Opinion
No. COA12–1370.
2013-06-4
STATE of North Carolina v. Phillippi Demond GORHAM.
Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State. Richard J. Costanza, for Defendant–Appellant.
Appeal by Defendant from judgments entered 15 May 2012 by Judge W. Russell Duke, Jr., in Superior Court, Beaufort County. Heard in the Court of Appeals 14 May 2013. Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State. Richard J. Costanza, for Defendant–Appellant.
McGEE, Judge.
Phillippi Demond Gorham (Defendant) appeals from convictions of resisting a public officer and reckless driving. Defendant does not assert error in his conviction of impaired driving. We vacate in part and remand for resentencing in part.
Trooper Kevin Respass (Trooper Respass) of the North Carolina State Highway Patrol initiated a stop of Defendant on 4 April 2009, after observing Defendant driving his vehicle at a high rate of speed. Trooper Respass noticed a strong order of alcohol about Defendant's person and ordered Defendant out of his vehicle. Defendant became irate and had to be forcefully removed from his vehicle. Defendant was subsequently arrested for impaired driving, resisting a public officer, reckless driving, driving while license revoked, and displaying a revoked driver's license.
Defendant was convicted of all of the charges in district court and appealed to superior court for a trial de novo. The State dismissed with leave the charges of driving while license revoked and displaying a revoked driver's license, and proceeded to trial on the remaining three charges. A jury found Defendant guilty of impaired driving, resisting a public officer, and reckless driving. The trial court sentenced Defendant to two years' imprisonment for the driving while impaired conviction. For the resisting a public officer and reckless driving convictions, the trial court entered separate judgments, sentencing Defendant in each to a suspended sixty-day term of imprisonment, and placed Defendant on probation for thirty months, to begin on Defendant's release from incarceration. Defendant appeals.
Defendant contends the trial court lacked jurisdiction over the charge of resisting a public officer because the citation failed sufficiently to allege the offense. The State concedes the charging instrument was fatally flawed and the judgment should be vacated. We agree.
N.C. Gen.Stat. § 14–223 provides: “If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor.” N.C. Gen.Stat. § 14–223 (2011). “An indictment charging a violation of N.C.G.S. § 14–223 must, inter alia, ‘state in a general way the manner in which [the] accused resisted or delayed or obstructed such officer.’ “ State v. Hemphill, ––– N.C.App. ––––, ––––, 723 S.E.2d 142, 148,disc. review denied,––– N.C. ––––, 731 S.E.2d 166 (2012) (citation omitted).
In the case before us, the citation charging Defendant with violating N.C. Gen.Stat. § 14–223 stated Defendant did “resist, delay and obstruct [Trooper] Respass, a public officer holding the office of State Trooper, while the officer was discharging and attempting to discharge a duty of his office by attempting to arrest [D]efendant[.]” The citation fails to describe the actions by Defendant that comprised the resisting, obstructing, or delaying of Trooper Respass by Defendant. The trial court never had jurisdiction over Defendant on this charge and the judgment is vacated. See State v. Wagner, 356 N.C. 599, 601, 572 S.E.2d 777, 779 (2002) (stating if an indictment does not include all the facts necessary to meet the elements of the offense, the trial court lacks jurisdiction over the defendant and subsequent judgments are void and must be vacated).
Defendant also contends the trial court incorrectly placed him on supervised probation for thirty months without making a finding that the term of probation was necessary. The State also concedes this issue. We agree.
N.C. Gen.Stat. § 15A–1343.2(d) provides: “Unless the court makes specific findings that longer or shorter periods of probation are necessary, the length of the original period of probation for offenders sentenced under Article 81B shall be ... [f]or misdemeanants sentenced to community punishment, not less than six nor more than 18 months[.]” N.C. Gen.Stat. § 15A–1343.2 (d)(1) (2011). In the present case, the trial court entered separate judgments placing Defendant on supervised probation for a period of thirty months for convictions of reckless driving and resisting a public officer. However, the trial court did not make specific findings on the judgments that a longer period of probation was necessary. Accordingly, Defendant is entitled to a new sentencing hearing. Because we vacated the resisting a public officer judgment, we remand for resentencing only on the reckless driving conviction.
In review, we vacate the judgment for resisting a public officer and remand for resentencing in the judgment for reckless driving.
Vacated in part and remanded for resentencing in part. Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).