                                   NO. COA13-887

                        NORTH CAROLINA COURT OF APPEALS

                             Filed: 1 April 2014


STATE OF NORTH CAROLINA

    v.                                      Yancey County
                                            No. 10-CRS-304

ROMY VERDAE GEISSLERCRAIN



    Appeal by Defendant from judgments entered 10 April 2013 by

Judge Marvin P. Pope, Jr., in Yancey                County Superior Court.

Heard in the Court of Appeals 12 December 2013.


    Attorney General Roy Cooper, by Special                    Deputy   Attorney
    General Hal F. Askins, for the State.

    Charlotte Gail Blake, for Defendant.


    DILLON, Judge.


    Romy       Verdae    Geisslercrain      (“Defendant”)        appeals     from

judgments      convicting    her    of   impaired     driving    and    reckless

driving   to    endanger,    alleging    errors     in   her    sentencing   and

challenging the trial court’s denial of her motion to dismiss

for insufficiency of the evidence.            We find no error, in part,

and we vacate and remand, in part.

                                   I.    Background
                                            -2-
       The evidence of record tends to show the following:                      On the

evening of 16 July 2010, Defendant was involved in a single

vehicle accident on Highway 19 near Burnsville.                    After Defendant

had   been    transported      to     the    hospital,    State    Trooper      Jeremy

Carver arrived at the scene where he found Defendant’s damaged

Ford Ranger truck in the middle of the highway.                    Trooper Carver

believed that Defendant had likely driven off the right side of

the road, after which she tried to jerk her truck back onto the

road too quickly, resulting in the truck rolling several times

and    sustaining       approximately       $7,000.00     in   damage.          Trooper

Carver thought the truck may have been going too fast for a

curve in the road.

       Trooper        Carver   went    to     the   hospital      to    speak     with

Defendant, who told him she had taken medications either the day

of    the    incident     or   the    day    before   –    including         Methadone,

Clonazepam, and Adderall.             She also admitted to Trooper Carver

that she had been drinking alcohol.                   Trooper Carver believed

that Defendant had consumed a sufficient quantity of impairing

substances       to     appreciably     impair      her   mental       and    physical

faculties.

       Defendant was indicted on charges of impaired driving and

reckless driving to endanger.                After her conviction in District
                                                -3-
Court, Defendant appealed to Superior Court, where a jury found

her guilty of both charges.

      During     sentencing,         the        trial    court     determined,         without

submitting the question to a jury, that an aggravating factor

existed,       specifically,             that     “[t]he        negligent          driving    of

[D]efendant      led     to    an    accident          causing     property         damage    of

$1,000.00 or more[.]”           The trial court further determined that a

mitigating factor existed, specifically, that “[D]efendant has a

safe driving record[.]”                   The trial court determined that the

aggravating      factor       was        substantially        counterbalanced          by    the

mitigating factor, and, therefore, declared that “a Level Four

punishment shall be imposed.”

      The trial court entered two written judgments, one for each

conviction.        The    written          judgment       for    the     impaired      driving

conviction      reflects       that         the       trial     court        was    sentencing

Defendant as a Level Four offender, but then actually sentenced

her   to   a    minimum        and        maximum       sentence        of    twelve       months

incarceration,         which        is     above       the      range        of    Level     Four

punishments.      Nonetheless, as reflected on the written judgment,

the trial court suspended the active sentence on the condition

that she be placed on twelve months supervised probation.
                                          -4-
      The    trial     court     also     entered    a     written        judgment    on

Defendant’s reckless driving to endanger conviction, sentencing

her to ten days incarceration, which the trial court suspended

on the condition that she be placed on twelve months supervised

probation, to be served concurrently with the sentence for her

impaired     driving    conviction.             Defendant      appeals      from     both

judgments.

                                  II.     Analysis

      Defendant argues on appeal that the trial court erred in

denying her motion to dismiss her impaired driving conviction

and   also   committed    errors        with    regard    to   her   sentence.        We

address each argument below.

                               A: Motion to Dismiss

      Defendant argues that the trial court erred by denying her

motion to dismiss the charge of reckless driving.                    We disagree.

      “This Court reviews the trial court’s denial of a motion to

dismiss de novo.”         State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).            “Upon defendant’s motion for dismissal,

the   question   for    the     Court     is    whether    there     is    substantial

evidence (1) of each essential element of the offense charged,

or of a lesser offense included therein, and (2) of defendant’s

being the perpetrator of such offense.                    If so, the motion is
                                       -5-
properly denied.”          State v. Fritsch, 351 N.C. 373, 378, 526

S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150

(2000)    (citation    and    quotation     marks    omitted).         “Substantial

evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.”                    State v. Smith,

300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).                   “In making its

determination,     the     trial    court    must      consider    all     evidence

admitted, whether competent or incompetent, in the light most

favorable to the State, giving the State the benefit of every

reasonable     inference     and   resolving     any      contradictions      in   its

favor.”      State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223

(1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).

       N.C. Gen. Stat. § 20-140(a) and (b) provide two definitions

of reckless driving.         A person may violate N.C. Gen. Stat. § 20-

140 by either of the courses of conduct defined in subsection

(a) and (b), or in both respects.                State v. Dupree, 264 N.C.

463,   142    S.E.2d   5     (1965).      Most      pertinent     to   this    case,

subsection (b) provides the following:                 “Any person who drives

any vehicle upon a highway or any public vehicular area without

due caution and circumspection and at a speed or in a manner so

as to endanger or be likely to endanger any person or property

shall be guilty of reckless driving.”               Id.
                                           -6-
       On appeal, Defendant specifically argues the trial court

erroneously denied her motion to dismiss because the evidence

shows   that   she   merely       failed    to   keep   a     reasonable    lookout.

“Mere failure to keep a reasonable lookout does not constitute

reckless driving[;] [t]o this must be added dangerous speed or

perilous operation.”          State v. Dupree, 264 N.C. 463, 466, 142

S.E.2d 5, 7 (1965).           We disagree and believe that there was

substantial evidence in this case to support the elements of

reckless driving, and, when viewed in the light most favorable

to the State, that there was more than a mere failure to keep a

reasonable lookout.         Specifically, the State presented evidence

that    Defendant     was     intoxicated;       that       all   four     tires   of

Defendant’s     vehicle     had    gone    off   the    road;     that   distinctive

“yaw” marks were left on the road indicating that Defendant had

lost control of the vehicle; that Defendant’s vehicle overturned

twice; and that the vehicle traveled 131 feet from the point it

went off the road before it flipped, and another 108 feet after

it flipped.      Therefore, the trial court did not err by denying

Defendant’s motion.         See, e.g., State v. Coffey, 189 N.C. App.

382,    387,   658   S.E.2d    73,    77    (2008);     see    generally    Bank   v.

Lindsey, 264 N.C. 585, 587, 142 S.E.2d 357, 360 (1965) (stating

that    “operation     of     [a     vehicle]     in     a     drunken     condition
                                           -7-
constituted a driving of it upon the public highway without due

caution and circumspection and in a manner so as to endanger

persons or property, and was reckless driving within the intent

and meaning of G.S. § 20-140(b)”).                   Accordingly, Defendant’s

argument is overruled.

                                   B:   Sentencing

       Defendant     contends       that    there    were     reversible    errors

regarding the sentencing on her impaired driving conviction as a

Level Four offender.           Specifically, Defendant argues that (1)

the    trial     court    erred    in   determining     the    existence     of    an

aggravating factor, rather than submitting this issue to the

jury; (2) she did not receive proper notice that the State would

be seeking aggravating factors; and (3) her sentence was outside

(above)    the    Level    Four     punishment      range.     We   address       each

argument below.

           i.      Trial Court’s Finding of Aggravating Factor

       Defendant argues the trial court committed reversible error

by    determining,       itself,    that    an   aggravating    factor     existed,

rather than submitting the aggravating factor to the jury for

determination, citing the United States Supreme Court decision

Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004) in

which that Court applied the rule it stated in Apprendi v. New
                                         -8-
Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000) – that

“[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed maximum

must be submitted to the jury and proved beyond a reasonable

doubt” – to aggravating factors.               Blakely, 542 U.S. at 301, 159

L. Ed. 2d at 412.        We agree.

       Sentencing      defendants    convicted     of    impaired      driving    is

governed by N.C. Gen. Stat. § 20-179 (2011).                    Under G.S. § 20-

179,    there   are    six   sentencing    ranges.       Like    the    sentencing

scheme found in the Structured Sentencing Act, codified at N.C.

Gen. Stat. § 15A-1340.16 (2011), a defendant’s sentencing range

under N.C. Gen. Stat. § 20-179 is determined by the existence

and balancing of aggravating and mitigating factors.                      However,

the trial court is afforded much less discretion in sentencing

under    N.C.   Gen.    Stat.    §   20-179     than    under    the    Structured

Sentencing Act.        See State v. Weaver, 91 N.C. App. 413, 415-16,

371 S.E.2d 759, 760 (1988) (stating that the sentencing scheme

found   in   N.C.     Gen.   Stat.   §   20-179   is    “quite   systematic      and

tiered, thus leaving little room to exercise discretion”).

       The three most severe punishment levels under                    N.C. Gen.

Stat. § 20-179, which are Aggravated Level One, Level One, and

Level Two, are imposed only where a “grossly aggravating factor”
                                                   -9-
is   found     to    exist.           Where       there    are     no    grossly        aggravating

factors present, a defendant convicted of impaired driving must

be   sentenced       in       one    of     the    three     remaining       ranges,        namely,

either under Level Three, Level Four, or Level Five.                                    See id.

       In the present case, no grossly aggravating factors were

found to exist, so the trial court was required to determine

whether a Level Three, Level Four, or Level Five punishment was

appropriate         by   weighing          those     factors       pursuant        to    N.C.    Gen.

Stat. § 20-179(f).                 Under N.C. Gen. Stat. § 20-179(f)(1), if the

trial     court          determines          that         “[t]he        aggravating         factors

substantially outweigh any mitigating factors,” the trial court

must impose a Level Three punishment.                             We also believe that if

there are only aggravating factors present – and no mitigating

factors present – then the aggravating factors “substantially

outweigh” the mitigating factors (as there are none) as a matter

of     law,    and       the       trial     court        must     impose     a     Level       Three

punishment.         See id.

       Likewise,         if        the     trial     court       determines         that       “[t]he

mitigating          factors         substantially           outweigh         any        aggravating

factors,” the trial court must impose a Level Five punishment.

N.C.    Gen.    Stat.          §     20-179(f)(3).               And    if   there       are     only
                                       -10-
mitigating factors present – and no aggravating factors present

– the trial court must impose a Level Five punishment. See id.

      If there are no aggravating or mitigating factors present

or, alternatively, if the aggravating and mitigating factors are

“substantially    counterbalanced,”           then     the    trial      court   must

impose a Level Four punishment.          N.C. Gen. Stat. § 20-179(f)(2).

      In this case, the trial court sentenced Defendant to a

Level Four punishment, concluding that the single aggravating

factor, which the trial court, and not the jury, found, was

substantially counterbalanced by the single mitigating factor.

If the aggravating factor had not been considered by the trial

court, then there would have been only the single mitigating

factor present; and the trial court would have been required to

sentence Defendant to a Level Five punishment. See N.C. Gen.

Stat. § 20-179(f)(3).          Accordingly, the aggravating factor in

this case, which was improperly found by the judge, “increase[d]

the   penalty   for   [the]    crime    beyond       the   prescribed      maximum,”

Blakely, supra, and Defendant’s Level Four punishment must be

vacated.

      The State, however, argues that no Blakely error occurred

because a Level Four punishment is similar to a defendant being

sentenced   within    the     presumptive      range       under   the    Structured
                                          -11-
Sentencing Act.         Our Supreme Court has held that, in the context

of a defendant sentenced under the Structured Sentencing Act,

Blakely is not implicated when a trial court improperly finds

aggravating factors, rather than submitting those factors to the

jury,     so   long     as     the    defendant      is   sentenced      within     the

presumptive range, reasoning that a trial judge “does not exceed

his proper authority until he inflicts [enhanced] punishment . .

. the jury’s verdict alone does not allow.”                       State v. Norris,

360 N.C. 507, 514, 517, 630 S.E.2d 915, 919, 921, cert. denied,

549 U.S. 1064, 166 L. Ed. 2d 535 (2006) (holding that “[t]he

trial court did not violate defendant’s Sixth Amendment right to

a jury trial when it found a statutory aggravating factor but

sentenced defendant within the presumptive range”)(citation and

quotation marks omitted).

      Norris is not applicable to the present case.                        Under the

Structured Sentencing Act the trial court has the discretion to

sentence a defendant within the presumptive range even where

only mitigating factors are properly found.                       However, in the

context of the sentencing scheme in N.C. Gen. Stat. § 20-179,

the   trial    court    does    not     have   the   discretion     to    sentence    a

defendant      to   a   Level    Four    punishment       where   only    mitigating

factors    are      properly    found,     but    rather,    it   is     required    to
                                               -12-
sentence the defendant to a Level Five punishment.                              In other

words,   where        a    defendant      is    sentenced     under    the    Structured

Sentencing      Act       within    the   presumptive        range    where   mitigating

factors are present,               Blakely is not implicated if the trial

court itself – and not the jury – finds aggravating factors to

exist    as    well.         This    is    because     the    trial    court    had     the

authority to sentence the defendant within the presumptive range

even without finding aggravating factors to counterbalance the

mitigating factors.                However, under G.S. § 20-179, the trial

court has no discretion to sentence a defendant to a Level Four

punishment where only mitigating factors are properly found to

exist.        Therefore, in this case, Blakely has been implicated

because,      without       the    presence      of   an   aggravating       factor,   the

trial court was required to sentence Defendant to a Level Five

punishment, a sentence which could not have been enhanced to a

Level Four punishment without the jury finding the aggravating

factor - which had been improperly found by the trial court -

beyond a reasonable doubt.

    The State also argues that we are bound by our decision in

State v. Green, 209 N.C. App. 669, 707 S.E.2d 715 (2011).                             Green

involved       a   prosecution            for     impaired      driving       where     two

aggravating factors and two mitigating factors were found to
                                           -13-
exist,    and      the    defendant       was     sentenced     to    a    Level   Four

punishment.        Id. at 681, 707 S.E.2d at 723-24.                  On appeal, the

defendant argued that the trial court had inappropriately found

one of the two aggravating factors instead of submitting that

factor to the jury. Id. The defendant made no argument that the

trial court inappropriately found the other aggravating factor,

which involved the defendant’s driving record1. Id.                        Accordingly,

the defendant was effectively arguing that there was only one

valid aggravating factor, instead of two, which, by itself, did

not substantially counterbalance the two mitigating factors. Id.

at    681-82,      707   S.E.2d   at   723-24.        This     Court,      specifically

relying on the rationale in                Norris,     expressly held that          the

“level four punishment imposed by the trial court [under G.S. §

20-179]      was   tantamount     to   a    sentence    within       the   presumptive

range [in a structured sentencing case], so that the trial court

did    not      enhance    defendant’s          sentence      even    after    finding

aggravating         factors       [and,     therefore,]         Blakely       is    not

implicated.”        Id. at 681-82, 707 S.E.2d at 724.

       We hold Green is distinguishable from the present case.                       In

Green, even with the error, there remained one valid aggravating



1
  We note that Blakely is not implicated where the fact found by
the trial court, and not the jury, which is used to enhance a
defendant’s punishment is the existence of a prior conviction.
                                     -14-
factor to counterbalance the two mitigating factors.                   See id.

Even where only one aggravating factor, rather than two, is

found along with two mitigating factors, the trial court still

has the discretion to sentence the defendant to a Level Four

punishment     since    it   could       have     determined,      within    its

discretion,    that    the   one    aggravating      factor     “substantially

counterbalanced” the two mitigating factors.                  However, in the

present case, without any aggravating factors properly found,

the trial court had no discretion but to sentence Defendant to a

Level   Five   punishment.         Accordingly,     we   believe    that    this

Court’s rationale in Green does not apply.

                                   ii.   Notice

    Defendant contends the State failed to provide notice that

it intended to seek aggravating factors as required by N.C. Gen.

Stat. § 20-179(a1)(1).        We agree that the State’s failure to

provide the required notice was error.

    N.C. Gen. Stat. § 20-179(a1)(1) provides the following with

regard to notice of aggravating factors:

           If the defendant appeals to superior court,
           and the State intends to use one or more
           aggravating factors under subsections (c) or
           (d) of this section, the State must provide
           the defendant with notice of its intent. The
           notice shall be provided no later than 10
           days prior to trial and shall contain a
           plain   and    concise   factual   statement
                                 -15-
          indicating the    factor or factors it intends
          to use under     the authority of subsections
          (c) and (d) of   this section. The notice must
          list all the     aggravating factors that the
          State seeks to   establish.

On appeal, the State does not dispute that it failed to provide

proper notice; but rather, since Defendant was sentenced to a

Level Four punishment, which the State argues is a “presumptive”

sentence, the State’s failure to provide notice was harmless

error.    However, because we have concluded that a Level Four

punishment in this case was inappropriate, the State’s argument

must fail.

    Generally,   when   the   State   has   failed   to   provide   proper

notice pursuant to N.C. Gen. Stat. § 20-179(a1)(1), this Court

has vacated Defendant’s sentence and remanded for resentencing.

State v. Reeves, __ N.C. __, 721 S.E.2d 317 (2012).           In Reeves,

this Court stated, “[i]t is evident that the State failed to

provide Defendant with the statutorily required notice of its

intention to use an aggravating factor under              N.C.G.S. §   20-

179(d).   We must therefore vacate Defendant’s sentence as to the

DWI charge and remand to the trial court for resentencing.”            Id.

at __, 721 S.E.2d at 322.

    Following our rationale in Reeves and other decisions of

this Court, we believe the proper resolution in the present case
                                        -16-
is to remand the matter to the trial court, directing it to

resentence Defendant to a Level Five punishment.

       iii. Sentence Outside the Level Four Punishment Range

    Defendant argues that the trial court improperly sentenced

her to a punishment outside the Level Four range.                           However,

having concluded that Defendant’s punishment must be vacated and

this matter remanded for resentencing in the Level Five range,

we conclude that Defendant’s argument is moot and, therefore, do

not address its merits.

                                 III. Conclusion

    Based on the foregoing, the trial court erred by sentencing

Defendant    to    a     Level   Four   punishment    on    her    conviction       of

impaired    driving.         Accordingly,      we    vacate      and     remand    the

judgment    on    this    charge   only,   directing       the    trial    court    to

resentence Defendant to a Level Five punishment.                       Otherwise, we

find no error.

    NO ERROR, in part; VACATED and REMANDED, in part.

    Judge STROUD and Judge HUNTER, JR. concur.
