Mace v. NC Dep't of Ins. ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-710
Filed: 18 February 2020
Alexander County, No. 18 CVS 394
PAUL KIPLAND MACE, Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF INSURANCE, Respondent.
Appeal by Petitioner from order and judgment entered 4 April 2019 by Judge
David A. Phillips in Alexander County Superior Court. Heard in the Court of Appeals
22 January 2020.
Wyatt Early Harris Wheeler LLP, by Donavan J. Hylarides, for Petitioner-
Appellant.
Attorney General Joshua H. Stein, by Assistant Attorney General LaShawn S.
Piquant, for Respondent-Appellee.
COLLINS, Judge.
Paul Kipland Mace appeals from the trial court’s order affirming an order and
final agency decision of the North Carolina Department of Insurance. The issue
before this Court is whether a verdict of guilty of simple assault after a plea of not
guilty, and the district court’s subsequent entry of a prayer for judgment continued,
is an “adjudication of guilt” and thus a “conviction” for purposes of N.C. Gen. Stat.
§ 58-2-69(c). Because we answer this question in the affirmative, we discern no legal
error in the agency’s decision. Accordingly, we affirm the trial court’s order.
MACE V. N.C. DEP’T OF INSURANCE
Opinion of the Court
I. Procedural and Factual History
Paul Kipland Mace (“Petitioner”) is an insurance agent who has been licensed
by Respondent North Carolina Department of Insurance (“DOI”) since 1993. In May
2013, Petitioner was charged with simple assault, a class 2 misdemeanor offense.
Petitioner pled not guilty.
After a bench trial in district court on 17 January 2017, Petitioner was found
guilty of simple assault. Judgment was continued upon payment of court costs
(“prayer for judgment continued” or “PJC”). Petitioner did not report the case to the
DOI.
Soon after the guilty verdict and PJC were entered, the DOI received an
anonymous communication stating that Petitioner had been convicted of assault. The
DOI contacted Petitioner to ask why he had not reported the conviction under N.C.
Gen. Stat. § 58-2-69(c) (“the reporting statute”), which requires a licensee to notify
the Commissioner of Insurance in writing of a conviction within 10 days after the
date of the conviction. Petitioner replied, “I never knew I was supposed to report this
prayer for judgment of simple assault or I would have right away.”
Petitioner’s attorney advised him that he did not need to notify the DOI
because the district court had entered a PJC, and “there had been no adjudication of
guilt, plea of guilty, or plea of no contest.” After further communication with the DOI,
Petitioner requested an administrative hearing.
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Opinion of the Court
An administrative hearing was conducted by the DOI on 23 May 2018 and an
Order and Final Agency Decision (“Decision”) was issued on 23 July 2018. The
hearing officer found that Petitioner had been charged with simple assault, pled not
guilty, was found guilty in district court, was required but failed to report the
conviction to the DOI, and relied on the advice of his attorney that he was not
required to report the case to the DOI. The hearing officer concluded that “the judge’s
rendering of a guilty verdict . . . is a ‘conviction’ under N.C. Gen. Stat. § 58-2-69(c)”;
“judgment on the conviction was continued upon the payment of court costs”;
Petitioner was required to report the conviction regardless of the judgment issued;
and Petitioner violated the reporting statute by not reporting the conviction. Based
in part on the fact that Petitioner had relied on the advice of counsel in not reporting
the conviction, Petitioner was ordered to pay a $100 civil penalty instead of having
his license revoked or suspended.
On 31 July 2018, Petitioner filed in superior court a petition for judicial review
of the Decision, seeking, inter alia, a stay of the Decision and an order setting aside
the Decision. The superior court stayed the Decision pending judicial review. After
a hearing on 4 March 2019, the superior court entered an Order and Judgment
(“Order”) on 4 April 2019, affirming the Decision.
Petitioner filed timely notice of appeal to this Court.
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Opinion of the Court
II. Discussion
Petitioner argues that the trial court erred when it held that a PJC following
a plea of not guilty is a conviction under the reporting statute. Petitioner’s argument
is misguided.
In reviewing a trial court’s order concerning an agency decision, this Court
must (1) “determin[e] whether the trial court exercised the appropriate scope of
review and, if appropriate, (2) decid[e] whether the court did so properly.” ACT-UP
Triangle v. Comm’n for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)
(internal quotation marks and citation omitted). A trial court should apply a de novo
standard of review when the nature of the petitioner’s challenge to the agency
decision is that it was based on an error of law. Amanini v. N.C. Dep’t of Human Res.,
114 N.C. App. 668, 677, 443 S.E.2d 114, 119 (1994). “[W]hen the issue on appeal is
whether a state agency erred in interpreting a statutory term, an appellate court may
substitute its own judgment for that of the agency and employ de novo review.” Id.
at 678, 443 S.E.2d at 120 (internal quotation marks, brackets, emphasis, and citation
omitted). Accordingly, we consider de novo whether the DOI erred in concluding that
“the judge’s rendering of a guilty verdict . . . is a ‘conviction’ under N.C. Gen. Stat.
§ 58-2-69(c)” such that Petitioner violated the reporting statute by not reporting the
conviction.
Under N.C. Gen. Stat. § 58-2-69(c),
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Opinion of the Court
If a licensee is convicted in any court of competent
jurisdiction for any crime or offense other than a motor
vehicle infraction, the licensee shall notify the
Commissioner in writing of the conviction within 10 days
after the date of the conviction. As used in this subsection,
“conviction” includes an adjudication of guilt, a plea of
guilty, or a plea of nolo contendere.
N.C. Gen. Stat. § 58-2-69(c) (2017). Accordingly, “an adjudication of guilt” is a
“conviction” for purposes of this statute. Id. “Where the language of a statute is clear
and unambiguous, there is no room for judicial construction and the courts must give
it its plain and definite meaning, and are without power to interpolate, or
superimpose, provisions and limitations not contained therein.” Walters v. Cooper,
226 N.C. App. 166, 169, 739 S.E.2d 185, 187, aff’d, 367 N.C. 117, 748 S.E.2d 144
(2013) (internal quotation marks and citation omitted).
“Adjudication” is defined as “the process of judicially deciding a case.”
Adjudication, Black’s Law Dictionary (11th ed. 2019); see also Adjudication,
Ballentine’s Law Dictionary (3d ed. 2010) (defining “adjudication” as “[t]he
determination of the issues in an action according to which judgment is rendered; a
solemn, final, and deliberate determination of an issue by the judicial power, after a
hearing in respect to the matters determined”). “Guilt” is defined as “[t]he fact, state,
or condition of having committed a . . . crime.” Guilt, Black’s Law Dictionary (11th
ed. 2019); see also Guilt, Ballentine’s Law Dictionary (3d ed. 2010) (defining “guilt” as
“[c]riminality; culpability; guiltiness; the antithesis of innocence”). Based on this
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Opinion of the Court
plain meaning of the phrase “adjudication of guilt,” the language of the statute is
clear and unambiguous that a finding of guilty by verdict of a judge is an adjudication
of guilt, and thus a conviction, under N.C. Gen. Stat. § 58-2-69(c).
Here, the fact that the trial court issued a prayer for judgment continued does
not alter the plain language of this statute; nothing in the statute suggests that
“conviction” means and includes a guilty verdict only in those instances in which the
trial court does not enter a prayer for judgment continued. See Britt v. N.C. Sheriffs’
Educ. & Training Standards Comm’n, 348 N.C. 573, 577, 501 S.E.2d 75, 77 (1998)
(holding that an agency properly interpreted “conviction” as defined by the relevant
administrative regulation to include a plea of no contest, despite the fact that
defendant’s plea of no contest was followed by a prayer for judgment continued). “A
judgment of conviction is one step beyond conviction. A judgment of conviction
involves not only conviction but also the imposition of a sentence. This distinction
has been recognized in both North Carolina statutes and case law.” N.C. State Bar
v. Wood, 209 N.C. App. 454, 456-57, 705 S.E.2d 782, 784 (2011).
“For the purpose of imposing sentence” under the North Carolina Criminal
Procedure Act, “a person has been convicted when he has been adjudged guilty or has
entered a plea of guilty or no contest.” N.C. Gen. Stat. § 15A-1331(b) (2019). “This
Court has interpreted N.C. Gen. Stat. § 15A-1331(b) to mean that formal entry of
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Opinion of the Court
judgment is not required in order to have a conviction.” Wood, 209 N.C. App. at 457,
705 S.E.2d at 784 (internal quotation marks and citation omitted).
In Wood, this Court held that the Disciplinary Hearing Commission of the
North Carolina State Bar (“DHC”) properly entered an order of discipline disbarring
defendant based upon his criminal convictions, despite the fact that no judgment of
conviction had been entered. Id. at 455, 705 S.E.2d at 783. Defendant was convicted
in federal district court of several crimes. Id. at 455, 705 S.E.2d at 784. The DHC
disbarred defendant based upon his violations of N.C. Gen. Stat. § 84-28(b)(1) and (2),
which read, in pertinent part, as follows:
(b) The following acts or omissions by a member of the
North Carolina State Bar . . . shall constitute misconduct
and shall be grounds for discipline . . . :
(1) Conviction of, or a tender and acceptance of a plea of
guilty or no contest to, a criminal offense showing
professional unfitness;
(2) The violation of the Rules of Professional Conduct . . . .
Id. at 457, 705 S.E.2d at 785 (quoting N.C. Gen. Stat. § 84-28(b)(1) and (2) (2006)).
Following the return of the verdict, the district court granted defendant’s
motion for judgment of acquittal and conditionally granted defendant’s motion for a
new trial, should the judgment of acquittal be reversed or vacated. Id. at 456, 705
S.E.2d at 784. Based upon this order, the DHC conditionally vacated defendant’s
disbarment. The appellate court reversed the district court’s judgment of acquittal
and conditional grant of a new trial, and remanded the matter to the district court
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Opinion of the Court
for further proceedings consistent with its opinion. Based upon the appellate court’s
reversal, the DHC reinstated the order of disbarment. Id.
On appeal to this Court, defendant argued that the DHC erred in disbarring
him and reinstating this disbarment based upon his conviction of criminal offenses
when no judgment of conviction had been entered. This Court noted, “[d]efendant’s
argument conflates a conviction and a judgment of conviction.” Id. This Court held
that the DHC properly disciplined defendant because “[t]he plain language of this
statute requires that an attorney be ‘convicted of . . . a criminal offense showing
professional unfitness,’ not that a judgment of conviction be entered.” Id. at 457, 705
S.E.2d at 785.
Here, as in Wood, Petitioner’s “argument conflates a conviction and a judgment
of conviction.” Id. at 456, 705 S.E.2d at 784. Petitioner was found guilty of simple
assault by verdict of a judge in district court. This judicial verdict of guilt was an
“adjudication of guilt” under N.C. Gen. Stat. § 58-2-69(c). This adjudication of guilt
was, in turn, a “conviction” for purposes of N.C. Gen. Stat. § 58-2-69(c). The plain
language of the reporting statute requires that a licensee be “convicted in any court
of competent jurisdiction for any crime or offense other than a motor vehicle
infraction[,]” N.C. Gen. Stat. § 58-2-69(c), “not that a judgment of conviction be
entered,” Wood, 209 N.C. App. at 457, 705 S.E.2d at 785. Thus, Petitioner was
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Opinion of the Court
required to notify the Commissioner in writing of his conviction of simple assault by
27 January 2017, 10 days after the date of the conviction.
Petitioner argues that,
[b]ased on expressio unius est exclusio alterius, a
“conviction” for purposes [N.C. Gen. Stat.] § 58-2-69(c) can
mean only one of three things: 1) an adjudication of guilt;
2) a plea of guilty; or 3) a plea of nolo contendere (no
contest). There is no dispute that [Petitioner] did not plead
guilty or nolo contendere. He pled “not guilty”. . . .
Therefore, [Petitioner’s] continued judgment, or prayer for
judgment continued, can only be a “conviction” for purposes
of [N.C. Gen. Stat.] § 58-2-69(c) if it is “an adjudication of
guilt”.
By this argument, Petitioner completely disregards the fact that he was found guilty
by verdict of a judge in district court. It is this guilty verdict that is an adjudication
of guilt and thus a conviction under the statute.
Petitioner further contends that a PJC upon payment of costs, without more,
does not constitute an entry of judgment. Without a judgment, Petitioner’s argument
continues, there has been no adjudication of guilt. Petitioner relies on cases in which
our appellate courts have held that a PJC is not a conviction for purposes of other
statutes. Those cases are readily distinguishable from the present case.
In State v. Southern, 71 N.C. App. 563, 322 S.E.2d 617 (1984), aff’d, 314 N.C.
110, 331 S.E.2d 688 (1985), this Court held that, based on the statutory definition of
“prior conviction” in the Fair Sentencing Act, a conviction with prayer for judgment
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Opinion of the Court
continued cannot support a finding of prior convictions as an aggravating factor. We
stated:
The definition of “prior conviction” appears in [N.C. Gen.
Stat. §] 15A-1340.2(4):
A person has received a prior conviction when
he has been adjudged guilty of or has entered
a plea of guilty or no contest to a criminal
charge, and judgment has been entered
thereon and the time for appeal has expired, or
the conviction has been finally upheld on
direct appeal. (Emphasis added.)
Thus, an offense is a “prior conviction” under the Fair
Sentencing Act only if the judgment has been entered and
the time for appeal has expired, or the conviction has been
upheld on appeal. When an accused is convicted with
prayer for judgment continued, no judgment is entered,
and no appeal is possible (until judgment is entered). Such
a conviction therefore may not support a finding of an
aggravating circumstance under [N.C. Gen. Stat. §] 15A-
1340.4(a)(1)(o).
Id. at 565-66, 322 S.E. 2d at 619 (internal citation omitted).
In contrast to N.C. Gen. Stat. § 15A-1340.2(4) at issue in Southern, which
specifically required both an adjudication of guilt and entry of judgment thereupon,
the reporting statute at issue in this case defines conviction solely as an adjudication
of guilt, and does not require entry of judgment upon that adjudication.
In Florence v. Hiatt, 101 N.C. App. 539, 400 S.E.2d 118 (1991), this Court
considered the meaning of “final conviction” in the context of our motor vehicle
statutes. Defendant was convicted of operating a motor vehicle without a license. Id.
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Opinion of the Court
at 540, 400 S.E.2d at 119. He received a PJC from the trial court, which included
certain non-punitive conditions. The Department of Motor Vehicles (“DMV”)
subsequently revoked defendant’s license pursuant to the then-applicable version of
N.C. Gen. Stat. § 20-28.1, which mandated that the DMV revoke an individual’s
driver’s license upon his conviction of a moving violation during a period of revocation.
At that time, N.C. Gen. Stat. § 20-24(c) defined “conviction” as a “final conviction of a
criminal offense.” Id. at 540-41, 400 S.E.2d at 119-20; N.C. Gen. Stat. § 20-24(c)
(1987).
Defendant obtained a permanent injunction against the DMV, enjoining it
from suspending his license. Florence, 101 N.C. App. at 540, 400 S.E.2d at 119. The
DMV appealed. “The issue on appeal [was] whether the conditional language in [the
trial court’s] order render[ed] the putative ‘prayer for judgment continued’ a final
conviction.” Id. This Court held that a true PJC does not operate as a “final
conviction” for purposes of our motor vehicle statutes. Id. at 542, 400 S.E.2d at 121.
Similarly, in Walters, this Court confronted the question of whether a PJC
entered on a conviction “makes that conviction a ‘final conviction,’ and thus a
‘reportable conviction,’” for purposes of the sex offender registration statute. Walters,
226 N.C. App. at 168, 739 S.E.2d at 186-87. This Court noted that “the term ‘final
conviction’ has no ordinary meaning, and is not otherwise defined by the [sex offender
registration] statute.” Id. at 169, 739 S.E.2d at 187. This Court “assume[d] that the
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Opinion of the Court
legislature enacted Section 14-208.6 with an awareness of Florence, and yet chose not
to articulate whether PJCs are ‘final convictions’ for the purposes of the registration
statute. This suggests that the legislature saw no need to do so, even in light of case
law holding PJCs are not ‘final convictions’ in the context of another statutory scheme
employing similar language.” Id. at 170, 739 S.E.2d at 188. Accordingly, we held
that “a true PJC does not operate as a ‘final conviction’ for the purposes of” the sex
offender registration statute. Id. at 171, 739 S.E.2d at 188.
In contrast to the motor vehicle statutes at issue in Florence and the sex
offender registration statute at issue in Walters, both of which required a “final
conviction,” the reporting statute at issue in this case requires only a “conviction,”
which is specifically defined as “an adjudication of guilt.” Thus, Petitioner’s reliance
on these distinguishable cases to support his argument that there has been no
conviction under the reporting statute due to the trial court’s entry of a PJC is without
merit.
III. Conclusion
Because we conclude that a verdict of guilty of simple assault, regardless of the
district court’s subsequent entry of a PJC, is an “adjudication of guilt” and thus a
“conviction” for purposes of N.C. Gen. Stat. § 58-2-69(c), we affirm the trial court’s
Order affirming the Decision of the DOI.
AFFIRMED.
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Opinion of the Court
Judges ARROWOOD and HAMPSON concur.
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