                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-340

                              Filed: 7 November 2017

Johnston County, No. 15CRS056170, 15CRS837

STATE OF NORTH CAROLINA

             v.

GLENN WARREN MAYO, JR., Defendant.


      Appeal by Defendant from judgments entered 26 October 2016 by Judge Tanya

T. Wallace in Johnston County Superior Court. Heard in the Court of Appeals 3

October 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Colin A.
      Justice, for the State.

      Robinson, Bradshaw & Hinson, P.A., by Erik R. Zimmerman, for Defendant-
      Appellant.


      MURPHY, Judge.


      The Habitual Impaired Driving Act requires the State to allege three prior

convictions of impaired driving. Unlike other statutes, the Act does not require the

three prior convictions to be from different court dates. We hold, in accordance with

our case law and the differences between this Act and other habitual statutes, the

State is not required to allege three prior convictions of impaired driving from

different court dates.
                                   STATE V. MAYO

                                  Opinion of the Court



       Glenn Warren Mayo, Jr. (“Defendant”) appeals from judgments convicting him

of habitual impaired driving and revoking his probation. On appeal, Defendant

argues: (1) the indictment for habitual impaired driving is facially invalid because

two of the underlying impairment convictions are from the same court date; and (2)

the trial court relied on an invalid conviction in revoking Defendant’s probation.

After careful review, we reject Defendant’s arguments and conclude he received a fair

trial, free from error.

                                   I. Background

       On 1 November 2015, Sergeant T.L. Avery of the Selma Police Department

arrested Defendant for impaired driving and driving while license revoked. On 2

November 2015, Defendant’s probation officer filed a probation violation report. In

the report, the officer alleged Defendant violated probation by driving while not being

properly licensed and being under the influence of alcohol on 1 November 2015.

       On 7 December 2015, Defendant was indicted for habitual impaired driving.

In support of the habitual impaired driving charge, the State alleged Defendant had

been convicted of the following charges: First, 15CRS000837, driving while impaired

on 26 November 2012. Defendant was convicted of this charge on 30 September 2015

in Johnston County Superior Court. Second, 12CR213930, driving while impaired on

22 June 2012. Defendant was convicted of this charge on 20 December 2012 in Wake

County District Court. Third, 12CR213589, driving while impaired on 18 June 2012.



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                                  Opinion of the Court



Defendant was convicted of this charge on 20 December 2012 in Wake County District

Court. Defendant also stipulated to his three prior convictions for driving while

impaired. On 1 February 2016, Defendant was indicted for being a habitual felon.

On 26 February 2016, Defendant’s probation officer filed another probation violation

report. In the report, the officer alleged Defendant violated probation because he “has

not been hooked up” to an alcohol consumption monitoring system. (all caps in

original).

       On 24 and 25 October 2016, Defendant’s case came to trial. On 25 October

2016, the jury found Defendant guilty of driving while impaired. The trial court

adjudicated Defendant as a habitual impaired driver, in accordance with N.C.G.S. §

20-138.5 (2015). Defendant pled guilty to being a habitual felon. The trial court also

revoked Defendant’s probation in 15CRS837, a prior driving while impaired

conviction, based on two violation reports and Defendant being “found guilty of

habitual impaired driving on 10/25/2016-15CRS56170.” (all caps in original). On 27

October 2016, Defendant’s probation officer completed another probation violation

report, alleging Defendant violated probation by committing a criminal offense.

Defendant filed timely notice of appeal.

                              II. Standard of Review

       “This Court reviews challenges to the sufficiency of an indictment using a de

novo standard of review. Under a de novo review, the court considers the matter



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                                  Opinion of the Court



anew and freely substitutes its own judgment for that of the lower tribunal.” State v.

Pendergraft, 238 N.C. App. 516, 521, 767 S.E.2d 674, 679 (2014) (internal citations

and quotation marks omitted).

      We review a trial court’s revocation of probation for abuse of discretion. State

v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000) (quoting State v.

Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960)) (“ ‘The findings of the judge, if

supported by competent evidence, and his judgment based thereon are not reviewable

on appeal, unless there is a manifest abuse of discretion.’ ”). “Abuse of discretion

results where the court’s ruling is manifestly unsupported by reason or is so arbitrary

that it could not have been the result of a reasoned decision.” State v. Hennis, 323

N.C. 279, 285, 372 S.E.2d 523, 527 (1988) (citation omitted).

                                    III. Analysis

      Defendant presents two arguments: (1) the habitual impaired driving

indictment is invalid because two of the underlying convictions were obtained on the

same court date; and (2) the trial court erred in revoking his probation because it

relied on Defendant’s habitual impaired driving conviction.        We address these

arguments in turn.

A. Habitual Impaired Driving Indictment

      Defendant first argues the trial court lacked jurisdiction over the habitual

impaired driving charge because two of the underlying convictions are from the same



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                                   Opinion of the Court



court date. Defendant contends N.C.G.S. § 20-138.5, the statute governing habitual

impaired driving, is ambiguous because “[i]t does not explain how to determine

whether a defendant has been convicted of three or more offenses involving impaired

driving, and does not directly address whether multiple convictions from the same

date may be considered when making that determination.” Defendant analogizes this

statute to N.C.G.S. § 14-7.1 (2015) (Persons defined as habitual felons) and N.C.G.S.

§ 15A-1340.14(d) (2015) (Prior record level for felony sentencing). Defendant argues

the in pari materia statutory construction canon requires our Court to read into the

statute a rule regarding convictions obtained in one court week because the other

“similar” statutes have a specific rule for the timing of multiple convictions. We

disagree.

      “If the language of the statute is clear and is not ambiguous, we must conclude

that the legislature intended the statute to be implemented according to the plain

meaning of its terms.” State v. Watterson, 198 N.C. App. 500, 505, 679 S.E.2d 897,

900 (2009) (brackets, quotation marks, and citation omitted). “Thus, in effectuating

legislative intent, it is the duty of the courts to give effect to the words actually used

in a statute and not to delete words used or to insert words not used.” Id. at 505, 679

S.E.2d at 900 (citing N.C. Dep’t of Corr. v. N.C. Med. Bd., 363 N.C. 189, 201, 675

S.E.2d 641, 649 (2009)).




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                                    Opinion of the Court



      If a statute is ambiguous, our Court must determine the legislature’s intent.

In re Hall, 238 N.C. App. 322, 324, 768 S.E.2d 39, 42 (2014). In discerning the intent

of the legislature “ ‘statutes in pari materia should be construed together and

harmonized whenever possible. In pari materia is defined as upon the same matter

or subject.’ ” Id. at 324-325, 768 S.E.2d at 42 (quoting In re Borden, 216 N.C. App.

579, 581, 718 S.E.2d 683, 685 (2011)). “Portions of the same statute dealing with the

same subject matter are ‘to be considered and interpreted as a whole, and in such

case it is the accepted principle of statutory construction that every part of the law

shall be given effect if this can be done by any fair and reasonable intendment . . . . ’ ”

Huntington Props., LLC v. Currituck Cty., 153 N.C. App. 218, 224, 569 S.E.2d 695,

700 (2002) (quoting In re Hickerson, 235 N.C. 716, 721, 71 S.E.2d 129, 132 (1952)).

      N.C.G.S. § 20-138.5 governs habitual impaired driving and states:

             (a) 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. 10-4.01(24a)
             within 10 years of the date of this offense.

Id.

       In State v. Allen, 164 N.C. App. 665, 596 S.E.2d 261 (2004), our Court

addressed the consideration of prior convictions for habitual impaired driving. In

Allen, defendant argued the habitual impaired driving statute must be applied

similarly to habitual felon statutes. Id. at 672, 596 S.E.2d at 265. The Habitual Felon



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                                  Opinion of the Court



Act “prevents the use of multiple offenses consolidated for judgment as more than one

predicate offense.” Id. at 672, 596 S.E.2d at 265. Defendant alleged “it is reasonable

to infer that the legislature intended similar structural limitations” in the habitual

impaired driving statutes. Id. at 672, 596 S.E.2d at 265. We explicitly held “the

determination of what qualifies as a predicate conviction is carried out differently

under the Habitual Impaired Driving statute and the Habitual Felon Act.” Id. at 672,

596 S.E.2d at 265.

      While not binding precedent, we are persuaded by Judge, now Justice, Ervin’s

unpublished opinion in State v. Stanley, No. COA10-554, 2011 WL 705131

(unpublished) (N.C. Ct. App. Mar. 1, 2011), where this Court addressed this issue. In

Stanley, defendant argued the indictment charging him with habitual impaired

driving was fatally defective because two of the three prior convictions had been

obtained during a single day of court. Id. at *1-*2. This Court first determined

defendant had no right to appeal. Id. at *3. Then, the Court turned to whether

defendant’s petition for a writ of certiorari should be granted. Id. at *3. Relying on

Allen, this Court dismissed defendant’s petition for a writ of certiorari, concluding

defendant’s argument and appeal had no merit. Id. at *3.

      N.C.G.S. § 20-138.5 contains no requirement regarding the timing of the three

prior impaired driving convictions, except that they occurred within the ten years

prior to the current driving while impaired charge. We decline “to insert words not



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                                    Opinion of the Court



used.” Watterson, 198 N.C. App. at 505, 679 S.E.2d at 900 (citation omitted). While

the in pari materia canon requires this Court to harmonize statutes dealing with the

same subject, our Court has already ruled that “the determination of what qualifies

as a predicate conviction is carried out differently under the Habitual Impaired

Driving statute and the Habitual Felon Act.” Allen, 164 N.C. App. at 672, 596 S.E.2d

at 265. We hold Defendant has failed to show error in his habitual impaired driving

indictment.

B. Probation Revocation

         Defendant next argues the trial court abused its discretion in revoking

Defendant’s probation.      Defendant contends the trial court relied on an invalid

conviction—the habitual impaired driving conviction—because the indictment for the

charge is invalid. We disagree. As stated supra, the habitual impaired driving

indictment is valid.     Accordingly, the trial court did not abuse its discretion in

revoking his probation in 15CRS837, and this argument is without merit.

Accordingly, we hold the trial court did not err in revoking Defendant’s probation.

                                     IV. Conclusion

         For the reasons stated above, we hold Defendant received a fair trial, free from

error.

         NO ERROR.

         Judges BRYANT and ARROWOOD concur.



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