Juvenile Adjudications . . . Aggravating

An article in last Saturday’s paper talked about Governor Perdue’s proposed changes to the probation system. Part of her plan would give probation officers access to probationers’ juvenile records, which reminded me of a related issue I have been meaning to write about: using juvenile adjudications as an aggravating factor at sentencing.

Under G.S. 15A-1340.16(d)(18a), it is a statutory aggravating factor if the defendant has previously been adjudicated delinquent for an offense that would be a Class A – E felony if committed by an adult. The Juvenile Code allows prosecutors to access juvenile records without a court order, though they may only be used to prove an aggravating factor by order of the court after an in camera hearing to determine admissibility. G.S. 7B-3000(f). Under G.S. 15A-1340.16(b), the aggravating factor for juvenile adjudications is carefully exempted from the normal, post–Blakely v. Washington rule that aggravating factors must be admitted to or proved beyond a reasonable doubt to the jury; that factor, the statute says, may be found by the court. The legislative assumption is that prior juvenile adjudications are like prior convictions, and thus fall within the prior-conviction exception to Blakely.

The Court of Appeals has considered the juvenile adjudication aggravating factor in two cases and reached different results. In State v. Yarrell, 172 N.C. App. 135 (2005), the court looked to G.S. 7B-2412 (“An adjudication that a juvenile is delinquent . . . shall [not] be considered conviction of any criminal offense . . . .”) to conclude that juvenile adjudications are not convictions, and therefore must be presented to the jury and proved beyond a reasonable doubt to support an aggravating factor. In State v. Boyce, 175 N.C. App. 663 (2006), a different panel of the Court of Appeals reached the opposite conclusion. Without further comment the court called the defendant’s prior adjudication a “prior conviction” and determined that the testimony of the juvenile court clerk and a finding by the trial court judge were sufficient to support the aggravating factor.

As a sentencing nerd I watched in eager anticipation when the North Carolina Supreme Court granted discretionary review of Boyce, 361 N.C. 358 (2007), optimistic the Court would resolve the lower court split. But after answering a question regarding the substantive offense at issue in the case, the Court dashed my hopes: “As to the additional issues presented in defendant’s petition [including the challenge to the aggravating factor], we conclude that discretionary review was improvidently allowed.” 361 N.C. 670 (2007). So close.

What’s the right answer? Well, most federal circuit courts of appeals to consider the question have found juvenile adjudications to fall within the prior-conviction exception to the Blakely rule (that is, they said it’s okay to aggravate a sentence based on a judicial finding of a prior juvenile adjudication). See United States v. Matthews, 489 F.3d (1st Cir. 2007); United States v. Burge, 407 F.3d 1183 (11th Cir. 2005); United States v. Williams, 410 F.3d 397 (7th Cir. 2005); United States v. Smalley, 294 F.3d 1030 (8th Cir. 2002). But see United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001). [Note that some of these cases predate Blakely, 542 U.S. 296 (2004), itself. Those cases were interpreting the prior-conviction exception set out Blakely’s forerunner, Apprendi v. New Jersey, 530 U.S. 466 (2000).] The presence of the plainly worded G.S. 7B-2412 in our General Statutes may, however, make this a tougher call.