783 S.E.2d 512 (N.C. Ct. App. 2016)
In 2012 Austin Lynn Miller was convicted of one count of possession of a methamphetamine precursor and one count of maintaining a vehicle or dwelling for sale or delivery of a controlled substance. The trial court imposed a suspended sentence of 16 to 20 months and placed him on 36 months of supervised probation.1
Effective 1 January 2012 the General Assembly enacted N.C. Gen. Stat. § 90-113.52A, which required retailers to submit purchaser information for pseudoephedrine products to the National Precursor Log Exchange system before completing any sale and to generate stop-sale alerts when quantity limits would be exceeded.2 Effective 1 December 2013 the legislature added subsection (c) to N.C. Gen. Stat. § 90-95(d1)(1), making it unlawful for any person previously convicted of possession or manufacture of methamphetamine to possess a pseudoephedrine product and classifying any violation as a Class H felony.3
On 7 January 2014 Miller purchased one 3.6-gram box of allergy and congestion relief medicine containing pseudoephedrine from the Boone Walmart. The transaction was recorded in the NPLEx system and no stop-sale alert was issued.4 Detective John Hollar of the Watauga County Sheriff's Office reviewed the weekend NPLEx logs, identified Miller's purchase, visited the store, and obtained a receipt bearing Miller's electronic signature even though the surveillance video system had not functioned.5 On 23 January 2014 Hollar obtained an arrest warrant that he served on Miller at his probation officer's office the following day.6
On 4 August 2014 Miller was indicted under the new subsection.7 On 4 February 2015 he filed a motion to declare the statute unconstitutional as applied to him.8 The case was tried at the 2 February 2015 criminal session of Watauga County Superior Court before Judge Eric C. Morgan.9 After a pretrial hearing at which the State compared the statute to the felony-firearm possession law, the trial court denied the motion.10 The State presented testimony from Detective Hollar and the Walmart pharmacy manager.11 The court denied Miller's motion to dismiss at the close of the State's evidence.12 The jury returned a guilty verdict, and the court imposed a suspended sentence of 6 to 17 months together with 24 months of supervised probation.13
Miller indicated at sentencing that he wished to appeal but did not give oral notice after entry of judgment or file written notice within fourteen days as required by N.C. R. App. P. 4(a).14 On 5 June 2015 Miller filed a petition for writ of certiorari in the Court of Appeals of North Carolina.15 The State filed a response acknowledging the court's discretion to grant the petition.16 By order entered 24 June 2015 the petition was referred to the panel, which allowed it and addressed the merits of the appeal.17
Whether Austin Lynn Miller's conviction under N.C. Gen. Stat. § 90-95(d1)(1)(c) for possessing a pseudoephedrine product after a prior methamphetamine conviction violated his due process rights?18
A statute that imposes felony liability for otherwise lawful conduct without any scienter element violates the Due Process Clause of the Fourteenth Amendment. This is especially true when the statute fails to provide notice to the narrow class of persons newly subject to criminal penalties. The violation occurs when the conduct would not alert a reasonable person to the need to inquire whether it had been prohibited.19
Yes. In 2012 Austin Lynn Miller was convicted of one count of possession of a methamphetamine precursor and one count of maintaining a vehicle or dwelling for sale or delivery of a controlled substance, receiving a suspended sentence of 16 to 20 months and 36 months of supervised probation.20
Effective 1 December 2013 the General Assembly added subsection (c) to N.C. Gen. Stat. § 90-95(d1)(1), converting possession of any pseudoephedrine product by a person with a prior methamphetamine conviction into a Class H felony without adding any intent or knowledge requirement.21 On 7 January 2014 Miller purchased one 3.6-gram box of pseudoephedrine product at Boone Walmart. The transaction was recorded in the NPLEx system and no stop-sale alert was generated.22
Detective John Hollar reviewed the NPLEx logs, obtained a receipt bearing Miller's electronic signature, and served an arrest warrant on Miller at his probation officer's office.2324 Miller was indicted on 4 August 2014, moved to declare the statute unconstitutional as applied on 4 February 2015, and was tried at the 2 February 2015 session of Watauga County Superior Court.252627 The trial court denied the motion after analogizing the statute to the felony-firearm law.28 The jury returned a guilty verdict, and Miller received a suspended sentence of 6 to 17 months with 24 months of supervised probation.29
Miller failed to give timely notice of appeal under N.C. R. App. P. 4(a) but petitioned for a writ of certiorari on 5 June 2015. The Court of Appeals granted the petition on 24 June 2015 and reached the merits.30 The statute contains no scienter element. The General Assembly deliberately omitted any intent language that appears in adjacent subsections. No mechanism existed to notify the affected subset of felons that their previously lawful purchases had become felonious.31
Miller complied with every existing regulatory requirement, received no stop-sale alert, and had no reason to suspect that the act legal for the general public and most felons had been transformed into a felony solely for him.32 These facts establish that the statute criminalized innocuous conduct without the notice required by due process.33 The rule therefore applies directly. Because the conduct was not inherently dangerous or likely to alert a reasonable person to regulation, and because no actual or constructive notice was provided, Miller's conviction cannot stand consistently with the Fourteenth Amendment.34