Juvenile Adjudications . . . Aggravating

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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.

6 comments on “Juvenile Adjudications . . . Aggravating

  1. Post-Blakley, using an NC juvenile adjudication as an aggravating factor is clearly unconstitutional.

    The reason regular prior convictions need not be proven to a jury is because the defendant had a right to a jury trial on that charge the first time. That is not the case with adjudications from NC. In this state the juvenile has no right or opportunity for a jury trial. Where the defendant had no chance to have the aggravating charge heard by a jury, it can not be said that this aggravating charge meets the Blakely standard.

    That having been said, some other states do provide juveniles the right to a jury trial. An adjudication from one of those states may pass constitutional scrutiny.

  2. Peter, that’s a good point, and more or less the analysis the Ninth Circuit used in Tighe and some state courts have used.

    A counter-argument—which I’ll grant you is not really consistent with some language in Apprendi (see 530 U.S. at 496)—is that what we’re concerned with here is not the accuracy or fairness of the prior adjudication, but rather its existence. Even if NC law required the State to submit the prior-adjudication aggravating factor to the jury, the question before the jury would be “Has the defendant previously been adjudicated delinquent?” not “Did this guy actually commit the act for which he was adjudicated delinquent?” In that sense the prior-conviction exception to the Blakely rule is just a shortcut grounded in the inherent reliability of criminal record data. (But if “reliability” were your touchstone, wouldn’t lots of things be exempt from the Blakely rule?)

    [My original post cited United States v. Matthews incorrectly. The proper citation is 498 F.3d 25 (1st Cir. 2007).]

  3. Hmm, if that were the rule it would present the danger of letting the legislature by-pass the Blakely requirement for almost any factor by simply letting a judge adjudicate the existance of a fact, and then asking if the judge had entered that adjudication.

    Another counter arguement I’ve hear is that the adjudications should be allowed in cases where there is an admission, the rationale being that the juvenile’s admission proved the facts beyond a reasonable doubt just as an adults guilty plea would. While not unassailable, this arguement has substantial merit.

    Because of this, it may be the better practice for a juvenile’s attorney in an A-E felony to always either go to trial or enter an Alford plea. However, Alford pleas are supposed to subject the juvenile to the same treatment as if he had admitted the offense, so that may not be a solution after all.

  4. Though the Yarrell/Boyce divide wasn’t the issue before the court in State v. Rivens (decided yesterday, http://www.aoc.state.nc.us/www/public/coa/opinions/2009/pdf/081042-1.pdf), it is perhaps worth noting that the juvenile adjudication aggravating factor (GS 15A-1340.16(d)(18a)) was submitted to the jury in that case.

  5. I am from Kansas, trying to see what other states have done on juvenile adjudications. Kansas passed a sentencing “grid” in 1993. They have a statute which explicitly says “juvenile adjudications A-E count as convictions.” Yet, they have court decisions which say “an adjudication is not a conviction.” State v Hitt, is the latest decision. However, there have been numerous decisions recently, which say they can’t be used for “career criminal” type enhancements. In State v Boyer, Kansas said a juvenile adjudication cannot be used to find a persistant sex offender, which doubles the sentence. Last year, Kansas passed the law that juveniles can have a jury trial. They were getting too many cases arguing that the juvenile justice system of long ago was a casual affair, and many children pled guilty, because there was no reason not to. The juvenile system has changed a lot in the past 25 years, and now men, accused of a crime, have thier juvenile record brought out 25 years later to double their sentence.

  6. […] by the Court in Jones. I expressed similar doubts about the prior juvenile adjudication factor here, noting a split of authority within the court of […]

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