In 2008 the General Assembly created the new crimes of rape and sexual offense with a child by an adult offender (G.S. 14-27.2A and -27.4A, respectively). S.L. 2008-117. They have special sentencing rules, described here, including the possibility of a higher maximum sentence if the judge finds “egregious aggravation” in the case. Discussing the law immediately after it passed in 2008, John Rubin wrote (here, on page 3) that placing the responsibility for determining egregious aggravation on the judge—not the jury—was “likely unconstitutional” under Blakely v. Washington. As my kids like to say, “Nailed it.” State v. Singletary, decided by the court of appeals last week (and mentioned briefly in last week’s News Roundup), ratified John’s view.
In Singletary, the defendant was convicted of two counts of sexual offense with a child by an adult offender—then codified at G.S. 14-27.4A, but since moved to G.S. 14-27.28(c). That law goes beyond the standard sentencing rules for a Class B1 felony. First, it requires a mandatory minimum sentence of 300 months. Second, it allows for a sentence even longer than that provided for by the regular sentencing grid “if the court finds that the nature of the offense and the harm inflicted are of such brutality, duration, severity, degree, or scope beyond that normally committed in such crimes, or considered in basic aggravation of these crimes.” If the judge finds that sort of “egregious aggravation,” the statute authorizes a sentence of up to life without parole.
The trial judge in Singletary did find egregious aggravation and imposed consecutive sentences of 420–564 months—well beyond the sentence the defendant would ordinarily have received as a Class B1/Prior Record Level II offender. The defendant objected, arguing that it would violate his Sixth Amendment right to a jury trial to increase the sentence based on factors found by a judge instead of the jury. He appealed.
The court of appeals agreed with the defendant, identifying the law’s clear Blakely issue: except for a prior conviction, any fact that increases the penalty for a crime must, if not admitted by the defendant, be submitted to a jury and proved beyond a reasonable doubt. That did not happen here, and so the sentence was improper. Moreover, the defendant did not have any notice that additional factors (and thus additional months of imprisonment) might be in play.
The State actually conceded the error on appeal, suggesting that it could be fixed in the trial court by submitting the purported egregious aggravation factors to a jury through use of a special verdict. The supreme court endorsed a similar remedy for regular aggravating factors after Blakely was decided but before the General Assembly enacted its Blakely fix law. See State v. Blackwell, 361 N.C. 41 (2006).
The court of appeals disagreed. The egregious aggravation statute puts a heavy emphasis on the role of the court in the determination of egregious aggravation, and the appellate panel declined to “superimpose” a different procedure onto the statute to save it. Moreover, the process of considering whether a particular case is, within the language of the statute, outside the “heartland” of sex abuse cases is an “inherently judicial function” that wouldn’t make sense to transfer to a jury. Members of a jury would be less likely than a judge have a good sense of which sex cases are “routine” enough to fall within the “heartland.” John anticipated that issue, too, writing in 2008 that “[a] second and perhaps bigger problem, however, lies in the imprecise definitions of egregious aggravation in the new statutes, which were designed for application by judges accustomed to exercising discretion, not for juries normally charged with finding concrete facts.” Nailed it again.
If judicial findings of egregious aggravation are improper, and you can’t fix that impropriety by submitting the issue to the jury, what is a trial court to do? For time being, it seems like you don’t use egregious aggravation. Instead, use the regular sentencing grid for a Class B1 felony, subject to the additional rule that the minimum sentence must be at least 300 months. That portion of the law seems fine, as it kicks in based on the conviction alone without the need for proof of any additional facts.