What Is The Date of a Prior Impaired Driving Conviction under G.S. 20-179?

I ended last week’s post by noting that the date on which a prior impaired driving conviction occurs for purposes of the seven-year-look-back period in G.S. 20-179(c)(1)(a) may not be immediately obvious when a district court conviction for an impaired driving offense has been appealed to superior court and the appeal is later withdrawn.

When a defendant appeals from a conviction for an offense committed on or after December 1, 2006 and sentenced under G.S. 20-179 (I’ll refer to this type of offense as a “covered offense”), the filing of the notice of appeal vacates the sentence.  G.S. 20-38.7(c). In contrast, giving notice of appeal from a conviction for a structured sentencing misdemeanor merely stays the execution of all portions of the judgment; if the appeal subsequently is withdrawn, the case is remanded to district court for execution of the judgment. G.S. 15A-1431(f1),(g),(h). When an appeal from a conviction for a covered offense is withdrawn, the district court must hold a new sentencing hearing and must consider any new convictions. G.S. 20-179(c). This divergent procedure was enacted by the Motor Vehicle Driver Protection Act of 2006, S.L. 2006-253, to prevent a defendant with two pending offenses sentenced under G.S. 20-179 from avoiding application in either case of the grossly aggravating factor for prior convictions. Formerly, a defendant could avoid application of this grossly aggravating factor by appealing the conviction for the first offense and, while the case was on appeal, pleading guilty and being sentenced for the second offense. The first conviction was not considered a prior conviction at the time of sentencing for the second offense sentenced under G.S. 20-179 because it was not a “final conviction” so long as the case was on appeal. See G.S. 20-4.01(4a) (defining conviction as a “final conviction of a criminal offense”). Before the 2006 statutory changes, a defendant could, after the second conviction was entered, withdraw his appeal of the first conviction, triggering execution of a sentence that did not take into account the second conviction.

Now, if an appeal from a conviction for a covered offense is withdrawn before the case is transferred to superior court (see G.S. 15A-1431(c)) or after that time and the case is remanded to district court with the consent of the prosecutor and the superior court (see G.S. 15A-1431(g),(h)), the district court must hold a new sentencing hearing and consider any new convictions.  See G.S. 20-38.7(c).  When this occurs, the defendant initially will have been convicted of the offense and sentenced on one date, though the final judgment and sentence for the offense necessarily will have been entered at a later date.  On which date may the prior conviction be said to occur for purposes of considering the seven-year-look-back period under G.S. 20-179(c)(1)? Given that the term “conviction,” when used in connection with sentencing, generally means the determination of a defendant’s guilt, see G.S. 15A-1331(b) (“a person has been convicted when he has been adjudged guilty or has entered a plea of guilty or no contest”); State v. Wilkins, 128 N.C. App. 315, 317 (1998); State v. Canellas, 164 N.C. App. 775 (2004), my view is that the date on which the defendant was adjudicated guilty is the date of conviction.  Cf. State v. Wilkins, 128 N.C. App. 315 (1998) (determining for purposes of G.S. 15A-1340.14(d)—which provides that for purposes of determining a defendant’s prior record level for felony sentencing purposes, if an offender is convicted of more than one offense in a single session of district court, only one of the convictions is used—that when a defendant is convicted in district court, appeals the conviction to the superior court, and subsequently withdraws the appeal causing the case to be remanded to the district court for execution of the judgment, the conviction occurs upon the date when the offender was originally convicted in the district court). Moreover, the consideration of a conviction as occurring on the date of the initial adjudication of guilt, even though it became a final conviction on some later date, does not infringe upon a defendant’s right to trial de novo and by jury in superior court, which appears to be the purpose for counting only those convictions deemed final.