              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA 18-967

                                 Filed: 16 April 2019

Transylvania County, No. 17CRS50770

STATE OF NORTH CAROLINA

             v.

BRIAN KEITH HUGHES, Defendant.


      Appeal by Defendant from judgment entered 18 April 2018 by Judge Marvin

P. Pope, Jr. in Transylvania County Superior Court. Heard in the Court of Appeals

13 March 2019.


      Attorney General Joshua H. Stein, by Assistant Attorney General Yvonne B.
      Ricci, for the State.

      Kimberly P. Hoppin for Defendant-Appellant.


      INMAN, Judge.


      When the State fails to give notice of its intent to use aggravating sentencing

factors as required by N.C. Gen. Stat. § 20-179(a1)(1), the trial court’s use of those

factors in determining a defendant’s sentencing level is reversible error.

      Defendant Brian Keith Hughes (“Defendant”) appeals from a judgment finding

him guilty of impaired driving and imposing a level one punishment based upon two

grossly aggravating sentencing factors. Because the State failed to notify Defendant
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of its intent to seek an enhanced sentence based on those factors we vacate the

judgment and remand to the trial court to resentence Defendant.

                   FACTUAL AND PROCEDURAL HISTORY

      On 2 May 2017, Brevard Police Department Officer Timothy Reinhart (“Officer

Reinhart”) observed Defendant’s vehicle roll through a stop sign and then come to an

abrupt stop when it appeared Defendant noticed the officer’s patrol car. Officer

Reinhart ran the vehicle’s license plate, verified that Defendant’s driving privileges

had been suspended, and initiated a traffic stop. During this stop, Officer Reinhart

and another officer performed standard field sobriety tests on Defendant. The officers

concluded that Defendant had consumed a sufficient amount of alcohol to impair his

mental and physical faculties and arrested him for driving while impaired.

      Defendant was tried for impaired driving in Transylvania County District

Court. The district court found Defendant guilty, and determined that the State had

proven the existence of two grossly aggravating sentencing factors: (1) that Defendant

“drove, at the time of the current offense, while [his] drivers license was revoked” and

(2) that Defendant had “been convicted of a prior offense involving impaired driving

which conviction occurred within seven (7) years before the date of this offense.”

Accordingly, the district court imposed level one punishment.

      Defendant then appealed to the Transylvania County Superior Court.

Defendant was tried by jury, and the jury returned a verdict of guilty of driving while



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impaired. The jury was discharged, and the superior court proceeded to a sentencing

hearing.    During the sentencing hearing, the State introduced evidence of

Defendant’s driving record over Defendant’s objection that the State had failed to

provide notice of its intent to seek an aggravated sentence. The superior court again

imposed a level one punishment, based on the same factors applied in Defendant’s

district court sentencing. Defendant appeals.

                                     ANALYSIS

      Defendant argues that the State failed to notify him, as required by Section

20-179(a1)(1) of our General Statutes, of its intent to prove aggravating factors for

sentencing in the superior court proceeding. Alleged statutory errors are questions

of law and, as such, are reviewed de novo. State v. Mackey, 209 N.C. App 116, 120,

708 S.E.2d 719, 721 (2011) (internal citations omitted). Under de novo review, the

appellate court considers the matter anew and freely substitutes its own judgment

for that of the lower court. Sutton v. N.C. Dep’t of Labor, 132 N.C. App. 387, 389, 511

S.E.2d 340, 341 (1999).

      If the State intends to provide evidence of aggravating factors at an impaired

driving sentencing hearing, it must provide notice of that intent to the defendant:

             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 indicating


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               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.

N.C. Gen. Stat. § 20-179(a1)(1) (2017).

       Although we are aware of no binding precedent addressing the effect of the

State’s failure to give notice under this particular statute,1 decisions addressing the

analogous notice provision contained in our felony sentencing statute are instructive.

The State’s failure to provide notice under N.C. Gen. Stat. § 15A-1340.16(a6) renders

the trial court’s application of aggravated sentencing factors reversible error. See,

e.g., State v. Crook, 247 N.C. App. 784, 798, 785 S.E.2d 771, 781 (2016) (holding use

of prior record level point for commission of offense while on probation improper

without notice); Mackey, 209 N.C. App. at 121, 708 S.E.2d at 722 (State’s listing of

aggravating factors and prior record level on plea offer was ineffective notice and

aggravated sentencing by trial court was therefore in error). We likewise hold that

the State’s failure to provide notice of its intent to use aggravating factors defined in

Section 20-179 prevents the trial court from considering those factors at sentencing

for impaired driving.

       In this case, the State does not argue that it gave notice to Defendant prior to



       1  This Court is aware of, and the parties have cited, only unpublished decisions directly
addressing the effect of the State’s failure to provide notice under Section 20-179(a1)(1). See State v.
Wilcox, No. COA16-91, ___ N.C. App. ___, 791 S.E.2d 665, 2016 WL 4608203, 2016 N.C. App. LEXIS
910 (Sept. 6, 2016) (unpublished); State v. Broyles, No. COA16-853, ___ N.C. App. ___, 797 S.E.2d 382,
2017 WL 1056309, 2017 N.C. App. LEXIS 212 (Mar. 21, 2017) (unpublished).

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the superior court proceeding. Instead, it argues that Defendant was not prejudiced:

that he received constructive notice of the aggravating factors because they were used

at the earlier district court proceeding, and, as Defendant does not contest the

existence of the aggravating factors themselves, any additional notice would not have

changed the result at sentencing. We reject this argument.

      Allowing the State to fulfill its notice obligation under Section 20-179(a1)(1) by

relying on district court proceedings would render the statute effectively

meaningless. A statute must be construed, if possible, to give “meaning and effect to

all of its provisions.” HCA Crossroads Residential Ctrs., Inc. v. N.C. Dep’t of Human

Res., 327 N.C. 573, 578, 398 S.E.2d 466, 470 (1990) (citations omitted). This statute

requires the State to provide notice of its intent to use aggravating factors only “[i]f

the defendant appeals to superior court.” N.C. Gen. Stat. § 20-179(a1)(1) (emphasis

added).

      The language of Section 20-179(a1)(1) requires notice of the State’s intent to

use aggravating sentencing factors in impaired driving cases appealed to superior

court, even if evidence supporting those factors was presented in district court. It is

not enough that Defendant simply be made aware of the existence of such evidence.

For example, in Crook, the State provided the defendant with a prior record level

worksheet more than 30 days prior to trial. 247 N.C. App. at 796, 785 S.E.2d at 780.

There, as in this case, the defendant did not contest the aggravating factor itself. In



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fact, the defendant in Crook stipulated to his prior record level for sentencing. Id. at

797, 785 S.E.2d at 781. The defendant was aware of the aggravating factor and did

not argue that additional notice would have allowed him to present a defense, but

this Court held that providing the record level worksheet did not constitute notice of

the State’s intent to prove the existence of a prior record level point under Section

15A-1340.16(a6), our felony sentencing statute. Id.

      While use of sentencing factors in district court may notify a defendant of the

existence of evidence supporting those factors, it does not give adequate notice of the

State’s intent to use those factors in a subsequent de novo proceeding, in a separate

forum, potentially tried by a different prosecutor. The State must provide explicit

notice of its intent to use aggravating factors in the superior court proceeding.

      Defendant was prejudiced by the use of grossly aggravating factors at his

sentencing, because this raised the level of punishment imposed.            The State’s

argument that proper provision of notice would not have changed the result at

sentencing stems from a misapprehension of the error committed in this case. Error

that is subject to review on appeal is not committed by parties, but by courts. The

error in this case that we review for prejudice is, therefore, not the State’s failure to

provide notice of its intent to use aggravating sentencing factors but the trial court’s

use of those factors at sentencing. If the trial court had properly refused to apply

factors for which statutory notice was not given, it could not have imposed level one



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punishment. Applying those factors prejudiced Defendant.

      Our prior decisions addressing the analogous notice requirement for felony

sentencing are consistent with this analysis. In Crook, the defendant stipulated to

his status as a prior record level II offender, of which status he was made aware 30

days prior to trial—notice would not have allowed him to prepare any additional

defense to that aggravating factor. 247 N.C. App. at 797, 785 S.E.2d at 781. In State

v. Snelling, the defendant admitted to having been on probation at the time of his

offenses, but this Court held that the State’s failure to provide notice of its intent to

use this factor at sentencing was prejudicial because it raised the defendant’s prior

record level. 231 N.C. App. 676, 681-82, 752 S.E.2d 739, 744 (2014).

      As there is no evidence in the record to show that the State provided Defendant

with sufficient notice of its intent to use aggravating factors at sentencing, and the

record does not indicate that Defendant waived his right to receive such notice, we

hold that the trial court committed prejudicial error by applying these aggravating

factors. Accordingly, we vacate Defendant’s sentence and remand to the trial court

for resentencing in accordance with this opinion.

      VACATED AND REMANDED.

      Judges STROUD and ZACHARY concur.




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