State v. Lu, ___ N.C. App. ___, 836 S.E.2d 664 (Nov. 19, 2019)

The defendant was a passenger in a car stopped at a traffic checkpoint. An officer smelled marijuana emanating from the vehicle. The defendant told the officer that the marijuana was located in a bag behind the driver’s seat. The officer found a drawstring bag there, which the defendant said was his. Inside the bag, the officer found two plastic bags containing marijuana, a hookah, a snort straw, and a beer can. The beer can was altered to be a container that could be unscrewed. Inside the beer can the officer found two white crystallized substances later identified as Methylone and a Lorazepam tablet.

The defendant was charged with felony possession of a Schedule I controlled substance (Methylone), misdemeanor possession of marijuana, and misdemeanor possession of drug paraphernalia based on his possession of the altered beer can. He was convicted and sentenced to 6 to 17 months for the felony and 120 days (to run consecutively) for each misdemeanor offense. Each sentence was suspended, and the defendant was placed on probation for 36 months. He also was ordered to serve 12 days of special probation for the felony.

The defendant argued on appeal that the sentences for the misdemeanor offenses were unlawful because the trial court did not make finding that a longer period of probation was necessary. The court of appeals agreed.

G.S. 15A-1343.2(d)(2) provides that “[u]nless the court makes specific findings that longer or shorter periods of probation are necessary,” the probationary period for a misdemeanant sentenced to intermediate punishment (which includes any suspended sentence that requires supervised probation) must be not less than 12 nor more than 24 months. The record supported the defendant’s argument that the trial court made no specific findings; therefore, the court of appeals vacated the misdemeanor judgments and remanded for resentencing.