Appeal by defendant from judgments entered 28 September 1999
by Judge B. Craig Ellis in Columbus County Superior Court. Heard
in the Court of Appeals 24 January 2001.
Attorney General Michael F. Easley, by Assistant Attorney
General P. Bly Hall, for the State.
Don W. Viets, Jr. for defendant-appellant.
JOHN, Judge.
Defendant appeals judgments entered upon convictions of the
offenses of operating a motor vehicle without a valid operator's
license and injury to personal property. We vacate the judgments
entered and remand for re-sentencing.
In light of our disposition, a recitation of the underlyingfacts is unnecessary. In addition, defendant in his app
ellate
brief has “admit[ted] that the evidence presented was legally
sufficient to support a conviction,” thus abandoning his first
assignment of error.
[1]Defendant's second assertion of error is directed at his
questioning and detention by a North Carolina Highway Patrol
trooper. Defendant claims such acts were “unlawful and
unconstitutional and all evidence should have been suppressed and
both charges dismissed.” However, as the State correctly points
out, defendant's second argument has not been properly preserved
for appellate review.
N.C.R. App. P. 10(b) provides as follows:
In order to preserve a question for appellate
review, a party must have presented to the
trial court a timely request, objection or
motion, stating the specific grounds for the
ruling the party desired the court to make . .
. .
Further, when a party has failed to take such action during the
course of proceedings in the trial court,
he has the burden of establishing his right to
appellate review by showing that the exception
was preserved by rule or law or that the error
alleged constitutes plain error.
State v. Gardner, 315 N.C. 444, 447, 340 S.E.2d 701, 705 (1986).
In the case sub judice, thorough examination of the record
reveals defendant proffered no motion to suppress evidence of his
questioning and detention as required by N.C.G.S. §§ 15A-974, 977,
979 (1999), nor did he object at trial to the introduction of said
evidence. Moreover, in presenting his argument to this Court,
defendant has not specifically and distinctly claimed admission ofthe evidence constituted plain error. See N.C.R. App. P. 10(c)(4)
(issue not preserved “may be made the basis of an assignment of
error where the judicial action questioned is specifically and
distinctly contended to amount to plain error.” In short,
defendant “did not object at trial or allege plain error”, State v.
Scott, 343 N.C. 313, 332, 471 S.E.2d 605, 616 (1996), and thus “has
failed to properly preserve this issue for appeal.” Id.
[2]Lastly, defendant disagrees with the trial court's
computation of his sentence under North Carolina's Structured
Sentencing Act (the Act). See N.C.G.S. §§ 15A-1340.10 et seq.
(1999). Upon conviction of the offenses noted above, defendant was
sentenced at Level III under N.C.G.S. § 15A-1340.21 (1996), that
portion of the Act specifically governing determination of the
sentencing level of individuals convicted of misdemeanors. In its
sentencing calculation, the trial court included as a prior
conviction defendant's 1994 adjudication of criminal contempt.
Defendant maintains criminal contempt does not constitute a “prior
conviction” under the Act and that his prior record level therefore
should have been computed as Level II. Defendant's argument has
merit.
At the time of the offenses for which defendant was tried, the
Act provided:
(a) Generally.--The prior conviction level of
a misdemeanor offender is determined by
calculating the number of the offender's prior
convictions that the court finds to have been
proven in accordance with this section.
(b) Prior Conviction Levels for Misdemeanor
Sentencing.--The prior conviction levels formisdemeanor sentencing are:
(1) Level I--0 prior convictions.
(2) Level II--At least 1, but not
more than 4 prior convictions.
(3) Level III--At least 5 prior
convictions.
G.S. § 15A-1340.21. The Act further stated that
[a] person has a prior conviction when, on the
date a criminal judgment is entered, the
person being sentenced has been previously
convicted of a crime.
N.C.G.S. § 15A-1340.11(7) (1999). Finally,
[f]or the purpose of imposing sentence, a
person has been convicted when he has been
adjudged guilty or has entered a plea of
guilty or no contest
N.C.G.S. § 15A-1331(b) (1999).
As a criminal sentencing statute, the Act must be strictly
construed. See State v. Jarman, 140 N.C. App. 198, 205, 535 S.E.2d
875, 880 (2000) (“'[c]riminal statutes must be strictly construed'”
(citation omitted)), and Joint Venture v. City of Winston-Salem, 54
N.C. App. 202, 205, 282 S.E.2d 509, 511 (1981) (“[s]tatutes
imposing penalties are . . . strictly construed in favor of the one
against whom the penalty is imposed”), disc. review denied, 304
N.C. 728, 288 S.E.2d 803 (1982). “Adjudged” within the meaning of
G.S. § 15A-1331(b) refers to the return by the jury of a verdict of
guilty. See State v. Fuller, 48 N.C. App. 418, 420, 268 S.E.2d
879, 881, disc. review denied, 301 N.C. 403, 273 S.E.2d 448
(1980). Reading G.S. §§ 15A-1340.ll(7) and 15A-1331(b) in pari
materia, see Carver v. Carver, 310 N.C. 669, 674, 314 S.E.2d 739,
742 (1984) (statutes which are in pari materia, i.e., which relateor are applicable to the same matter or subject, although enacted
at different times, must be construed together in order to
ascertain legislative intent), therefore, a “prior conviction”
under G.S. § 15A-1340.21 refers only to a verdict of guilty of, or
a plea of guilty or no contest to, a “crime.”
Our State Constitution provides that “[n]o person shall be
convicted of any crime but by the unanimous verdict of a jury in
open court.” N.C. Const., art. I, § 24. Black's Law Dictionary
defines a crime as “a positive or negative act in violation of
penal law” or “an offense against the State or United States.”
Black's Law Dictionary 370 (6th ed. 1990).
Criminal contempt, on the other hand,
“is a term applied where the judgment is in
punishment of a[] [completed] act . . .
tending to interfere with the administration
of justice [.]”
Mauney v. Mauney, 268 N.C. 254, 256, 150 S.E.2d 391, 393
(1966)(citation omitted). Accordingly,
[c]riminal [contempt] proceedings are those
brought to preserve the power and to vindicate
the dignity of the court and to punish for
disobedience of its processes or orders.
Gaylon v. Stutts, 241 N.C. 120, 123, 84 S.E.2d 822, 825 (1954).
Although contempt proceedings thus are “sui generis,” they
remain punitive or “criminal in . . . nature” such that a party is
charged with “doing something forbidden” and punished if “found
guilty” of the act, Mauney, 268 N.C. at 256, 150 S.E.2d at 393
(emphasis added),; see North Carolina v. Carr, 264 F. Supp. 75, 79
(W.D.N.C. 1967)(contempt proceedings “brought to vindicate thedignity and authority of the court” are considered “criminal
in
their nature and are generally governed by the rules applicable to
criminal cases”), appeal dismissed, 386 F.2d 129 (4th Cir. 1967).
As our Supreme Court has observed,
“it is said that the process by which the
party charged [with criminal contempt] is
reached and tried . . . is essentially
criminal or quasi-criminal.”
Blue Jeans Corp. v. Clothing Workers, 275 N.C. 503, 508, 169 S.E.2d
867, 870 (1969)(emphasis added)(citations omitted)).
Indeed, the State relies heavily upon the procedural trappings
of a criminal contempt adjudication as well as dicta in O'Briant v.
O'Briant, 313 N.C. 432, 435, 329 S.E.2d 370, 373 (1985) (“criminal
contempts are crimes, and accordingly, the accused is entitled to
the benefits of all constitutional safeguards”) to support the
contention that a criminal contempt adjudication constitutes a
“prior conviction” under the Act. Nonetheless, we conclude the
General Assembly did not intend an adjudication of criminal
contempt to constitute a “prior conviction” for sentencing purposes
under G.S. § 15A-1340.21.
First, enumeration of the “exclusive” grounds for adjudication
of criminal contempt is found at N.C.G.S. § 5A-ll (1999). On the
other hand, the General Assembly has confined provisions of our
“penal law,” Blacks Law Dictionary 370, primarily to Chapter 14 of
the General Statutes, see N.C.G.S. § 14-1 et. seq. (1999).
More significantly, in Blue Jeans Corp. our Supreme Court held
an adjudication of criminal contempt under former N.C.G.S. § 5-4(repealed 1977) to comprise a “petty offense” to which
the right of trial by jury in criminal cases
secured by Article III, Section 2 of the
Federal Constitution, and by the Sixth
Amendment thereto, does not extend . . . .
Blue Jeans Corp., 275 N.C. at 511, 169 S.E.2d at 871.
The authorized maximum punishment for criminal contempt at the
time of the decision in Blue Jeans Corp. was a fine of $250.00 or
imprisonment for thirty days. Id. Under N.C.G.S. § 5A-
12(a)(1999), the maximum punishment for criminal contempt currently
is “censure, imprisonment up to 30 days, fine not to exceed five
hundred dollars ($500.00), or any combination of the three,”
although the section also sets the maximum punishment for failure
to comply with a non-testimonial identification order, see N.C.G.S.
§ 15A-271, et seq. (1999), and for violation of N.C.G.S. § 5A-
11(8)(1999) at ninety days and six months respectively, G.S. § 5A-
12(a).
We cannot determine from the instant record the basis for
defendant's 1994 criminal contempt adjudication. We must,
therefore, resolve that issue in favor of defendant, see State v.
Gardner, 315 N.C. 444, 450, 340 S.E.2d 701, 707 (because it would
be “pure speculation” for this Court to suggest which theory jury
relied upon, ambiguous verdict construed in favor of defendant);
and State v. Gilley, 135 N.C. App. 519, 528, 522 S.E.2d 111, 117
(1999) (ambiguity in court order and “terseness of . . . [court]
judgment must be construed in favor of defendant”), and assume for
purposes of our decision herein that the 1994 contempt adjudicationwas punishable by a thirty day maximum term. Having deemed the
issue not to be before us, we thus specifically do not address
whether an adjudication of criminal contempt based upon failure to
comply with a non-testimonial identification order or a violation
of G.S. § 5A-11 might constitute a “prior conviction” under the
Act.
As noted above, the North Carolina Constitution mandates that
“[n]o person shall be convicted of any crime but by the unanimous
verdict of a jury in open court.” N.C. Const., art. I, § 24. In
our State, moreover,
the only exception to the rule that “nothing
can be a conviction but the verdict of a jury”
is the constitutional authority granted the
General Assembly to provide for the initial
trial of misdemeanors in inferior courts
without a jury, with trial de novo by a jury
upon appeal. N.C. Const., art I. § 24 (1971).
State v. Hudson, 280 N.C. 67, 79, 185 S.E.2d 189, 192
(1971)(citation omitted).
In short, our Supreme Court has upheld denial in superior
court of a jury trial in criminal contempt proceedings which might
result in a maximum punishment of no more than thirty days
imprisonment. See Blue Jeans Corp., 275 N.C. at 511, 169 S.E.2d at
872. Because the North Carolina Constitution mandates that there
can be no conviction of a “crime” except upon a jury verdict, see
N.C. Const., art. I, § 24, or upon a plea of guilty or no contest
in lieu of the right to a jury trial, see G.S. § 15A-1331(b),
defendant's 1994 adjudication of criminal contempt, assumed for
purposes of the instant opinion to have subjected him to a maximumpunishment of no more than thirty days imprisonment, cannot be
considered a “prior conviction” under a “strict” construction, see
State v. Jarman, 140 N.C. App. at 205, 535 S.E.2d at 880, and Joint
Venture, 54 N.C. App. at 205, 282 S.E.2d at 511, of G.S. § 15A-
1340.11(7).
Finally, we note the General Assembly amended G.S. § 15A-
1340.21(b) on 1 December 1997 by inserting the following concluding
sentence:
In determining the prior conviction level, a
prior offense may be included if it is either
a felony or a misdemeanor at the time the
offense for which the offender is being
sentenced is committed.
Defendant contends the General Assembly sought to clarify that an
offense must have been either a felony or misdemeanor to qualify as
a “prior conviction.” The State responds that
it appears the [legislative] intent was to
clarify that both felonies and misdemeanors
are counted and each is counted as one
conviction.
Whatever the intent of the amendment, see Spruill v. Lake
Phelps Vol. Fire Dep't, Inc., 351 N.C. 318, 323, 523 S.E.2d 672,
676 (2000) (“[i]n construing a statute with reference to an
amendment, it is presumed that the Legislature intended either (1)
to change the substance of the original act or (2) to clarify the
meaning of it”), the statute expressly fails to include, either in
the original or amended version, any provision that a previous
adjudication of criminal contempt may be counted as a “prior
conviction” under the Act, see In re Taxi Co., 237 N.C. 373, 376,75 S.E.2d 156, 159 (1953) (where statute sets forth instances
of
its coverage, other coverage is necessarily excluded under the
maxim expressio unius est exclusio alterius, i.e., “the expression
of one thing is the exclusion of another”). Had the General
Assembly intended that criminal contempt adjudications as well as
misdemeanors be considered “crimes,” see Black's Law Dictionary,
370 (“'[c]rime' and 'misdemeanor', properly speaking, are
synonymous terms”) so as to qualify as “prior conviction” under
G.S. § 15A-1340.11(7), “it would have been a simple matter [for it]
to [have] include[d] th[at] explicit phrase,” In re Appeal of Bass
Income Fund, 115 N.C. App. 703, 706, 446 S.E.2d 594, 596 (1994),
within the statutory amendment. See McAninch v. Buncombe County
Schools, 347 N.C., 126, 133, 489 S.E.2d 375, 380 (1997) (after
having “specifically declared” method of lost income calculation
applicable to “the usual situation[],” General Assembly would have
been “equally specific” had it intended a different method to apply
in “the exceptional cases”).
In sum, defendant's 1994 criminal contempt adjudication did
not constitute a "prior conviction" for purposes of the Act, and
the trial court erred by including such adjudication within its
computation of defendant's sentencing level. Accordingly, the
trial court's judgments are vacated and this matter remanded for
re-sentencing proceedings not inconsistent with the opinion herein.
No error in the trial; remanded for re-sentencing.
Judges WYNN and McGEE concur.
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