The U.S. Supreme Court held in Blakely v. Washington, 542 U.S. 296 (2004) that any contested fact that increases the defendant’s sentence beyond the statutory maximum must be submitted to the jury and found beyond a reasonable doubt. Shortly thereafter, the General Assembly amended G.S. 20-179 to require judges in superior court cases to submit contested aggravating factors during impaired driving sentencing to the jury. Practically, this means that after a person is found guilty of impaired driving, if they are contesting properly alleged aggravating factors, there must be a sentencing hearing before the jury to determine any aggravating factors beyond a reasonable doubt. The North Carolina Supreme Court considered in State v. King, ___ N.C. ___, 906 S.E.2d 808 (2024) what happens if a judge finds contested aggravating factors without submitting them to the jury.
Background. In impaired driving cases, sentencing is tiered and is determined by finding statutorily defined grossly aggravating, aggravating, and mitigating factors. There are 6 levels of impaired driving sentences – A1, 1, 2, 3, 4, and 5. Levels A1, 1, and 2 may only be imposed if there are grossly aggravating factors present. If there are no grossly aggravating factors, the judge may only sentence a person at Level 3, 4, or 5. If there are both aggravating and mitigating factors present, and the judge finds they substantially counterbalance each other (or if there are neither any aggravators nor mitigators) the judge must impose level 4 punishment. If there are only aggravating factors present, or if the aggravators substantially outweigh any mitigators, the judge must impose Level 3 punishment. If there are only mitigating factors present, or if the mitigators substantially outweigh any aggravators, the judge must impose Level 5 punishment. Because the finding of an aggravating factor pursuant to G.S. 20-179 may increase the statutory maximum sentence, any contested aggravating factor must be found by the jury beyond a reasonable doubt to be consistent with Blakely.
Before King. In State v. Geisslercrain, 233 N.C. App. 186 (2014) the defendant appealed his DWI conviction in part because the superior court judge (and not the jury) determined that an aggravating factor existed. In Geisslercrain, the judge found one aggravating factor, one mitigating factor, and that the two factors substantially counterbalanced each other, which compelled the judge to impose a Level 4 punishment. The defendant argued, and the Court of Appeals agreed, that the aggravating factor improperly enhanced his sentence, because without it, the single mitigating factor would have compelled the judge to impose a Level 5 punishment instead. As a result, the court vacated the sentence and remanded the case for entry of Level 5 punishment. Notably, the court reached its conclusion without evaluating whether the error was harmless. Rather than examine the evidence supporting the aggravating factor to determine if a different result would have been reached, had the error not occurred, the court found the error alone justified vacating the sentence and remanded for entry of the lower punishment level.
State v. King. In 2021, Jason King was convicted of DWI and reckless driving in Buncombe County Superior Court after a jury trial. At sentencing, the judge found three aggravating factors, without submitting them to the jury as required by G.S. 20-179. The judge found: (1) the driving of the defendant was especially reckless; (2) the driving of the defendant was especially dangerous; and (3) the defendant was convicted of misdemeanor death by vehicle in August 2015. The judge did not find any mitigating factors. As a result, the judge was compelled to impose Level 3 punishment. The defendant appealed.
Court of Appeals. A divided panel of the Court of Appeals found that the error required resentencing. Following Geisslercrain, the Court held that because the factors were found in violation of G.S. 20-179 and Blakely, they could not serve as the basis for a Level 3 sentence. The Court of Appeals recognized that since Blakely, the U.S. Supreme Court has since held that Blakely errors do not require resentencing if they are harmless beyond a reasonable doubt. The majority did not examine whether the error was harmless, however, because it concluded the General Assembly intended to provide additional protections beyond the requirements of Blakely. The dissenting judge disagreed, writing that the General Assembly likely intended to meet, but not exceed, Blakely’s requirements. The dissenting judge went on to apply the harmless error standard, finding that due to the strength and uncontroverted nature of the evidence, the jury would have almost certainly also found the aggravating factors beyond a reasonable doubt. As a result, the dissenting judge would have held the error was harmless, and that no remand or resentencing was necessary. The State appealed, relying on the then-existing right to appeal outcomes from divided panels of the Court of Appeals.
The Supreme Court. Agreeing with the dissenting judge, the Supreme Court found that the error did not automatically require remand and resentencing. The Court began by examining the language in G.S. 20-179, finding that while the mandate to submit contested aggravating factors to the jury is unequivocal, there are no provisions in the statute that automatically entitle a defendant to a new sentencing hearing if the mandate is violated. The Court noted that Blakely is similarly unequivocal, holding that such factors “must” be submitted to a jury. And, that notwithstanding such a strong mandate, the U.S. Supreme Court has since ruled that Blakely errors do not automatically entitle a defendant to a new sentencing hearing, but are instead subject to harmless error review.
To determine whether the General Assembly intended G.S. 20-179 merely to codify the requirements of Blakely or instead to also provide additional protections, the Court first examined a predecessor statutory subsection: G.S. 15A-1340.16(a1), a nearly identical provision in the Structured Sentencing Act which governs sentencing for most non-DWI offenses. G.S. 15A-1340.16(a1) provides that if a defendant does not admit to the existence of an alleged aggravating factor, “only a jury may determine if an aggravating factor is present in a case.” It was enacted by S.L. 2005-145, titled “An Act to Amend State Law Regarding the Determination of Aggravating Factors in a Criminal Case to Conform with the United States Supreme Court Decision in Blakely v. Washington,” legislation that the Court subsequently has referred to as “the Blakely Act.” The King Court found that the full title of the Act was strong evidence the General Assembly intended G.S. 15A-1340.16(a1) to codify Blakely’s requirements. It further reasoned that had the legislature intended the Blakely Act to exceed the constitutional floor and mandate automatic reversal for Blakely errors (in contrast to the general rule that constitutional errors are subject to harmless error analysis), the General Assembly would have specifically said so. Because it did not, the Court concluded that a trial judge’s finding of a contested aggravating factor in violation of the Blakely Act does not entitle a defendant to relief unless the error prejudiced the defendant.
Holding. The Court then returned to G.S. 20-179. Since the General Assembly copied the key language in G.S. 20-179 nearly verbatim from G.S. 15A-1340.16(a1), and there were no obvious policy reasons for a different result under the DWI sentencing scheme, the Court concluded that the legislature expected Blakely errors to receive the same treatment under either provision. That called for harmless error review. The Court did not go as far as adopting the dissenting judge’s harmless error analysis, nor did it conduct a harmless error review. Instead, it remanded the case to the Court of Appeals for a harmless error determination.
Harmless Error. All harmless error reviews are not the same. When seeking relief for the denial of a constitutional right, harmless error review requires the State to show the error was harmless beyond a reasonable doubt. When seeking relief for the denial of a statutory right, harmless error review requires the defendant to show “a reasonable probability that, had the error in question not been committed, a different result would have been reached” (G.S. 15A-1443(a)). The King Court found that Mr. King based his appeal on a violation of G.S. 20-179, but did not explicitly seek relief for Blakely or constitutional violations. As a result, Mr. King will bear the burden on remand of demonstrating a reasonable probability that a different result would have been reached had the error not been committed.
Going Forward. For Mr. King, if the Court of Appeals finds that the error was harmless, the aggravating factors will remain, and his sentence will remain unchanged at Level 3. If he can show the error was prejudicial, the Court of Appeals will likely remand for a new sentencing hearing. The new clarity that violations of Blakely or G.S. 20-179 do not automatically entitle defendants to a new sentencing hearing highlights the importance of requesting contested aggravating factors be submitted to the jury. The case is also a reminder that even within harmless error review, there is a difference in who has the burden of proof and what that burden is, depending on whether the defendant requests relief for the denial of a constitutional or statutory right.