IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-469
Filed 18 April 2023
Buncombe County, No. 19 CRS 90651
STATE OF NORTH CAROLINA
v.
JASON WILLIAM KING
Appeal by defendant from judgments entered 18 November 2021 by Judge
Karen Eady-Williams in Buncombe County Superior Court. Heard in the Court of
Appeals 10 January 2023.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Kathryne E. Hathcock, for the State.
Caryn Strickland for defendant-appellant.
ARROWOOD, Judge.
Jason William King (“defendant”) appeals from judgments entered upon his
convictions of impaired driving and reckless driving. On appeal, defendant contends
the trial court erred by: (1) denying his motion to dismiss; (2) sentencing him for the
impaired driving conviction following a finding of three aggravating factors that were
invalid; and (3) imposing a sentence for his reckless driving conviction that was not
authorized by law. Alternatively, defendant asserts an ineffective assistance of STATE V. KING
Opinion of the Court
counsel claim based on the sentencing errors. Recognizing that his notice of appeal
was insufficient to convey jurisdiction to this Court for the final judgment, defendant
has also filed a petition for writ of certiorari (“PWC”). In the exercise of our discretion,
we grant defendant’s petition, and upon review, we vacate and remand for new
sentencing hearings on the reckless driving and driving while impaired convictions,
but affirm in all other respects.
I. Background
On 30 August 2021, following a trial in Buncombe County District Court,
defendant was found guilty of driving while impaired, reckless driving, possession of
marijuana, and possession of marijuana paraphernalia. The charges were
consolidated, and defendant was sentenced at a Level IV to 120-day suspended
imprisonment upon completion of seven days active imprisonment and twelve months
of supervised probation. Following his conviction, defendant timely appealed his
conviction to superior court, as allowed by law.
Thereafter, the appeal, which should have led to defendant’s release, was
misplaced, and was never entered into the court’s system. Due to this oversight,
defendant remained in detention for six additional days. While in custody, defendant
was not provided his medication, suffered a seizure, and struck his head. Defendant
was not provided medical treatment while in custody. Following his release,
defendant sought treatment and was diagnosed with a concussion.
Following these events, defendant filed a motion to dismiss on 4 October 2021,
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arguing the “flagrant violation of [his] constitutional rights result[ed] in irreparable
prejudice to the” preparation of his case requiring dismissal. Defendant filed an
additional motion to reconsider or dismiss supported by additional evidence on
9 November 2021. Prior to trial in superior court, the State filed notice that they
would be seeking one aggravating factor.
The matter came on for trial in Buncombe County Superior Court on
15 November 2021, Judge Eady-Williams presiding. As an initial matter, the court
heard arguments on defendant’s motion to dismiss. Specifically, defendant’s counsel
argued defendant’s in-custody seizure resulted in a head injury that damaged his
memory and hindered his ability to assist with his defense. Defendant’s motion to
dismiss was denied, and the trial continued.
On 18 November 2021, a jury found defendant guilty of driving while impaired
and reckless driving, but not guilty on all remaining charges. Following the verdicts,
the court moved on to sentencing. When sentencing defendant for the driving while
impaired conviction, the trial court found no mitigating factors, and three
aggravating factors. Specifically, the court found the three aggravating factors to be:
(1) defendant’s driving was especially reckless; (2) defendant’s driving was especially
dangerous; and (3) defendant was convicted of death by motor vehicle in August 2015.
Therefore, because “the aggravators outweigh[ed] any mitigators[,]” defendant was
sentenced at a Level III. Defendant was sentenced to six months imprisonment,
suspended for thirty-six months supervised probation with an active three-day prison
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term on the impaired driving conviction, and for forty-five days imprisonment
suspended for thirty-six months supervised probation on the reckless driving
conviction.
On 29 November 2021, defendant filed a notice of appeal from the order
denying his motion to dismiss. Understanding this notice of appeal was insufficient
to convey jurisdiction to this Court for the final judgment, defendant has also filed a
PWC. In our discretion, we allow the PWC and address defendant’s appeal on its
merits.
II. Discussion
On appeal, defendant contends the trial court erred by: (1) denying his motion
to dismiss; (2) sentencing him for the impaired driving conviction following a finding
of three aggravating factors that were invalid; and (3) imposing a sentence for his
reckless driving conviction that was not authorized by law. Alternatively, defendant
asserts an ineffective assistance of counsel claim based on the sentencing error.
As we grant defendant’s PWC and address the merits of his sentencing claims,
we do not address his alternative argument of ineffective assistance of counsel. We
address each issue in turn.
A. Motion to Dismiss
Defendant’s first argument on appeal is that the trial court erred by denying
his motion to dismiss under N.C. Gen. Stat. § 15A-954(a)(4), since there was a
“flagrant violation of his constitutional rights” that resulted in “irreparable prejudice
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to his case.” We disagree.
A trial court’s decision on whether a defendant has met the statutory
requirements of N.C. Gen. Stat. § 15A-954(a)(4) are conclusions of law, reviewed de
novo. State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (citation
omitted). Under section 15A-954(a)(4), “[t]he court . . . must dismiss the charges
stated in a criminal pleading if it determines that: . . . defendant’s constitutional
rights have been flagrantly violated and there is such irreparable prejudice to the
defendant’s preparation of his case that there is no remedy but to dismiss the
prosecution.” N.C. Gen. Stat. § 15A-954(a)(4) (2022). “As the movant, defendant
bears the burden of showing the flagrant constitutional violation and of showing
irreparable prejudice to the preparation of his case. This statutory provision
‘contemplates drastic relief,’ such that ‘a motion to dismiss under its terms should be
granted sparingly.’ ” Williams, 362 N.C. at 634, 669 S.E.2d at 295 (citation omitted).
Here, defendant argues that the trial court erred in determining any harm was
not “irreparable” since his “constitutional rights to participate in his own defense and
to decide whether to testify at his trial are absolute, and the denial of such rights
[were] [a] structural error.” Although defendant argues his rights to be free from
“unlawful seizures” and “cruel and unusual punishment” were also violated, he does
not explain how these violations have irreparably prejudiced the preparation of his
case, and therefore, we do not consider these arguments and only address his
argument regarding the alleged structural error.
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“The Supreme Court of the United States has previously defined structural
error as ‘defects which affect the framework within which the trial proceeds, rather
than simply an error in the trial process itself.’ ” State v. Hamer, 377 N.C. 502, 506,
858 S.E.2d 777, 780-81 (citation and brackets omitted). Accordingly, the defect must
be one which affects “ ‘[t]he entire conduct of the trial from beginning to end[.]’ ” Id.
at 506, 858 S.E.2d at 781 (citation omitted) (alterations in original).
The Supreme Court has noted six instances where structural error had been found: (1) “total deprivation of the right to counsel”; (2) “lack of an impartial trial judge”; (3) “unlawful exclusion of grand jurors of defendant’s race”; (4) violation of “the right to self-representation at trial”; (5) violation of “the right to a public trial”; and (6) “erroneous reasonable-doubt instruction to jury.”
Id. (citations omitted). “The ‘highly exceptional’ category of structural errors
includes, for example, the ‘denial of counsel of choice, denial of self-representation,
denial of a public trial, and failure to convey to a jury that guilt must be proved
beyond a reasonable doubt.’ ” Greer v. United States, ___ U.S. ___, ___, 210 L. Ed. 2d
121, 131 (2021) (citation omitted).
Here, defendant did not suffer a constitutional violation that affected the
framework of the trial, his entire trial, or his trial at all, as he was not denied the
right to testify or participate in his own defense. Defendant was represented by his
counsel of choice at all stages of the trial and throughout his appeals. Furthermore,
despite defendant’s claims that “he was unable to meaningfully participate in his
defense or decide whether to testify in his defense at trial” due to his memory loss,
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defendant did not testify at his first trial and defense counsel did not argue he
planned on testifying at the subsequent trial in superior court. When questioned,
defense counsel admitted their argument was “proffered . . . more as ‘even if
[defendant] wanted to [testify].’ ” We agree with the trial court that this argument
did not rise to the extreme level of irreparable prejudice. Rather, this argument is
speculative at best, since defendant did not say he planned to testify, nor did he
articulate what his testimony would have shown. See State v. Salem, 50 N.C. App.
419, 428, 274 S.E.2d 501, 507 (finding defendant’s Fifth Amendment right to due
process was not violated because defendant’s argument that he was “prejudiced” by
the delay in his trial since his memories “faded to the extent that” he was not “capable
of clearly recalling the events of the evening[,]” was “hypothetical” as the defendant
could not “demonstrate that any evidence lost as a result of faded memories would
have been significant or helpful to his defense”), disc. review denied, 302 N.C. 401,
279 S.E.2d 355 (Mem) (1981).
Besides this speculative claim, defendant presented no other argument or
evidence that he could not assist in his defense. Therefore, defendant did not meet
his burden of showing the “flagrant constitutional violation” resulted in “irreparable
prejudice to the preparation of his case[,]” such that the drastic measure of dismissal
was the only possible relief. Williams, 362 N.C. at 634, 669 S.E.2d at 295 (citation
omitted).
Additionally, we note that within defendant’s appeal and rehearing for the
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superior court jury trial, defendant was successfully acquitted of two of the charges
he was convicted of at the district court level. These acquittals suggest defendant
brought forth a solid defense. Accordingly, the trial court did not err in denying
defendant’s motion to dismiss.
B. Sentencing on the Driving While Impaired Conviction
Defendant next argues the trial court erred in considering aggravating factors
not authorized by law and in violating the statutory requirements that the State must
provide notice of aggravating factors and that such factors must be decided by a jury.
We agree that the aggravating factors for driving while impaired sentencing must be
decided by a jury and therefore vacate and remand for a new sentencing hearing on
the DWI conviction. Accordingly, we do not consider defendant’s notice argument.
Prior to December 2006, the trial judge was responsible for holding the
sentencing hearing “to determine whether there [were] aggravating or mitigating
factors[.]” 1998 N.C. Sess. Laws 592, 618, ch. 182, § 20-179(a). This statute was
amended on 1 December 2006, and took the determination of aggravating factors out
of the hands of the trial judge and placed it with the jury. 2006 N.C. Sess. Laws 1178,
1207, ch. 253, § 20-179(a1)(2). Under our current DWI sentencing statute, “only a
jury may determine if an aggravating factor is present[,]” and “[t]he State bears the
burden of proving beyond a reasonable doubt that an aggravating factor exists[.]”
N.C. Gen. Stat. § 20-179(a1)(2) (2022) (emphasis added). Understanding the
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significance of the timing of these changes in relation to the relevant caselaw is
crucial, accordingly we provide a brief history.
In Blakely v. Washington, 542 U.S. 296, 304, 159 L. Ed. 2d 403, 414 (2004), the
Supreme Court of the United States held that “[w]hen a judge inflicts punishment
that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which
the law makes essential to the punishment,’ and the judge exceeds his proper
authority.” The Supreme Court of the United States later found that “[f]ailure to
submit a sentencing factor to the jury . . . [wa]s not a structural error.” Washington
v. Recuenco, 548 U.S. 212, 222, 165 L. Ed. 2d 466, 477 (2006). “Pursuant to Recuenco,
our Supreme Court has held that the Sixth Amendment error committed in North
Carolina when a judge, rather than a jury, finds an aggravating factor is subject to
harmless error review.” State v. Speight, 186 N.C. App. 93, 96, 650 S.E.2d 452, 455
(2007) (citation omitted). In State v. Blackwell, our Supreme Court held “[t]here is
no meaningful difference between having a procedural mechanism and not using it,
and not having a procedural mechanism at all[,]” and applied the harmless error
analysis for failure to submit an aggravating factor to the jury under Chapter 15A of
our statutes. State v. Blackwell, 361 N.C. 41, 46-49, 638 S.E.2d 452, 456-58 (2006),
cert. denied, 550 U.S. 948, 167 L. Ed. 2d 1114 (2007).
The harmless error rule was thereafter applied in the context of DWI
sentencing by this Court in State v. McQueen. State v. McQueen, 181 N.C. App. 417,
423, 639 S.E.2d 131, 135, writ denied, disc. review denied, appeal dismissed, 361 N.C.
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365, 646 S.E.2d 535 (Mem) (2007). There, we held that “despite the exclusion of a
procedural mechanism in the North Carolina General Statutes for the submission of
aggravating factors in a charge of driving while impaired, a common law procedural
mechanism existed through the use of a special verdict[,]” and based on the Blackwell
holding that the presence or absence of a procedural mechanism was irrelevant,
harmless error was applicable. Id. at 423, 639 S.E.2d at 135.
Interestingly, we noted in McQueen that the “procedure for aggravating factors
to be proven to a jury under” Chapter 15A of our statutes, the relevant statute in
Blackwell, was enacted by our legislature, “[i]n response to the ruling in Blakely,” but
that change did “not apply to cases involving a charge of driving while impaired” and
was therefore inapplicable. Id. at 422, 639 S.E.2d at 134. Significantly, McQueen
was decided prior to the 1 December 2006 amendment to N.C. Gen. Stat. § 20-
179(a1)(2).
Thereafter, in a case decided after the statute was amended, this Court agreed
with the defendant in State v. Geisslercrain that “the trial court committed reversible
error by determining, itself, that an aggravating factor existed, rather than
submitting the aggravating factor to the jury for determination, citing” Blakely. State
v. Geisslercrain, 233 N.C. App. 186, 190, 756 S.E.2d 92, 95 (2014) (emphasis in
original). In Geisslercrain, the trial court found one aggravating factor without
submitting the issue to the jury as statutorily required and found one mitigating
factor. Id. at 188, 756 S.E.2d at 93. In its analysis, this Court did not apply harmless
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error and evaluate whether evidence to support such a factor existed but decided the
finding of that factor placed the defendant at another DWI Level punishment,
violating Blakely, and therefore vacated the sentence. Id. at 191, 756 S.E.2d at 95.
While prior cases like Blackwell and McQueen have comported with the
constitutional standard set out in Recuenco, it is well-settled that “the United States
Constitution is the floor of constitutional protections in North Carolina, not the
ceiling.” Mole’ v. City of Durham, 279 N.C. App. 583, 598, 866 S.E.2d 773, 785, (citing
State v. Carter, 322 N.C. 709, 713, 370 S.E.2d 553, 555 (1988)), review allowed sub
nom. Mole v. City of Durham, ___ N.C. ___ , 868 S.E.2d 851 (Mem) (2022). As such,
our legislature is free to provide more protection than constitutionally required and
their decision to do so by amending the relevant statute cannot be ignored.
“The best indicia of legislative intent are the language of the statute or
ordinance, the spirit of the act and what the act seeks to accomplish.” M.E. v. T.J.,
275 N.C. App. 528, 547, 854 S.E.2d 74, 94 (2020) (brackets, internal quotation marks,
and citation omitted), aff’d as modified, 380 N.C. 539, 869 S.E.2d 624 (2022). The
statute here unequivocally states that “only a jury may determine if an aggravating
factor is present.” N.C. Gen. Stat. § 20-179(a1)(2) (emphasis added). It is without
question based on the previous version of the statute that the intent of this
modification was to take the decision of aggravating factors out of the judge’s hands
and place it solely with the jury, likely to provide defendants the protections
articulated in Blakely. See McQueen, 181 N.C. App. at 422, 639 S.E.2d at 134.
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Since the relevant federal cases provide the bare minimum, and all relevant
state cases are distinguishable because they were decided prior to the modification of
the statute where it is clear from the timing and language of the statute that the
legislature intended to change the standards adopted by our courts, we hold
aggravating factors must be decided by the jury or the case must be remanded for a
new sentencing hearing. Accordingly, we vacate the trial court’s judgment and
remand for a new sentencing hearing.
C. Sentencing on the Reckless Driving Conviction
Lastly, defendant argues, and the State concedes, that defendant is entitled to
a new sentencing hearing on the reckless driving conviction. The relevant statute
states, in pertinent part:
Unless the court makes specific findings that longer or shorter periods of probation are necessary, the length of the original period of probation for offenders sentenced under Article 81B shall be as follows:
(1) For misdemeanants sentenced to community punishment, not less than six nor more than 18 months.
N.C. Gen. Stat. § 15A-1343.2(d)(1) (2022). Thus, the trial court is required to make
specific findings if they sentence a defendant to a community punishment for more
than 18 months. Id.
Here, the court did not include any specific findings when it sentenced
defendant to a suspended community punishment with supervised probation for 36
months. Accordingly, we must vacate the judgment and remand for a new sentencing
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hearing on defendant’s reckless driving conviction. See State v. Branch, 194 N.C.
App. 173, 178-79, 669 S.E.2d 18, 22 (2008) (remanding for resentencing since the trial
court “made no findings as to why the probationary period imposed was in excess of
the statutory framework laid out in section 15A-1343.2(d)(1)”).
III. Conclusion
For the foregoing reasons, we vacate the judgments on the driving while
impaired and reckless driving convictions, and remand for new sentencing hearings
on these issues, but affirm in all other respects.
VACATED AND REMANDED IN PART; AFFIRMED IN PART.
Judge WOOD concurs
Judge GORE dissents by separate opinion.
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GORE, Judge, dissenting.
I respectfully dissent in part from the majority’s holding to vacate and remand
for a new sentencing hearing for the driving while impaired (“DWI”) conviction.
Accordingly, I review the facts of this case and the overwhelming evidence as one that
questions whether the harmless error analysis is applicable since the 2006
amendment of N.C. Gen. Stat. § 20-179 (2006).
The majority accurately restates the chronology within Section II. B. as it
relates to the amendment to Section 20-179 and the history of Blakely v. Washington.
However, I disagree with their conclusion harmless error no longer applies. The
question that escapes review is whether harmless error is still applicable in cases
with overwhelming evidence that would allow a jury to find aggravating factors
beyond a reasonable doubt.
The majority agrees with defendant that the codification of Blakely in Section
20-179(a1)(2) has the effect of reversible error and eliminates the consideration of
harmless error review. In relying on this interpretation of the statute, the majority
notes the language in McQueen in which we discussed it was notable the statutory
procedure requiring “only a jury . . . determine if an aggravating factor is present in
an offense” in Chapter 15A was inapplicable to DWI cases. N.C. Gen. Stat. § 15A-
1340.16(a1) (2006); McQueen, 181 N.C. App. at 422, 639 S.E.2d at 134. Notably, the
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Gore, J., dissenting
exact language used to codify Blakely in Chapter 15A, is also used in the amendment
of Section 20-179(a1)(2). Cf. N.C. Gen. Stat. § 15A-1340.16(a1). The majority then
states the timing of the amendment to section 20-179(a1)(2) occurring after both
Blackwell and McQueen, indicates the legislature intended to increase the protections
afforded to defendants through its plain language “only a jury” and in so doing remove
this decision completely from the judge.
Yet in Blackwell, our Supreme Court addressed this similar time frame and
this exact language after the legislature amended Chapter 15A to codify Blakely. In
Blackwell, the defendant relied on dicta from Recuenco to argue the lack of a statutory
procedural mechanism should limit harmless error review. Blackwell, 361 N.C. at
45–46, 638 S.E.2d at 456. In response to this argument, the Court recognized that
despite the missing amendment at the time of defendant’s trial, common law
procedural mechanisms in the form of special verdicts were available in North
Carolina courts and dispelled any argument to “transform otherwise harmless error
into reversible error.” Id. at 46–48, 638 S.E.2d at 456–57.
We also expounded on this concept in McQueen, when the defendant once again
attempted to argue a lack of procedural mechanism since there was no language
within section 20-179 at the time to require only a jury to determine the aggravating
factors. McQueen, 181 N.C. App. at 422–23, 639 S.E.2d at 134–35. We determined
in McQueen, though section 20-179 lacked the statutory procedural mechanism at the
time, we could rely upon the “common law procedural mechanism” to then proceed to
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harmless error review. Id. at 423, 639 S.E.2d at 135.
While Blackwell and McQueen were cases decided prior to the amendment to
section 20-179(a1)(2), they still provide a direction for this Court to apply the
amended section 20-179(a1)(2) given the exact language was used to amend section
15A-1340.16(a1). I interpret the amendment as a provision to address the missing
statutory procedural mechanism and eliminate the Court’s reliance on a common law
procedural mechanism. Accordingly, I believe the majority’s reasoning interprets
section 20-179(a1)(2) beyond what the legislature intended when it codified Blakely,
as it previously had done in Chapter 15A. The trial court’s failure to abide by this
statutory mechanism leads to harmless error review, not reversible error.
Since section 20-179 now provides a statutory procedural mechanism to satisfy
the suggested requirements under Blakely, Recuenco, and Blackwell, the harmless
error standard should be applied because such error is not considered structural error
when there is a procedural mechanism in place, whether common law or statutory.
Under harmless error review, I review the record evidence of the present case to
determine if it “was so overwhelming and uncontroverted that any rational fact-
finder would have found the disputed aggravating factor beyond a reasonable doubt.”
Blackwell, 362 N.C. at 49, 638 S.E.2d at 458 (quotation marks and citations omitted).
The following evidence was presented: defendant’s car crossed the center line
multiple times, his car crossed the fog line multiple times, his car caused oncoming
vehicles to swerve to avoid collision, he stopped at a green light, he slammed on his
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brakes to avoid collision with a school bus, his car collided with a construction barrel
and he continued to drive, his car swerved and almost hit a construction worker who
was directing traffic, he slammed on his brakes with each stop, and he drove at
“erratic speeds.”
Accordingly, the trial court’s error was harmless beyond a reasonable doubt,
since the evidence was “uncontroverted and overwhelming,” thus, “[t]here can be no
serious question that if the instant case were remanded to the trial court for a jury
determination of the [especially reckless] aggravating factor presented, the [S]tate
would offer identical evidence in support of that aggravator . . . .” Id. at 51, 638 S.E.2d
at 459. Further, the existence of the especially reckless aggravating factor was
enough to allow the trial judge to find a level three sentence, since there was no
mitigating factor. See N.C. Gen. Stat. § 20-179(f)(1) (2021).
For the foregoing reasons, I would hold the error as harmless on the issue of
sentencing for the DWI conviction. Thus, I respectfully dissent in part.
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