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North Carolina v. Weaver9/20/1988
Defendant's appeal is limited solely to the sentencing phase of his trial in which he was tried for unlawfully and willfully operating
a motor vehicle while subject to an impairing substance in violation of G.S. sec. 20-138.1.
On 7 February 1987, defendant was charged with the violation hereinabove stated. He was tried before a jury on 20 August 1987 in Superior Court, Haywood County and was found guilty as charged.
During the sentencing phase of the trial, evidence was considered to the effect that defendant had been previously convicted on 27 June 1973 for driving while impaired, on 10 December 1976 for driving while impaired, and on 13 December 1976, also for driving while impaired. The evidence also showed that defendant had been convicted for speeding 75 mph in a 60 mph zone, for speeding 65 mph in a 55 mph zone, for driving on the wrong side of the road, and for speeding 68 mph in a 55 mph zone. These named convictions occurred between 27 June 1973 and 8 August 1980.
The trial court determined that an aggravating factor existed pursuant to G.S. sec. 20-179(d)(5) in that defendant had at least one prior conviction for driving while impaired which occurred more than seven years before the date of the present offense. The court found as a mitigating factor that defendant had a safe driving record, having had no convictions of any serious motor vehicle offenses for which at least four points are assigned under G.S. sec. 20-16(c), or for which defendant's license was subject to revocation, within five years of the date of the present offense, as specified in G.S. sec. 20-179(e)(4).
After having determined that the aggravating factor substantially outweighed the mitigating factor, the trial court imposed a level three punishment. Defendant was sentenced to six months imprisonment, suspended for a period of two years, on condition that he be placed on unsupervised probation for two years and that he serve thirty days in the Haywood County jail. From this sentence, defendant appeals.
On appeal, defendant contends that the trial court erred by imposing level three punishment when under the present facts, the aggravating factor did not substantially outweigh the mitigating factor. We do not agree. The substance of defendant's argument is that it was not the legislature's intent to vest the trial
court judge with the same broad discretionary powers in making the first step determination, concerning the selection of the level of punishment to impose in impaired driving cases, as that afforded trial court judges in the actual sentencing scheme under the Fair Sentencing Act. Defendant's argument is limited to the first step of the sentencing process, as he does not disagree with the discretionary powers which the trial judge possesses in selecting the actual punishment within the maximum and minimum levels prescribed pursuant to G.S. secs. 20-179(g)-(1).
G.S. sec. 20-179(a) states in pertinent part that " fter a conviction for impaired driving under G.S. sec. 20-138.1, the judge must hold a sentencing hearing to determine whether there are aggravating or mitigating factors that affect the sentence to be imposed."
G.S. sec. 20-179(f) states in pertinent part that:
If the judge in the sentencing hearing determines that there are no grossly aggravating factors, he must weigh all aggravating and mitigating factors listed in subsections (d) and (e). If the judge determines that:
(1) The aggravating facto
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