The Structured Sentencing Act permits judges to consolidate convictions for multiple felony offenses entered at the same time or multiple misdemeanor offenses entered in the same session of court and to impose a single judgment that is consistent with the punishment required for the most serious of the consolidated offenses based on the defendant’s prior record level. See G.S. 15A-1340.15(b) (applicable to sentences for felonies); 15A-1340.23(b) (applicable to sentences for misdemeanors). A different rule governs the consolidation of impaired driving offenses sentenced pursuant to G.S. 20-179. See G.S. 15A-1340.10 (providing that structured sentencing applies to criminal offenses “other than impaired driving under G.S. 20-138.1”); G.S. 20-179 (setting forth sentencing provisions applicable upon conviction of G.S. 20-138.1 (impaired driving), G.S. 20-138.2 (impaired driving in a commercial vehicle), a second or subsequent conviction under G.S. 20-138.2A (operating a commercial vehicle after consuming alcohol), or a second or subsequent conviction under G.S. 20-138.2B (operating school bus or child care vehicle after consuming alcohol)).
Two or more impaired driving charges may not be consolidated for judgment. G.S. 20-179(f2). So, for example, a defendant convicted of impaired driving in a commercial vehicle and impaired driving must be sentenced for both offenses, even if the convictions arose from a single incident of driving or were entered on the same day. Such sentences may, however, run concurrently. A separate statutory sentencing rule provides that if the conviction for G.S. 20-138.2 and G.S. 20-138.1 arose from the same incident, the aggregate punishment may not exceed the maximum punishment applicable to the offense of impaired driving under G.S. 20-138.1. G.S. 20-138.2(e) (so limiting aggregate punishment); cf. G.S. 20-138.3(c) (setting forth a similar limitation for aggregated punishment imposed for a single incident of impaired driving and driving by a person less than 21 after consuming alcohol or drugs, though the latter offense, unlike impaired driving, is subject to structured sentencing).
Furthermore, for each conviction of impaired driving, save two exceptions, a judge must determine whether any of the statutory aggravating or mitigating factors that dictate the applicable level of punishment exist. No such finding of factors is required if the defendant’s conviction of impaired driving is premised upon the common law concept of aiding and abetting or if the impaired driving charge is consolidated with a charge carrying a greater punishment. G.S. 20-179(f2). Thus, G.S. 20-179(f2) expressly acknowledges the propriety of consolidating an impaired driving conviction with a charge carrying greater punishment, implicitly authorizing the consolidation of impaired driving convictions subject to sentencing under G.S. 20-179 with convictions subject to greater punishment under the Structured Sentencing Act. Contrast State v. Branch, 134 N.C. App. 637 (1999) (holding that offenses governed by the Fair Sentencing Act could not be consolidated with offenses punished under the Structured Sentencing Act). Determining whether another conviction carries a greater punishment is complicated by the multiple levels of punishment applicable to impaired driving sentences under G.S. 20-179, each of which carries its own maximum punishment. Perhaps the maximum punishment under G.S. 20-179 is the statutory maximum for the most serious level of DWI (which, for offenses committed on or after December 1, 2011, is three years). On the other hand, the maximum may be that applicable to the level at which the defendant is subject to being sentenced, something the court may be unable to determine without finding aggravating and mitigating factors. A third possibility is that the maximum is the maximum punishment applicable to a Level Four DWI sentence–120 days–which the court of appeals has considered “tantamount to a sentence within the presumptive range,” see State v. Green, __ N. C. App. __, ___, 707 S.E.2d 715, 724 (2011). Pre-Blakely jurisprudence suggests the statutory maximum for the most aggravated level of impaired driving establishes the relevant statutory maximum, see State v. Santon, 101 N.C. App. 710 (1991), but I am doubtful that the court would reach a similar conclusion given the current constitutional landscape.
Some experts have suggested that notwithstanding the authorization to do so, impaired driving convictions subject to sentencing under G.S. 20-179 should not be consolidated with convictions sentenced under the Structured Sentencing Act because different rules govern the calculation of the defendant’s release date under the two schemes. I’m not convinced that this poses a problem, so long as the “lead” offense – the greater offense with which the impaired driving conviction is consolidated–is clearly indicated on the judgment. Since the sentencing scheme for the lead offense controls the defendant’s service of the sentence, the jail or Department or Correction need only concern itself with the sentencing rules governing that offense.
A related question is whether a lesser misdemeanor that is not subject to sentencing under G.S. 20-179 may be consolidated with an impaired driving offense sentenced under G.S. 20-179. I think so. After all, G.S. 20-179(f2) acknowledges that impaired driving offenses may be consolidated with more serious Structured Sentencing Act offenses, and the consolidation of a lesser misdemeanor with an impaired driving offense requires the judge to determine whether aggravating and mitigating factors apply.
If there are practices or practical considerations that this post fails to address, I’d love to hear about them. Finally, I’d be remiss if I failed to acknowledge the assistance my colleague Jamie Markham, sentencing expert extraordinaire, provided with this post.