years. We hold that this exchange establishes that defendant stipulated to the existence of both factors in order to avoid having evidence of those factors come before the jury.
Moreover, after the jury found defendant guilty of impaired driving, the trial court revisited the issue of the grossly aggravating factors. Again, defendant stipulated through counsel to the existence of both factors. In his brief, defendant purports to identify some confusion regarding this second stipulation by emphasizing the fact that the trial court twice interrupted his attorneys as they spoke about the factors. Examining those discussion in context, however, we are not persuaded. Defense counsel unambiguously answered "Yes" when the trial court asked whether defendant stipulated to each of the factors. Nothing in the trial transcript indicates that defendant intended to revoke his prior stipulation, nor did he object to the trial court's judgment based on that stipulation. See State v. Alexander, 359 N.C. 824, 830, 616 S.E.2d 914, 918 (2005). Accordingly, we hold that the trial court acted within its discretion in accepting defendant's clear and unambiguous stipulation to the grossly aggravating factors.
No error.
Chief Judge MARTIN concurs.
Judge JACKSON concurred in this opinion prior to 31 December 2010.
Report per Rule 30(e).