IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-457

No. COA 20-722

Filed 7 September 2021

Johnston County, No. 18 CRS 57669

STATE OF NORTH CAROLINA

v.

PAYTON B. GUERRERO, Defendant.

Appeal by Defendant from judgment entered 16 December 2019 by Judge Keith 

O. Gregory in Johnston County Superior Court. Heard in the Court of Appeals 10 

August 2021.

Attorney General Joshua H. Stein, by Assistant Attorney General Kindelle

McCullen, for the State.

John P. O’Hale for Defendant.

GRIFFIN, Judge.

¶ 1 Defendant Payton B. Guerrero appeals from a judgment entered after a jury 

found him guilty of impaired driving. Defendant argues that the trial court erred by 

(1) denying Defendant’s request for a special jury instruction; (2) failing to find two 

statutorily mandated mitigating factors; and (3) sentencing Defendant more harshly 

for exercising his right to a jury trial. We conclude that Defendant received a fair 

trial, free from reversible error.

I. Factual and Procedural History
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

¶ 2 On 15 December 2018, a North Carolina State Highway Patrol trooper placed 

Defendant under arrest for driving while impaired. The trooper took Defendant to 

the Johnston County Jail where Defendant provided a breath sample to be analyzed 

by the Intoximeter EC/IR II. The Intoximeter reported an alcohol concentration of 

0.09.

¶ 3 Defendant pled not guilty to impaired driving in Johnston County District 

Court. Following a bench trial, the judge found Defendant guilty of impaired driving 

and imposed a Level Five sentence pursuant to N.C. Gen. Stat. § 20-179. Defendant

gave notice of appeal in open court.

¶ 4 The case was called for trial in Johnston County Superior Court. Defendant 

submitted a request for the following special jury instruction:

I instruct you, ladies and gentlemen of the jury, that phrase 

“once it is determined that the chemical analysis of the 

defendant’s breath was performed in accordance with the 

applicable rules and regulations, then a reading of 0.08 or 

more grams of alcohol per 210 liters of breath constitutes 

reliable evidence and is sufficient to satisfy the State’s 

burden of proof as to this element of the offense of DWI” is 

a statement of the standard for prima facie evidence of a 

person’s alcohol concentration sufficient to submit the case 

to the jury for its consideration. This statement does not 

create a legal presumption of the defendant’s alcohol 

concentration or the defendant’s guilt. As I have earlier 

instructed you what, if anything, the evidence tends to 

show, is for you, the members of the jury, to determine.

The trial judge denied Defendant’s request for the special jury instruction and 
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

delivered the following Pattern Instruction to the jury: 

[D]efendant has been charged with impaired driving. For 

you to find [D]efendant guilty of this offense, the State 

must prove three things beyond a reasonable doubt: First, 

that [D]efendant was driving a vehicle; second, that 

[D]efendant was driving that vehicle upon a highway or 

street within the state . . .[;] and third, at the time 

[D]efendant was driving that vehicle, [D]efendant had . . . 

consumed sufficient alcohol that at any relevant time after 

the driving [D]efendant had an alcohol concentration of 

0.08 or more grams of alcohol per . . . 210 liters of breath. 

A relevant time is any time after the driving that the driver 

still has in the body alcohol consumed before or during the 

driving. The results of a chemical analysis are deemed 

sufficient evidence to prove a person’s alcohol 

concentration.

Additionally, the judge instructed the jurors that (1) they “are the sole judges of the 

weight to be given to any evidence”; (2) they “should weigh all the evidence in the 

case”; (3) they “should consider all the evidence”; and (4) “it is [their] duty to find the 

facts and to render a verdict reflecting the truth.” The jury found Defendant guilty 

of impaired driving.

¶ 5 The judge held a sentencing hearing after the jury returned its verdict. The 

judge did not find any aggravating factors. Defendant argued for three statutorily 

mandated mitigating factors: (1) Defendant had a slight impairment of his faculties 

resulting solely from alcohol, and Defendant’s alcohol concentration did not exceed 

0.09 at any relevant time after the driving; (2) Defendant had a safe driving record; 

and (3) Defendant voluntarily submitted himself to a mental health facility for 
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

assessment and had voluntarily participated in all treatment recommended by such 

facility. Defendant submitted his driving record and substance abuse assessment to 

the court without objection from the State. Defendant did not submit proof that he 

voluntarily participated in the Alcohol Drug Education Traffic School (“ADETS”)

program recommended by his substance abuse assessment.

¶ 6 During the sentencing hearing, the judge stated,

I spoke to the attorneys, and I made an overture, and I said, 

[b]ased on the evidence, I’ll give you the same thing that 

Judge Willis gave you, if you want to accept responsibility 

and move forward. Mr. O’Hale said, Judge, he has a right 

to a trial. And I said, I know. But I wanted to make sure 

that if we could work this out, because I said, with the 

number, there’s a strong possibility this jury will come back 

with a guilty plea – a guilty verdict. I mean, jurors hear 

numbers. Now, one of the things about at the superior 

court level, my job is not to punish you because you didn’t 

take an offer. That’s not what it’s about. My job is to be 

fair and impartial, as I’m always going to be.

The judge subsequently asked Defendant,

[L]et me ask you. You need to tell me the truth on this. 

Don’t lie to me. If I have you tested today, what are you 

going to test illegal for? If it’s marijuana or something like 

that, just tell me the truth now. Don’t lie. Because if I have 

you tested and you lie, I’m going to hold you in contempt 

and give you 30 days. What will you test positive for if I 

test you today?

DEFENDANT: Just marijuana.
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

Defendant did not assert his Fifth Amendment privilege or object when the judge 

questioned him about his prior drug use. Counsel for Defendant was present, but 

Defendant did not ask to speak with his attorney and did not have any conference 

with counsel.

¶ 7 The judge ultimately found one mitigating factor: that Defendant had a slight 

impairment of his faculties resulting solely from alcohol, and Defendant’s alcohol 

concentration did not exceed 0.09 at any relevant time after the driving. He imposed

a Level Five sentence. The judge sentenced Defendant to sixty days in jail and 

suspended the sentence. The judge placed Defendant on twelve months of supervised 

probation, “having received evidence and having found as fact that supervision is 

necessary.” The special conditions of probation ordered that Defendant surrender his 

driver’s license, complete twenty-four hours of community service within 180 days of 

the probation period, attend two Narcotics or Alcohol Anonymous classes per week, 

be tested for illegal substances thirty days from the sentencing date, and “remain on 

probation for the entire 12 [months].”

II. Analysis

¶ 8 Defendant argues that the trial court erred by (1) denying Defendant’s request 

for a special jury instruction; (2) failing to find two statutory mitigating factors; and 

(3) sentencing Defendant more harshly for exercising his right to a jury trial.

A. Jury Instruction 
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

¶ 9 Defendant argues that the trial court erred by “not instructing the jury on . . . 

how to fully evaluate the State’s Intoximeter evidence.” Defendant claims the 

Pattern Instruction did not allow the jury an “adequate opportunity to fully weigh”

the Intoximeter evidence “from the point of view of [Defendant’s]’s theory of the case.”

We disagree. 

When a request is made for a specific instruction, correct 

in itself and supported by evidence, the trial court, while 

not obliged to adopt the precise language of the prayer, is 

nevertheless required to give the instruction, in substance 

at least, and unless this is done, either in direct response 

to the prayer or otherwise in some portion of the charge, 

the failure will constitute reversible error.

Calhoun v. State Highway and Pub. Works Comm’n, 208 N.C. 424, 426, 181 S.E. 271, 

272 (1935). Thus, “[a] specific jury instruction should be given when ‘(1) the requested 

instruction was a correct statement of law and (2) was supported by the evidence, and 

that (3) the instruction given, considered in its entirety, failed to encompass the 

substance of the law requested and (4) such failure likely misled the jury.’” Outlaw 

v. Johnson, 190 N.C. App. 233, 243, 660 S.E.2d 550, 559 (2008) (quoting Liborio v. 

King, 150 N.C. App. 531, 534, 564 S.E.2d 272, 274 (2002)). “Failure to give a 

requested and appropriate jury instruction is reversible error if the requesting party 

is prejudiced as a result of the omission.” Id.

¶ 10 In North Carolina, “[a] person commits the offense of impaired driving” when 

the individual
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

drives any vehicle upon any highway, any street, or any public 

vehicular area within this State . . . [a]fter having consumed 

sufficient alcohol that he has, at any relevant time after the 

driving, an alcohol concentration of 0.08 or more. The results of 

a chemical analysis shall be deemed sufficient evidence to prove 

a person’s alcohol concentration.

N.C. Gen. Stat. § 20-138.1(a)(2) (2019). The phrase “results of a chemical analysis 

shall be deemed sufficient evidence to prove a person’s alcohol concentration” is a 

“statement of the standard for prima facie evidence of a person’s alcohol 

concentration” and “does not create a legal presumption” or “prejudice to the 

defendant.” State v. Narron, 193 N.C. App. 76, 84–85, 666 S.E.2d 860, 865–66 (2008)

(internal marks omitted). Instead, “[t]he statute simply authorizes the jury to find 

that the report is what it purports to be—the results of a chemical analysis showing 

the defendant’s alcohol concentration.” Id. at 84, 666 S.E.2d at 866.

¶ 11 Similarly, the North Carolina Supreme Court has held that the pattern jury 

instruction’s language stating the results of a chemical analysis shall be “deemed 

sufficient evidence to prove a person’s alcohol concentration[,]” and the language 

“adequately convey[s] the substance of [the] defendant’s requested instructions” 

when additional language explains that the jurors are “the sole judges of the 

credibility of each witness and the weight to be given to the testimony of each witness” 

and “that if they decided that certain evidence was believable, they must then 

determine the importance of that evidence in light of all other believable evidence in 
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

the case.” State v. Godwin, 369 N.C. 604, 614–15, 800 S.E.2d 47, 53–54 (2017)

(internal quotation marks omitted). 

¶ 12 In State v. Beck, this Court held that instructing the jury that “(1) it was the 

‘sole judge[] of the weight to be given [to] any evidence’; (2) it was the jury’s ‘duty to 

decide from [the] evidence what the facts are’; (3) the jury ‘should weigh all the 

evidence in the case’; and (4) the jury ‘should consider all of the evidence’” lets the 

jury know “that it possesse[s] the authority to determine the weight of any evidence 

offered to show that the [d]efendant was—or was not—impaired.” State v. Beck, 233 

N.C. App. 168, 172, 756 S.E.2d 80, 83 (2014). Thus, statements such as these “signal[]

to the jury that it [is] free to analyze and weigh the effect of the breathalyzer evidence 

along with all the evidence presented during the trial.” Godwin, at 614, 800 S.E.2d 

at 54.

¶ 13 In the present case, the trial court’s instruction, “in its entirety . . . 

encompass[es] the substance of the law requested.” Outlaw, 190 N.C. App. at 243, 

660 S.E.2d at 559. Further, the trial judge instructed the jurors that (1) they “are the 

sole judges of the weight to be given to any evidence”; (2) they “should weigh all the 

evidence in the case”; (3) they “should consider all the evidence”; and (4) “it is [their] 

duty to find the facts and to render a verdict reflecting the truth.” The jury was not 

misled. As in Godwin and Beck, these statements “signaled to the jury that [they 

were] free to analyze and weigh the effect of the [Intoximeter] evidence along with all 
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

the evidence presented during the trial.” Godwin, at 614, 800 S.E.2d at 54.

B. Mitigating Factors 

¶ 14 Defendant argues that the trial court erred by failing to find two statutory 

mitigating factors. Defendant argues this error is prejudicial because he received 

supervised probation as part of his sentence. We disagree. 

¶ 15 N.C. Gen. Stat. § 20-179 governs the sentencing of defendants convicted of 

impaired driving. State v. Geisslercrain, 233 N.C. App. 186, 190, 756 S.E.2d 92, 95

(2014). “[A] defendant’s sentencing range under N.C. Gen. Stat. § 20-179 is 

determined by the existence and balancing of aggravating and mitigating factors,”

id., and once a defendant is convicted for impaired driving, “the judge shall hold a 

sentencing hearing to determine whether there are aggravating or mitigating factors 

that affect the sentence to be imposed.” N.C. Gen. Stat. § 20-179(a) (2019). “The 

offender bears the burden of proving by a preponderance of the evidence that a 

mitigating factor exists.” N.C. Gen. Stat. § 20-179(a)(1) (2019). “The sentencing judge 

is required to find a statutory factor when the evidence in support of it is 

uncontradicted, substantial, and manifestly credible.” State v. Cameron, 314 N.C. 

516, 520, 335 S.E.2d 9, 11 (1985). “[W]henever there is error in a sentencing judge’s 

failure to find a statutory mitigating circumstance and a sentence in excess of the 

presumptive term is imposed, the matter must be remanded for a new sentencing 

hearing.” State v. Daniel, 319 N.C. 308, 315, 354 S.E.2d 216, 220 (1987) (emphasis 
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

added).

¶ 16 “Under [N.C. Gen. Stat.] § 20-179, there are six sentencing ranges.” 

Geisslercrain, 233 N.C. App. at 190, 756 S.E.2d at 95. “[T]he trial court is afforded 

much less discretion in sentencing under N.C. Gen. Stat. § 20-179 than under the 

Structured Sentencing Act.” Id. “The statutes governing [impaired driving] 

sentencing are quite systematic and tiered, thus leaving little room to exercise 

discretion.” State v. Weaver, 91 N.C. App. 413, 415–16, 371 S.E.2d 759, 760 (1988).

[T]he process resembles “pigeonholing” as the statutes 

supply the trial judge with the step-by-step formula; i.e., 

to review the evidence, to determine whether the evidence 

supports the factors listed in gross aggravation, 

aggravation, or mitigation, to weigh the factors supported 

by the evidence, and to determine the level of 

punishment.

Id. at 416, 371 S.E.2d at 760. “[I]f the trial court determines that [t]he mitigating 

factors substantially outweigh any aggravating factors, the trial court must impose a 

Level Five punishment.” Geisslercrain, 233 N.C. App. at 191, 756 S.E.2d at 95 

(internal quotation marks omitted); N.C. Gen. Stat. § 20-179(f)(3) (2019). Level Five 

is the minimum sentencing level that a defendant can statutorily receive for impaired 

driving. N.C. Gen. Stat. §§ 20-179(f3)–(k) (2019). A Level Five sentence permits that 

a defendant

may be fined up to two hundred dollars [] and shall be 

sentenced to a term of imprisonment that includes a 

minimum term of not less than 24 hours and a maximum 
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

term of not more than 60 days. The term of imprisonment 

may be suspended. However, the suspended sentence shall 

include the condition that the defendant: (1) Be imprisoned 

for a term of 24 hours as a condition of special probation; 

or (2) Perform community service for a term of 24 hours; or

. . . (4) Any combination of these conditions.

N.C. Gen. Stat. § 20-179(k) (2019). Additionally, a defendant may be placed on 

probation as part of a Level Five sentence. Id. (“If the defendant is placed on 

probation, the judge shall impose a requirement that the defendant obtain a 

substance abuse assessment and the education or treatment required by [N.C. Gen. 

Stat. §] 20-17.6 for the restoration of a drivers license and as a condition of 

probation.”). The General Assembly has provided trial courts a great deal of 

discretion in choosing the appropriate punishment within Level Five, including the 

choice between supervised and unsupervised probation. N.C. Gen. Stat. §§ 20-179(k), 

(r).

¶ 17 In this case, Defendant did not establish the first mitigating factor he argues 

for: that Defendant voluntarily submitted himself to a mental health facility for 

assessment and has voluntarily participated in any treatment recommended by such 

facility. No evidence in the record shows that Defendant voluntarily participated in 

the ADETS treatment recommended by his substance abuse assessment.

¶ 18 As to the second mitigating factor—that Defendant had a safe driving record—

we hold that Defendant met his burden of proof “by a preponderance of the evidence 
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

that a mitigating factor exists.” N.C. Gen. Stat. § 20-179(a)(1). Defendant submitted 

his driving record to the court without objection from the State. “[T]he evidence in 

support of [this factor was] uncontradicted, substantial, and manifestly credible.” 

Cameron, 314 N.C. at 520, 335 S.E.2d at 11. Therefore, the trial judge erred by failing 

to find this statutory factor. 

¶ 19 However, the trial judge did not impose “a sentence in excess of the 

presumptive term.” Daniel, 319 N.C. at 315, 354 S.E.2d at 220. Using the “step-bystep formula” under the impaired driving sentencing statutes, the trial judge 

“determine[d] that [t]he mitigating factors substantially outweigh[ed] any 

aggravating factors,” so, the judge imposed a Level Five punishment under N.C. Gen. 

Stat. § 20-179. Weaver, 91 N.C. App. at 416, 371 S.E.2d at 760; Geisslercrain, 233 

N.C. App. at 191, 756 S.E.2d at 95 (internal quotation marks omitted); N.C. Gen. 

Stat. § 20-179(f)(3).

¶ 20 Even if the trial judge had found the two additional mitigating factors, the 

judge could not have sentenced Defendant at a lower sentencing level under the 

“systematic and tiered” impaired driving statutes. Weaver, 91 N.C. App. at 415–16, 

371 S.E.2d at 760. Defendant’s Level Five sentence, including probation, was allowed 

under the impaired driving statutes. N.C. Gen. Stat. § 20-179(k). Accordingly, 

Defendant cannot establish that he was prejudiced by the trial court’s failure to find 

his safe driving record as a mitigating factor. 
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

¶ 21 It is important to emphasize that trial courts are mandated by N.C. Gen. Stat. 

§ 20-179(e) to determine whether statutory mitigating factors are apparent before 

imposing a sentence: “The judge shall . . . determine before sentencing under 

subsection (f) of this section whether any of the mitigating factors listed [in subsection 

(e)] apply to the defendant.” N.C. Gen. Stat. § 20-179(e) (2019). Prior to sentencing, 

the trial judge stated, “[M]y hands are tied. I do have to find the mitigating factors. 

You’re right. And I respect that, and I’m going to find that mitigating factors exist.” 

Instead, the judge only found one mitigating factor in writing: slight impairment of 

Defendant’s faculties. Moreover, the judge did not orally state his findings regarding

this factor or any other factor in mitigation before pronouncing Defendant’s sentence. 

Although the judge repeatedly spoke of his “responsibility” as superior to the 

“objectives” of the litigants before the court, the judge did not fulfill his statutorily 

mandated responsibility to find mitigating factors. This is despite the fact that 

evidence supporting the mitigating factor was “uncontradicted, substantial, and 

manifestly credible.” Cameron, 314 N.C. at 520, 335 S.E.2d at 11.

¶ 22 Although we discern no reversible error, it is important for trial judges to follow 

through with their responsibility to determine mitigating factors orally and in writing 

before imposing a sentence. Aside from being mandated by statute, this 

responsibility is integral to promoting our courts’ interests in procedural fairness, 

transparency, and respect for litigants before the court.
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

C. Constitutional Error 

¶ 23 Defendant contends that the trial court erred by sentencing Defendant more 

harshly because (1) Defendant exercised his right to a trial by jury, and (2) “the trial 

court relied on . . . uncharged criminal conduct not found by the jury.” Defendant

claims his arguments are evidenced by the trial judge stating the following:

Now, as I said in chambers, I have no qualm saying it here, 

I spoke to the attorneys, and I made an overture, and I said, 

[b]ased on the evidence, I’ll give you the same thing that 

Judge Willis gave you, if you want to accept responsibility 

and move forward. Mr. O’Hale said, Judge, he has a right 

to a trial. And I said, I know. But I wanted to make sure 

that if we could work this out, because I said, with the 

number, there’s a strong possibility this jury will come back 

with a guilty plea – a guilty verdict. I mean, jurors hear 

numbers. Now, one of the things about at the superior 

court level, my job is not to punish you because you didn’t 

take an offer. That’s not what it’s about. My job is to be 

fair and impartial, as I’m always going to be.

The judge continued speaking to Defendant: 

THE COURT: [L]et me ask you. You need to tell me the 

truth on this. Don’t lie to me. If I have you tested today, 

what are you going to test illegal for? If it’s marijuana or 

something like that, just tell me the truth now. Don’t lie. 

Because if I have you tested and you lie, I’m going to hold 

you in contempt and give you 30 days. What will you test 

positive for if I test you today?

DEFENDANT: Just marijuana.

We disagree with Defendant’s two arguments. 

¶ 24 “The standard of review for questions concerning constitutional rights is de 
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

novo.” State v. Fernandez, 256 N.C. App. 539, 544 808 S.E.2d 362, 367 (2017).

Further, “[t]he extent to which a trial court imposed a sentence based upon an 

improper consideration is a question of law subject to de novo review.” State v. 

Johnson, 265 N.C. App. 85, 87, 827 S.E.2d 139, 141 (2019). 

The primary purposes of sentencing a person convicted of 

a crime are to impose a punishment commensurate with 

the injury the offense has caused, taking into account 

factors that may diminish or increase the offender's 

culpability; to protect the public by restraining offenders; 

to assist the offender toward rehabilitation and restoration 

to the community as a lawful citizen; and to provide a 

general deterrent to criminal behavior.

N.C. Gen. Stat. § 15A-1340.12 (2019). “[I]n determining the sentence to be imposed,

the trial judge may consider such matters as the age, character, education, 

environment, habits, mentality, propensities and record of the defendant.” Johnson, 

265 N.C. App. at 87–88, 827 S.E.2d at 141. “Such an inquiry is needed if the 

imposition of the criminal sanction is to best serve the goals of the substantive 

criminal law.” State v. Smith, 300 N.C. 71, 82, 265 S.E.2d 164, 171 (1980) (finding 

that the trial judge’s questions to the defendant about his prior criminal record was 

appropriate and that the defendant’s failure to object or assert his Fifth Amendment 

privilege amounted to a waiver on appeal).

¶ 25 “The trial judge may also take into account the seriousness of a particular 

offense when exercising its discretion to decide the minimum term to impose within 
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

the presumptive range.” Johnson, 265 N.C. App. at 88, 827 S.E.2d at 141. “While a 

sentence within the statutory limit will be presumed regular and valid, such a 

presumption is not conclusive.” State v. Johnson, 320 N.C. 746, 753, 360 S.E.2d 676, 

681 (1987). “If the record discloses that the court considered irrelevant and improper 

matter in determining the severity of the sentence, the presumption of regularity is 

overcome, and the sentence is in violation of defendant's rights.” Id. “A criminal 

defendant may not be punished at sentencing for exercising [his] constitutional right 

to trial by jury.” State v. Cannon, 326 N.C. 37, 39, 387 S.E.2d 450, 451 (1990); see 

also Johnson, 265 N.C. App. at 88, 827 S.E.2d at 141 (“[O]ur Courts have held it is 

improper during sentencing for a trial judge to consider a defendant’s refusal to 

accept a plea offer.”). 

Where it can reasonably be inferred from the language of 

the trial judge that the sentence was imposed at least in 

part because [the] defendant did not agree to a plea offer 

by the state and insisted on a trial by jury, [the] defendant's 

constitutional right to trial by jury has been abridged, and 

a new sentencing hearing must result.

State v. Tice, 191 N.C. App. 506, 511–12, 664 S.E.2d 368, 372 (2008) (quoting State v. 

Cannon, 326 N.C. 37, 39, 387 S.E.2d 450, 451 (1990)).

¶ 26 “The trial de novo represents a completely fresh determination of guilt or 

innocence.” State v. Butts, 22 N.C. App. 504, 506, 206 S.E.2d 806, 808 (1974) (quoting 

Colten v. Kentucky, 407 U.S. 104, 117 (1972)).
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

[U]nless it affirmatively appears that a second sentence 

has been increased to penalize a defendant for exercising 

rights accorded him by the constitution, a statute, or 

judicial decision, a longer sentence does not impose an 

unreasonable condition upon the exercise of those rights 

nor does it deprive him of due process. The presumption is 

that the judge has acted with the proper motive and that 

he has not violated his oath of office.

State v. Stafford, 274 N.C. 519, 531, 164 S.E.2d 371, 380 (1968). “The burden is on 

the defendant to overcome the presumption that a court acted with proper motivation 

in imposing a more severe sentence.” State v. Daughtry, 61 N.C. App. 320, 324, 300 

S.E.2d 719, 721 (1983).

¶ 27 As to Defendant’s first argument, Defendant’s Level Five punishment fit 

within the statutory limit and is “presumed regular and valid.” N.C. Gen. Stat. § 20-

179(k) (2019); Johnson, 320 N.C. at 753, 360 S.E.2d at 681. Defendant has not 

overcome the “presumption of regularity” by showing that “the court considered 

irrelevant and improper matter[s] in determining the severity of the sentence.” Id., 

360 S.E.2d at 681. The trial judge did reference a chambers conversation where he 

stated he would give Defendant the same punishment as the district court judge if 

Defendant “want[ed] to accept responsibility and move forward.” However, the judge 

went on to say the following in the sentencing hearing: “[n]ow, one of the things about 

at the superior court level, my job is not to punish you because you didn’t take an 

offer. That’s not what it’s about. My job is to be fair and impartial, as I’m always 
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

going to be.” It cannot be reasonably “inferred from the language of the trial judge 

that the sentence was imposed at least in part because defendant did not agree to a 

plea offer.” Tice, 191 N.C. App. at 511–12, 664 S.E.2d at 372 (citation omitted).

¶ 28 Further, the judge stated: 

This was not an accident . . . I saw the video. I heard what 

the man said. When you hit his car, he went down the 

embankment. You’re lucky you didn’t kill somebody. See 

that’s what I think is missing here. You think it’s just an 

accident . . . it might have appeared like an accident, but 

you could have killed somebody. That’s no joke. So slight 

impairment, substance abuse assessment, safe driving 

record, polite and cooperative, you could have killed that 

man. He went down an embankment. You could have 

killed him. You could have killed yourself.

Taking “into account the seriousness of” the impaired driving offense is within the 

judge’s discretion during sentencing. Johnson, 265 N.C. App. at 88, 827 S.E.2d at 

141. Defendant has not met his burden to overcome the presumption “that the judge 

has acted with the proper motive and that he has not violated his oath of office.” 

Stafford, 274 N.C. at 531, 164 S.E.2d at 380.

¶ 29 Defendant’s second argument also fails. Defendant did not assert his Fifth 

Amendment privilege or object when the judge questioned him about his previous 

drug use. Defendant had counsel present, but Defendant did not ask to speak with 

his attorney nor did he conference with counsel. Defendant waived his Fifth 

Amendment argument for appeal. Smith, 300 N.C. at 82, 265 S.E.2d at 171. 
STATE V. GUERRERO

2021-NCCOA-457

Opinion of the Court

III. Conclusion

¶ 30 We conclude that Defendant received a fair trial, free from reversible error.

NO ERROR.

Judges MURPHY and ARROWOOD concur.