An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA 13-1187
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:    15 April 2014


STATE OF NORTH CAROLINA


      v.                                      Johnston County
                                              No. 11 CRS 56615
JAMES DANIEL WOOD


      Appeal by defendant from judgment entered 4 June 2013 by

Judge Ebern T. Watson, III, in Johnston County Superior Court.

Heard in the Court of Appeals 5 March 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Ellen A. Newby, for the State.

      Narron, O'Hale and Whittington, P.A., by John P. O'Hale,
      for the defendant.


      McCullough, Judge.


      Defendant James Daniel Wood appeals from the trial court’s

sentence upon his conviction of careless and reckless driving, a

Class II misdemeanor.         Specifically, Defendant contends that the

judge   committed     reversible     error    by   imposing     an   unauthorized

sentence when the court imposed a sentence of twenty-four (24)

months’ probation without making specific findings that a longer
                               -2-
period of probation was necessary as the statute only authorizes

a punishment of eighteen (18) months otherwise.                              As the State

concedes error we will remand for re-sentencing.

                                   I.     Background

       On the afternoon of 8 April 2011 at approximately 2:15 p.m.

three    (3)    motorcyclists        were      riding     south      on     Highway     50    in

Johnston       County.      As     Defendant       made   a    right       turn   onto       the

highway the motorcycle riders began to pass Defendant’s slower

moving     automobile.           The     second      rider,       Kevin       Conroy,        now

deceased,       collided     with        the      left    hand       rear      portion        of

Defendant’s          automobile.          Defendant’s         car      struck      Conroy’s

motorcycle at four (4) points on the right handlebar as well as

the lower portion of the motorcycle.                      Conroy’s cycle left the

road    where    Conroy     suffered        the    injuries       he      later   died       of.

Eventually, Defendant was charged with involuntary manslaughter

and indicted by a Johnston County Grand Jury on that charge on 2

April    2012.        Defendant     later         pled    guilty       to    careless        and

reckless driving pursuant to an Alford plea as authorized by

North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970).

The sentencing judge entered a judgment                        of thirty (30) days

suspended      for    a   period    of    twenty-four         (24)     months     and    as    a

condition       of    probation      ordered       Defendant         to     surrender        his

driver’s license without directing the Clerk of Superior Court
                            -3-
to transmit the license to the Department of Motor Vehicles.

Defendant alleges both actions are erroneous and the case should

be remanded for re-sentencing, a position the State agrees with.

                          II.    Standard of Review

    Statutory errors involving sentencing issues are issues of

law and are reviewed de novo.           State v. Mackie, 209 N.C. App.

116, 120, 708 S.E.2d 719, 721 (2011).           Such errors are preserved

even if Defendant failed to object at the sentencing hearing and

this Court is free to hear and correct such errors.                   State v.

Morgan, 164 N.C. App. 298, 304, 595 S.E.2d 804, 809 (2004).

                                 III. Discussion

    On     23    May   2013,    Defendant   entered   his   plea    of   guilty

admitting he violated N.C. Gen. Stat. § 20-140(b) (2013) which

provides:       “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.”       The statute further classifies reckless driving as a

Class 2 misdemeanor.           N.C. Gen. Stat. § 20-240(d).          The North

Carolina scheme for structured sentences is applicable to this

offense.        N.C. Gen. Stat. § 15A-1340.10 (2013).              Pursuant to

N.C. Gen. Stat. § 15A-1343.2(d)(1) a probationary period must be

no less than six months nor longer than 18 months unless the
                                         -4-
sentencing      judge       makes   specific findings        as   to   why   such   a

shorter    or      longer    period    of   probation   is    applicable.      That

statute reads as follows:

              d)      Lengths    of   Probation   Terms    Under
                    Structured Sentencing. - 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 as
                    follows:
                   (1)    For    misdemeanants   sentenced    to
                          community punishment, not less than
                          six nor more than 18 months[.]

N.C. Gen Stat. § 15A-1343.2(d)(1) (2013).

    In a case with nearly identical facts this Court held in

State v. Mucci, 163 N.C. App 615, 625, 594 S.E.2d 411, 418

(2004), that when longer periods of probation are entered than

what is authorized by the appropriate subsection then specific

findings must be made.                In Mucci, the defendant was a felon

being punished with community punishment pursuant to N.C. Gen.

Stat. § 15A-1343.2(d)(3) which limited his period of probation

to 30 months unless findings were made.                      The trial judge in

Mucci   had     imposed      a   probationary    period      of   thirty-six   (36)

months but had made no specific findings as mandated by the

statute.      This court remanded for re-sentencing saying:

              First, defendant argues the trial court
              erred in sentencing him to a thirty-six
              month probation term. We agree. N.C. Gen.
                                   -5-
              Stat. § 15A–1343.2(d)(3) clearly mandates
              that where a felon is sentenced to community
              punishment, as was the case here, probation
              may not be for more than thirty months,
              unless the trial court specifically finds
              that a longer term is required.    N.C. Gen.
              Stat. § 15A–1343.2(d)(3) (2003).   The trial
              court in this case made no such finding,
              thus it was error to make defendant’s
              probation term exceed thirty months.    As a
              result, we must remand this case for
              resentencing in order for the trial court to
              either impose a probation term consistent
              with the statute or to make the appropriate
              finding of fact that a longer probationary
              period is necessary.   See State v. Lambert,
              146 N.C. App. 360, 366, 553 S.E.2d 71, 76
              (2001).

Id. at 624-25, 594 S.E.2d at 418.

      The State has conceded that its reading of the statute and

the   Mucci    case   require   it   to   concede   error   and   agree   the

Defendant should be re-sentenced.           Accordingly, the Defendant’s

sentence is vacated and his case is hereby remanded for re-

sentencing.

      Remanded for re-sentencing.

      Judges HUNTER, Robert C. and GEER concur.

      Report per Rule 30(e).
