State v. Vardiman

• Decision Date: 02 October 2001
• Docket Number: No. COA00-701.,COA00-701.
• Citation: 146 NC App. 381,552 S.E.2d 697
• Parties: STATE of North Carolina v. Stanley Marion VARDIMAN.
• Court: North Carolina Court of Appeals

552 S.E.2d 697

146 NC App. 381

STATE of North Carolina v. Stanley Marion VARDIMAN.

No. COA00-701.

Court of Appeals of North Carolina.

October 2, 2001.

Attorney General Michael F. Easley, by Special Deputy Attorney General, Isaac T. Avery, III, and Assistant Attorney General Patricia A. Duffy, for the State.

Elmore, Elmore and Williams, P.A., by George Mason Oliver, Asheville, for defendant-appellant.

TIMMONS-GOODSON, Judge.

Stanley Marion Vardiman (defendant) was convicted of driving while impaired on 19 January 1990, 12 July 1991, and 22 July 1994. For each of these convictions he was sentenced with fines, imprisonment, and/or supervised probation. On 6 March 1995, following a fourth offense of driving while impaired, defendant was indicted for habitual impaired driving, having three prior driving while impaired convictions within the previous seven years. He pled guilty on 20 April 1995 and was sentenced to thirty months in the North Carolina Department of Correction.

On 7 December 1998, defendant was again indicted for habitual impaired driving based on his arrest on 25 July 1996 for driving while impaired after receiving three prior driving while impaired convictions in the previous seven years. After pleading guilty, defendant was sentenced to an imprisonment of twelve to fifteen months in the North Carolina Department of Correction.

On 10 January 2000, Judge Dennis J. Winner issued an order granting defendant a hearing on his motion for appropriate relief challenging the constitutionality of the habitual impaired driving statute. The hearing began on 1 February 2000, but recessed on 14 February 2000, when Judge Winner denied the motion and signed an order captioned "Certification of Appealability." The order asked this Court to issue a writ of certiorari in order to consider whether the habitual impaired driving statute is unconstitutional on its face, and whether the habitual impaired driving statute was unconstitutionally applied to defendant by the trial court. A writ of certiorari was granted by this Court.

The two issues presented in this appeal are: (I) whether North Carolina General Statutes section 20-138.5 (1999), the habitual impaired driving statute, violates the principles of double jeopardy under the United States and North Carolina Constitutions; (II) if North Carolina General Statutes section 20-138.5 is constitutional, whether it was unconstitutionally applied in this case. We hold the statute to be constitutional on its face and as applied.

Defendant argues that the habitual impaired driving statute is unconstitutional because it violates principles of double jeopardy. The habitual impaired driving statute provides that "a person commits the offense of habitual impaired driving if he drives while impaired as defined in G.S. 20-138.1 and has been convicted of three or more offenses involving impaired driving as defined in G.S. 20-4.01(24a) within seven years of the date of this offense." N.C. Gen.Stat. § 20-138.5(a)(1999).

It is well settled that "the Double Jeopardy Clause of the North Carolina and United States Constitutions protect against... multiple punishments for the same offense." State v. Gardner, 315 N.C. 444, 451, 340 S.E.2d 701, 707 (1986); See also Brown v. Ohio, 432 U.S. 161, 163-65, 97 S.Ct. 2221, 2224-25, 53 L.Ed.2d 187, 193 (1977)

; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 665 (1969),

overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 224, 2 L.Ed.2d 199, 204 (1957).

It is also well settled that recidivist statutes, or repeat-offender statutes, survive constitutional challenges in regard to double jeopardy challenges because they increase the severity of the punishment for the crime being prosecuted; they do not punish a previous crime a second time. See e.g, Monge v. California, 524 U.S. 721, 728, 118 S.Ct. 2246, 2250, 141 L.Ed.2d 615, 624 (1998)

("[a]n enhanced sentence imposed on a persistent offender thus `is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes' but as `a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.'") (quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683, 1687 (1948)). Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 1927, 128 L.Ed.2d 745, 754 (1994) (the Supreme Court "consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant").

Relying on State v. Priddy 115 N.C.App. 547, 445 S.E.2d 610, disc. review denied, 337 N.C. 805, 449 S.E.2d 751 (1994), defendant argues that section 20-138.5 violates principles of double jeopardy, because it is a substantive offense that is capable of supporting a criminal sentence, not merely a status offense. Status offenses, such as North Carolina General Statutes section 14-7.1, the habitual felon statute, are not separate criminal offenses and do not run counter to double jeopardy concerns. See e.g. State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977)

; State v. Creason, 123 N.C.App. 495, 473 S.E.2d 771 (1996),

affirmed,

346 N.C. 165, 484 S.E.2d 525 (1997).

Defendant asserts that cases consistently draw a distinction between a substantive and a status offense in assessing double jeopardy concerns, concluding that a substantive offense implicates double jeopardy concerns whereas a status offense does not. Indeed, numerous cases throughout our nation's appellate court system seem to stand for this proposition. See e.g, Baker v. Duckworth, 752 F.2d 302, 304 (7th Cir.1985),

cert. denied, 472 U.S. 1019, 105 S.Ct. 3483, 87 L.Ed.2d 618 (1985) (Indiana's habitual offender statute "does not create a separate crime.... Thus, an habitual criminal who receives an enhanced sentence pursuant to an habitual offender statute does not receive additional punishment for his previous offenses."); Sudds v. Maggio, 696 F.2d 415, 417 (5th Cir.1983) ("Under the Texas habitual offender statute ... the prior conviction is used only for enhancement of the sentence, not as an element of the subsequent crime. This statute does not violate the prohibition against double jeopardy."); Davis v. Bennett, 400 F.2d 279, 282 (8th Cir.1968),

cert. denied, 395 U.S. 980, 89 S.Ct. 2137, 23 L.Ed.2d 768 (1969) ("It has therefore uniformly been held that since habitual criminal statutes do not constitute separate offenses, they do not violate double jeopardy as to prior convictions."); People v. Dunigan, 165 Ill.2d 235, 209 Ill.Dec. 53, 650 N.E.2d 1026, 1029 (1995) ("habitual criminal statutes do not define a new or independent criminal offense.... The Act does not punish a defendant again for his prior felony convictions, nor are those convictions elements of the most recent felony offense[.]"); State v. Torrez, 141 Ariz. 537, 687 P.2d 1292, 1294 (Ct.App.1984) ("Statutes authorizing the infliction of more serious penalties on one who is a persistent offender do not create a new, separate, distinct, independent or substantive offense."). In arguing that a substantive/status distinction is the answer to the issue of the case sub judice, however, defendant is oversimplifying the issue.

Habitual impaired driving is a substantive offense. See Priddy, 115 N.C.App. at 548,

445 S.E.2d at 612. Priddy holds that habitual impaired driving is a substantive offense because the statute:

explicitly provides that `[a] person commits the offense of habitual impaired driving if....' and contains two elements which the State must prove beyond a reasonable doubt: (1) that the defendant drives while impaired ... and (2) that the defendant has been convicted of three or more offenses involving impaired driving.... By comparison, the habitual felon statute, which is solely a penalty enhancement statute, states, in relevant part: `[a]ny person who has been convicted of or pled guilty to three felony offenses ... is declared to be an habitual felon.' Because G.S. § 14-7.1 simply defines certain persons to be habitual felons, who, as such, are subject to greater punishment for criminal offenses, our Supreme Court has held that being an habitual felon is not a crime and cannot support, standing alone, a criminal sentence. Rather, being an habitual felon is a status justifying an increased punishment for the principal felony. By contrast, the legislature chose the specific language to define the crime of habitual impaired driving as a separate felony offense, capable of supporting a criminal sentence.

Priddy at 548-49, 445 S.E.2d at 612 (1994) (citation omitted).

In Priddy, the Court concluded that "the legislature must not have intended to make habitual impaired driving solely a punishment enhancement status." Priddy at 549, 445 S.E.2d at 612 (emphasis added). We emphasize the word "solely" because it contextualizes the mistake defendant makes in arguing that habitual impaired driving is a substantive offense rather than a status offense. Statutes criminalizing behavior such as theft and murder, which are substantive offenses, are subject to double jeopardy analysis. Habitual impaired driving, however, is a substantive offense and a punishment enhancement (or recidivist, or repeat-offender) offense. It is not disputed that the habitual impaired driving statute is a recidivist statute. Of the aforementioned cases that draw a distinction between substantive and status offenses, none hold a recidivist statute unconstitutional for double jeopardy reasons. Throughout the country, recidivist statutes are routinely upheld against double jeopardy concerns. The more authentic distinction to be drawn in assessing double jeopardy concerns is between recidivist and non-recidivist statutes, not between substantive and status offenses. While most recidivist statutes are set out in language that makes them classifiable as status offenses, the...