Notice of Aggravating Factors Under G.S. 20-179

Last July, Jamie Markham provided this refresher on aggravating factors in structured sentencing cases in which he discussed, among other provisions, the requirement that the State provide a defendant with written notice of its intent to prove aggravating factors.  A reader requested that we follow up by discussing the related notice provision in G.S. 20-179(a1). Wait no more.

G.S. 20-179, rather than the structured sentencing provisions of Article 81B of Chapter 15A, governs sentencing upon conviction under G.S. 20-138.1 (impaired driving) or G.S. 20-138.2 (impaired driving in a commercial vehicle), and upon a second or subsequent conviction of G.S. 20-138.2A (operating a commercial vehicle after consuming) or G.S. 20-138.2B (operating a school bus or child care vehicle after consuming).  For ease of reference, I’ll refer to an offense sentenced pursuant to G.S. 20-179 as a covered offense.

Pursuant to G.S. 20-179(a1)(1), if the State intends to prove one or more aggravating factors for a covered offense that a defendant has appealed to superior court for trial de novo, the State must provide the defendant notice of its intent.  The notice must be provided no later than ten days prior to trial and must contain a plain and concise factual statement indicating each factor the State plans to use.  Unlike notice provisions under structured sentencing, which require the State to provide notice of aggravating factors but not prior convictions, see G.S. 15A-1340.16(a6), G.S. 20-179(a1)(1) requires the State to provide notice of any aggravating factor it intends to use under G.S. 20-179(c) or (d), which includes the aggravating factors premised on prior convictions.

The notice provisions of G.S. 20-179 were enacted as part of the Motor Vehicle Driver Protection Act of 2006. They were but one component of significant procedural changes to the impaired driving statutes following the United States Supreme Court’s determination in Blakely v. Washington, 542 U.S. 296 (2004), that the Sixth Amendment requires that any fact that increases a defendant’s sentence above the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant must be submitted to the jury and found beyond a reasonable doubt.  The Motor Vehicle Driver Protection Act accordingly amended G.S. 20-179 to require that aggravating factors (other than the fact of a prior conviction) be proven in superior court to a jury beyond a reasonable doubt.  The notice requirement in G.S. 20-179(a1)(1) was crafted to protect a separate Sixth Amendment interest—a defendant’s right to be informed of the charges against him.  For a thorough analysis of the impetus for imposing similar notice requirements upon the State in structured sentencing cases post-Blakely, see Jessica Smith, North Carolina Sentencing after Blakely v. Washington and the Blakely Bill pp. 10-13 (September 2005).

The AOC has promulgated AOC-CR-338 to facilitate compliance with the notice requirement in G.S. 20-179(a1)(1). If the State fails to provide the statutorily required notice, then it appears that neither the jury nor the judge may find the factor applicable at sentencing.  As Jamie noted in last summer’s post, the court of appeals in State v. Mackey, ___ N.C. App. ___, 708 S.E.2d 719 (2011), held that the trial court erred by sentencing a defendant in the aggravated range when the State failed to provide proper written notice of aggravating factors pursuant to G.S. 15A–1340.16(a6). In so holding, Mackey noted that “[t]he State had at its disposal a form routinely used by prosecutors to comply with this minimal requirement.” Id. at ___; 708 S.E.2d at 722. The court in State v. Culross, No. COA11-462, 2011 WL 6046692 (N.C. App. Dec. 6, 2011) (unpublished op.), cited Mackey as support for its determination that the trial court erred in sentencing the defendant at Level Four under G.S. 20-179 based upon the trial court’s finding of the aggravating factor of especially reckless driving—a factor for which the State failed to provide notice.

Somewhat curiously, G.S. 20-179(a1)(1) states that it applies “[i]f the defendant appeals to superior court, and the State intends to use one or more aggravating factors,” giving rise to a question about whether it governs the trial of covered offenses within the original jurisdiction of the superior court.  Though most covered offenses originate in district court, as they are all misdemeanors, some fall within the original jurisdiction of the superior court because they are consolidated for trial with a felony, result from a plea in lieu of a felony charge, or are a lesser included offense of a felony. See G.S. 7A-271(a); G.S. 7A-272(a). Given that there is no principled reason for requiring notice only for covered offenses appealed from district court, a court might, notwithstanding the introductory clause of G.S. 20-179(a1)(1), construe the statutory notice provision as applying to all covered offenses, regardless of where they originate.  For that reason, it seems to me that the State is well-advised to provide notice of aggravating factors for covered offenses originally tried in superior court as well as those appealed from district court.  Nevertheless, in a case within the original jurisdiction of the superior court in which the State fails to provide such notice, there is a colorable argument that the State’s failure to do so is not a statutory violation.

If you have thoughts about the matters discussed in this post or if there are issues associated with the notice requirements of G.S. 20-179(a1)(1) that this post fails to address, please let me know.