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      "STATE OF NORTH CAROLINA v. ROMY VERDAE GEISSLERCRAIN"
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      {
        "text": "DILLON, Judge.\nRomy Verdae Geisslercrain (\u201cDefendant\u201d) appeals from judgments convicting her of impaired driving and reckless driving to endanger, alleging errors in her sentencing and challenging the trial court\u2019s denial of her motion to dismiss for insufficiency of the evidence. We find no error, in part, and we vacate and remand, in part.\nI. Background\nThe evidence of record tends to show the following: On the evening of 16 July 2010, Defendant was involved in a single vehicle accident on Highway 19 near Burnsville. After Defendant had been transported to the hospital, State Trooper Jeremy Carver arrived at the scene where he found Defendant\u2019s damaged Ford Ranger truck in the middle of the highway. Trooper Carver believed that Defendant had likely driven off the right side of the road, after which she tried to jerk her truck back onto the road too quickly, resulting in the truck rolling several times and sustaining approximately $7,000.00 in damage. Trooper Carver thought the truck may have been going too fast for a curve in the road.\nTrooper Carver went to the hospital to speak with Defendant, who told him she had taken medications either the day of the incident or the day before - including Methadone, Clonazepam, and Adderall. She also admitted to Trooper Carver that she had been drinking alcohol. Trooper Carver believed that Defendant had consumed a sufficient quantity of impairing substances to appreciably impair her mental and physical faculties.\nDefendant was indicted on charges of impaired driving and reckless driving to endanger. After her conviction in District Court, Defendant appealed to Superior Court, where a jury found her guilty of both charges.\nDuring sentencing, the trial court determined, without submitting the question to a jury, that an aggravating factor existed, specifically, that \u201c[t]he negligent driving of [Defendant led to an accident causing property damage of $1,000.00 or more[.]\u201d The trial court further determined that a mitigating factor existed, specifically, that \u201c[Defendant has a safe driving record[.]\u201d The trial court determined that the aggravating factor was substantially counterbalanced by the mitigating factor, and, therefore, declared that \u201ca Level Four punishment shall be imposed.\u201d\nThe trial court entered two written judgments, one for each conviction. The written judgment for the impaired driving conviction reflects that the trial court was sentencing Defendant as a Level Four offender, but then actually sentenced her to a minimum and maximum sentence of twelve months incarceration, which is above the range of Level Four punishments. Nonetheless, as reflected on the written judgment, the trial court suspended the active sentence on the condition that she be placed on twelve months supervised probation.\nThe trial court also entered a written judgment on Defendant\u2019s reckless driving to endanger conviction, sentencing her to ten days incarceration, which the trial court suspended on the condition that she be placed on twelve months supervised probation, to be served concurrently with the sentence for her impaired driving conviction. Defendant appeals from both judgments.\nII. Analysis\nDefendant argues on appeal that the trial court erred in denying her motion to dismiss her impaired driving conviction and also committed errors with regard to her sentence. We address each argument below.\nA: Motion to Dismiss\nDefendant argues that the trial court erred by denying her motion to dismiss the charge of reckless driving. We disagree.\n\u201cThis Court reviews the trial court\u2019s denial of a motion to dismiss de novo.\u201d State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). \u201cUpon defendant\u2019s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u201d State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000) (citation and quotation marks omitted). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). \u201cIn making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.\u201d State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).\nN.C. Gen. Stat. \u00a7 20-140(a) and (b) provide two definitions of reckless driving. A person may violate N.C. Gen. Stat. \u00a7 20-140 by either of the courses of conduct defined in subsection (a) and (b), or in both respects. State v. Dupree, 264 N.C. 463, 142 S.E.2d 5 (1965). Most pertinent to this case, subsection (b) provides the following: \u201cAny person who drives any vehicle upon a highway or any public vehicular area without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property shall be guilty of reckless driving.\u201d Id.\nOn appeal, Defendant specifically argues the trial court erroneously denied her motion to dismiss because the evidence shows that she merely failed to keep a reasonable lookout. \u201cMere failure to keep a reasonable lookout does not constitute reckless driving])] [t]o this must be added dangerous speed or perilous operation.\u201d State v. Dupree, 264 N.C. 463, 466, 142 S.E.2d 5, 7 (1965). We disagree and believe that there was substantial evidence in this case to support the elements of reckless driving, and, when viewed in the light most favorable to the State, that there was more than a mere failure to keep a reasonable lookout. Specifically, the State presented evidence that Defendant was intoxicated; that all four tires of Defendant\u2019s vehicle had gone off the road; that distinctive \u201cyaw\u201d marks were left on the road indicating that Defendant had lost control of the vehicle; that Defendant\u2019s vehicle overturned twice; and that the vehicle traveled 131 feet from the point it went off the road before it flipped, and another 108 feet after it flipped. Therefore, the trial court did not err by denying Defendant\u2019s motion. See, e.g., State v. Coffey, 189 N.C. App. 382, 387, 658 S.E.2d 73, 77 (2008); see generally Bank v. Lindsey, 264 N.C. 585, 587, 142 S.E.2d 357, 360 (1965) (stating that \u201coperation of [a vehicle] in a drunken condition constituted a driving of it upon the public highway without due caution and circumspection and in a manner so as to endanger persons or property, and was reckless driving within the intent and meaning of G.S. \u00a7 20-140(b)\u201d). Accordingly, Defendant\u2019s argument is overruled.\nB: Sentencing\nDefendant contends that there were reversible errors regarding the sentencing on her impaired driving conviction as a Level Four offender. Specifically, Defendant argues that (1) the trial court erred in determining the existence of an aggravating factor, rather than submitting this issue to the jury; (2) she did not receive proper notice that the State would be seeking aggravating factors; and (3) her sentence was outside (above) the Level Four punishment range. We address each argument below.\ni. Trial Court\u2019s Finding of Aggravating Factor\nDefendant argues 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 the United States Supreme Court decision Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004) in which that Court applied the rule it stated in Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000) \u2014 that \u201c[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed maximum must be submitted to the jury and proved beyond a reasonable doubt\u201d \u2014 to aggravating factors. Blakely, 542 U.S. at 301, 159 L. Ed. 2d at 412. We agree.\nSentencing defendants convicted of impaired driving is governed by N.C. Gen. Stat. \u00a7 20-179 (2011). Under G.S. \u00a7 20-179, there are six sentencing ranges. Like the sentencing scheme found in the Structured Sentencing Act, codified at N.C. Gen. Stat. \u00a7 15A-1340.16 (2011), a defendant\u2019s sentencing range under N.C. Gen. Stat. \u00a7 20-179 is determined by the existence and balancing of aggravating and mitigating factors. However, the trial court is afforded much less discretion in sentencing under N.C. Gen. Stat. \u00a7 20-179 than under the Structured Sentencing Act. See State v. Weaver, 91 N.C. App. 413, 415-16, 371 S.E.2d 759, 760 (1988) (stating that the sentencing scheme found in N.C. Gen. Stat. \u00a7 20-179 is \u201cquite systematic and tiered, thus leaving little room to exercise discretion\u201d).\nThe three most severe punishment levels under N.C. Gen. Stat. \u00a7 20-179, which are Aggravated Level One, Level One, arid Level Two, are imposed only where a \u201cgrossly aggravating factor\u201d is found to exist. Where there are no grossly aggravating factors present, a defendant convicted of impaired driving must be sentenced in one of the three remaining ranges, namely, either under Level Three, Level Four, or Level Five. See id.\nIn the present case, no grossly aggravating factors were found to exist, so the trial court was required to determine whether a Level Three, Level Four, or Level Five punishment was appropriate by weighing those factors pursuant to N.C. Gen. Stat. \u00a7 20-179(f). Under N.C. Gen. Stat. \u00a7 20-179(f)(l), if the trial court determines that \u201c[t]he aggravating factors substantially outweigh any mitigating factors,\u201d the trial court must impose a Level Three punishment. We also believe that if there are only aggravating factors present \u2014 and no mitigating factors present \u2014 then the aggravating factors \u201csubstantially outweigh\u201d the mitigating factors (as there are none) as a matter of law, and the trial court must impose a Level Three punishment. See id.\nLikewise, if the trial court determines that \u201c[t]he mitigating factors substantially outweigh any aggravating factors,\u201d the trial court must impose a Level Five punishment. N.C. Gen. Stat. \u00a7 20-179(0(3). And if there are only mitigating factors present \u2014 and no aggravating factors present \u2014 the trial court must impose a Level Five punishment. See id.\nIf there are no aggravating or mitigating factors present or, alternatively, if the aggravating and mitigating factors are \u201csubstantially counterbalanced, \u201d then the trial court must impose a Level Four punishment. N.C. Gen. Stat. \u00a7 20-179(0(2).\nIn this case, the trial court sentenced Defendant to a Level Four punishment, concluding that the single aggravating factor, which the trial court, and not the jury, found, was substantially counterbalanced by the single mitigating factor. If the aggravating factor had not been considered by the trial court, then there would have been only the single mitigating factor present; and the trial court would have been required to sentence Defendant to a Level Five punishment. See N.C. Gen. Stat. \u00a7 20-179(f)(3). Accordingly, the aggravating factor in this case, which was improperly found by the judge, \u201cincrease [d] the penalty for [the] crime beyond the prescribed maximum,\u201d Blakely, supra, and Defendant\u2019s Level Four punishment must be vacated.\nThe State, however, argues that no Blakely error occurred because a Level Four punishment is similar to a defendant being sentenced within the presumptive range under the Structured Sentencing Act! Our Supreme Court has held that, in the context of a defendant sentenced under the Structured Sentencing Act, Blakely is not implicated when a trial court improperly finds aggravating factors, rather than submitting those factors to the jury, so long as the defendant is sentenced within the presumptive range, reasoning that a trial judge \u201cdoes not exceed his proper authority until he inflicts [enhanced] punishment. . . the jury\u2019s verdict alone does not allow.\u201d State v. Norris, 360 N.C. 507, 514, 517, 630 S.E.2d 915, 919, 921, cert. denied, 549 U.S. 1064, 166 L. Ed. 2d 535 (2006) (holding that \u201c[t]he trial court did not violate defendant\u2019s Sixth Amendment right to a jury trial when it found a statutory aggravating factor but sentenced defendant within the presumptive range\u201d) (citation and quotation marks omitted).\nNorris is not applicable to the present case. Under the Structured Sentencing Act the trial court has the discretion to sentence a defendant within the presumptive range even where only mitigating factors are properly found. However, in the context of the sentencing scheme in N.C. Gen. Stat. \u00a7 20-179, the trial court does not have the discretion to sentence a defendant to a Level Four punishment where only mitigating factors are properly found, but rather, it is required to sentence the defendant to a Level Five punishment. In other words, where a defendant is sentenced under the Structured Sentencing Act within the presumptive range where mitigating factors are present, Blakely is not implicated if the trial court itself\u2014 and not the jury \u2014 finds aggravating factors to exist as well. This is because the trial court had the authority to sentence the defendant within the presumptive range even without finding aggravating factors to counterbalance the mitigating factors. However, under G.S. \u00a7 20-179, the trial court has no discretion to sentence a defendant to a Level Four punishment where only mitigating factors are properly found to exist. Therefore, in this case, Blakely has been implicated because, without the presence of an aggravating factor, the trial court was required to sentence Defendant to a Level Five punishment, a sentence which could not have been enhanced to a Level Four punishment without the jury finding the aggravating factor \u2014 which had been improperly found by the trial court \u2014 beyond a reasonable doubt.\nThe State also argues that we are bound by our decision in State v. Green, 209 N.C. App. 669, 707 S.E.2d 715 (2011). Green involved a prosecution for impaired driving where two aggravating factors and two mitigating factors were found to exist, and the defendant was sentenced to a Level Four punishment. Id. at 681, 707 S.E.2d at 723-24. On appeal, the defendant argued that the trial court had inappropriately found one of the two aggravating factors instead of submitting that factor to the jury. Id. The defendant made no argument that the trial court inappropriately found the other aggravating factor, which involved the defendant\u2019s driving record. Id. Accordingly, the defendant was effectively arguing that there was only one valid aggravating factor, instead of two, which, by itself, did not substantially counterbalance the two mitigating factors. Id. at 681-82, 707 S.E.2d at 723-24. This Court, specifically relying on the rationale in Norris, expressly held that the \u201clevel four punishment imposed by the trial court [under G.S. \u00a7 20-179] was tantamount to a sentence within the presumptive range [in a structured sentencing case], so that the trial court did not enhance defendant\u2019s sentence even after finding aggravating factors [and, therefore,] Blakely is not implicated.\u201d Id. at 681-82, 707 S.E.2d at 724.\nWe hold Green is distinguishable from the present case. In Green, even with the error, there remained one valid aggravating factor to counterbalance the two mitigating factors. See id. Even where only one aggravating factor, rather than two, is found along with two mitigating factors, the trial court still has the discretion to sentence the defendant to a Level Four punishment since it could have determined, within its discretion, that the one aggravating factor \u201csubstantially counterbalanced\u201d the two mitigating factors. However, in the present case, without any aggravating factors properly found, the trial court had no discretion but to sentence Defendant to a Level Five punishment. Accordingly, we believe that this Court\u2019s rationale in Green does not apply.\nii. Notice\nDefendant contends the State failed to provide notice that it intended to seek aggravating factors as required by N.C. Gen. Stat. \u00a7 20-179(al) (1). We agree that the State\u2019s failure to provide the required notice was error.\nN.C. Gen. Stat. \u00a7 20-179(al)(l) provides the following with regard to notice of aggravating factors:\nIf the defendant appeals to superior court, and the State intends to use one or more aggravating factors under subsections (c) or (d) of this section, the State must provide the defendant with notice of its intent. The notice shall be provided no later than 10 days prior to trial and shall contain a plain and concise factual statement indicating the factor or factors it intends to use under the authority of subsections (c) and (d) of this section. The notice must list all the aggravating factors that the State seeks to establish.\nOn appeal, the State does not dispute that it failed to provide proper notice; but rather, since Defendant was sentenced to a Level Four punishment, which the State argues is a \u201cpresumptive\u201d sentence, the State\u2019s failure to provide notice was harmless error. However, because we have concluded that a Level Four punishment in this case was inappropriate, the State\u2019s argument must fail.\nGenerally, when the State has failed to provide proper notice pursuant to N.C. Gen. Stat. \u00a7 20-179(al)(l), this Court has vacated Defendant\u2019s sentence and remanded for resentencing. State v. Reeves,_N.C._, 721 S.E.2d 317 (2012). In Reeves, this Court stated, \u201c[i]t is evident that the State failed to provide Defendant with the statutorily required notice of its intention to use an aggravating factor under N.C.G.S. \u00a7 20-179(d). We must therefore vacate Defendant\u2019s sentence as to the DWI charge and remand to the trial court for resentencing.\u201d Id. at_, 721 S.E.2d at 322.\nFollowing our rationale in Reeves and other decisions of this Court, we believe the proper resolution in the present case is to remand the matter to the trial court, directing it to resentence Defendant to a Level Five punishment.\niii. Sentence Outside the Level Four Punishment Range\nDefendant argues that the trial court improperly sentenced her to a punishment outside the Level Four range. However, having concluded that Defendant\u2019s punishment must be vacated and this matter remanded for resentencing in the Level Five range, we conclude that Defendant\u2019s argument is moot and, therefore, do not address its merits.\nIII. Conclusion\nBased on the foregoing, the trial court erred by sentencing Defendant to a Level Four punishment on her conviction of impaired driving. Accordingly, we vacate and remand the judgment on this charge only, directing the trial court to resentence Defendant to a Level Five punishment. Otherwise, we find no error.\nNO ERROR, in part; VACATED and REMANDED, in part.\nJudge STROUD and Judge HUNTER, JR. concur.\n. We note that Blakely is not implicated where the fact found by the trial court, and not the jury, which is used to enhance a defendant\u2019s punishment is the existence of a prior conviction.",
        "type": "majority",
        "author": "DILLON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Special Deputy Attorney General Hal F. Askins, for the State.",
      "Charlotte Gail Blake, for Defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ROMY VERDAE GEISSLERCRAIN\nNo. COA13-887\nFiled 1 April 2014\n1. Motor Vehicles \u2014 reckless driving \u2014 substantial evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of reckless driving where there was substantial evidence to support the elements of the offense and more than a mere failure to keep a reasonable lookout, as defendant contended.\n2. Sentencing \u2014 aggravating factor \u2014 found by court \u2014 improper\nThe trial court improperly found an aggravating factor in a prosecution for reckless driving by making the finding itself instead of submitting the aggravating factor to the jury. That aggravating factor increased the penalty for the crime beyond the prescribed maximum.\n3. Sentencing \u2014 discretion\u2014reckless driving \u2014 no aggravating factors\nThe trial court had no discretion in the sentence given in a reckless driving case where no aggravating factors were properly found. The rationale in State v. Green, 209 N.C. App. 669, did not apply.\n4. Sentencing \u2014 aggravating factors \u2014 notice\nThe State\u2019s failure to provide proper notice that it intended to seek aggravating factors in a prosecution for reckless driving, as required by N.C.G.S. \u00a7 20-179(al)(l), was error, and the State\u2019s contention that the error was harmless because defendant received a \u201cpresumptive\u201d sentence failed because the sentence given was not appropriate.\n5. Appeal and Error \u2014 sentence\u2014vacated elsewhere \u2014 argument moot\nDefendant\u2019s argument concerning the enhancement of his sentence was moot where his sentence had already been vacated and remanded.\nAppeal by Defendant from judgments entered 10 April 2013 by Judge Marvin P. Pope, Jr., in Yancey County Superior Court. Heard in the Court of Appeals 12 December 2013.\nAttorney General Roy Cooper, by Special Deputy Attorney General Hal F. Askins, for the State.\nCharlotte Gail Blake, for Defendant."
  },
  "file_name": "0186-01",
  "first_page_order": 196,
  "last_page_order": 204
}
