{
  "id": 9442747,
  "name": "STATE OF NORTH CAROLINA v. PRENTIS CONNIE REAVES",
  "name_abbreviation": "State v. Reaves",
  "decision_date": "2001-04-03",
  "docket_number": "No. COA00-193",
  "first_page": "629",
  "last_page": "636",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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      "cite": "489 S.E.2d 375",
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          "parenthetical": "after having \"specifically declared\" method of lost income calculation applicable to \"the usual situation[],\" General Assembly would have been \"equally specific\" had it intended a different method to apply in \"the exceptional cases\""
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          "parenthetical": "where statute sets forth instances of its coverage, other coverage is necessarily excluded under the maxim expressio unius est exelusio alterius, i.e., \"the expression of one thing is the exclusion of another\""
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    "judges": [
      "Judges WYNN and McGEE concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. PRENTIS CONNIE REAVES"
    ],
    "opinions": [
      {
        "text": "JOHN, Judge.\nDefendant appeals judgments entered upon convictions of the offenses of operating a motor vehicle without a valid operator\u2019s license and injury to personal property. We vacate the judgments entered and remand for re-sentencing.\nIn light of our disposition, a recitation of the underlying facts is unnecessary. In addition, defendant in his appellate brief has \u201cadmitfted] that the evidence presented was legally sufficient to support a conviction,\u201d thus abandoning his first assignment of error.\nDefendant\u2019s second assertion of error is directed at his questioning and detention by a North Carolina Highway Patrol trooper. Defendant claims such acts were \u201cunlawful and unconstitutional and all evidence should have been suppressed and both charges dismissed.\u201d However, as the State correctly points out, defendant\u2019s second argument has not been properly preserved for appellate review.\nN.C.R. App. P. 10(b) provides as follows:\nIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make ....\nFurther, when a party has failed to take such action during the course of proceedings in the trial court,\nhe has the burden of establishing his right to appellate review by showing that the exception was preserved by rule or law or that the error alleged constitutes plain error.\nState v. Gardner, 315 N.C. 444, 447, 340 S.E.2d 701, 705 (1986).\nIn the case sub judice, thorough examination of the record reveals defendant proffered no motion to suppress evidence of his questioning and detention as required by N.C.G.S. \u00a7\u00a7 15A-974, 977, 979 (1999), nor did he object at trial to the introduction of said evidence. Moreover, in presenting his argument to this Court, defendant has not specifically and distinctly claimed admission of the evidence constituted plain error. See N.C.R. App. P. 10(c)(4) (issue not preserved \u201cmay be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.\u201d In short, defendant \u201cdid not object at trial or allege plain error\u201d, State v. Scott, 343 N.C. 313, 332, 471 S.E.2d 605, 616 (1996), and thus \u201chas failed to properly preserve this issue for appeal.\u201d Id.\nLastly, defendant disagrees with the trial court\u2019s computation of his sentence under North Carolina\u2019s Structured Sentencing Act (the Act). See N.C.G.S. \u00a7\u00a7 15A-1340.10 et seq. (1999). Upon conviction of the offenses noted above, defendant was sentenced at Level III under N.C.G.S. \u00a7 15A-1340.21 (1996), that portion of the Act specifically governing determination of the sentencing level of individuals convicted of misdemeanors. In its sentencing calculation, the trial court included as a prior conviction defendant\u2019s 1994 adjudication of criminal contempt. Defendant maintains criminal contempt does not constitute a \u201cprior conviction\u201d under the Act and that his prior record level therefore should have been computed as Level II. Defendant\u2019s argument has merit.\nAt the time of the offenses for which defendant was tried, the Act provided:\n(a) Generally. \u2014 -The prior conviction level of a misdemeanor offender is determined by calculating the number of the offender\u2019s prior convictions that the court finds to have been proven in accordance with this section.\n(b) Prior Conviction Levels for Misdemeanor Sentencing. \u2014 The prior conviction levels for misdemeanor sentencing are:\n(1) Level I \u2014 0 prior convictions.\n(2) Level II \u2014 At least 1, but not more than 4 prior convictions.\n(3) Level III \u2014 At least 5 prior convictions.\nG.S. \u00a7 15A-1340.21. The Act further stated that\n[a] person has a prior conviction when, on the date a criminal judgment is entered, the person being sentenced has been previously convicted of a crime.\nN.C.G.S. \u00a7 15A-1340.11(7) (1999). Finally,\n[f]or the purpose of imposing sentence, a person has been convicted when he has been adjudged guilty or has entered a plea of guilty or no contest\nN.C.G.S. \u00a7 15A-1331(b) (1999).\nAs a criminal sentencing statute, the Act must be strictly construed. See State v. Jarman, 140 N.C. App. 198, 205, 535 S.E.2d 875, 880 (2000) (\u201c \u2018[c]riminal statutes must be strictly construed\u2019 \u201d (citation omitted)), and Joint Venture v. City of Winston-Salem, 54 N.C. App. 202, 205, 282 S.E.2d 509, 511 (1981) (\u201c[statutes imposing penalties are . . . strictly construed in favor of the one against whom the penalty is imposed\u201d), disc. review denied, 304 N.C. 728, 288 S.E.2d 803 (1982). \u201cAdjudged\u201d within the meaning of G.S. \u00a7 15A-1331(b) refers to the return by the jury of a verdict of guilty. See State v. Fuller, 48 N.C. App. 418, 420, 268 S.E.2d 879, 881, disc. review denied, 301 N.C. 403, 273 S.E.2d 448 (1980). Reading G.S. \u00a7\u00a7 15A-1340.11(7) and 15A-1331(b) in pari materia, see Carver v. Carver, 310 N.C. 669, 674, 314 S.E.2d 739, 742 (1984) (statutes which are in pari materia, i.e., which relate or are applicable to the same matter or subject, although enacted at different times, must be construed together in order to ascertain legislative intent), therefore, a \u201cprior conviction\u201d under G.S. \u00a7 15A-1340.21 refers only to a verdict of guilty of, or a plea of guilty or no contest to, a \u201ccrime.\u201d\nOur State Constitution provides that \u201c[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court.\u201d N.C. Const., art. I, \u00a7 24. Black\u2019s Law Dictionary defines a crime as \u201ca positive or negative act in violation of penal law\u201d or \u201can offense against the State or United States.\u201d Black\u2019s Law Dictionary 370 (6th ed. 1990).\nCriminal contempt, on the other hand,\n\u201cis a term applied where the judgment is in punishment of a[] [completed] act. . . tending to interfere with the administration of justice [.]\u201d\nMauney v. Mauney, 268 N.C. 254, 256, 150 S.E.2d 391, 393 (1966) (citation omitted). Accordingly,\n[c]riminal [contempt] proceedings are those brought to preserve the power and to vindicate the dignity of the court and to punish for disobedience of its processes or orders.\nGaylon v. Stutts, 241 N.C. 120, 123, 84 S.E.2d 822, 825 (1954).\nAlthough contempt proceedings thus are \u201csui generis,\u201d they remain punitive or \u201ccriminal in . . . nature\u201d such that a party is charged with \u201cdoing something forbidden\u201d and punished if \u201cfound guilty\u201d of the act, Mauney, 268 N.C. at 256, 150 S.E.2d at 393 (emphasis added),; see North Carolina v. Carr, 264 F. Supp. 75, 79 (W.D.N.C. 1967) (contempt proceedings \u201cbrought to vindicate the dignity and authority of the court\u201d are considered \u201ccriminal in their nature and are generally governed by the rules applicable to criminal cases\u201d), appeal dismissed, 386 F.2d 129 (4th Cir. 1967). As our Supreme Court has observed,\n\u201cit is said that the process by which the party charged [with criminal contempt] is reached and tried ... is essentially criminal or quasi-criminal.\u201d\nBlue Jeans Corp. v. Clothing Workers, 275 N.C. 503, 508, 169 S.E.2d 867, 870 (1969) (emphasis added) (citations omitted)).\nIndeed, the State relies heavily upon the procedural trappings of a criminal contempt adjudication as well as dicta in O\u2019Briant v. O\u2019Briant, 313 N.C. 432, 435, 329 S.E.2d 370, 373 (1985) (\u201ccriminal con-tempts are crimes, and accordingly, the accused is entitled to the benefits of all constitutional safeguards\u201d) to support the contention that a criminal contempt adjudication constitutes a \u201cprior conviction\u201d under the Act. Nonetheless, we conclude the General Assembly did not intend an adjudication of criminal contempt to constitute a \u201cprior conviction\u201d for sentencing purposes under G.S. \u00a7 15A-1340.21.\nFirst, enumeration of the \u201cexclusive\u201d grounds for adjudication of criminal contempt is found at N.C.G.S. \u00a7 5A-11 (1999). On the other hand, the General Assembly has confined provisions of our \u201cpenal law,\u201d Blacks Law Dictionary 370, primarily to Chapter 14 of the General Statutes, see N.C.G.S. \u00a7 14-1 et. seq. (1999).\nMore significantly, in Blue Jeans Corp. our Supreme Court held an adjudication of criminal contempt under former N.C.G.S. \u00a7 5-4 (repealed 1977) to comprise a \u201cpetty offense\u201d to which\nthe right of trial by jury in criminal cases secured by Article III, Section 2 of the Federal Constitution, and by the Sixth Amendment thereto, does not extend ....\nBlue Jeans Corp., 275 N.C. at 511, 169 S.E.2d at 871.\nThe authorized maximum punishment for criminal contempt at the time of the decision in Blue Jeans Corp. was a fine of $250.00 or imprisonment for thirty days. Id. Under N.C.G.S. \u00a7 5A~12(a) (1999), the maximum punishment for criminal contempt currently is \u201ccensure, imprisonment up to 30 days, fine not to exceed five hundred dollars ($500.00), or any combination of the three,\u201d although the section also sets the maximum punishment for failure to comply with a non-testimonial identification order, see N.C.G.S. \u00a7 15A-271, et seq. (1999), and for violation of N.C.G.S. \u00a7 5A-11(8) (1999) at ninety days and six months respectively, G.S. \u00a7 5A-12(a).\nWe cannot determine from the instant record the basis for defendant\u2019s 1994 criminal contempt adjudication. We must, therefore, resolve that issue in favor of defendant, see State v. Gardner, 315 N.C. 444, 450, 340 S.E.2d 701, 707 (because it would be \u201cpure speculation\u201d for this Court to suggest which theory jury relied upon, ambiguous verdict construed in favor of defendant); and State v. Gilley, 135 N.C. App. 519, 528, 522 S.E.2d 111, 117 (1999) (ambiguity in court order and \u201cterseness of . . . [court] judgment must be construed in favor of defendant\u201d), and assume for purposes of our decision herein that the 1994 contempt adjudication was punishable by a thirty day maximum term. Having deemed the issue not to be before us, we thus specifically do not address whether an adjudication of criminal contempt based upon failure to comply with a non-testimonial identification order or a violation of G.S. \u00a7 5A-11 might constitute a \u201cprior conviction\u201d under the Act.\nAs noted above, the North Carolina Constitution mandates that \u201c[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court.\u201d N.C. Const., art. I, \u00a7 24. In our State, moreover,\nthe only exception to the rule that \u201cnothing can be a conviction but the verdict of a jury\u201d is the constitutional authority granted the General Assembly to provide for the initial trial of misdemeanors in inferior courts without a jury, with trial de novo by a jury upon appeal. N.C. Const., art I. \u00a7 24 (1971).\nState v. Hudson, 280 N.C. 67, 79, 185 S.E.2d 189, 192 (1971) (citation omitted).\nIn short, our Supreme Court has upheld denial in superior court of a jury trial in criminal contempt proceedings which might result in a maximum punishment of no more than thirty days imprisonment. See Blue Jeans Corp., 275 N.C. at 511, 169 S.E.2d at 872. Because the North Carolina Constitution mandates that there can be no conviction of a \u201ccrime\u201d except upon a jury verdict, see N.C. Const., art. I, \u00a7 24, or upon a plea of guilty or no contest in lieu of the right to a jury trial, see G.S. \u00a7 15A-1331(b), defendant\u2019s 1994 adjudication of criminal contempt, assumed for purposes of the instant opinion to have subjected him to a maximum punishment of no more than thirty days imprisonment, cannot be considered a \u201cprior conviction\u201d under a \u201cstrict\u201d construction, see State v. Jarman, 140 N.C. App. at 205, 535 S.E.2d at 880, and Joint Venture, 54 N.C. App. at 205, 282 S.E.2d at 511, of G.S. \u00a7 15A-1340.11(7).\nFinally, we note the General Assembly amended G.S. \u00a7 15A-1340.21(b) on 1 December 1997 by inserting the following concluding sentence:\nIn determining the prior conviction level, a prior offense may be included if it is either a felony or a misdemeanor at the time the offense for which the offender is being sentenced is committed.\nDefendant contends the General Assembly sought to clarify that an offense must have been either a felony or misdemeanor to qualify as a \u201cprior conviction.\u201d The State responds that\nit appears the [legislative] intent was to clarify that both felonies and misdemeanors are counted and each is counted as one conviction.\nWhatever the intent of the amendment, see Spruill v. Lake Phelps Vol. Fire Dep\u2019t, Inc., 351 N.C. 318, 323, 523 S.E.2d 672, 676 (2000) (\u201c[i]n construing a statute with reference to an amendment, it is presumed that the Legislature intended either (1) to change the substance of the original act or (2) to clarify the meaning of it\u201d), the statute expressly fails to include, either in the original or amended version, any provision that a previous adjudication of criminal contempt may be counted as a \u201cprior conviction\u201d under the Act, see In re Taxi Co., 237 N.C. 373, 376, 75 S.E.2d 156, 159 (1953) (where statute sets forth instances of its coverage, other coverage is necessarily excluded under the maxim expressio unius est exelusio alterius, i.e., \u201cthe expression of one thing is the exclusion of another\u201d). Had the General Assembly intended that criminal contempt adjudications as well as misdemeanors be considered \u201ccrimes,\u201d see Black\u2019s Law Dictionary, 370 (\u201c \u2018[c]rime\u2019 and \u2018misdemeanor\u2019, properly speaking, are synonymous terms\u201d) so as to qualify as \u201cprior conviction\u201d under G.S. \u00a7 15A-1340.11(7), \u201cit would have been a simple matter [for it] to [have] include[d] th[at] explicit phrase,\u201d In re Appeal of Bass Income Fund, 115 N.C. App. 703, 706, 446 S.E.2d 594, 596 (1994), within the statutory amendment. See McAninch v. Buncombe County Schools, 347 N.C., 126, 133, 489 S.E.2d 375, 380 (1997) (after having \u201cspecifically declared\u201d method of lost income calculation applicable to \u201cthe usual situation[],\u201d General Assembly would have been \u201cequally specific\u201d had it intended a different method to apply in \u201cthe exceptional cases\u201d).\nIn sum, defendant\u2019s 1994 criminal contempt adjudication did not constitute a \u201cprior conviction\u201d for purposes of the Act, and the trial court erred by including such adjudication within its computation of defendant\u2019s sentencing level. Accordingly, the trial court\u2019s judgments are vacated and this matter remanded for re-sentencing proceedings not inconsistent with the opinion herein.\nNo error in the trial; remanded for re-sentencing.\nJudges WYNN and McGEE concur.",
        "type": "majority",
        "author": "JOHN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Michael F Easley, by Assistant Attorney General P. Ely Hall, for the State.",
      "Don W. Viets, Jr. for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. PRENTIS CONNIE REAVES\nNo. COA00-193\n(Filed 3 April 2001)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to object \u2014 failure to allege plain error\nAlthough defendant assigns error to the questioning and detention by a North Carolina Highway Patrol trooper to support his convictions for operating a motor vehicle without a valid operator\u2019s license and injury to personal property, defendant failed to properly preserve this issue for appellate review because he failed to object at trial as required by N.C. R. App. P. 10(b) and he failed to argue plain error.\n2. Sentencing\u2014 structured \u2014 criminal contempt not a prior conviction\nThe trial court erred in a case arising out of operating a motor vehicle without a valid operator\u2019s license and injury to personal property by its computation of defendant\u2019s sentence as Level III instead of Level II under N.C.G.S. \u00a7 15A-1340.21 of the North Carolina\u2019s Structured Sentencing Act based upon defendant\u2019s prior conviction for criminal contempt, because: (1) criminal contempt does not constitute a prior conviction under the Act when it is assumed that the 1994 adjudication was punishable by a thirty-day maximum term under N.C.G.S. \u00a7 5A-12(a); (2) the North Carolina Constitution mandates that there be no conviction of a \u201ccrime\u201d except upon a jury verdict or upon a plea of guilty or no contest in lieu of the right to a jury trial, N.C. Const., art. I, \u00a7 24; and (3) the General Assembly did not include criminal contempt adjudications as a crime when it amended the statute on 1 December 1997.\nAppeal by defendant from judgments entered 28 September 1999 by Judge B. Craig Ellis in Columbus County Superior Court. Heard in the Court of Appeals 24 January 2001.\nAttorney General Michael F Easley, by Assistant Attorney General P. Ely Hall, for the State.\nDon W. Viets, Jr. for defendant-appellant."
  },
  "file_name": "0629-01",
  "first_page_order": 659,
  "last_page_order": 666
}