No. 05-1080 Twenty Seventh Judicial District

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NO. 05-1080 TWENTY SEVENTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA,

Appellee,

V. FROM GASTON COUNTY

NO. 03CRS61988-89

Brian Dean McCully,

Defendant-Appellant,

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DEFENDANT-APPELLANT’S BRIEF

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Subject Index

TABLE OF AUTHORITIES...... iii

QUESTIONS PRESENTED...... 1

STATEMENT OF CASE...... 1

STATEMENT OF APPELLATE JURISDICTION...... 2

STATEMENT OF FACTS...... 3

ARGUMENT...... 6

1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO SUBMIT THE THREE PRIOR CONVICTIONS TO THE JURY ON THE CHARGE OF HABITUAL IMPAIRED DRIVING, WHICH VIOLATED THE DEFENDANT’S SIXTH AMENDMENT RIGHT TO TRIAL BY JURY...... 6

CONCLUSION...... 18

CERTIFICATION OF WORD COUNT...... 1

CERTIFICATE OF SERVICE...... 2

TABLE OF AUTHORITIES

Cases

Almendarez-Torres v. United States, 523 U.S. 224 (1998)...... - 10 -

Apprendi v. New Jersey, 530 U.S. 466, 4714 (2000)...... - 8 -

Blakely v. Washington, 542 U.S. 296, 301 (2004)...... - 6 -

Booker v. United States, 543 U.S. 220, __, 125 S.Ct. 738, 748, 160 L.Ed. 621, 641 (2005). - 9 -

Boykin v. Alabama, 395 U.S. 238, 244 & n. 7 (1969)...... -14-.

State v. Allen, 359 N.C. 425,445, 615 S.E.2d 256, 270 (2005)...... - 9 -

State v. Drew, 162 N.C. App. 682, 687, 592 S.E.2d 27, 30, disc. rev. denied, 358 N.C. 735 (2004). - 15 -

State v. Harris, 166 N.C. App. 386, 394 602 S.E.2d 697, 702, aff’d 2005 N.C. Lexis 1320, No.548A04 (Dec. 16, 2005) - 9 -

State v. Hendricks, 138 N.C. App. 668, 670, 531 S.E.2d 896, 898 (2000)...- 14 -

State v. Priddy, 115 N.C. App. 547, 550, 445 S.E.2d 610, 612 , disc. rev. denied, 337 N.C. 805 (1994). - 12 -

State v. Vardiman, 146 N.C. App. 381, 384-85, 552 S.E.2d 697, 699, cert. denied, 537 U.S. 833 (2002); - 12 -

Statutes

8 U.S.C. § 1326 (2005)...... - 11 -

N.C. Gen. Stat. § 14-7.1 (2005)...... - 14 -

N.C. Gen. Stat. § 14-7.3 (2005)...... - 17 -

N.C. Gen. Stat. § 15A-1022 (2005)...... - 14 -

N.C. Gen. Stat. § 15A-1340.17 (2005)...... - 10 -, - 16 -

N.C. Gen. Stat. § 15A-1444 (2005)...... - 2 -

N.C. Gen. Stat. § 20-138.5 (2005)...... - 13 -

N.C. Gen. Stat. § 20-179 (2005)...... - 13 -

Other Authorities

N.C. R. App. P. 4 (2005)...... - 3 -

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NO. TWENTY SEVENTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

* * * * * * * * * * * * * * * * *

STATE OF NORTH CAROLINA,

Appellee,

V. FROM GASTON COUNTY

NO. 03CRS61988-89

Brian Dean McCully,

Defendant-Appellant,

* * * * * * * * * * * * * * * *

QUESTIONS PRESENTED

1. Did the trial court err in sentencing the defendant to the offense of Habitually Impaired Driving when the Defendant’s three prior convictions were not presented to the jury as required by the Sixth Amendment of the United States Constitution?

STATEMENT OF THE CASE

The Defendant was arrested on a warrant for Habitual DWI and DWLR on August 15, 2003 (Rpp. 3-4). The Defendant was indicted on the charges of DWLR and Habitually Impaired Driving (Rpp. 8-9). The Defendant was arraigned on December 3, 2003 (Rp. 10). The Defendant’s first trial ended in an hung jury on February 8, 2004 (Rp. 22). The Defendant’s trial of this matter commenced on January 11, 2005. On January 12, 2005, the jury returned verdicts of guilty to the charges of Driving While Impaired and Driving While License Revoked (Rpp. 26-27). The Defendant was sentenced to 19-23 months on the charge of Habitually Impaired Driving and 45 days consecutive on the DWLR offense (Rpp. 29-31). The notice of appeal was entered on January12, 2005 (Rp. 31). The appellate entries were entered on February 16, 2005 (Rpp. 32-33). Time to serve the record was extended to July 1, 2005 (Rp. 46). The record was served on June 27, 2005 (Rp. 50). The Record was settled on August 5, 2005 (Rp. 51). The record was mailed on August 12, 2005.

STATEMENT OF APPELLATE JURISDICTION

The N.C. Court of Appeals has jurisdiction over this matter pursuant to North Carolina General Statute § 15A-1444 and Rule 4 of the North Carolina Rules of Appellate Procedure. N.C. Gen. Stat. § 15A-1444 (2004). N.C. R. App. P. 4 (2004).

STATEMENT OF FACTS

On October 20, 2003, the Defendant was indicted on the charges of Driving While License Revoked and Habitual Driving While Impaired (Rpp. 8-9). The Habitual Driving indictment listed three DWI convictions. The conviction dates were: June 4, 1997, November 20, 1998, and November 20, 1998. All of the convictions were from Gaston County, North Carolina.

The Honorable Robert Bell presided over the Defendant’s trial, which began on January 11, 2005. Assistant District Attorney, Stephanie Hamlin, represented the State of North Carolina. Brent Ratchford represented the Defendant.

Prior to the trial beginning, the Assistant District Attorney, Stephanie Hamlin, stated that there was a stipulation, and Mr. Ratchford agreed. However, the Defendant never agreed on the record to the stipulation, and Judge Bell never addressed the Defendant directly concerning this stipulation (Tp. 3).

The first witness called was David Gellner. At the time of the incident, he was employed at the Mt. Holly Pantry Store. On August 15, 2003, he recalled seeing the Defendant enter the store at 12:30 AM. When the Defendant entered the store, he asked to have a tow truck called because he had put his car into a ditch (Tp. 18-19). Mr. Gellner believed that the Defendant was intoxicated and called the police instead of a tow truck. He believed that the Defendant was intoxicated because of the way that the Defendant was slurring his speech.

The State’s next witness was Officer Johnny Hughes of the Dallas Police Department (Tp. 24). Hughes responded to a call from a radio dispatch and arrived at the Pantry in about ten minutes (Tp. 27). During his testimony, he verified that the Pantry and the Defendant’s car were both in Gaston County.

Hughes also stated that he talked with the Defendant when he arrived at the scene. During the conversation, he claimed that the Defendant admitted driving his car off of the highway while making a turn off of Rankin Ave onto S. Hawthorn (Tp. 29). Officer Hughes then took the Defendant to the police station and had the breathalyzer administered. The Defendant blew a .16 at 2:21 AM (Tp. 42).

The next witness called by the State was Detective Mark Walls of the Mount Holly Police Department. On August 15, 2003, Detective Wall received a radio call dispatching him to the Pantry. While traveling to the Pantry store, he passed by the Defendant’s vehicle, which was in a ditch off of Rankin Street. He stopped his vehicle and noticed that the Defendant’s vehicle was unoccupied but the engine was still warm (Tp. 48). Later, he met with Officer Hughes at the Pantry convenience store. While there he noticed that the Defendant’s speech appeared to be slurred.

While at the convenience store, Officer Walls received the Defendant’s keys from Officer Hughes. He then went to the scene of the wreck and was able to open the Defendant’s vehicle (Tp. 47).

After Officer Walls testified, the State rested and the Defendant made a motion to dismiss, which was denied (Tp. 94).

Next, the Defendant called a single witness, Tracey Foley. Mr. Foley is the Defendant’s brother and spent the day with the Defendant. The Defendant was over at his house and appeared to be drunk. Because of this, Mr. Foley gave him a ride home. During the ride home, Mr. Foley, the driver, lost control of the vehicle while making a turn (Tpp. 63-70).

After calling Mr. Foley, the Defendant renewed his motion to dismiss and rested (Tp. 94).

The jury returned a verdict a guilty to Driving While Impaired and DWLR. Judge Bell sentenced the Defendant to 19-23 months on the charge of Habitual Driving While Impaired (Rpp. 26-31).

ARGUMENT

1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO SUBMIT THE THREE PRIOR CONVICTIONS TO THE JURY ON THE CHARGE OF HABITUAL IMPAIRED DRIVING, WHICH VIOLATED THE DEFENDANT’S SIXTH AMENDMENT RIGHT TO TRIAL BY JURY. ASSIGNMENTS OF ERROR 1,2,3 (Rpp. 47-48).

Standard of Review

On appeal, the court reviews the Defendant’s sentence de novo in order to determine whether the defendant’s sentence exceeded the base statutory maximum without submitting the enhancing factor to the jury. Blakely v. Washington, 542 U.S. 296, 301 (2004).

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The trial court erred in sentencing the defendant on the offense of Habitually Driving While Impaired, when the three prior DWI convictions were not presented to the jury. The Defendant bases this contention on two grounds: the Sixth Amendment requires the jury to find that these convictions were valid and there was not a valid waiver of this Sixth Amendment right. The requirement that issue must be presented by the jury, pursuant to the Sixth Amendment, is supported by case law from the United States Supreme Court and the N.C. Supreme Court.

When one analyzes the Habitual DWI statute, it is clear that the offense is a separate offense and not an extension of the DWI offense. Because of this fact, the Supreme Court’s Sixth Amendment holdings apply to this case. Furthermore, case law clarifies that these rights cannot be waived unless the defendant demonstrates a knowing waiver of these rights on the record. A review of the United States Supreme Court’s analysis of the Defendant’s Sixth Amendment right to trial by jury begins the explanation of this issue.

The U.S. Supreme Court in a series of cases clarified that the Sixth Amendment requires that any fact that increases the maximum sentence must be presented to the jury and proved beyond a reasonable doubt. The court has expanded the Sixth Amendment limitation on sentencing issues in three cases: Apprendi v. New Jersey, Blakely v. Washington, and Booker v. United States. The single exception to this rule concerns prior convictions contained in recidivism statutes. After reviewing the United States Supreme Court’s holdings on this issue, as well as the North Carolina interpretation of these holdings, the recidivism exception will be examined.

The holding that sentencing factors must be presented to the jury was first announced in the case of Apprendi v. New Jersey. In the Apprendi case, the court ruled that a finding that a crime was racially motivated must be presented to the jury, when the finding increases the potential maximum sentence. Apprendi v. New Jersey, 530 U.S. 466, 4714 (2000).

The Court reaffirmed its holding in the case of Blakely v. Washington. Blakely v. Washington, 542 U.S. 296 (2004). In the Blakely case, the Supreme Court ruled that when the trial court enhanced the defendant’s sentence to ninety months for committing the offense with “deliberate cruelty”, when the statutory maximum for the kidnapping offense was fifty-three months, the court had violated the Defendant’s Sixth Amendment right to a jury trial. Blakely, 542 U.S. at 303. In this case, the finding of “deliberate cruelty” was not submitted to the jury; instead, the fact was found by the trial judge. Id.

Finally, this year, the court ruled that the mandatory nature of the federal sentencing guidelines violated the Defendant’s Sixth Amendment right to counsel in case of Booker v. United States. In the Booker case, Judge Stevens clarified that: “any fact other than a prior conviction which is necessary to support a sentence exceeding the maximum authorized sentence by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. Booker v. United States, 543 U.S. 220, __, 125 S.Ct. 738, 748, 160 L.Ed. 621, 641 (2005).

Both the North Carolina Supreme Court and the North Carolina Court of Appeals apply the analysis of the Blakely case to the North Carolina Structured Sentencing scheme. In the cases of State v. Allen and State v. Harris, the court applied the reasoning of Blakely to the use of aggravated range sentences as found in North Carolina General Statute § 15A-1340.17. State v. Harris, 166 N.C. App. 386, 394 602 S.E.2d 697, 702, aff’d 2005 N.C. Lexis 1320, No.548A04 (Dec. 16, 2005); State v. Allen, 359 N.C. 425,445, 615 S.E.2d 256, 270 (2005).

The Harris case explains the way Blakely and Booker are applied to criminal cases in North Carolina. In the Harris case, the Court of Appeals clarified that the court could not impose a sentence in excess of the presumptive range unless the aggravating factors were submitted to the jury, stipulated by the defendant, or the defendant consented to a judicial determination. Harris 166 N.C. App. at 394, 602 S.E.2d at 702. In the Harris case, the trial court sentenced the Defendant in the aggravated range on the offense of Second Degree Rape based upon two aggravating factors: the offense is especially heinous and cruel, a statutory aggravating factor, and the defendant is a predator, a non statutory aggravating factor. Id.

The Court of Appeals ruled that the defendant cannot receive a sentence beyond the maximum presumptive sentence as found in 15A-1340.17 unless the issue is presented to the jury or the defendant waives this right. N.C. Gen. Stat. § 15A-1340.17 (2005). In the Harris case, the Defendant’s judgment was vacated with the case remanded to superior court. Id. In December 2005, the N.C. Supreme Court affirmed the Court of Appeals holding in Harris. Id.

Recidivism Exception

According to the U.S. Supreme Court, the one issue that does not necessarily need to be presented to the jury is prior convictions. However, the Supreme Court has limited this holding to convictions used for recidivism purposes as opposed to convictions that are part of a substantive offense. The court discussed this holding in the case of Almendarez-Torres v. United States.

In 1998, the U.S. Supreme Court issued its opinion in the case of Almendarez-Torres v. United States. The Almendarez-Torres case concerned whether the government erred in not alleging that the Defendant was an aggravated felon in the indictment for Illegal Reentry. Almendarez-Torres v. United States, 523 U.S. 224 (1998). The court examined this issue on Due Process grounds.

The court began its inquiry by examining the crime of Illegal Entry. Justice Breyer, writing for the majority, did an extensive analysis of the statute in question. The Illegal Reentry statute contained two elements. These elements are: (1) the defendant has been previously deported from the United States and (2) has entered or been found in the United States without consent of the Attorney General. Almendarez-Torres, 523 U.S. at 229. Subsection (a) of the deportation statute (8 U.S.C. § 1326 (2005)) contains the elements of the crime. Subsection (b) authorized a greater sentence when the charged individual had been convicted of an aggravated felony but did not create a separate crime or contain additional elements.

Justice Breyer emphasized that when the Congress intends to create a separate offense it specifically defines the separate offense. Almendarez-Torres, 523 U.S. at 231-32. Because no elements were listed in part b, the court explained that the aggravated felony was not an element of the crime. Instead, the aggravated felony was a recidivism provision. Almendarez-Torres, 523 U.S. at 239-41. Therefore, one must determine whether a prior conviction is recidivism provision or an element.

Since the Almendarez-Torres case was decided, the Supreme Court has repeatedly emphasized the limited nature of this holding. In the Apprendi case, the Court reiterated that the exception applied to recidivism provisions but not to separate crimes. Apprendi, 530 U.S. at 487-88. Furthermore, the court emphasized that a different result may have been reached if the defendant in Almendarez-Torres had not admitted on the record that his prior convictions were accurate. Id.

In specifically addressing the charge in question, Habitually Impaired Driving, one must determine whether the current charge is a separate offense or a recidivism provision only. The Court of Appeals has clarified that Habitually Impaired Driving is a separate, substantive offense as opposed to a recidivism offense State v. Vardiman, 146 N.C. App. 381, 384-85, 552 S.E.2d 697, 699, cert. denied, 537 U.S. 833 (2002);State v. Priddy, 115 N.C. App. 547, 550, 445 S.E.2d 610, 612, disc. rev. denied, 337 N.C. 805 (1994). In the Priddy case, the court explicitly stated: “We conclude that the legislature clearly intended felonious habitual impaired driving to constitute a separate felony offense.” Id. Therefore, it is undisputed that Habitual Driving While Impaired is a substantive offense.

Analysis of Habitual DWI Statute

A review of the DWI statute and the Habitually Impaired Driving statute support the court’s opinion in the Priddy case. The DWI offense is defined in 20-138.1 (2005). This offense then references N.C. Gen. Stat. § 20-179 (2005) for sentencing provisions. In contrast, the Habitually Impaired Driving provisions found in N.C. Gen. Stat. § 20-138.5 (2005) define the elements of the crime and classify the offense as a class F felony.

Under the analysis of the Almendarez-Torres, it is proper to define the enhanced punishment found in 20-179 for a prior DWI as being a recidivism provision because it is contained within to the DWI statute. However, it is equally clear that the Habitually Impaired Driving statute, by being contained in a separate statutory provision and having separate elemental definitions, does create a substantive offense. See,Almendarez-Torres, 523 U.S. at 231-32.

Waiver-Stipulation

The final issue that needs to be addressed is whether the pretrial waiver is valid. Case law and statutory provisions indicate that for the waiver to be effective the trial court must personally address the Defendant. This is supported by N.C. Gen. Stat. § 15A-1022 (2005), which governs the requirements regarding guilty pleas. Under this provision, the trial court is required to personally address the defendant and determine whether he has a clear understanding of the nature and consequences of his waiver. N.C. Gen. Stat. § 15A-1022 (2005); State v. Hendricks, 138 N.C. App. 668, 670, 531 S.E.2d 896, 898 (2000). In order to avoid a reversal on Due Process grounds, the trial court should conduct an on the record examination before accepting the guilty plea in order to determine whether the defendant understands his Sixth Amendment right to a jury trial and the implication in waiving these rights. Boykin v. Alabama, 395 U.S. 238, 244 & n. 7 (1969). Therefore, trial counsel cannot waive the defendant’s right to a jury trial.

The Habitual Felon statute found in N.C. Gen. Stat. § 14-7.1 (2005) also supports the proposition that stipulations to prior convictions cannot be stipulated to unless the defendant makes a knowing and intelligent waiver on the record. N.C. Gen. Stat. § 14-7.1 (2005). Under this statute, the defendant must enter a guilty plea and fully comply with 15A-1022 in order to waive a jury determination on this issue.

Case law, governing stipulations, verifies that the stipulation in this case was improper. In order for a stipulation to be valid, the court must address the defendant personally; an assertion by defense counsel is not adequate. State v. Drew, 162 N.C. App. 682, 687, 592 S.E.2d 27, 30, disc. rev. denied, 358 N.C. 735 (2004). Therefore, the rule on in trial stipulations is well settled.

The facts of the Drew case parallel the facts of this case. In the Drew case, the defendant’s attorney claimed that the defendant wished to stipulate that he intentionally stabbed the victim. However, when the trial judge made inquiry of the defendant, the defendant informed the court that he had no intention of stipulating to this fact. Id. at 687. The court held that there was no evidence in the record indicating that a valid stipulation was ever made on this issue. Id. Therefore, a stipulation at trial is only valid when the defendant makes a knowing and intelligent decision to waive this issue.

Analysis

In the present case, the trial court erred in not presenting the three prior DWI convictions in the indictment to the impaneled jury. The court clarified in the Priddy case that the offense of Habitually Impaired Driving is a substantive offense. The analysis of the court in the Priddy case is also consistent with the Supreme Court’s analysis in the Almendarez-Torres case. Because Chapter 20 separately codifies Driving While Impaired and Habitually Impaired Driving, it is clear that Habitually Impaired Driving is a substantive offense and having three prior DWI convictions within seven years is a required element.