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.
Tag Archives: blakely
Author’s Note: The opinion discussed below was withdrawn on February 4, 2014 and replaced by an opinion discussed here.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.
I mentioned in my previous post that the Justice Reinvestment Act (JRA) is not the only new legislation that impacts post-release supervision (PRS). This post looks at S.L. 2011-307, which changes the way PRS applies to sex offenders. (I also mentioned that I would talk about post-release supervision for certain impaired drivers under Laura’s Law, but it turned out that I had so much to say about sex offenders that I decided to leave that for another day.)
Under existing law, the period of post-release supervision in the community is 5 years for Class B1–E offenders imprisoned for a crime that requires sex offender registration. But those offenders face only 9 months of active time if their PRS is revoked—only 9 additional months are built into their active sentences, and they are released from prison 9 months before attaining their maximum. Faced with a choice between 5 years of supervision in the community and 9 months in prison, some offenders opt for the latter. Under G.S. 15A-1368.2(b) a person technically cannot refuse PRS, but some offenders get around that by violating their conditions of supervision on purpose.
To put a stop to that, S.L. 2011-307 amends G.S. 15A-1340.17(f) to provide that for sex offenders convicted of Class B1–E felonies, the maximum sentence is 120 percent of the minimum, rounded to the next highest month, plus 60 additional months. The law then makes a parallel change to G.S. 15A-1368.2(a) to provide that those offenders will be released from prison onto PRS 60 months before attaining their maximum, less earned time. Thus, if they violate PRS, they can be returned to prison for the remaining 60 months—making it far less appealing to serve the prison time in lieu of community supervision.
That change does not apply to Class F–I felons convicted of reportable crimes—even though they will be subject to PRS pursuant to the JRA and will have 5-years of supervised release under existing G.S. 15A-1368.2(c). Even those offenders, though, will have an incentive to complete their PRS in the community under S.L. 2011-307. The new law provides that willful refusal to accept or comply with the terms of PRS is punishable as criminal contempt of court, with the Parole Commission empowered to act as a judicial official would under Chapter 5A. That would appear to mean that the Parole Commission could, after holding a plenary contempt proceeding under G.S. 5A-15 and finding beyond a reasonable doubt that an offender willfully refused to accept or comply with PRS, punish a person by up to 30 days imprisonment under G.S. 5A-12. The amended statute says that notwithstanding any other provision of law, any punishment for that contempt does not count for credit for time served against the underlying sentence. That may conflict with State v. Belcher, 173 N.C. App. 620 (2005), which held that a revoked probationer was entitled to credit for time spent jailed for contempt under G.S. 15A-1344(e1).
The new law also provides that any time spent imprisoned “due to the prisoner’s resistance to . . . release” must “toll the running of the period of supervised release.” “Tolling” in this context appears to mean that the offender’s period of PRS will be right there waiting for him when he gets released from prison, with no time having ticked off the supervision period in the interim—a further disincentive to any attempt to refuse PRS. The inclusion of a tolling provision in this law makes me wonder if a regular (that is, non–sex offender) offender’s period of supervision is tolled when he or she gets imprisoned in response to a non–new crime, non-absconding violation of PRS.
The law amends G.S. 15A-1354(b)(1) to subtract duplicate 60-month periods built into the aggregate maximum sentence for anyone sentenced for multiple reportable Class B1–E crimes. The amended law does not, however, reflect the changes made by the JRA regarding the subtraction of “second and subsequent” 9-month and 12-month duplicate PRS time out of the aggregate maximum. Read together, I think the changes probably accomplish the goal of having the offender serve a single PRS term of the appropriate length for whichever sentence requires the longest period of supervision (assuming that was, in fact, the goal), but it’s not clear.
When sentencing a Class B1–E sex offender, the court will need to add 48 months onto the maximum sentence set out on the back of the post–December 1, 2011 sentencing grid (the number on the chart will be 120% of the minimum plus 12 months, so an additional 48 months will need to be tacked on to get to 60). For sentencing geeks like me, the mere thought of adding time to maximum sentences sets off alarm bells: could this be an issue under Blakely v. Washington, 542 U.S. 296 (2004)? In general I don’t think it is. Sex offender registration typically flows directly from a conviction, and so no additional factual findings (that might trigger the Blakely rule requiring an admission by the defendant or proof to a jury beyond a reasonable doubt) would be required by a judge. A few offenses, however, are only reportable if additional facts beyond those inherent in the conviction itself are true. Kidnapping, for example, is only reportable if committed against a minor. G.S. 14-208.6(1m). It’s not a problem under Blakely for the court to make that factual finding for sex offender registration purposes because registration itself is not a criminal punishment. But to the extent that 48 months of additional imprisonment are at stake, it seems that Blakely might come into play.
The portion of the new law adding 60 months to the maximum sentences for Class B1-E sex offenders is effective December 1, 2011 and applicable to offenses committed on or after that date. The contempt provisions came into effect June 27, 2011, and apply to willful refusals to accept or comply with post-release supervision on or after that date.
In 2002, David Hurt pled guilty to second-degree murder. Over the next several years his case bounced back and forth between the trial and appellate courts based on problems with his aggravated-range sentence. In the meantime, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004). Hurt’s case was eventually remanded for a Blakely-compliant sentencing hearing in 2008.
With the State still seeking an aggravated sentence (this time on the basis that the crime was especially heinous, atrocious, or cruel), the court empanelled a jury to consider the aggravating factor—exactly what a court should do for a case of this vintage where a defendant pleads guilty to a felony but denies the existence of any aggravating factors. See State v. Blackwell, 361 N.C. 41 (2006) (approving use of a special verdict for cases sentenced after Blakely but not covered by North Carolina’s 2005 Blakely-fix legislation). At the hearing, the State presented lab evidence and an autopsy report prepared by non-testifying witnesses. Based on that evidence—which identified the defendant and described a grisly and painful attack on the victim—the jury found beyond a reasonable doubt that the offense was especially heinous, atrocious, or cruel, and the court sentenced the defendant in the aggravated range. On appeal, the defendant argued that admission of that evidence violated his Sixth Amendment confrontation rights under Crawford v. Washington, 541 U.S. 36 (2004).
The court of appeals agreed, holding as a matter of first impression that Crawford-style confrontation rights apply to “all sentencing proceedings where a jury makes the determination of a fact or facts that, if found, increase the defendant’s sentence beyond the statutory maximum.” Slip op. at 9. Such aggravating factors are effectively elements of the conviction offense. As such, the court ruled, they must be proved in the same Crawford-compliant manner as any other element.
Hurt is the proverbial other shoe that many had anticipated after Blakely—including Shea, who pretty much nailed this issue here. How could courts have made such a big deal about what the Sixth Amendment requires regarding to whom (the jury) and to what standard of proof (beyond a reasonable doubt) aggravators must be proved, and yet appear relatively unconcerned about what the very same amendment commands as to how they may be proved? Our courts previously determined that confrontation rights apply at capital sentencing hearings, State v. Bell, 359 N.C. 1 (2004), but this is the first time the rule has been extended to a noncapital case—in North Carolina, or virtually anywhere else for that matter. The clear majority rule across the country, especially in the federal courts, is that confrontation rights do not apply at sentencing in noncapital cases. The Hurt court distinguished the federal cases by noting that aggravating factors do not function as elements under the federal guidelines, which are advisory under United States v. Booker, 543 U.S. 296 (2005). As to the state cases, the court concluded that the Supreme Court of Minnesota—apparently the only state high court to have extended confrontation rights to noncapital sentencing, State v. Rodriguez, 754 N.W.2d 672 (Minn. 2008)—represents the “better-reasoned view.”
Having determined that Crawford applied at sentencing, the court went on to consider whether the substitute analyst testimony used to prove the aggravating factor violated the rule from Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). The court concluded that it did and remanded for resentencing.
Doctrinally, Hurt is a big case. It was featured on Professor Doug Berman’s prominent sentencing blog, and I noticed it was captioned in this morning’s BNA Criminal Law Reporter. It is important to remember, though, what Hurt does not do. First, it does not affect cases where a defendant stipulates to aggravating factors. State v. Sings, 182 N.C. App. 162 (2007). Second, it does not apply to evidence a court might consider when deciding matters resting solely in its discretion and not requiring any particular findings of fact, such as selecting a sentence length within a particular range, choosing a sentence disposition (active or probationary), or deciding to run sentences consecutively. Those decisions are still subject to the broad inquiry sanctioned by cases like State v. Pope, 257 N.C. 326 (1962), and the due process bounds set out in Williams v. New York, 337 U.S. 241 (1949). Finally, the Hurt court noted its holding has no effect on the inapplicability of the rules of evidence at sentencing—at least to the extent that those rules are a legislative choice and not a constitutionally-mandated requirement. Slip op. at 30, n.3.
I’m interested to hear readers’ thoughts on how Hurt will impact sentencing practice. Given that only four percent of felony cases are sentenced in the aggravated range, my sense is that impaired driving cases will be the ones in which the Hurt blocker will apply most often to keep out unconfronted testimonial evidence.
An article in last Saturday’s paper talked about Governor Perdue’s proposed changes to the probation system. Part of her plan would give probation officers access to probationers’ juvenile records, which reminded me of a related issue I have been meaning to write about: using juvenile adjudications as an aggravating factor at sentencing.
Under G.S. 15A-1340.16(d)(18a), it is a statutory aggravating factor if the defendant has previously been adjudicated delinquent for an offense that would be a Class A – E felony if committed by an adult. The Juvenile Code allows prosecutors to access juvenile records without a court order, though they may only be used to prove an aggravating factor by order of the court after an in camera hearing to determine admissibility. G.S. 7B-3000(f). Under G.S. 15A-1340.16(b), the aggravating factor for juvenile adjudications is carefully exempted from the normal, post–Blakely v. Washington rule that aggravating factors must be admitted to or proved beyond a reasonable doubt to the jury; that factor, the statute says, may be found by the court. The legislative assumption is that prior juvenile adjudications are like prior convictions, and thus fall within the prior-conviction exception to Blakely.
The Court of Appeals has considered the juvenile adjudication aggravating factor in two cases and reached different results. In State v. Yarrell, 172 N.C. App. 135 (2005), the court looked to G.S. 7B-2412 (“An adjudication that a juvenile is delinquent . . . shall [not] be considered conviction of any criminal offense . . . .”) to conclude that juvenile adjudications are not convictions, and therefore must be presented to the jury and proved beyond a reasonable doubt to support an aggravating factor. In State v. Boyce, 175 N.C. App. 663 (2006), a different panel of the Court of Appeals reached the opposite conclusion. Without further comment the court called the defendant’s prior adjudication a “prior conviction” and determined that the testimony of the juvenile court clerk and a finding by the trial court judge were sufficient to support the aggravating factor.
As a sentencing nerd I watched in eager anticipation when the North Carolina Supreme Court granted discretionary review of Boyce, 361 N.C. 358 (2007), optimistic the Court would resolve the lower court split. But after answering a question regarding the substantive offense at issue in the case, the Court dashed my hopes: “As to the additional issues presented in defendant’s petition [including the challenge to the aggravating factor], we conclude that discretionary review was improvidently allowed.” 361 N.C. 670 (2007). So close.
What’s the right answer? Well, most federal circuit courts of appeals to consider the question have found juvenile adjudications to fall within the prior-conviction exception to the Blakely rule (that is, they said it’s okay to aggravate a sentence based on a judicial finding of a prior juvenile adjudication). See United States v. Matthews, 489 F.3d (1st Cir. 2007); United States v. Burge, 407 F.3d 1183 (11th Cir. 2005); United States v. Williams, 410 F.3d 397 (7th Cir. 2005); United States v. Smalley, 294 F.3d 1030 (8th Cir. 2002). But see United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001). [Note that some of these cases predate Blakely, 542 U.S. 296 (2004), itself. Those cases were interpreting the prior-conviction exception set out Blakely’s forerunner, Apprendi v. New Jersey, 530 U.S. 466 (2000).] The presence of the plainly worded G.S. 7B-2412 in our General Statutes may, however, make this a tougher call.
A number of people have asked me whether the United States Supreme Court’s recent opinion in Oregon v. Ice (07-901) has any impact on North Carolina sentencing law. The short answer is, No. In Ice, the latest chapter in the Blakely v. Washington, 542 U.S. 296 (2004), saga, a 5–4 majority of the Justices held that a judge may impose consecutive sentences based on facts neither found by the jury nor admitted by the defendant.
Under Oregon law, multiple sentences are served concurrently unless the judge finds that the offenses were not part of the same course of conduct and resulted in separate harms. Mr. Ice argued that because his sentence could not be increased without that finding, it ought, under Blakely, to be found by a jury beyond a reasonable doubt. [Recall Blakely’s holding: As a matter of the Sixth Amendment right to jury trial, any fact—other than a prior conviction—that increases the maximum punishment to which a defendant may be sentenced must be admitted by the defendant or proved beyond a reasonable doubt to a jury.] Justice Ginsburg’s majority opinion disagreed, holding that as a matter of historical jury practice and respect for state sovereignty, the Blakely rule applies only to sentences for discrete crimes, not the decision to run sentences concurrently or consecutively. Justice Scalia wrote for the dissenters, arguing that the Court’s decision makes for a “strange exception” to the Blakely rule when you consider that the consecutive/concurrent decision is often the one with the greatest impact on how long a defendant will actually be in prison.
As for North Carolina, aside from the relatively few statutes that require consecutive (e.g., habitual felon sentences) or concurrent (e.g., when all crimes are Class 3 misdemeanors) sentences, a judge’s discretion to run sentences consecutively or concurrently is complete, and need not be supported by any finding whatsoever. So, even if the Supreme Court had ruled for the defendant in Ice, the decision wouldn’t have required a change in our law.
