Offense Date Ranges: Which Sentencing Law Applies?

North Carolina’s structured sentencing grid did not change from 1995 to 2009. Since then it has changed twice, once for offenses committed on or after December 1, 2009 (discussed here), and again (under the Justice Reinvestment Act) for offenses committed on or after December 1, 2011. With that recent history in mind, an important first step in any sentencing episode is choosing the right grid. All of the grids, including the original 1994 version, are posted on the webpage of the North Carolina Sentencing and Policy Advisory Commission, here.

Which grid to use is determined by the defendant’s offense date.  Based on the questions I have been getting lately, it seems that the court system is starting to see the first wave of post–December 1, 2011 offenders. Many of them are before the court for multiple offenses, some that occurred before the new law came into effect and some after. In general the court must be careful to sentence each conviction under the law applicable to it. I wrote previously, here, about the implications and propriety of consolidating pre- and post-JRA offenses for judgment.

Today’s post considers a variation on that theme. What about a single offense for which the alleged date of offense is a range of dates that crosses the December 1, 2011 threshold? It is permissible for the charging instrument to allege a range of dates when time is not of the essence and the lack of specificity does not impair the defendant’s ability to defend against the charge. See Jessica Smith, The Criminal Indictment: Fatal Defect, Fatal Variance, and Amendment, Administration of Justice Bulletin 2008/03 (July 2008), at 4–9. The issue often arises in the context of sex crimes against young victims, where the child is unable to pinpoint a precise offense date but knows that the offense happened around the time of his or her birthday, a holiday, or a particular time of year. It can also happen when, for example, a house is broken into while the homeowner is on vacation, or when a single count of embezzlement is charged for course of conduct that occurred over an extended period of time.

There is little case law on point, but the general rule appears to be that when an offense date spans different sentencing laws, the less severe sentencing law applies unless the State can prove that the offense took place during the period in which the more punitive law was in effect. State v. Poston, 162 N.C. App. 642 (2004), is the leading case. In Poston, the defendant was charged with multiple sex crimes against his daughter between 1993 and 2000. One of the alleged offenses was a first degree sexual offense committed between June 1 and July 31, 1994. The defendant was convicted of that offense and sentenced to a mandatory sentence of life imprisonment under Fair Sentencing, which applied to offenses committed before October 1, 1994. Even though the alleged offense date range fell entirely within the coverage of the Fair Sentencing Act (FSA), the defendant argued on appeal that he should have been sentenced under Structured Sentencing—which would have resulted in a non-life (but nonetheless lengthy) sentence to a term of months.

The court of appeals agreed. The evidence at trial indicated that the offense actually occurred when the victim “was seven years old,” and the victim’s seventh birthday was October 8, 1994. Because the victim turned seven a week after Structured Sentencing went into effect, the court of appeals held that the evidence was “insufficient to permit the trial court to sentence the defendant under the Fair Sentencing Act.” 162 N.C. at 651. The State did not “meet its burden of demonstrating that the more severe sentence statute is applicable,” id., and so the case was remanded to the trial court for resentencing under Structured Sentencing.

In State v. Lawrence, by contrast, the State did meet its burden of showing that some of the defendant’s sex crimes occurred after October 1, 1994. 193 N.C. App. 220, 224-25 (2008). In Lawrence, the indictments charging the defendant with second-degree rape and second-degree sexual offense stated that the offenses occurred between November 13, 1993 and November 13, 1994—a span that crossed the October 1, 1994 divide. The court of appeals held that sentencing under Structured Sentencing was proper when the evidence at trial indicated that the crimes happened after the defendant’s birthday on October 13, 1994. By way of background, those crimes were made Class C felonies under Structured Sentencing. They were Class D under the FSA—which actually carried a longer potential maximum sentence (40 years) than a Class C felony under Structured Sentencing, but also allowed a less serious sentence than would be permissible under Structured Sentencing.

A final case worth noting is State v. Mullaney, 129 N.C. App. 506 (1998). In Mullaney, a defendant pled guilty to a single count of embezzlement for acts that occurred between January 8, 1993 to February 1, 1996. (The State could have charged each act individually but chose not to.) The trial judge ruled “in its discretion” that sentencing would be under the Fair Sentencing Act and sentenced the defendant to 10 years in prison, the maximum for a Class H felony under the FSA. The court of appeals vacated the sentence, holding in a divided opinion that because the single pled-to charge was not completed until after October 1, 1994, the trial court was required to sentence the defendant under Structured Sentencing. Cf. United States v. Sheffer, 896 F.2d 842 (4th Cir. 990) (allowing but not requiring sentencing under more recent—and more severe—sentencing guidelines for a conspiracy that began before but continued beyond the effective date of the new guidelines). It was not central to the court’s holding in Mullaney, but it may be worth noting that the defendant would receive a far shorter sentence (about one year in prison) under Structured Sentencing than he received under the FSA.

Thinking about the most recent changes to North Carolina law, the post-December 1, 2011 is probably the more “severe” sentencing law within the meaning of Poston. Maximum sentences on the new grid are higher and the law adds or extends the requirement of post-release supervision for all felonies. Thus, if a defendant is convicted of a crime with an offense date that spans December 1, 2011, and there is a dispute about which sentencing law applies, it seems that in general the old law should apply unless the State demonstrates that the offense occurred after the new law came into effect. An exception to that rule would apply if the offense is continuing in nature and not “completed” until after December 1, 2011. In that situation, Mullaney appears to say that the new law must apply.