Counting Joined Offenses for Prior Record Points

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.