Presumptive Sentences in DWI Cases

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Author’s Note:  The opinion discussed below was withdrawn on February 4, 2014 and replaced by an opinion discussed here.  

How can a sentencing factor found by a judge that doubles a defendant’s maximum sentence not implicate Blakely?  I pondered this question a few years ago after the court of appeals in State v. Green, 209 N.C. App. 669 (2011), characterized a Level Four DWI sentence as “tantamount to a sentence within the presumptive range.” Yesterday’s court of appeals’ decision in State v. Geisslercrain caused me to resume my puzzling.

The facts. The defendant in Geisslercrain appealed her district court conviction of impaired driving to superior court. The State did not notify the defendant in advance of trial that it intended to use any aggravating factors to enhance the defendant’s sentence.  Thus, though the jury found the defendant guilty of impaired driving, it did not find any aggravating factors. The judge at sentencing nevertheless applied the aggravating factor in G.S. 20-179(d)(3) for negligent driving that leads to a reportable accident. The judge also found the mitigating factor in G.S. 20-179(e)(4) based on the defendant’s record of safe driving. The judge determined that the factors counterbalanced one another and therefore sentenced the defendant to Level Four punishment. See G.S. 20-179(f)(2) (requiring Level Four punishment when aggravating factors are substantially counterbalanced by mitigating factors). Matters went further awry from there as the judge sentenced the defendant to 12 months imprisonment, which he suspended on condition that the defendant perform 48 hours of community service. A Level Four sentence carries a maximum punishment of 120 days imprisonment. G.S. 20-179(j).

The issues. The defendant argued on appeal that the sentence was erroneous because it exceeded the statutory maximum for Level Four. The court of appeals agreed and remanded for resentencing at Level Four.

The defendant also argued that the trial court erred by enhancing the defendant’s maximum sentence based on its own finding of an aggravating factor not found by the jury.  See Blakely v. Washington, 542 U.S. 296 (2004) (requiring that any fact that increases the defendant’s sentence beyond the maximum sentence that could be imposed based solely on the facts reflected in the jury verdict or admitted by the defendant must be submitted to a jury and found beyond a reasonable doubt). The court of appeals, following Green, rejected the defendant’s argument on the basis that Blakely was not implicated since the defendant was sentenced at Level Four, which is the “presumptive range” for DWI.

Finally, the defendant argued that her sentence could not be enhanced by an aggravating factor for which the State failed to provide notice pursuant to G.S. 20-179(a1)(1). The court found this error harmless, again because the defendant was sentenced in the “presumptive range.”

The puzzle. Level Four DWI sentences apply when there are no aggravating and mitigating factors or the aggravating factors are substantially counterbalanced by mitigating factors.  Thus, in a blank-slate DWI sentencing in which no factors—mitigating or aggravating—are introduced found, the sentence is Level Four.

While sentencing at this range does not require findings other than those in the jury verdict, a Level Four sentence is not presumptive in the same manner as a presumptive structured sentencing sentence. In a structured sentencing case, a sentence within the presumptive range is always permissible, regardless of whether aggravating or mitigating factors exist.  See G.S. 15A-1340.16(b).  A judge may, in appropriate circumstances, depart from this range, but is never required to do so.

A Level Four DWI sentence, in contrast, is not authorized when only mitigating factors are present.  The appropriate sentence in that case is Level Five, which carries a maximum punishment of 60 days imprisonment. See G.S. 20-179(f)(3) (requiring Level Five sentence when “mitigating factors substantially outweigh any aggravating factors”). Thus, a judge’s consideration of an aggravating factor in connection with a DWI offense involving one or more mitigating factors—like the sentencing in Geisslercrain and in Green before it—does, in fact, expose a defendant to enhanced punishment under G.S. 20-179.

In addition to depriving the defendant of the benefit of a mitigating factor when the jury finds no aggravating factors, Geisslercrain dilutes the requirement that the State notify the defendant of its intent to use any aggravating factor. Relying again on the notion that a Level Four sentence is presumptive, the court concluded that the State’s failure to provide notice was harmless as the defendant’s punishment was not enhanced by the error.

So there you have it. That’s how the doubling of the maximum penalty based on a judge-found factor falls outside of Blakely’s purview. To paraphrase a great poet, I’ve puzzled ‘til my puzzler is sore.  Now it’s your turn.

5 comments on “Presumptive Sentences in DWI Cases

  1. Here’s a viewpoint that allows for less puzzling: the opinion is wrong. Strikingly similar to a couple of our Supreme Court’s recent confrontation cases (the lab analyst ones), there is a willingness to ignore constitutional issues that have already been decided by the US Supremes.

    Here is a great example in this case – “However, our Supreme Court has held that Blakely is not implicated where a defendant is sentenced within the presumptive range, notwithstanding that the trial judge – and not the jury – finds aggravating or mitigating factors.” (page 10)

    See there? It’s easy! After stating the correct rule, the court tells us why it doesn’t have to follow it in this case. “Presumptive” has been defined in the context of Blakely/Apprendi issues, right? Actually, the state of the federal caselaw into the 6th Am territory of judge/jury sentencing factors greatly expanded after Blakely – all the way to Cunningham which found California’s entire statutory sentencing scheme unconstitutional…

    Also, in this case, unless there was some question about the mitigating factor that we’re not told about, the court would’ve been abusing its discretion to not find it–leaving the statutory maximum in this case at 60 (level 5)–as you correctly point out in your post. You got it right; the court blundered it.

    Both the recent Crawford/Melendez batch of cases from our Supreme Court and this case concern two of the three most important rights in the Sixth Amendment –impartial jury (not judge deciding) and confrontation (also not judge deciding re: trustworthiness, etc.). As Colbert might wonder aloud, “Why do you hate the Sixth Amendment, North Carolina?”

  2. Yes, it is frustrating when the Court apparently rejects the law in order to reach the result it wants. The presumptive range for a DWI with a mitigating factor is 1 day to 60 days. This case was remanded to correct the 12-month sentence. The presumptive range for a Level 4 DWI is 2 days to 120 days. These 2 presumptive ranges overlap at 2 days to 60 days. If the sentencing court re-sentences defendant to a sentence anywhere between 2 days and 60 days, then even though it is labeled as Level 4 and a mitigating factor was unlawfully found, the sentence will be within the presumptive range, vindicating the Court’s strange reasoning. The Court could not know what length of sentence the sentencing court would give defendant. Maybe the Court was suggesting that the sentencing court give the defendant no more than 60 days on the maximum end?

    Am I overthinking this?

    • Oops – I meant “an aggravating factor was unlawfully found” rather than a mitigating factor.

  3. The Court of Appeals withdrew this opinion by order dated February 21, 2014. No new opinion yet.

    • New opinion came down today. How does this work? (besides, obviously, that they read this blog and agreed with our comments…) It went from totally wrong to right without rehearing, etc.. Wonder how the first one got written at all?

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