State v. Adams

                  IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     2022-NCCOA-845

                                         No. COA22-588

                                  Filed 20 December 2022

     Gaston County, No. 19CRS051331

     STATE OF NORTH CAROLINA

                 v.

     THOMAS MICHAEL ADAMS, Defendant.


           Appeal by Defendant from judgment entered 12 January 2022 by Judge Jesse

     B. Caldwell, IV, in Gaston County Superior Court. Heard in the Court of Appeals 30

     November 2022.


           Attorney General Joshua H. Stein, by Assistant Attorney Kindelle McCullen
           and Special Deputy Attorney General Martin T. McCracken, for the State.

           Patterson Harkavy LLP, by Christopher A. Brook, for the Defendant.


           JACKSON, Judge.


¶1         Thomas Michael Adams (“Defendant”) appeals from judgment entered after he

     pleaded guilty to driving while impaired. We vacate and remand for resentencing.

                                    I.     Background

¶2         Defendant was cited for driving while impaired on 4 December 2019. He

     pleaded guilty on 12 January 2022.

¶3         At sentencing, the court found one factor in aggravation – Defendant’s blood

     alcohol content was more than .15 at the time of the offense – and one factor in
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                                           2022-NCCOA-845

                                          Opinion of the Court



     mitigation – a safe driving record. The court concluded that the factors balanced each

     other out, and sentenced Defendant to 120 days’ imprisonment. The court then

     suspended this sentence for 18 months of supervised probation. The court went on to

     impose a special condition of probation that Defendant perform 48 hours of

     community service, pay court costs, fines, and fees, and obtain a substance abuse

     assessment within 60 days. The court further stipulated that if Defendant was in

     full compliance with the terms of his probation within 12 months, his sentence of

     supervised probation could be changed to unsupervised probation.

                                    II.      Jurisdiction

¶4         Defendant did not notice an appeal from the judgment, and there is no right of

     appeal from a judgment entered upon a guilty plea. N.C. Gen. Stat. § 15A-1444(e)

     (2021). Defendant has therefore petitioned our Court for certiorari to review the

     judgment, citing State v. Killette, 

, 690-91, 2022-NCSC-80 ¶ 15, in which

     our Supreme Court recently reaffirmed our authority to issue the writ of certiorari to

     review a judgment entered upon a guilty plea. In the exercise of our discretion, we

     issue the writ of certiorari here, and reach the merits of Defendant’s appeal.

                                      III.      Analysis

¶5         Defendant argues that the sentence imposed by the sentencing court violated

     

(r), in that it required him to remain on supervised probation

     for at least 12 months, even if before that time he had performed his required
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                                        2022-NCCOA-845

                                       Opinion of the Court



     community service, paid court costs, fines, and fees, and obtained a substance abuse

     assessment. We agree.

     A. Standard of Review

¶6         When a defendant asserts that a “sentence imposed was unauthorized at the

     time imposed, exceeded the maximum authorized by law, was illegally imposed, or is

     otherwise invalid as a matter of law[,]” the issue is automatically preserved for

     appellate review, regardless of whether an objection was raised in the trial court.

     N.C. Gen. Stat. § 15A-1446(d)(18) (2021). “Alleged statutory errors are questions of

     law reviewed de novo on appeal.” State v. Porter, 

, 352, 2022-

     NCCOA-166 ¶ 5 (2022) (internal marks and citation omitted).

     B. The Sentencing Court’s Special Condition of Probation Was
        Unauthorized

¶7         North Carolina General Statute § 20-179(r) provides that when a judge

     determines that a defendant who has been convicted of driving while impaired

                 should be placed on supervised probation, the judge shall
                 authorize the probation officer to modify the defendant’s
                 probation by placing the defendant on unsupervised
                 probation upon the completion by the defendant of the
                 following conditions of the suspended sentence:

                 (1) [c]ommunity service;

                 ...

                 [(2)] [p]ayment of any fines, court costs, and fees; or

                 [(3)] [a]ny combination of these conditions.
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(r) (2021).       Notably, the statute does not authorize a

     sentencing court to condition an offender’s transfer from supervised to unsupervised

     probation upon the passage of a certain amount of time.

¶8         Yet the sentencing court here purported to sentence Defendant to 12 months

     of supervised probation, regardless of whether he had performed the required

     community service, paid his court fines, costs, and fees, and obtained a substance

     abuse assessment before 12 months had elapsed. This was not a sentence authorized

     by 

(r), and the sentencing court erred by imposing this special

     condition of probation. We therefore remand the case for resentencing.

                                     IV.     Conclusion

¶9         Because the lower court sentenced Defendant to a special condition of

     probation that exceeded the court’s statutory authority under 

-

     179(r), we vacate the court’s judgment and remand the case for resentencing.

           VACATED AND REMANDED.

           Judges ARROWOOD and COLLINS concur.