Re-sentencing under G.S. 20-38.7: Who Gets It and What’s Game for Consideration?

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I’ve written before about the General Assembly’s enactment of G.S. 20-38.7 to prevent defendants from manipulating the procedure for appealing district court convictions to superior court in order to escape enhanced punishment in impaired driving cases based upon prior convictions. G.S. 20-38.7(c) provides that “for any implied‑consent offense that is first tried in district court and that is appealed to superior court by the defendant for a trial de novo as a result of a conviction, the sentence imposed by the district court is vacated upon giving notice of appeal.”  When an appeal is withdrawn or a case is remanded back to district court, the district court must hold a new sentencing hearing and must consider any new convictions.

The first item of note related to this provision is that it purports to apply to all implied consent offenses, not just to those offenses sentenced under G.S. 20-179 ((i) impaired driving under G.S. 20-138.1, (ii) impaired driving in a commercial vehicle under G.S. 20-138.2, (iii) a second or subsequent conviction for operating a commercial vehicle after consuming alcohol under G.S. 20-138.2A, and (iv) a second or subsequent conviction for operating a school bus, school activity bus, or child care vehicle after consuming alcohol under G.S. 20-138.2B). This broad application is surprising given that the manipulation to which it was addressed occurred in connection with sentencing under G.S. 20-179, which sets forth a graduated punishment scheme that significantly increases a defendant’s punishment if the defendant has a qualifying prior conviction. A qualifying prior conviction renders a defendant subject to punishment at Level II, which requires a minimum term of imprisonment of not less than seven days and a maximum term of not more than 12 months. Because each qualifying prior conviction counts as a grossly aggravating factor, a defendant with two qualifying prior convictions is subject to punishment at Level I, which requires a minimum term of imprisonment of not less than 30 days and a maximum term of not more than 24 months. A defendant with three prior convictions is subject to punishment at Level A1, which requires that the defendant be sentenced to a term of imprisonment that includes a minimum term of not less than 12 months and a maximum term of not more than 36 months. For misdemeanor implied consent offenses sentenced under structured sentencing, the impact of a single prior conviction is far less. See 15A-1340.21(b) (providing that a defendant who has at least one, but not more than four, prior convictions is a prior conviction level II). Given the impetus for the provision and its internal references G.S. 20-179, see G.S. 38.7(d), it is unclear whether the legislature intended for the statute to apply to implied consent offenses sentenced under the Structured Sentencing Act. And, as a practical matter, I’m not sure it ever is applied to implied consent offenses other than those sentenced under G.S. 20-179.

G.S. 20-38.7(d) provides for a limited right to appeal following a new sentencing hearing.  It is unclear whether the General Assembly’s intent was to allow a defendant to appeal for trial de novo or instead to appeal only the sentence imposed.  The statute permits a defendant to appeal to superior court only if (1) the new sentence is based upon additional facts considered by the district court that were not considered in the previously vacated sentence, and (2) the defendant would be entitled to a jury determination of those facts “pursuant to G.S. 20-179.”   G.S. 20-38.7(d).  Because the fact of a prior conviction is determined by a judge, not a jury, see G.S. 20-179(c), the finding of any new convictions (that is, convictions that became final after the date of the earlier sentencing) at the new sentencing hearing does not trigger a statutory right to appeal.  Clearly, however, the statute contemplates that a judge might base a sentence imposed at a new sentencing hearing on factors other than new convictions regardless of whether those factors were considered in the previously vacated sentence.  Notwithstanding the broad language of the statute, a judge’s ability at a new sentencing hearing to find additional sentencing factors that result in a more severe sentence is constrained by a defendant’s right to due process.  The United States Supreme Court held in North Carolina v. Pearce, 395 U.S. 711, 726 (1969), that due process requires that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must affirmatively appear [and] [t]hose reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.”  G.S. 15A-1335, applicable to re-sentencing in superior court after appellate review, embodies generally the rule of Pearce, but is more restrictive in that it does not allow imposition of a more severe sentence at re-sentencing based upon aggravating factors that occurred after the date of the original sentence.  See State v. Mitchell, 67 N.C. App. 549, 551 (1984).

New sentencing hearings conducted pursuant to G.S. 20-38.7 are not controlled by G.S. 15A-1335 and occur in a procedurally different context from the sentencing at issue in Pearce in that re-sentencing under G.S. 20-38.7 does not follow a new trial or a reversal of the trial judge’s earlier determinations.  Instead, a new sentencing hearing follows a defendant’s withdrawal of his or her appeal to superior court.  This distinction is of dubious significance, however, as Pearce concerned the unconstitutionality of penalizing a defendant for exercising the right to appeal—a right that must be “free and unfettered.”  395 U.S. at 724 (internal citations omitted).

If Pearce controls, and if aggravating factors in impaired driving cases are indeed sentencing factors and not elements of the offense (an issue discussed here), the district court upon re-sentencing under G.S. 20-38.7 may make “fresh determination of the presence in the evidence of aggravating and mitigating factors,” see State v. Mitchell, 67 N.C. App. 549, 551 (1984), but “in the process of weighing and balancing the factors found, ” see id., may not impose a sentence greater than the original sentence unless the increase results from a finding of convictions that became final after the date of the initial sentencing or the harsher sentence is statutorily mandated.  Cf. State v. Williams, 74 N.C. App. 728 (1985) (determining that G.S. 15A-1335 did not apply to bar imposition of higher sentence after retrial where higher sentence was statutorily mandated).

So, a judge could not, at re-sentencing, sentence a defendant previously sentenced under G.S. 20-179 to a term of six months imprisonment for a Level Three DWI to 12 months imprisonment for a Level Two DWI based upon the judge’s determination at the new sentencing hearing that a child was in the vehicle at the time of the offense.  A judge, could, however, impose at a new sentencing hearing a Level One sentence that required a term of imprisonment of 30 days, the minimum term required by G.S. 20-179(g), upon a defendant initially sentenced to a term of imprisonment of 15 days for a Level One DWI.

I’d love to hear from readers in the know about whether G.S. 20-38.7 is applied to implied consent offenses generally and whether Pearce-based arguments are being made in district court to prevent harsher sentences based upon factors other than subsequent convictions.

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