Who Proves Prior Record?

Tag Archives: burden of proof

Who Proves Prior Record?

Posted on April 8, 2013 by Jamie Markham

Who proves prior convictions for sentencing purposes? By statute, the State. Sometimes, however, in the fast-paced world of district court, marshaling a defendant’s criminal record can seem like a shared responsibility, with the prosecutor, judge, and clerk all playing a role. Especially today, when more statewide information is available at a mouse click through CJLEADS and other resources, information on a defendant’s record might come to light through means other than proof by the State. Is that okay?

Let’s start with the statutes. Under Structured Sentencing, the burden of proving prior convictions is on the State. G.S. 15A-1340.14(f) (felonies); G.S. 15A-1340.21(c) (misdemeanors). But the felony record level and misdemeanor conviction level statutes are not identically worded. The statute for felony prior record level places an affirmative burden on the prosecutor to “make all feasible efforts to obtain and present to the court the offender’s full record,” G.S. 15A-1340.14(f), while the statute governing sentencing of misdemeanors includes no such requirement. For sentencing of impaired drivers, G.S. 20-179 is more demanding: the State must “make all feasible efforts to secure the defendant’s full record of traffic convictions,” and “shall present to the judge that record for consideration in the hearing,” where they must be proved beyond a reasonable doubt. G.S. 20-179(a).

Beyond the statutes, there is also an ethical dimension to proving a defendant’s prior record. The State and the defendant may not enter into a calculated agreement to underreport the defendant’s record in order to reduce the defendant’s exposure—even if the judge is advised of the tactic and does not object. 2003 Formal Ethics Op. 5. The defendant may, on the other hand, refuse to stipulate to an accurate presentation of his record (responding that the burden is on the State to prove it), and may even remain silent during the presentation of an inaccurate record, provided he or she was not the source of the inaccuracy. Id.; see also 98 Formal Ethics Op. 5 (Apr. 16, 1998) (defendant and his attorney, knowing of defendant’s prior DWI but not affirmatively concealing it from the State, permissibly stood silent while prosecutor told the court the defendant had no prior DWI convictions). (A related ethical issue of note: A defense attorney may not allow a client to proceed under an alias that would allow his client’s prior record to go undetected. RPC 33 (Jan. 15, 1988).)

With those statutory and ethical rules as a backdrop, consider the following scenario. For a misdemeanor convicted in district court, the State does not provide any information about the defendant’s prior record. Assume there was neither calculated underreporting by the State, nor fraudulent misrepresentation by the defendant. At sentencing, the court learns—through an independent review of computer records or by asking the clerk—that a defendant has a prior conviction that would make him level two for sentencing. What conviction level should the court use?

I think prior conviction level one. For the sentencing of a misdemeanor, the State hasn’t done anything wrong by not proving the defendant’s prior conviction; again, G.S. 15A-1340.21 places no affirmative obligation on the prosecutor to produce the defendant’s full record. Because convictions must be “proven in accordance with this section” to allow the court to count them for points, G.S. 15A-1340.21(a), and because the burden of proving them is on the State, G.S. 15A-1340.21(c), arguably the defendant’s record should not be elevated by convictions that come before the court through some avenue other than the prosecutor.

It may be that a defendant’s criminal history is the type of information susceptible to being judicially noticed. See State v. VanBuren, 183 N.C. App. 492 (2007) (unpublished) (holding that it was improper for a judge to take what he called judicial notice of an unsupported prior record level worksheet, but suggesting that the judge could have cured the defect by taking judicial notice of actual court records showing a defendant’s prior convictions). Be that as it may, the Code of Judicial Conduct counsels against independent research into a matter before the court (see Canon 3A(4), discussed in this opinion from the Judicial Standards Commission).

Even if the court may be locked into a particular grid cell based on the record proved (or not proved) by the State, it seems that a judge may review additional information about a defendant’s record at sentencing for other purposes. The sentencing hearing is meant to be a broad inquiry, see State v. Pope, 257 N.C. 326 (1962) (upholding a sentence imposed after the court privately reviewed 68 bills of indictment pending against the defendant), and a judge has broad discretion to consider all sorts of information at sentencing for matters within his or her discretion, see State v. Smith, 300 N.C. 71 (1980) (encouraging judges to consider matters such as a defendant’s age, character, education, environment, habits, mentality, propensities, and record at sentencing). The rules of evidence do not apply at the hearing, and the judge may call his or her own witnesses to make comment to the court. G.S. 15A-1334. Whatever information is discovered could guide the court’s thinking about discretionary decisions within a particular grid cell, such as how many days of imprisonment to impose or whether to give an active or probationary sentence.

Procedurally, the defendant should be given an opportunity to respond to any information the court considers. See State v. Midyette, 87 N.C. App. 199 (1987) (disfavoring trial court’s in camera victim input session before sentencing when the defendant was not given an opportunity to refute the matters urged by the victim); Pope, 257 N.C. at 335 (noting that “[a]ll information coming to the notice of the court which tends to defame and condemn the defendant and to aggravate punishment should be brought to his attention before sentencing, and he should be given full opportunity to refute or explain it.”). As long as that opportunity is provided, I think the information is fair game for decisions within the discretion of the court.

I realize the analysis above may be slicing things pretty thinly given the pace of district court. It may be hard, for example, to identify the particular moment in time when the State is done proving all the convictions it intends to prove for prior conviction level purposes. Nevertheless, the question comes up often enough that I thought it worth writing about, and I would love to learn more from our readers about how things play out in practice.

Category: Sentencing, Uncategorized | Tags: burden of proof, prior convictions, prior record level, Sentencing, structured sentencing

Whose Burden is it?

Posted on February 19, 2013 by Shea Denning

The State’s failure to accord a defendant his or her statutory implied consent rights as set forth in G.S. 20-16.2 may render the results of any ensuing breath test inadmissible. When a defendant moves to suppress breath test results based on such a violation, questions frequently arise regarding whether the State bears the burden of demonstrating compliance with implied consent procedures or whether the defendant bears the burden of proving a statutory violation. The answer, as with so many things, depends on the nature of the alleged violation. Here’s my take on how the burdens play out in various contexts.

Notification of Rights. The State bears the burden of establishing that the defendant was notified of his or her statutory implied consent rights pursuant G.S. 20-16.2. See State v. Shadding, 17 N.C. App. 279 (1973) (holding that State’s failure to establish that the defendant was advised of his statutory rights following defendant’s objection to the admission of his breath test results on the basis that he had not been accorded those rights rendered the results of the breath test inadmissible); see also State v. Fuller, 24 N.C. App. 38 (1974) (failure of State to establish that officer advised defendant of his right to have an additional test administered by a qualified person of his own choosing rendered breath test result inadmissible).

Right to Delay Testing for 30 minutes. Among the implied consent rights is the right to call an attorney for advice and to select a witness to view the testing procedures. G.S. 20-16.2(a)(6) provides that testing may be delayed for 30 minutes to allow the defendant to exercise these rights. To be entitled to the delay, the defendant must affirmatively indicate his intention to call a lawyer or have a witness present. See McDaniel v. Div. of Motor Vehicles, 96 N.C. App. 495, 497 (1989). A defendant who fails to so affirmatively indicate waives his statutory right to delay the test. Id.

Case law does not make clear which party bears the burden of establishing that the defendant exercised his intention to contact an attorney or witness in the context of a motion to suppress for denial of that right. Given that the defendant must affirmatively indicate this intention to trigger the delay, perhaps the defendant moving for suppression likewise bears the burden of proving that he or she was entitled to, and not afforded, the delay. On the other hand, given that the defendant has a statutory right to the delay, perhaps the State must prove, in circumstances in which the test was not delayed for 30 minutes, that the defendant was afforded that right and that the defendant did not affirmatively indicate any desire to contact an attorney or witness.

In any event, it appears that the defendant must show that a witness arrived within the 30 minutes to be entitled to suppression of the breath test results for failure to delay testing. In State v. Buckner, 34 N.C. App. 447 (1977), the defendant argued that it was error for the court to admit the result of his breath test, which was administered after the arresting officer observed him for only twenty minutes, rather than the thirty minutes provided by statute. The defendant, who made a phone call after being advised of his implied consent rights, argued that the State was required to demonstrate that he waived the right to have an attorney or witness present to introduce the result of the test. The court rejected the defendant’s argument, pointing to the defendant’s failure to contend that a witness or lawyer was “on the way to the scene of the test” or “that an additional 10 minutes would have resulted in any change of status.” Id. at 450. The court held that a delay of less than thirty minutes was permissible as there was no evidence “that a lawyer or witness would have arrived to witness the proceeding had the operator delayed the test an additional 10 minutes.” Id. at 451. Thus, it may not matter much who bears the burden of proving the defendant was entitled to a delay, since the defendant bears the burden of proving prejudice—or at least consequences—resulting from the failure to delay.

Right to Witness. Denial of the defendant’s right to have a witness view the testing requires suppression of test results. Thus, in State v. Myers, 118 N.C. App. 452 (1995), the court held that breath test results were improperly admitted as the defendant was denied the right to have his wife witness the breath test. Myers told the officer that he wanted his wife to come into the breath testing room and the officer said “that might not be a good idea because she had been drinking also.” Id. at 453. The court found the officer’s statement “tantamount to a refusal of that request,” which barred admission of the results at trial. Id. at 454. Likewise, in State v. Hatley, 190 N.C. App. 639 (2008), the court held that suppression of the defendant’s breath test results was required as the defendant called a witness who arrived at the sheriff’s office within thirty minutes and told the front desk duty officer that she was there to see the defendant and yet was not admitted to the testing room.

A witness who has been selected to observe the testing procedures must arrive within the statutorily allotted 30 minutes and must make reasonable efforts to gain access to the defendant in order to view the test. Hatley, 190 N.C. App. at 642-43 (citing State v. Ferguson, 90 N.C. App. 513 (1988)). Because these facts are typically in the possession of the defendant, it seems likely that the defendant bears the burden of proving their existence.

Category: Motor Vehicles, Procedure | Tags: burden of proof, DWI, motions to suppress

North Carolina Criminal Law NC Criminal Law

Search

About

Tag Archives: burden of proof