Most Serious Offense for Consolidation Purposes

When a defendant is convicted of more than one offense at the same time, the court may consolidate the offenses for judgment. The sentence for that judgment is driven by the “most serious offense” among the consolidated convictions. G.S. 15A-1340.15(b). Today’s post considers some issues related to the determination of which offense in a consolidated judgment is the most serious.

The general rule is this: “[W]hen separate offenses of different class levels are consolidated for judgment, the trial judge is required to enter judgment containing a sentence for the conviction at the highest class.” State v. Tucker, 357 N.C. 633 (2003). Most of the time, that’s a pretty easy rule to apply. Entering a consolidated judgment for a Class G felony and two Class H felonies? Just enter one sentence appropriate for the Class G. And that entire sentence must be dictated by the lead offense alone. For example, the “same elements” prior record bonus point applies only if all the elements of the most serious offense are included in a prior offense. State v. Mack, 188 N.C. App. 365 (2008). Likewise, aggravating factors apply only if they are connected to the lead offense, State v. Jacobs, 202 N.C. App. 71, 75 (2010) (improper to aggravate the lead burglary offense based on aggravating factors related to lesser consolidated charges), and are barred only if they require evidence necessary to prove an element of the lead offense. Tucker, 357 N.C. at 639 (proper to aggravate the most serious offense—Class B1 statutory sexual offense of a person aged 13, 14, or 15—by the “abuse of a position of trust” aggravating factor, even though that aggravating factor would have been barred as to the consolidated offense of Class E sexual offense by a person in a parental role).

Sometimes it is not clear which offense in a consolidated judgment is the most serious offense. Here are some examples, and thoughts on what to do when you encounter them.

Two or more convictions of the same offense class. When all of the convictions in a consolidated judgment are the same offense class, you can generally use whichever one you like as the lead offense.  Sometimes, however, convictions of the same offense class will be subject to different punishments. Suppose, for example, that a defendant has two Class H convictions, one for an offense that occurred before December 1, 2011, and one for an offense that occurred on or after that date. The maximum sentence for the post-12/1/11 offense will include an additional 9 months for post-release supervision, which probably makes it the more serious offense for purposes of G.S. 15A-1340.15(b). The same logic might apply if one of the offenses were a reportable sex crime subject to the increased term of post-release supervision described in G.S. 15A-1368.2(c).

Habitual felon sentences. Habitualized felonies sentenced at the same time may be consolidated for judgment. State v. Haymond, 203 N.C. App. 151 (2010). To evaluate which of the consolidated offenses is the most serious for purposes of consolidation, use the original offense class of each crime, not their punishment classification under the habitual felon law. For example, even though a Class E and Class G felony would both be elevated to Class C for sentencing under the habitual felon law, the Class E is still the most serious offense and must be the lead offense in a consolidated judgment. State v. Gardner, __ N.C. App. __, 736 S.E.2d 826 (2013) (discussed here).

Higher maximum sentence for a lower offense class. Sometimes an offense with a lower offense class will have a longer maximum sentence than an offense of a higher offense class. For example, a Class H felony committed on or after December 1, 2011 subject to a 6–17 month sentence has a longer maximum than a pre-2011 Class G felony subject to a 13–16 month sentence. Which is more serious for consolidation purposes? The language quoted above from Tucker suggests offense class controls, and that you’d go with the Class G, but no appellate case has considered the question directly.

Drug trafficking. A situation that would test the limits of the offense class–driven rule is when one of a defendant’s convictions is for drug trafficking. Is Class F trafficking, with its 70–93 month sentence, really less serious than, say, a regular Class E felony, which would max out at 88 months? If offense class controls, the trafficking could be consolidated into the Class E—which would result in a lower prison term and no mandatory fine. Again, no appellate case resolves the issue.

DWI. What to do with a crime like impaired driving, which is not sentenced under Structured Sentencing and therefore has no offense class at all? We know from G.S. 20-179(f2) that DWI judgments may not be consolidated with one another. But that same statute expressly allows a DWI to be consolidated “with a charge carrying a greater punishment.” Shea tackled what that means in this prior post, and on page 191 of her new book.

This is my last post of the year. Happy holidays and safe travels to all readers! I am grateful for all you do to promote justice and uphold the rule of law. Thank you!

DWLR + DWI Does Not (Automatically) Equal a Grossly Aggravating Factor

Grossly aggravating factors matter in DWI sentencing.  And there’s one factor that seems to be confusing folks, particularly when it comes to ignition interlock violations. Here’s hoping this post clears it up. Continue reading

United States Supreme Court Rules that Reasonable Suspicion May Be Based on Reasonable Mistakes of Law

Shea blogged here about State v. Heien, the case in which the court of appeals ruled that having one burned-out brake light was not a violation of G.S. 20-129 and so did not support a vehicle stop. (The stop led to a consent search of the defendant’s vehicle, which led to the discovery of drugs and to drug trafficking charges.) The prosecution sought review in the state supreme court. That court assumed that the court of appeals was correct about the scope of the statute but determined (1) that an officer might reasonably think otherwise, given ambiguities in the statute, and (2) that reasonable suspicion may be based on a reasonable mistake of law. Conclusion (2) was the subject of a split of authority across the country, so the United States Supreme Court agreed to review the case. It issued its opinion yesterday. Continue reading

US Supreme Court to Decide Whether Child’s Statements to Teacher Were Testimonial

In early October the Supreme Court granted certiorari in an Ohio case, State v. Clark, 999 N.E.2d 592 (Ohio 2013), cert. granted __ U.S. __, 135 S. Ct. 43 (2014), that will require it to decide two questions. First, whether a person’s obligation to report suspected child abuse makes the person an agent of law enforcement for purposes of the confrontation clause. And second, whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements. The case is important for a number of reasons. One is that like Ohio, North Carolina has a mandatory child abuse reporting statute. G.S. 7B-301. North Carolina’s statute is incredibly broad—it applies to everyone, not just teachers and doctors but also to family members, neighbors, and friends. Id. (“[a]ny person or institution”). Thus, an answer to the first question could have significant impact in North Carolina. The case also is important because Crawford has raised difficult questions in child abuse prosecutions about the testimonial nature of children’s statements to a host of people, including teachers, nurses, doctors, and social workers. Clark is the Court’s first Crawford case involving child abuse and many hope that its decision will provide answers to those questions. Continue reading

News Roundup

The nation and the state continue to discuss events in Ferguson, Missouri and in Staten Island, New York. One direct impact of the controversy in North Carolina is that the Legislative Black Caucus plans to introduce legislation in the 2015 session that would require law enforcement officers to wear body cameras, according to this WRAL story. The details of the proposal are not yet clear. Continue reading

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Go Ahead, Test Me

Most people stopped on suspicion of impaired driving would rather avoid the trip to the police station. Some suspects attempt to dispel officers’ suspicions by answering questions about whether they have been drinking and how much they’ve had to drink.  Others perform field sobriety tests. A few cut right to the chase, demanding that officers transport them immediately to the station for breath testing. That way, the person who is not impaired by alcohol can resolve the encounter without the indignity–and the record–that accompanies arrest. Continue reading

New Ethics Opinion on Incarcerated Defendants’ Right to Review Discovery

Many criminal defense lawyers are reluctant to give incarcerated clients copies of discovery materials. Lawyers may worry that the materials will be stolen by other inmates, who will then use the information in the materials to bolster false claims that the defendant confessed to them. And lawyers may believe that certain clients simply should not have access to certain materials, such as the addresses and phone numbers of witnesses or alleged victims. But what if a client insists on having a copy of discovery materials? A new State Bar ethics opinion addresses this issue. Continue reading

The Right to Be Present at Sentencing

A North Carolina defendant has a common law right to be personally present when a criminal sentence is pronounced. That right is separate from the constitutional right to be present at trial, State v. Pope, 257 N.C. 326 (1962), and a waiver of the sentencing right should not be inferred from the defendant’s absence at trial. When a defendant is tried and found guilty in absentia (because he or she fled in the middle of the trial, or perhaps behaved in a disorderly fashion), we generally recommend that prayer for judgment be continued until the defendant can be brought before the court for sentencing. See Jessica Smith, N.C. Superior Court Judges’ Benchbook: Trial in the Defendant’s Absence. In one case the court of appeals held that a trial judge did not err by proceeding to sentence a defendant after he fled the courthouse, primarily because his lawyer remained and did not ask for a continuance. State v. Miller, 142 N.C.App. 435 (2011). But in light of earlier cases, the better practice is to wait. See, e.g., State v. Stockton, 13 N.C. App. 287 (1971) (citing several supreme court cases deeming sentences entered in a defendant’s absence to be defective). Continue reading

Free Legal Research

Now that I have your attention . . . .

Ever wonder what happens to those case summaries that you receive from me by email? (If you’re not getting them you’re not on my listserv; sign up for free here). I sort them by subject and add them to my Criminal Case Compendium, an online, fully searchable resource. The Compendium, now a whopping 514 pages long, turned six years old this month. [Editor’s note: Actually, last month — I was a little slow in getting this post up!] In honor of the Compendium’s birthday, here’s quick primer on using this free legal research tool. Continue reading

News Roundup

Several grand juries have recently considered whether to charge white police officers with killing black men. We’ve already discussed the case in Ferguson, Missouri on this blog. Wednesday, a Staten Island, New York grand jury declined to indict officer Daniel Pantaleo in the death of Eric Garner. The New York Times has the story here. Then a South Carolina grand jury indicted officer Richard Combs for murder in the fatal shooting of Bernard Bailey, as Time reports here. Is it a small sample? A historic moment? A coincidence? An epidemic? Some or all of the above, depending on your point of view. Continue reading

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