The Supreme Court of the United States decided Blakely v. Washington in 2004, holding that any fact (other than a prior conviction) that increases a defendant’s sentence beyond the prescribed statutory maximum must be found by a jury beyond a reasonable doubt or admitted to by the defendant. 542 U.S. 296 (2004). Before Blakely—when it was permissible for the trial court to find aggravating factors by a preponderance of the evidence—about 7 percent of all felony cases in North Carolina were sentenced in the aggravated range. After Blakely (and after we amended Structured Sentencing to comply with Blakely) that number declined to 3 percent. In the past couple of years we’ve ticked back up to 4 percent. (All data courtesy the N.C. Sentencing and Policy Advisory Commission’s annual Statistical Report for Felonies and Misdemeanors.)
So, a small (but perhaps growing) percentage of cases require an understanding of the law and procedure applicable to aggravating factors. Several recent cases offer a nice review and provide answers to some frequently asked questions in this area of the law.
Notice. Statutory aggravating factors (the ones set out in G.S. 15A-1340.16(d)) need not be included in an indictment or other charging instrument, but nonstatutory aggravating factors (like those described in this post) must be. G.S. 15A-1340.16(a4). In any case where the State intends to prove the existence of one or more aggravating factors (or a prior record level “bonus point” under G.S. 15A-1340.14(b)(7) for an offense committed by a defendant on probation, parole, or post-release supervision; in prison; or on escape), the prosecutor must (unless the defendant waives it) provide the defendant with written notice of his or her intent to do so at least 30 days before trial or the entry of a guilty or no contest plea, listing all the aggravating factors the State seeks to establish. G.S. 15A-1340.16(a6). In State v. Mackey, __ N.C. App. __ (2011), the defendant argued that he did not receive proper notice of the State’s intent to pursue aggravating factors when all he received was a letter, presented in the course of plea negotiations, noting that he “qualified for aggravated sentencing” under two enumerated aggravating factors. The court of appeals agreed that mere mention in a plea offer that the defendant “qualified” for those factors was not the same as putting him on notice that the State intended to pursue those factors. The court recommended using AOC-CR-614, Notice of Aggravting Factors, as a way to be sure to comply with the statutory requirements.
Findings of aggravating and mitigating factors. The trial court is required to consider evidence of aggravating and mitigating factors present in the offense, but the decision to depart from the presumptive range is in the discretion of the court. G.S. 15A-1340.16(a). And the court is only required to make written findings of the aggravating and mitigating factors present in an offense if it exercises its discretion to depart from the presumptive range. G.S. 15A-1340.16(c). In State v. Garnett, __ N.C. App. __ (2011), the defendant argued that the trial court abused its discretion when it refused the defendant’s request for a mitigated sentence despite uncontroverted evidence of mitigating circumstances. The court of appeals disagreed, distinguishing on two fronts earlier case law holding that a trial court was required to find any mitigating factors supported by uncontradicted and substantial evidence. First, that case law addressed a sentence imposed in the aggravated range (not a presumptive sentence like Garnett’s). And second, that case law arose under the Fair Sentencing Act, which had slightly different wording about a trial court’s obligation to review and make findings regarding aggravating and mitigating factors.
Weighing aggravated factors. If aggravating factors are present and the court determines they are sufficient to outweigh any mitigating factors, the court may impose a sentence in the aggravated range. G.S. 15A-1340.16(b). The weighing of aggravating and mitigating factors is not, however a mathematical balance. Rather, it is a matter of judicial discretion. In State v. Gillespie, __ N.C. App. __ (2011), the court of appeals upheld the trial court’s determination that one aggravating factor outweighed six mitigating factors. The trial court was entitled to place great weight on the lone aggravating factor—that the offense was especially heinous, atrocious, or cruel—when the defendant had stabbed the victim over 30 times.