North Carolina Criminal Law NC Criminal Law

In 2008 the General Assembly enacted two new crimes, rape of a child by an adult offender under G.S. 14-27.2A, and sexual offense with a child by an adult under G.S. 14-27.4A. S.L. 2008-117. Both crimes have special sentencing rules and special provisions for lifetime satellite-based monitoring. Today’s post responds to some of the questions I have been getting about those special rules. (Some of these issues were discussed immediately after the law came into effect in John Rubin’s 2008 legislative summary, available here.)

Rape of a child by an adult offender is defined as vaginal intercourse with a child under 13 by a defendant who is at least 18. Sexual offense with a child by an adult offender is defined as engaging in a sexual act (cunnilingus, analingus, fellatio, anal intercourse, or the insertion of any object into another’s genital or anal opening) with a child under 13 by a defendant who is at least 18. There is thus some overlap between these crimes and the “regular” first-degree statutory rape and sexual offense crimes set out in G.S. 14-27.2 and 14-27.4, respectively—and like those crimes, the “adult offender” versions are Class B1 felonies. The adult offender versions are different, however, in that they carry a notably higher punishment than that applicable to an ordinary Class B1 felony under Structured Sentencing.

Before delving into the special rules, I should say at the outset that the adult offender crimes only apply to offenses committed on or after December 1, 2008. For earlier offenses only the regular Class B1 rape and sexual offense crimes could apply. Many times I have received questions about the special sentencing rules for the adult offender versions, only to discover that the acts in question occurred before December 1, 2008 and thus were not properly charged under the new statutes in the first place. I should also note that these rules appear to apply only to the completed crimes; there is no indication that the special provisions apply to attempts or other inchoate crimes.

As for the special rules themselves, both G.S. 14-27.2A and 14-27.4A provide that a person convicted of those crimes must be sentenced to an active punishment of at least 300 months. I read that as a mandatory minimum sentence of imprisonment, supplanting any shorter minimum sentence otherwise applicable to a Class B1 felon according to the sentencing grid. Depending on the defendant’s prior record level that can make for a pretty substantial increase in the sentence. For example, the adult offender mandatory minimum increases the lowest possible (bottom-of-the-mitigated-range) minimum sentence for a first-time offender from 144 months to 300 months—an increase of 13 years. No statute expressly says so, but it seems to me that if the court imposes a 300-month minimum sentence, the corresponding maximum should be determined according to the regular “formula” applicable to a Class B1 reportable sex crime. Thus, for an offense committed on or after December 1, 2011, the maximum would be 120% of the minimum plus 60 months, making the sentence 300–420 months. For an offense committed before December 1, 2011, the maximum would be 120% of the minimum plus 9 months, making the sentence 300–369 months. (For a description of the changes to sex offender sentencing effective December 1, 2011, see this post.) For defendants otherwise eligible for a sentence in excess of the 300-month minimum, just use the regular sentencing grid as usual.

Both adult offender statutes provide that the court can impose a sentence to a term of months even longer than that allowed by the sentence grid, up to and including life imprisonment without parole, if the court finds “egregious aggravation.” The statutes state that egregious aggravation may be found if “the nature of the offense and the harm inflicted are of such brutality, duration, severity, degree, or scope beyond that normally committed in such crimes, or considered in basic aggravation of these crimes, so as to require a sentence to active punishment in excess of that authorized pursuant to [Structured Sentencing].” The term also includes “further consideration of existing aggravating factors where the conduct of the defendant falls outside the heartland of cases even the aggravating factors were designed to cover,” or consideration of the “extraordinarily young age of the victim, or the depraved torture or mutilation of the victim, or extraordinary physical pain inflicted on the victim.” What sort of aggravation rises to the level of egregious aggravation is not entirely clear from the law itself, but the real problem with the statutes is who they charge with the responsibility of making the egregious aggravation determination. Both laws say that the sentencing judge does it, but it would almost certainly run afoul of a defendant’s Sixth Amendment rights to allow such findings—which clearly increase the maximum permissible punishment—to be made by anyone other than the jury. Blakely v. Washington, 542 U.S. 296 (2004) (holding that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be admitted to by the defendant or submitted to the jury and proved beyond a reasonable doubt). A trial court judge could perhaps fashion a remedy for the possible constitutional defect by submitting the issue of egregious aggravation to the jury using a special verdict. See State v. Blackwell, 361 N.C. 41 (2006) (speaking approvingly of the special verdict as a way to protect a defendant’s jury trial right after Blakely was decided but before North Carolina’s Blakely fix legislation came into effect). [Author’s note: In State v. Singletary, __ N.C. App. __ (May 3, 2016), the court of appeals cast doubt on a trial court’s authority to fashion a remedy for this constitutional violation by use of a special verdict.]

Finally, the two adult offender statutes are unique in that they require convicted defendants to submit to satellite-based monitoring (SBM) for life upon their release from prison. For other crimes, lifetime SBM does not flow from the crime of conviction, but rather from a separate finding that the offender is a sexually violent predator, a recidivist, or that the conviction offense was an aggravated offense. G.S. 14-208.40A. Both adult offender crimes are “sexually violent offenses” under G.S. 14-208.6(5), meaning they require registration as a sex offender. But there is no provision in the statutes for automatic lifetime registration—raising the odd possibility that a convicted person might be subject to SBM for life but registration for a term of years. Additionally, the adult offender statutes make no mention of automatic lifetime SBM for offenders convicted of attempts, conspiracies, or solicitations to commit those crimes. Those crimes are reportable under G.S. 14-208.6(4)a (attempts) and G.S. 14-208.6(5) (conspiracies and solicitation), but only require SBM if ordered by the court pursuant to the rules applicable to other sexually violent offenses. The special status of the adult offender crimes with respect to SBM is reflected on Form AOC-CR-615, which includes a separate check-box (finding 1.d, near the top of the first page) for defendants convicted of those crimes.