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. Continue reading
Tag Archives: aggravating factors
The Right Way to Find the “Under Supervision” Prior Record Level Bonus Point
A person convicted of a felony is eligible for an additional prior record point if “the offense was committed while the offender was on supervised or unsupervised probation, parole, or post-release supervision, or while the offender was serving a sentence of imprisonment, or while the offender was on escape from a correctional institution.” G.S. 15A-1340.14(b)(7). I call that point the “under supervision” bonus point. Though part of the defendant’s prior record level, the point is probably best thought of as an aggravating factor. A recent court of appeals case reminds us why. Continue reading →
A defendant charged in district court with the misdemeanor crime of driving while impaired cannot ascertain from the charging document whether he is subject to sentencing at Level A1 (the most serious level) or Level 5 (the least serious). That’s because the aggravating factors that lead to elevated sentencing aren’t considered elements of the offense and thus are not required to be alleged in the charging instrument. Yet because those factors can increase the maximum punishment a defendant may receive, they must be proved beyond a reasonable doubt and, with the exception of prior convictions, be determined by a jury in superior court. And, for most charges of impaired driving prosecuted in superior court, the State must provide notice of its intent to seek aggravating factors. A case decided by the court of appeals last June, however, identifies an exception to this requirement for certain aggravating factors in driving while impaired prosecutions initiated in superior court.
Weighing Aggravating and Mitigating Factors
Much has been written—and much of it by the Supreme Court—on the proper way to find aggravating factors for sentencing. After Apprendi v. New Jersey, Blakely v. Washington, and countless cases at the state level, it is of course clear that a defendant has a Sixth Amendment right to have aggravating factors proved to a jury beyond a reasonable doubt. Once sentencing factors are properly found, however, responsibility shifts back to the judge to decide what to do about them. The rules for weighing factors are as loosey-goosey as the rules for finding them are rigid. Continue reading →
The “Evidence Necessary to Prove an Element” Limitation on Aggravating Factors
Under G.S. 15A-1340.16(d), “[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation.” The general idea behind that rule is to prevent the defendant from getting extra punishment via an aggravating factor for something that is inherent in the crime of conviction. A similar prohibition existed under Fair Sentencing, so we have a relatively large body of case law that helps us understand the rule. Continue reading →
Proper Procedure for Aggravating Factors
Not many sentences come from the aggravated range—four percent in Fiscal Year 2013/14, according to the North Carolina Sentencing and Policy Advisory Commission. But when you use the aggravated range, you want to make sure to do it correctly. Some recent cases offer a reminder about the proper procedure for alleging and proving aggravating factors. Continue reading →
Presumptive Sentences in DWI Cases
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.
Uncontroverted Mitigating Factors
Suppose a defendant convicted of a felony has a slam dunk mitigating factor. Let’s say, for example, that he has been honorably discharged from the military, which is a statutory factor under G.S. 15A-1340.16(e). Before the defendant can present evidence of the factor (probably a DD-214) to the court, the judge stops him, saying, “No need for that—I’m going to sentence in the presumptive range.” Is that okay?
No. Under Structured Sentencing, the court is required in every case to consider evidence of aggravating and mitigating factors that are presented. G.S. 15A-1340.16(a) (“The court shall consider evidence of aggravating or mitigating factors present in the offense . . . .”). It is plain error for the trial court to sentence the defendant without allowing defense counsel an opportunity to present evidence of mitigating factors. State v. Knott, 164 N.C. App. 212 (2004). The court must at least let the defendant get evidence of any mitigating factors out on the table. To head off any claim that proffered evidence was ignored, a careful judge may wish to note on the record that he or she has considered the evidence of any proposed mitigating factor. But there is no statutory obligation to do that. See State v. Hagans, 177 N.C. App. 17, 31 (2006) (“The fact the [sic] trial court, without comment, imposed consecutive presumptive sentences does not mean the trial court failed to consider the mitigating factors presented.”).
There is language in State v. Chavis, 141 N.C. App. 553 (2000), saying that a judge is “not required to take into account any evidence offered in mitigation” when he or she imposes a presumptive sentence. Taken out of context, that language could lead practitioners astray. In Chavis, the court of appeals was responding to the defendant’s argument that he was entitled not merely to consideration of the mitigation evidence, but also to an actual mitigated-range sentence. The appellate court was correct in the sense that an uncontroverted mitigating factor does not command a particular sentencing outcome. In light of G.S. 15A-1360.16(a) and Knott, however, I think it is clear that mitigation evidence must be “taken into account” in the sense that it may not be ignored.
But consideration of the factors does not necessarily lead to a requirement for written findings. Written findings are required only if the court, in its discretion, chooses to depart from the presumptive range. G.S. 15A-1340.16(c). If the court chooses a sentence from the presumptive range, no findings are required—even when there is uncontroverted evidence of a mitigating factor. State v. Garnett, 209 N.C. App. 537 (2011). Many cases state this rule. See, e.g., Hagans, 177 N.C. App. at 31 (“Defendant’s notion that the court is obligated to formally find or act on proposed mitigating factors when a presumptive sentence is entered has been repeatedly rejected.”).
If, however, the defendant is sentenced in the aggravated range, the court must make written findings of the aggravating and mitigating factors present in the offense. G.S. 15A-1340.16(c). In addition to whatever aggravating factors were found (and there must have been at least one if the court chose a sentence from the aggravated range), case law indicates that the judge must find any mitigating factors supported by uncontroverted and manifestly credible evidence. In State v. Wilkes, __ N.C. App. __, 736 S.E.2d 582 (2013), for example, the trial court erred when it gave an aggravated-range sentence but failed to find the proposed mitigating factor that the defendant had a positive employment history. The defendant had introduced military records showing various commendations and awards, and there was no reason to doubt their credibility. See also State v. Hilbert, 145 N.C. App. 440 (2001) (noting that the trial judge committed prejudicial error when he gave an aggravated-range sentence after refusing to find that the defendant had successfully completed a treatment program subsequent to arrest and prior to trial [mitigating factor 16]; the defendant had submitted a certificate showing he had completed a 21-day program).
None of this is to say that a defendant is automatically entitled to a finding of any mitigating factor he or she submits. The court is only required to find a mitigating factor when “the evidence so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn and that the credibility of the evidence is manifest as a matter of law.” State v. Hughes, 136 N.C. App. 92 (1999) (holding that none of the defendant’s three proposed mitigating factors was supported by manifestly credible evidence). Additionally, a mitigating factor is obviously not uncontroverted if the State contests it. See Wilkes, 736 S.E.2d at 588 (“[T]he State put on evidence that contradicted Defendant’s evidence on good character/reputation in the community, so there was no requirement that the trial court find that factor.”).
What the trial judge does with the factors he or she finds is entirely a matter of discretion. A single aggravating factor can outweigh multiple mitigating factors. State v. Vaughters, __ N.C. App. __, 725 S.E.2d 17 (2012) (holding that the trial judge did not abuse his discretion when he found that one aggravating factor outweighed 19 mitigating factors). And even if the judge makes written findings of mitigating factors and further finds that they outweigh the aggravating factors, a presumptive sentence is still proper. State v. Bivens, 155 N.C. App. 645 (2002). If the presented factors have been properly considered, a presumptive-range sentence is never wrong.
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.
Last summer I wrote this post about amendments to the fourth grossly aggravating factor applicable to sentencing for impaired driving, namely the factor in G.S. 20-179(c)(4) that elevates punishment for driving while impaired with a child in the vehicle. Amendments effective for offenses committed on or after December 1, 2011 render this factor applicable if any of the following persons were in the vehicle at the time of the offense: (1) a child under the age of 18; (2) a person with the mental development of a child under 18; or (3) a person with a physical disability that prevents the person from getting out of the vehicle without assistance. S.L. 2011-329. When I summarized the amendments last summer, I wrote: “[I]f more than one of these types of persons is in the car, it appears that only on grossly aggravating factor applies.” I want to revisit that issue in this post.
G.S. 20-179(c)(4) does not specify whether more than one grossly aggravating factor exists if more than one qualifying minor or disabled person is in the vehicle at the time of the offense. It did not so specify before it was amended, though then it applied only when one category of persons was present in the vehicle: a child under the age of 16. In light of G.S. 20-179(c)(1)’s specification that each qualifying prior conviction counted as a separate grossly aggravating factor, the prevailing interpretation before the statute was amended was that, regardless of the number of children present in the vehicle, only one factor applied. See Ben Loeb and James Drennan, Motor Vehicle Law and the Law of Impaired Driving in North Carolina 85 (2000); see also Jeff Welty, DWI for the Whole Family. That’s the analysis I applied in the August 2011 post. It finds some support in another provision of S.L. 2011-329, which amended G.S. 20-179(c) to require Level One punishment “if it is determined that the grossly aggravating factor in subdivision (4) of this subsection applies” and to permit Level Two punishment “[i]f the judge does not find that the aggravating factor at subdivision (4) of this subsection applies.” These references to G.S. 20-179(c)(4) arguably reflect the legislature’s view that the factor, while capable of proof in multiple ways, remains singular in its application.
Nevertheless, the contrary view—namely that division of this factor into subparts evinces the legislature’s intent to permit the finding of more than one grossly aggravating factor under G.S. 20-179(c)(4)—is bolstered by case law interpreting other, similarly worded aggravating factors. The court of appeals in State v. Mack, 81 N.C. App. 578 (1986), for example, construed the aggravating factor of “especially reckless or dangerous driving” in G.S. 20-179(d)(2) to permit a finding of two separate aggravating factors, one based on especially reckless driving and the other based on especially dangerous driving. The Mack court explained that “there would need to be at least one item of evidence not used to prove either an element of the offense or any other factor in aggravation to support each additional aggravating factor.” Id. at 585. Similarly, the state supreme court has upheld the division of the aggravating factor set forth in G.S. 15A-1340.16(d)(1), which applies if “[t]he defendant induced others to participate in the commission of the offense or occupied a position of leadership or dominance of other participants,” holding that the provision may support the finding of two aggravating factors (one for inducement and one for position of leadership) if separate evidence supports each. See State v. Erlewine, 328 N.C. 626, 638-39 (1991). For that reason, both the impaired driving determination of sentencing factors form (AOC-CR-311) and the felony judgment form, AOC-CR-605, provide check boxes for the finding of one or both factors under each provision.
If the reasoning in Mack and Erlewine was applied to G.S. 20-179(c)(4), as amended, it would allow for the determination of more than one grossly aggravating factor based on the presence of more than one person in the car, each of whom satisfied a separate category. So, for example, a finding of one grossly aggravating factor under G.S. 20-179(c)(4) would be appropriate for a defendant who committed a covered offense with more than one child under the age of 18 in the vehicle because the children occupy the same category. If, however, a person with a qualifying disability or a person with the mental development of a child under the age of 18 years also was present in the vehicle, a separate grossly aggravating factor also would apply.
The DWI sentencing factors form (AOC-CR-311) acknowledges this possible interpretation, providing a separate check box for each category of qualifying individual under 20-179(c)(4). The form does not, of course, resolve the legal issue of whether each category gives rise to separate factor.
Given that a finding of one aggravating factor under G.S. 20-179(c)(4) requires Level One punishment, whether multiple aggravating factors can be found under this subsection carries legal significance in the limited number of cases in which there are three or more grossly aggravating factors, thus requiring punishment at Aggravated Level One. If you’ve litigated this issue or have other insights or perspective on the proper construction of this provision, I’d love to have the benefit of your thoughts.