             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-1324

                            Filed: 19 September 2017

Guilford County, No. 15 CRS 73023

STATE OF NORTH CAROLINA

            v.

TRAVIS TAYLOR DAIL


      Appeal by defendant from judgment entered 17 November 2015 and order

entered 29 March 2016 by Judge Patrice A. Hinnant in Guilford County Superior

Court. Heard in the Court of Appeals 6 June 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
      Hyde, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel L.
      Spiegel, for defendant-appellant.


      CALABRIA, Judge.


      Where the trial court failed to consider evidence of defendant’s eligibility for

conditional discharge pursuant to N.C. Gen. Stat. § 90-96, the judgment is vacated

and the matter remanded for resentencing.

                      I. Factual and Procedural Background

      On 17 November 2015, Travis Taylor Dail (“defendant”) pleaded guilty to

driving while impaired (“DWI”) and possession of lysergic acid diethylamide (“LSD”).

Per the plea agreement, defendant stipulated that he was a record level 1 for felony
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                                   Opinion of the Court



sentencing purposes, a record level 5 for DWI sentencing purposes, and that he would

be placed on probation. In exchange, the State agreed to dismiss multiple additional

drug possession charges against defendant. Pursuant to this plea agreement, on 20

November 2015, the trial court sentenced defendant to a minimum of 3 months and

a maximum of 13 months’ imprisonment in the custody of the North Carolina

Department of Adult Correction on the possession of LSD offense. The trial court

suspended this sentence, instead sentencing defendant to 12 months of supervised

probation.   For the DWI offense, the trial court entered a suspended sentence,

ordering defendant to be imprisoned for 30 days in the custody of the Misdemeanant

Confinement program, and to surrender his license. In both judgments, the trial

court entered findings on mitigating factors, finding that these outweighed any

aggravating factors.

      On 25 November 2015, defendant filed a motion for appropriate relief (“MAR”),

alleging that, at the plea hearing, defendant requested to be placed on conditional

discharge probation pursuant to N.C. Gen. Stat. § 90-96, given that defendant had

not previously been convicted of a felony. In his MAR, defendant further alleged that

the trial court erred in both failing to permit conditional discharge, and in failing to

make findings as to why conditional discharge was inappropriate.            Defendant

therefore moved to have his guilty plea withdrawn and the judgment stricken.




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                                    Opinion of the Court



      On 29 March 2016, the trial court entered an order on defendant’s MAR. The

trial court found that, pursuant to the plea agreement, defendant stipulated that he

was a record level 1 for felony purposes, record level 5 for DWI purposes, and that he

would be placed on probation. The trial court also noted that “the defendant enjoyed

the benefit of the dismissal of the following charges: felony possession of MDPV;

possession of marijuana up to 1/2 ounce; possession of drug paraphernalia; simple

possession of clonazepam 90-95 (D) (2); and, felony prescription and labeling 90-106.”

The trial court determined that defendant, in subsequently requesting conditional

discharge, was asking the trial court “to act outside of the plea agreement by placing

defendant on the 90-96 deferral program in contradiction to the terms of the plea

agreement, a term not negotiated with the State.” The trial court also stated that

“defendant could not then and cannot now argue for something outside of the plea

agreement. While the 90-96 program requires the consent of the defendant, the plea

undercuts or supersedes consent to the 90-96 program because the defendant

consented to probation as a term of his plea in lieu of the 90-96 program.” The trial

court concluded that defendant was barred from relief, and denied his MAR.

      On 12 April 2016, defendant filed a petition for writ of certiorari, alleging that

the judgment against him was entered in error. Also on 12 April 2016, defendant

appealed the judgment and denial of his MAR. On 29 April 2016, this Court granted

defendant’s petition for writ of certiorari.



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                                   Opinion of the Court



        On 10 May 2016, the State filed a petition in the North Carolina Supreme

Court for writ of certiorari, alleging that this Court lacked jurisdiction to review the

denial of defendant’s MAR, and seeking review of the 29 April 2016 order granting

defendant’s petition for certiorari.   The State also filed a petition for a writ of

supersedeas and motion for temporary stay, pending review of its petition for writ of

certiorari. The Supreme Court granted the motion for temporary stay on 16 May

2016.

        On 19 August 2016, the Supreme Court entered its order on the State’s

motions. It dissolved the temporary stay, and denied supersedeas and certiorari.

Correspondingly, this Court entered an order recognizing the denial of supersedeas

and certiorari by the Supreme Court.

                                II. Standard of Review

        “ ‘Questions of statutory interpretation are questions of law, which are

reviewed de novo by an appellate court.’ ” State v. Jones, 237 N.C. App. 526, 530, 767

S.E.2d 341, 344 (2014) (quoting State v. Largent, 197 N.C. App. 614, 617, 677 S.E.2d

514, 517 (2009)).

        “[U]nder N.C.G.S. § 15A-1444(e), a defendant who has entered a plea of guilty

is not entitled to appellate review as a matter of right, unless the defendant is

appealing sentencing issues or the denial of a motion to suppress, or the defendant

has made an unsuccessful motion to withdraw the guilty plea.” State v. Pimental,



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                                  Opinion of the Court



153 N.C. App. 69, 73, 568 S.E.2d 867, 870, disc. review denied, 356 N.C. 442, 573

S.E.2d 163 (2002).

                              III. Conditional Discharge

      In his first argument, defendant contends that the trial court erred in entering

a suspended sentence rather than a conditional discharge. We agree.

      Conditional discharge is an alternative sentence made available in N.C. Gen.

Stat. § 90-96 (2015). This statute provides that:

             Whenever any person who has not previously been
             convicted of (i) any felony offense under any state or federal
             laws; (ii) any offense under this Article; or (iii) an offense
             under any statute of the United States or any state relating
             to those substances included in Article 5 or 5A of Chapter
             90 or to that paraphernalia included in Article 5B of
             Chapter 90 of the General Statutes pleads guilty to or is
             found guilty of (i) a misdemeanor under this Article by
             possessing a controlled substance included within
             Schedules I through VI of this Article or by possessing drug
             paraphernalia as prohibited by G.S. 90-113.22, or (ii) a
             felony under G.S. 90-95(a)(3), the court shall, without
             entering a judgment of guilt and with the consent of such
             person, defer further proceedings and place him on
             probation upon such reasonable terms and conditions as it
             may require, unless the court determines with a written
             finding, and with the agreement of the District Attorney,
             that the offender is inappropriate for a conditional
             discharge for factors related to the offense.

N.C. Gen. Stat. § 90-96(a).

      In the instant case, during the plea hearing, defense counsel alleged mitigating

factors, and offered the following argument:



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                                  Opinion of the Court



             This is his first conviction of any kind. I don’t think he has
             even had a speeding ticket. He’s eligible for 90-96, and I’d
             ask The Court to allow him to participate in that. He will
             be drug tested regularly while he is in that program, and
             I’m confident he could stay away from controlled
             substances. If he doesn’t, he will have a conviction on his
             record.

After discussing some additional mitigating factors, defense counsel once again

requested that the trial court “allow [defendant] to participate in the 90-96

probation.” Defense counsel also offered to present the court with the paperwork

authorizing conditional discharge.

      In ruling on the plea agreement, the trial court would not permit conditional

discharge, “in that [defendant] has already endured the benefit of dismissal for

something else[,]” namely the other drug-related charges. After the trial court orally

entered judgment, defense counsel once again raised the issue of conditional

discharge. The trial court declined to reconsider. At no point did the State offer any

opinion in favor of or against conditional discharge.

      Defendant contends that he was eligible to participate in the conditional

discharge program, and that the trial court erred in refusing to let him participate in

the program. Citing the statute, defendant contends that he was a first-time offender,

and he consented to participation in the conditional discharge program, meaning that

the statutory language “the court shall” constituted a mandate that the trial court

could not ignore. In an affidavit filed after the trial court denied defendant’s MAR,



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                                   Opinion of the Court



the assistant district attorney, Jodi Barlow (“Barlow”), also cited the statute, and

explained that the court made no written findings of fact at the time of sentencing as

to why defendant was an inappropriate candidate for sentencing under N.C. Gen.

Stat. § 90-96. In addition, the plea agreement did not contemplate that the defendant

could not be placed on probation pursuant to § 90-96. Finally, according to the

affidavit, Barlow also “[did] not agree that the defendant is an inappropriate

candidate for 90-96 probation[,]” in reference to the statutory requirement that the

trial court could only refuse conditional discharge with the agreement of the district

attorney.

      “This Court has held that ‘use of the language ‘shall’ is a mandate to trial

judges, and that failure to comply with the statutory mandate is reversible error.’ ”

State v. Antone, 240 N.C. App. 408, 410, 770 S.E.2d 128, 130 (2015) (quoting In re

Eades, 143 N.C. App. 712, 713, 547 S.E.2d 146, 147 (2001)). It is clear, therefore, that

where an eligible first-time offender consents to sentencing under the conditional

discharge program, the “shall” language of N.C. Gen. Stat. § 90-96 constitutes a

“mandate to trial judges,” and that failure to comply with that mandate constitutes

reversible error.

      It is undisputed that, at the plea hearing, defendant sought sentencing under

N.C. Gen. Stat. § 90-96, and that such a motion could constitute consent to the

statute’s provisions. The State contends, however, that defendant did not present



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                                  Opinion of the Court



evidence that he qualified under N.C. Gen. Stat. § 90-96 for conditional discharge.

The State notes that N.C. Gen. Stat. § 90-96 does not explicitly state whether the

burden is on a defendant to show that he qualifies for conditional discharge, or on the

State to show that he does not. As such, the State contends that the burden is on the

defendant, and that in the instant case, defendant failed to meet that burden.

      N.C. Gen. Stat. § 90-96 is in Chapter 90 of the General Statutes, a chapter

entitled “MEDICINE, ALLIED OCCUPATIONS[.]” The applicable article is Article

5, “CONTROLLED SUBSTANCES ACT[.]” See N.C. Gen. Stat. § 90-96. Our Court

has stated that

              [t]his statute [, North Carolina General Statute § 90-96]
              does not discuss in further detail the procedures the court
              should follow when a defendant violates a term or
              condition. In the absence of specifically enumerated
              procedures, those procedures set forth in Article 82 of
              Chapter 15A of our General Statutes regarding probation
              violations should apply.

State v. Burns, 171 N.C. App. 759, 761, 615 S.E.2d 347, 349 (2005). While North

Carolina General Statute § 90-96 has been amended since 2005 when Burns was filed,

and this case does not deal with the violation portion of North Carolina General

Statute § 90-96, we still find Burns instructive because it indicates that the general

criminal sentencing statutes fill in the gaps in North Carolina General Statute § 90-

96. See id.




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                                   Opinion of the Court



      While the State relies upon a series of cases for its argument that the burden

of proving a prior record, including a prior expungement, should be upon the

defendant, none of the cases address sentencing under North Carolina General

Statute § 90-96 or prior record levels; in fact, but for three cases regarding mitigating

factors none of the cases are even regarding sentencing. Noticeably missing from the

State’s citation list is the controlling statute. See generally N.C. Gen. Stat. § 15A-

1340.14(f) (2015) (requiring the State to bear the burden of proving prior convictions).

The general sentencing statutes, which control here, see Burns, 171 N.C. App. at 761,

615 S.E.2d at 349, place the burden of demonstrating prior convictions on the State:

“The State bears the burden of proving, by a preponderance of the evidence, that a

prior conviction exists and that the offender before the court is the same person as

the offender named in the prior conviction.” N.C. Gen. Stat. § 15A-1340.14(f). We

hold that, pursuant to the logic in Burns, the Chapter 15A provisions control where

North Carolina General Statute § 90-96 is silent; therefore, the burden is on the State

to establish that defendant is not eligible for conditional discharge by proving

defendant’s prior record.

      Notwithstanding the fact that the State had the burden at trial, it is clear that

the trial court did not afford either party the opportunity to establish defendant’s

eligibility or lack thereof. According to the transcript, since multiple charges against

defendant were dismissed pursuant to the plea agreement, the trial court had no



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                                   Opinion of the Court



inclination to consider conditional discharge. At no point in the proceedings did the

trial court acknowledge defense counsel’s argument with respect to conditional

discharge, except for one remark, when the court stated that it “will not entertain the

deferred prosecution in that [defendant] has already endured the benefit of dismissal

for something else.”     Since the trial court used the outdated term “deferred

prosecution” instead of “conditional discharge,” it is questionable whether the court

even recognized defense counsel’s argument with respect to N.C. Gen. Stat. § 90-96.

      We therefore vacate the trial court’s judgment, and remand this matter to the

trial court for a new sentencing hearing. The trial court shall follow the procedure

for the consideration of eligibility for conditional discharge as prescribed by statute.

      North Carolina General Statute § 90-96 addresses the procedure for

determining a defendant’s eligibility, as is reflected on Form AOC-CR-237, Rev.

12/15. See N.C. Gen. Stat. § 90-96. In fact, the form provides for the trial court to

request a report from the Administrative Office of the Courts to determine a

defendant’s eligibility for a conditional discharge under North Carolina General

Statue § 90-96. This report can be requested either in advance of a defendant’s trial

or guilty plea or at the time of a guilty plea or verdict, the latter situation being

applicable to this case. If the report is requested in advance of the trial or plea, both

the defendant and State must jointly complete the form for entry by the trial court.

This procedure ought to have been followed in the instant case, and upon remand,



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                                  Opinion of the Court



the trial court shall request a report from the Administrative Office of the Courts, as

mandated by statute.

                                 IV. Written Finding

      In his second argument, defendant contends that the trial court erred in failing

to make a written finding regarding whether conditional discharge was appropriate

for defendant’s sentence. Because we vacate the trial court’s judgment, we need not

address this argument.

      VACATED AND REMANDED.

      Judge STROUD concurs.

      Judge BRYANT concurs in separate opinion.




                                         - 11 -
 No. COA16-1324 – State v. Dail


      BRYANT, Judge, concurring by separate opinion.


      I concur with the majority opinion that the trial court erred by failing to follow

the mandate of section 90-96. Because defendant met the eligibility requirements of

section 90-96 and the assistant district attorney (“ADA”) did not state that defendant

was “inappropriate for conditional discharge,” the statutory mandate required the

trial court to enter a conditional discharge.

      I write separately to express my concern about how a trial judge can be

sandbagged by a defendant who enters a plea agreement that does not expressly

include conditional discharge. I use the term “sandbagged” here to mean that a

defendant may enter a plea before a judge pursuant to a plea agreement; the

agreement may place him within the eligibility requirements of section 90-96, even

though the plea agreement does not expressly reference the conditional discharge;

and (notwithstanding the judge’s desire) if the ADA does not agree that the

conditional discharge is inappropriate, the trial judge may be compelled to enter the

conditional discharge. Thus, if a section 90-96 conditional discharge is to be included

in a plea agreement between the prosecutor and a defendant, it should be made

known to the judge prior to entry of the plea. Otherwise, once a trial judge accepts

the plea of a defendant who is statutorily eligible for a section 90-96 conditional

discharge, even if the trial judge considers the defendant an inappropriate candidate
                                     STATE V. DAIL

                           BRYANT, J., concurring in result only



due to factors related to the offense, the trial judge has no discretion but to allow the

conditional discharge, unless the ADA agrees that the offender is inappropriate.

      In this case, defendant had prior charges for possessing a weapon on

educational property and reckless driving.         Both charges were dismissed after

completing a deferral program. At the time of the plea agreement, defendant had

pending charges for DWI, felony possession of LSD, felony possession of MDPV, felony

prescription and labeling, possession of marijuana, possession of drug paraphernalia,

and simple possession of clonazepam. The plea agreement allowed defendant to plead

guilty to DWI and possession of LSD, and dismiss the remaining drug charges.

Because defendant had no prior felony or drug convictions, he was eligible for a

section 90-96 conditional discharge. Notwithstanding his technical eligibility, it is

clear that a reasonable trial judge could consider defendant inappropriate for a

section 90-96 conditional discharge because of his other drug charges (involving

different types of drugs), which were dismissed as part of the plea agreement and his

prior deferments.

      As discussed in the majority opinion, there is a form procedure that can be used

to determine a defendant’s eligibility for the section 90-96 conditional discharge prior

to entry of a plea. It appears that District Court judges regularly use this process,

while Superior Court judges use it less so. Such a procedure should be used to help

ensure that errors of this type do not recur. Also, judges should be vigilant to make



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                          BRYANT, J., concurring in result only



sure they maintain their discretion to determine whether to accept or reject a plea by

understanding the full extent of the plea bargain. Otherwise, pursuant to the statute,

unless the prosecutor (and the defendant) agree that an eligible defendant is not

appropriate for a section 90-96 conditional discharge, once the plea is entered, the

trial judge must allow the conditional discharge.




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