It’s a chilly, blustery day in Chapel Hill, but I see signs of spring. The days are getting a little longer. College basketball season kicks into high gear tonight. And there are only four days until pitchers and catchers report. But one of my favorite signs that we’ve completed another trip around the sun and are starting to tilt toward it has also arrived: the North Carolina Sentencing and Policy Advisory Commission has issued its annual Statistical Report for Felonies and Misdemeanors. Continue reading
Tag Archives: structured sentencing
Much has been written—and much of it by the Supreme Court—on the proper way to find aggravating factors for sentencing. After Apprendi v. New Jersey, Blakely v. Washington, and countless cases at the state level, it is of course clear that a defendant has a Sixth Amendment right to have aggravating factors proved to a jury beyond a reasonable doubt. Once sentencing factors are properly found, however, responsibility shifts back to the judge to decide what to do about them. The rules for weighing factors are as loosey-goosey as the rules for finding them are rigid. Continue reading →
Not many sentences come from the aggravated range—four percent in Fiscal Year 2013/14, according to the North Carolina Sentencing and Policy Advisory Commission. But when you use the aggravated range, you want to make sure to do it correctly. Some recent cases offer a reminder about the proper procedure for alleging and proving aggravating factors. Continue reading →
Last year I posted a chart summarizing the proper place of confinement (jail, prison, or Statewide Misdemeanant Confinement Program) for various types of imprisonment. The chart covers active sentences, split sentences, CRVs, quick dips, and incarceration for nonpayment of a fine. One thing it does not explicitly cover, though, is the proper place of confinement for a sentence activated upon revocation of probation. In response to a flurry of questions, I’ll take that issue up today. Continue reading →
It’s a snow day across much of North Carolina. If your power is on (and your internet connection is working), today’s post will give you something to read by the fire. Allow me to make my annual plug for the North Carolina Sentencing and Policy Advisory Commission’s Structured Sentencing Statistical Report for Felonies and Misdemeanors. Continue reading →
Before Structured Sentencing we had Fair Sentencing. Under Fair Sentencing, there was no such thing as “prior record level,” but a prior conviction could qualify as an aggravating factor, exposing a person to a longer sentence. G.S. 15A-1340.4(a)(1)(o) (1988). However, the law included an exception for any crime joinable with the crime for which the defendant was currently being sentenced. Id. If prior conviction A could have been joined for trial with current charge B, then A could not count as an aggravating factor for the sentencing of B.
There is no such prohibition under Structured Sentencing. Rather, a prior conviction is now defined as any conviction existing on the date judgment is entered for current offense. G.S. 15A-1340.11(7). That rule grabs essentially any prior conviction—even those for offenses that actually occurred after the offense date of the crime now being sentenced, State v. Threadgill, __ N.C. App. __, 741 S.E.2d 677 (2013), and even those arising between the sentencing and resentencing of the same offense, State v. Pritchard, 186 N.C. App. 128 (2007). There is no exception in the prior record level statute for joined or joinable offenses.
Nevertheless, limits have emerged on the use of a joined conviction when calculating a person’s prior record level. In State v. West, 180 N.C. App. 664 (2006), a defendant was convicted by a jury of four crimes on the same day. The trial court sentenced the defendant for three of the crimes before lunch. When sentencing the fourth crime after lunch, the court counted prior record points for one of the offenses sentenced that morning. The court of appeals reversed, holding that while “[n]othing within [Structured Sentencing] specifically addresses the effect of joined charges when calculating previous convictions . . . using joined convictions would be unjust and in contravention of the intent of the General Assembly.” Id. at 669.
Under West, it is impermissible to introduce a short delay between the sentencing of joined offenses to allow one to count for points in the sentencing of the other. But what if the delay arises naturally? Suppose two charges are joined for trial. One results in a conviction, but the jury fails to reach a verdict on the other. If the mistried offense is retried and results in a conviction, does the conviction from the first trial count for prior record points toward the sentencing of the retried offense—even though they were initially joined for trial?
A mechanical application of G.S. 15A-1340.11(7) would suggest that it does. The first conviction clearly exists on the date a criminal judgment is entered for the second, and so it would appear to meet Structured Sentencing’s definition of a prior conviction. On the other hand, West could be read to suggest that it would be “unjust and in contravention of the intent of the General Assembly” to count the once-joined offense for points. Close call, right?
So close, in fact, that when two cases presenting that exact fact pattern were decided by the court of appeals last week, two panels of the court answered the question differently. In State v. Perkins, __ N.C. App. __ (2014), the defendant was initially tried on 20 sex crimes at the same time but convicted of only one of them, indecent liberties with a child. The jury failed to reach a verdict on the remaining counts. A year later when the defendant was retried and convicted on four of the charges, the indecent liberties conviction counted for points toward his prior record level. The court of appeals found no error, rejecting the defendant’s argument that counting points for the once-joined offense was prohibited. The panel distinguished West, saying the prior conviction in this case, unlike in West, “was established well in advance of [the defendant’s] attaining four additional convictions.”
State v. Watlington, __ N.C. App. __ (2014), went a different direction with West (pun intended). The defendant in Watlington was tried for several charges on the same day. The jury convicted him of some of the charges, found him not guilty of others, and was unable to reach a verdict on three of them. About two months later he was retried on the three mistried charges and convicted. The trial court counted points from the convictions obtained in the first trial when sentencing the retried offenses. The court of appeals reversed, concluding that, in light of West, it would be “unjust to punish a defendant more harshly simply because, in his first trial, the jury could not reach a unanimous verdict on some charges.”
It’s hard to reconcile the two cases. I suppose there was a longer passage of time between trial and retrial in Perkins, which made the chronologically prior convictions for the once-joined charges seem more well-established by the time the retrial rolled around. But the Watlington decision to bar use of the prior convictions did not appear to turn on the passage of time. Rather, the important thing was the perceived injustice of punishing the defendant more harshly after the second trial solely because the first jury couldn’t resolve the whole thing together. Obviously this sort of split wouldn’t happen if the cases hadn’t been decided on the same day (the panel hearing the second case would have been bound by the first panel’s resolution of the issue—assuming the issues are indeed the same). For the time being, at least, there appears to be good authority on both sides of the argument.
Last month, the court of appeals decided State v. Hogan, __ N.C. App. __, 758 S.E.2d 465 (2014), a case about the use of a defendant’s prior convictions from New Jersey in determining the defendant’s prior record level. It’s an interesting case and one that has implications for the use of such convictions in the habitual felon context, an issue I previously discussed here. (The comments to that prior post are unusually substantive and anyone who reads the post should also read the comments.)
Superior court proceedings. The defendant in Hogan pled guilty to assault by strangulation after choking his girlfriend. In the course of calculating the defendant’s prior record level, the superior court judge counted as a felony a prior conviction of “third degree theft” that the defendant incurred in New Jersey. According to the defendant’s brief, that decision moved the defendant from prior record level IV to V.
Defendant’s argument: New Jersey doesn’t have “felonies.” The defendant appealed, arguing in part that the judge erred in counting the New Jersey conviction as a felony. The court of appeals summarized his argument as follows: “[B]ecause New Jersey does not use the term ‘felony’ to classify its offenses, the trial court could not properly determine that third degree theft is a felony for sentencing purposes.” This argument links into G.S. 15A-1340.14(e), which states that for prior record level purposes, an out-of-state conviction normally “is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony” (emphasis supplied). The defendant argued, and the court of appeals acknowledged, that New Jersey “does not use the term ‘felony.’” Instead, it has four degrees of “crimes,” plus a set of less serious offenses called “disorderly persons offenses.”
Court’s ruling: “crimes” are felonies. The court of appeals found, however, that a third degree crime was punishable by three to five years in prison, and that New Jersey’s own courts had recognized that such a crime is comparable to a common law felony. In other words, “New Jersey courts have clearly recognized that their third-degree crimes are felonies by a different name.” Thus, the court rejected the defendant’s argument and affirmed his sentence.
Relationship to habitual felon. The court noted that in previous cases, it had been skeptical of the use of New Jersey convictions as previous convictions supporting a habitual felon charge. It declined to apply the reasoning of those cases in the Structured Sentencing context, stating that “[t]here is no suggestion in the sentencing statutes that the Legislature intended to single out New Jersey convictions for such unfavorable treatment.”
Importantly, the court also stated that even if it were to apply the habitual felon cases in the prior record level context, “this case is distinguishable in that the State presented a ‘certification’ that third degree theft is considered a felony in New Jersey,” which is precisely what previous cases like State v. Lindsey, 118 N.C. App. 549 (1995), suggested might be needed to allow New Jersey convictions to be used to support a habitual felon allegation. The State apparently introduced a criminal history printout from a New Jersey computer system that contained a statement certifying the record as accurate and described the theft conviction as a “felony.”
A few important points. There are a couple of takeaways here:
- First, the defendant has asked the state supreme court to review the case. The supreme court hasn’t yet ruled on whether it will do so, but has issued a temporary stay. If it does review the case, its ruling might impact the habitual felon cases as well as the prior record level cases, depending on the court’s result and reasoning.
- Second, the discussion of the certification from New Jersey is a road map for prosecutors trying to use a New Jersey conviction to support a habitual felon charge. The court of appeals’ previous opinions in the habitual felon context haven’t been clear about what sort of certification was required before a New Jersey conviction could be used, so Hogan is the best place to look. A possible defense response would be that the discussion in Hogan about the certification is dicta.
- Finally, first and second degree crimes, which are more serious than the offense at issue in Hogan, also appear to be felonies under the court’s analysis. But it is not as clear that fourth degree crimes, which are punishable by up to 18 months imprisonment, count as felonies. The trial judge in Hogan apparently didn’t think so, as he declined to treat the defendant’s other New Jersey prior – a fourth degree crime – as a felony. I tend to think otherwise, for the reasons given in my prior blog post, but I don’t think that Hogan is conclusive one way or the other.
As always, comments are welcome if folks think the analysis above is incorrect or incomplete. (Or exceptionally incisive, of course, though I don’t seem to get too many comments in that vein!)
When a person’s probation is revoked, his or her suspended sentence is generally activated in the same manner in which it was entered by the sentencing judge. But a lot can happen—both good and bad—in the time between sentencing and revocation, and sometimes a change is in order. This post considers the extent of a judge’s authority to modify a suspended sentence upon revocation of probation.
Sentence reduction. Under G.S. 15A-1344(d), a judge may, before activating a sentence, reduce it. The reduction must be consistent with subsection G.S. 15A-1344(d1), which limits the court’s authority as follows. For a felon, the modified sentence must be within the same range (presumptive, mitigated, or aggravated) of the same grid cell used in determining the original sentence. Thus, a Class H/Level II probationer with a presumptive-range 8–19 month suspended sentence could have that sentence reduced to no less than 6–17 months upon revocation of probation. And if the same defendant had received a 6–17 month presumptive-range sentence in the first place, there would be no room for reduction at all, because that is the bottom of the presumptive range in that cell. For a misdemeanant, the court is likewise limited to the range of durations applicable to the defendant at sentencing. But that is not much of a limitation, because every cell on the misdemeanor grid allows for a sentence as short as 1 day.
It is not clear whether the court may reduce an impaired driving sentence at the point of revocation. G.S. 15A-1344(d) says any reduction must be consistent with subsection (d1), but that subsection uses language exclusive to Structured Sentencing (Article 81B, prior conviction level, etc.), raising some doubt about whether any reduction is allowed at all for a DWI. On the other hand, before 1994, G.S. 15A-1344(d) indicated that any sentence could be reduced upon revocation, suggesting that the Structured Sentencing references were added as conforming changes, and probably not intended to prohibit reductions for DWIs.
Is a sentence reduction permissible when the court imposes a period of confinement in response to violation (CRV)? Arguably not, as G.S. 15A-1344(d) empowers the court to reduce a sentence only “before activating a sentence.” Albeit in a pre–Justice Reinvestment case, the court of appeals interpreted that subsection to mean the court is empowered to reduce a sentence “only when the prison sentence is activated and the probation is revoked.” State v. Mills, 86 N.C. App. 479 (1987). To the extent that CRV is viewed as an alternative to activation, it would seem that no reduction is allowed at that point. The issue has yet to come before the appellate courts.
Consecutive and concurrent sentences. If a probationer is subject to multiple suspended sentences, the judge revoking probation decides whether activated sentences will run concurrently or consecutively. As described in this prior post, that is so regardless of whether the judgments suspending sentence specified that the sentences would run a particular way in the event of revocation. See State v. Hanner, 188 N.C. App. 137 (2008); State v. Paige, 90 N.C. App. 142 (1988). By default, activated sentences run concurrently upon revocation, G.S. 15A-1344(d), and my understanding is that the prison system will run them that way if the revocation order is silent on the issue, even if the original judgments suspending sentence called for consecutive sentences upon revocation. The bottom line is that the revoking judge has a choice, and it would be error for that judge to assume the revoked sentences were required to be activated as entered by the original sentencing judge. State v. Partridge, 110 N.C. App. 786, 788 (“It is apparent from a reading of the transcript . . . that [the trial judge] felt that he did not have the authority to [order concurrent sentences]. Therefore, defendant is entitled to a new revocation of probation hearing.”).
Consolidation. An activated sentence may not be consolidated for judgment with another conviction obtained at a different time—including the new conviction that may have prompted revocation. Structured Sentencing provides that consolidation is allowed only for offenders “convicted of more than one offense at the same time,” G.S. 15A-1340.15(b) (felonies), or “same session of court,” G.S. 15A-1340.22(b) (misdemeanors).
Other issues. In addition to the sentence-length modifications described above, some other matters may arise for the first time upon revocation of probation. For example, a recommendation for work release during the activated sentence should not be made until probation is revoked. G.S. 148-33.1(i). The court may also make a recommendation about whether any restitution ordered should be made a condition of the defendant’s eventual post-release supervision, G.S. 148-57.1, and, if so, whether it ought to be paid out of the defendant’s work release earnings, G.S. 15A-1340.36(c).
Extraordinary mitigation—or, more precisely, dispositional deviation for extraordinary mitigation—under G.S. 15A-1340.13(g) is a way for the court to impose a probationary sentence for a defendant whose offense class and prior record level ordinarily require an active sentence. The provision was included in Structured Sentencing as a counterbalance to the habitual felon law, although the latter is used much more frequently. Still, the law is a useful sentencing tool in certain cases, and certainly worth knowing about.
Extraordinary mitigation turns an “A” cell on the sentencing grid into an “I/A” cell, allowing the court to suspend an otherwise unsuspendable sentence. Extraordinary mitigation does not authorize the court to alter the term of imprisonment ordinarily required by the grid. It merely allows the judge to suspend that term of imprisonment and place the defendant on probation. State v. Messer, 142 N.C. App. 515 (2001).
Findings. To use extraordinary mitigation, the court must, under G.S. 15A-1340.13(g), find in writing that:
- The case presents extraordinary mitigating factors of a kind significantly greater than in the normal case;
- Those factors substantially outweigh any factors in aggravation; and
- It would be a manifest injustice to impose an active punishment in the case.
Those findings, which rest in the discretion of the trial judge, may be recorded on form AOC-CR-606.
To be considered extraordinary, a mitigating factor must be significantly greater than an ordinary mitigating factor. The judge must look to the quality of the particular factor, not the overall quantity of proffered mitigators, when evaluating extraordinary mitigation. The sheer number of ordinary mitigating factors cannot, standing alone, support a finding of extraordinary mitigation. State v. Melvin, 188 N.C. App. 827 (2008) (“[Q]uality of factors, not quantity, is the prime consideration for the trial court.”).
The trial judge is not necessarily precluded from making a finding of extraordinary mitigation based on facts that would support a statutory mitigation factor, but there must be additional facts present, over and above those required to support an ordinary mitigator. Id.; State v. Riley, 202 N.C. App. 299 (2010). For example, in State v. Williams, __ N.C. App. __, 741 S.E.2d 486 (2013), the trial judge erred by finding as an extraordinary factor that the defendant’s “level of mental functioning was insufficient to constitute a defense but significantly reduced his culpability.” The court of appeals held that factor to be inappropriate because it was “almost a verbatim recitation” of the normal statutory mitigating factor regarding the defendant’s mental condition. Additionally, the court’s finding that the victim consented to the crime (performing fellatio on the defendant) was also improper as an extraordinary factor in light of the victim’s age. The victim was 14, meaning her voluntary participation could not have supported even an ordinary mitigating factor, as that statutory factor applies only if the victim is at least 16. Williams, 741 S.E.2d at 493. If it could not be an ordinary factor, then it clearly could not be an extraordinary one.
Eligibility. Some offenses are not eligible for extraordinary mitigation. Under G.S. 15A-1340.13(h), the judge may not find extraordinary mitigation for:
- Class A or Class B1 felonies;
- Drug trafficking or conspiracy to commit drug trafficking; or
- Defendants with 5 or more prior record points.
Because extraordinary mitigation may not be used for Class A or Class B1 offenses or for offenders with 5 or more prior record points, the law may come into play in only six cells on the sentencing grid: Prior Record Level I and most of Prior Record Level II for Class B2, C, and D. Grid cells below those already allow a probationary sentence, and so the defendant would not be helped by a finding of extraordinary mitigation in any event.
Extraordinary mitigation is not used frequently enough to discern any real patterns in how it gets used. One not-so-recent change in the law might make extraordinary mitigation a better option in certain circumstances. Until 2003, a split sentence could not exceed one-fourth the defendant’s maximum sentence or 6 months, whichever was less. For offenses committed on or after December 1, 2003, the split sentence may be up to one-fourth of the maximum (the 6-month rule was repealed). For a first-time offender convicted of a Class C felony and sentenced to, say, 58–82 months, a judge who suspended the sentence through extraordinary mitigation would have up to 20 months of split time to work with. That’s a measure of flexibility that might come in handy in the right kind of case.