State v. Jones

• Citation: 237 N.C.App. 526,767 S.E.2d 341
• Decision Date: 02 December 2014
• Docket Number: No. COA14–463.,COA14–463.
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Jaired Antonio JONES, Defendant.

237 N.C.App. 526

767 S.E.2d 341

STATE of North Carolina

v.Jaired Antonio JONES, Defendant.

No. COA14–463.

Court of Appeals of North Carolina.

Dec. 2, 2014.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Melissa H. Taylor, for the State.

Appellate Defendant Staples Hughes, by Assistant Appellate Defendant John F. Carella, for Defendant-appellant.

DILLON, Judge.

Jaired Antonio Jones ("Defendant") appeals from convictions for interfering with a witness, assault on a female, habitual misdemeanor assault, five counts of habitual violation of a domestic violence protective order ("DVPO"), and attaining the status of habitual felon. For the following reasons, we find no error in part, vacate three of Defendant's convictions for habitual violation of a DVPO and the conviction for assault on a female, and remand for resentencing on these judgments.

I. Background

Defendant was indicted on a number of charges arising from his "on-and-off-again," five-year relationship with Ms. Smith¹ , the mother of his child. On 21 February 2012, Ms. Smith took out a temporary restraining order against Defendant due to a pattern of violent behavior he had exhibited towards her. The next day, Defendant confronted Ms. Smith as she attempted to deliver Defendant's personal items that were in her home to his father's apartment. During the confrontation, Defendant became physically violent towards Ms. Smith. Police arrived on the scene and arrested Defendant.

Defendant was subsequently served the restraining order while in jail. In spite of the restraining order, Defendant contacted Ms. Smith at least twice by telephone. After Ms. Smith had the protective order extended to a full year, Defendant sent Ms. Smith three letters between 23 March 2012 to 18 June 2012 asking her to drop the charges and not come to court.

Defendant was tried by a jury and found guilty of assault on a female, five counts of habitual violation of a DVPO (for the two phone calls and three letters), and interfering with a witness (for the three letters). Defendant pled guilty to attaining the status of habitual felon based on past felonies unrelated to his relationship with Ms. Smith.

The trial court entered three separate judgments: (1) a judgment sentencing Defendant as a habitual felon to a term of 127 to 165 months of imprisonment for the interfering with a witness conviction; (2) a consolidated judgment for the assault on a female conviction, which was upgraded to habitual misdemeanor assault, and sentenced Defendant as a habitual felon to a consecutive term of 128 to 166 months imprisonment; and (3) a consolidated judgment for the five habitual violation of DVPO convictions, sentencing Defendant as a habitual felon to a consecutive term of 128 to 166 months imprisonment. Defendant filed timely notice of appeal from the trial court's judgments.

II. Analysis

Defendant makes three arguments on appeal, which we address in turn.

A. Habitual Violation of DVPO and Interfering with Witness

In his first argument, Defendant contends that the trial court erred in sentencing him for three of the five habitual violation of DVPO counts. Specifically, he argues that he should not have been sentenced on the three counts which were based on his three letters to Ms. Smith since these communications also form the basis for his conviction for interfering with a witness. We agree.

1. Appellate Review

Before reaching the merits of Defendant's argument, we address the State's contention that Defendant failed to properly preserve his argument, citing State v. Potter, 198 N.C.App. 682, 680 S.E.2d 262 (2009). We disagree and believe this issue is controlled by our Supreme Court's 2010 opinion in State v. Davis, 364 N.C. 297, 698 S.E.2d 65 (2010).

North Carolina Rule of Appellate Procedure 10(a)(1) requires that "[i]n order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion[.]" Defendant admits that he did not raise a specific objection at trial regarding this sentencing error, but, citing State v. Davis, 364 N.C. 297, 698 S.E.2d 65, argues that this issue of statutory interpretation is properly before us.

In Davis, the defendant argued that he could not be convicted for both felony death by vehicle and second degree murder arising from the same conduct because the felony death by vehicle statute expressly states that a defendant could be convicted and sentenced for felony death by vehicle "[u]nless the conduct is covered under some other provision of law providing greater punishment[.]" Id. at 301–02, 698 S.E.2d at 67–68. Our Supreme Court held that the defendant's argument that the trial court acted "contrary to statutory mandate" was preserved, "notwithstanding [his] failure to object at trial." Id. at 301, 698 S.E.2d at 67 (citation and quotation marks omitted).

In Potter, the defendant argued that the trial court committed a statutory error by sentencing him on both robbery with a dangerous weapon and habitual misdemeanor assault based on misdemeanor assault on a female. 198 N.C.App. at 684, 680 S.E.2d at 263. The misdemeanor assault on a female statute, G.S. 14–33(c), contained the language "[u]nless the conduct is covered under some other provision of law providing greater punishment[.]" Id. at 684 n. 2, 680 S.E.2d at 263 n. 2 (emphasis omitted). This Court held that the defendant's argument was not preserved based on N.C. Gen.Stat. § 15A–1444(a1) because the defendant was sentenced in the presumptive range for both convictions. Id. at 684–85, 680 S.E.2d at 264.

We note, however, that the judgments entered by the trial court against the defendant in Davis indicate that the defendant was sentenced in the presumptive range, like the defendant in Potter. To the extent that our Court's holding in Potter conflicts with our Supreme Court's holding in Davis on this issue, we must follow Davis; and, therefore, we hold that Defendant's argument is properly before us, notwithstanding his failure to object at trial and notwithstanding that he was sentenced within the presumptive range. We next turn to review Defendant's substantive statutory arguments.

2. Substantive Statutory Analysis

Defendant contends that the trial court erred in entering judgment and sentencing him on both three counts of habitual violation of a DVPO and one count of interfering with a witness based on the same conduct, sending three letters to the alleged victim asking her not to show up for his court date. Defendant concludes that based on this error, we should vacate the three convictions for habitual violation of a DVPO based on the letters and remand for resentencing. The State argues that based on our opinion in State v. Hines, 166 N.C.App. 202, 600 S.E.2d 891 (2004), Defendant did not receive improper double punishment.

"Questions of statutory interpretation are questions of law, which are reviewed de novo by an appellate court." State v. Largent, 197 N.C.App. 614, 617, 677 S.E.2d 514, 517 (2009). As our Supreme Court has stated:

[t]he intent of the Legislature controls the interpretation of a statute. When a statute is unambiguous, this Court will give effect to the plain meaning of the words without resorting to judicial construction.

Davis, 364 N.C. at 302, 698 S.E.2d at 68.

Habitual violations of DVPO's are covered under N.C. Gen.Stat. § 50B–4.1 (2013), which generally provides in subsection (a) that the violation of a DVPO is a Class A1 misdemeanor and further provides in subsection (f) that "[u]nless covered under some other provision of law providing greater punishment, any person who knowingly violates a [DVPO], after having been previously convicted of two offenses under this Chapter, shall be guilty of a Class H felony. Id." (emphasis added). Defendant argues that the phrase "[u]nless covered under some other provision of law providing greater punishment," means he could not be punished for habitual violation of a DVPO, a class H felony, if he was also being punished for interfering with a witness, a Class G felony for the same conduct. We believe Defendant's interpretation is consistent with interpretations by our appellate courts of the phrase "[u]nless covered under some other provision of law providing greater punishment" found in other criminal statutes. See Davis, 364 N.C. at 304, 698 S.E.2d at 69 (finding that this clause in N.C. Gen.Stat. § 20–141.4(b) "indicates the General Assembly was aware ... that other, higher class offenses might apply to the same conduct" and in that situation "the General Assembly intended an alternative: that punishment is either imposed for the more heavily punishable offense or for the section 20–141.4 offense, but not both." (emphasis in original)); State v. Jamison, –––N.C.App. ––––, ––––, 758 S.E.2d 666, 671 (2014) ; State v. Williams, 201 N.C.App. 161, 174, 689 S.E.2d 412, 419 (2009).

As to the three letters sent by Defendant, we note that the indictment for interfering with a witness specifically alleged Defendant's "course of conduct of sending [the witness and victim] letters asking her to not come to court" as the basis for the indictment. Defendant's indictment for habitual violations of DVPO charges Defendant with three counts based on the three letters sent to the victim. At trial, only three letters from Defendant to the victim were presented into evidence. As both convictions were based on these same three letters and Defendant was convicted and sentenced for both offenses, the trial court violated the statutory mandate of N.C. Gen.Stat. § 50B–4.1(f).

We are not persuaded by the State's argument that State v. Hines controls. In Hines , the defendant was convicted of robbery with a dangerous weapon and of aggravated assault on a handicapped person under N.C. Gen.Stat. § 14–32.1. The defendant argued that the punishment for both crimes violated the statutory language of G.S. 14–32.1(e), which contains the language "[u]nless [defendant's] conduct is covered under some other...