The Prior Probation Violation Aggravating Factor

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One of the statutory aggravating factors for felony sentencing is that the defendant has, during the 10-year period prior to the commission of the offense now being sentenced, been found to be in willful violation of probation, post-release supervision, or parole. G.S. 15A-1340.16(d)(12a). It sounds straightforward enough, but it turns out to be a little tricky to apply in practice.

The factor hasn’t been around very long. It was added to the law in 2008, and made applicable only to offenses committed on or after December 1, 2008. S.L. 2008-129. That refers to the offense date of the crime now being sentenced, not to the offense date of the earlier crime that eventually resulted in a violation of probation, PRS, or parole. Obviously most crimes sentenced today are covered.

The prior findings that can trigger the aggravating factor are a finding of willful violation of probation by a judge or a finding of willful violation of post-release supervision or parole by the Post-Release Supervision and Parole Commission (the Parole Commission). The probation may apparently be any type of adult probation—felony or misdemeanor, supervised or unsupervised. Violations of juvenile probation don’t fit, because the law applies to violations of “conditions of probation imposed pursuant to a suspended sentence,” (emphasis added), a construct that is unique to adult probation.

The probation violation must be found “by a court of this State”; violations from other jurisdictions do not qualify. Determinations by a probation officer that a person has failed to comply with conditions of supervision as part of the delegated authority process likewise do not count—only violations found by a court. It does not matter what the court does in response to the violation—revocation, confinement in response to violation, or even nothing at all. What matters is the finding of willful violation itself.

The willful violation must have been found during a 10-year look-back period measured from the offense date of the crime now being sentenced. Older violations and violations found between the commission and sentencing of the new offense do not qualify. The date of the finding of violation—not the date of the actual offending behavior—is the important benchmark date.

The General Statutes are a little funky when it comes to the procedure for proving this factor. In general, aggravating factors other than a prior conviction must, unless admitted to, be proved to a jury beyond a reasonable doubt. G.S. 15A-1340.16(a1); Blakely v. Washington, 542 U.S. 296 (2004). However, one subsection of G.S. 15A-1340.16 indicates that the General Assembly intended to exclude this particular aggravating factor from the general rule: subsection (b) says the court, not the jury, may find the factors spelled out in subdivision (d)(12a) (the one I’m talking about today) and (d)(18a) (the prior juvenile adjudication factor).

The theory behind the exclusion is probably that these two factors fit within the prior conviction exception to Blakely. That exception, stemming from Almendarez-Torres v. United States, 523 U.S. 224 (1998), allows a sentence to be enhanced based on prior convictions found by the judge and not by a jury. It’s rooted in the idea that prior convictions, unlike other facts on which a sentence might be enhanced, have certain procedural safeguards that justify exempting them from Blakely’s requirement of jury proof. The most notable such safeguards are that a prior conviction “must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.” Jones v. United States, 526 U.S. 227, 249 (1999).

There are at least two problems with excluding a finding of a prior violation of probation, PRS, or parole from the ordinary requirement of jury proof. The first problem is that G.S. 15A-1340.16 doesn’t fully articulate the exception. Though subsection (b) says the court may make the finding, subsection (d) does not. Instead, it says only that “the determination that an aggravating factor under G.S. 15A-1340.16(d)(18a) [again, the prior juvenile adjudication factor] is present in a case shall be made by the court, and not by the jury.” There is no mention of factor (12a). I suspect that may have been a drafting omission in the 2008 legislation, but in any event, it leaves G.S. 15A-1340.16 internally inconsistent on the proper factfinder of factor (12a). For that reason alone I’d probably recommend erring on the side of caution by submitting the factor to the jury.

But even if the statute were cleaned up, I’d still have my doubts about whether it is proper to have that factor found by the court. A prior violation of probation, PRS, or parole relates to a person’s prior convictions, but it is not itself a prior conviction. It is an administrative determination, made at an informal hearing, where the standard of proof is the factfinder’s “reasonable satisfaction,” not proof beyond a reasonable doubt. A violation hearing does not, therefore, have all the procedural safeguards noted 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 appeals.

Courts nationally have reached different results on similar issues. In Ryle v. State, 842 N.E.2d 320 (Ind. 2005), for example, the Supreme Court of Indiana concluded that a sentence enhancement based on the defendant committing his current offense while on probation for a prior offense could be made by a judge, and need not be submitted to a jury. The court reasoned that the facts necessary to prove the enhancement were based on reliable court records, and thus fell within the prior conviction exception. On the other hand, the United States Court of Appeals for the Ninth Circuit concluded in Butler v. Curry, 528 F.3d 624 (9th Cir. 2008), that Almendarez-Torres did not extend to a person’s probationary status at the time of his crime.

Regardless of the proper factfinder, defendants should certainly be aware of the factor when considering whether and how to defend against alleged violations of probation, PRS, and parole. A finding of violation now could be used to enhance a future felony sentence, and the defendant may therefore have an incentive to contest or appeal it even when the present consequences appear minimal. See State v. Black, 197 N.C. App. 373 (2009) (though the defendant had fully served his activated sentence, his appeal of his probation revocation was not moot in light of the fact that the finding of violation could be used as an aggravating factor in a later sentencing hearing).

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