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: notice
Last week, the North Carolina Court of Appeals reversed a defendant’s conviction under G.S. 90-95(d1)(1)(c), which makes it unlawful to “[p]ossess a pseudoephedrine product if [a] person has a prior conviction for the possession or manufacture of methamphetamine.” The court ruled that the defendant’s “due process rights under the United States Constitution were violated by his conviction of a strict liability offense criminalizing otherwise innocuous and lawful behavior without providing him notice that a previously lawful act had been transformed into a felony for the subset of convicted felons to which he belonged.” In other words, the defendant’s apparent ignorance of the law excused his violation of it. Continue reading →
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.
Back in July the court of appeals decided State v. Hubbard, a probation revocation case that I mentioned in passing but never really discussed in depth. In Hubbard the defendant’s probation officer filed a violation report alleging that Mr. Hubbard violated probation by being “so drunk that he could hardly walk” during a curfew check. At the violation hearing the defendant raised a question about exactly which condition of probation he had violated – he was not, after all, barred from possessing or consuming alcohol. After some initial confusion, the probation officer testified that regular condition number six, “report as directed by the Court or the probation officer to the officer at reasonable times and places and in a reasonable manner,” was the condition that had been violated. The trial court, however, found that Hubbard had violated probation by failing to comply with the rules of intensive supervision – a separate, special condition of probation. On appeal, the defendant argued that the court lacked subject matter to revoke his probation for violation of a condition of probation of which he had no notice.
The court of appeals disagreed and affirmed the revocation. Mr. Hubbard was correct that in general, the State must give a defendant notice before holding a probation violation hearing, including a statement of the violations alleged. G.S. 15A-1345(e). Probation may not be revoked based on conduct not alleged in the probation violation report. State v. Cunningham, 63 N.C. App. 470 (1983) (improper to revoke probation for property damage when violation report alleged only playing loud music). Mr. Hubbard was incorrect, though, that he received insufficient notice of the alleged violation in this case. The court of appeals ruled that despite some ambiguity at the hearing about which condition Hubbard violated, there was no question that he had sufficient notice of the specific behavior that constituted a violation. The violation report said he was “drinking and raising Cain,” and his probation officer testified at the violation hearing that Hubbard was “highly intoxicated” during a curfew check. This was sufficient evidence to reasonably satisfy the trial court that Hubbard had violated a condition of his probation – and it didn’t matter, the court of appeals concluded, exactly which condition it was.
It appears to me that Mr. Hubbard’s violation was a failure to report to his probation officer “in a reasonable manner” as required by the regular probation condition set out in G.S. 15A-1343. Being combative when your probation officer checks in is not reasonable. I disagree, however, with the idea that “part of [Hubbard’s] intensive supervision is that . . . he’s not at home drunk.” The rules of intensive probation do not prohibit getting drunk at home. Soon, though, it will be a default condition of probation all defendants sentenced to intermediate punishment (which would include all probationers under intensive supervision) that they not use, possess, or control alcohol. S.L. 2009-372.
Even if the notice provided in Hubbard was legally sufficient, it seems to me that the best practice for probation officers is to tie every offending behavior alleged in a violation report to a particular condition of probation – especially in the “Other” block on page 3 of the DCC-10. Doing so will help both the probationer and the probation officer prepare for the hearing.