As most readers know, sentencing for most misdemeanor and felony convictions in North Carolina is governed by the structured sentencing provisions set forth in Article 81B of Chapter 15A of the General Statutes. See G.S. 15A-1340.10. The misdemeanor offense of impaired driving as defined in G.S. 20-138.1 and several related offenses, however, are excepted from structured sentencing and instead are sentenced pursuant to G.S. 20-179, which sets forth six levels of narrowly prescribed permissible punishments. The determination of aggravating and mitigating factors controls the applicable level.
Four aggravating factors, termed “grossly aggravating factors,” are deemed more serious than other factors and thus have a greater impact on the defendant’s sentence. One grossly aggravating factors is “a prior conviction for an offense involving impaired driving” that occurred (a) within seven years before the date of the offense for which the defendant is being sentenced, (b) after the date of the offense for which the defendant is presently being sentenced but prior to or contemporaneously with the present sentencing; or (c) in district court; the case was appealed to superior court; the appeal has been withdrawn or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20-38.7. Each prior conviction is a separate grossly aggravating factor.
The term conviction is defined in G.S. 20-4.01(4a) to include, among other adjudications, a “final conviction of a criminal offense, including a no contest plea.” Given that a defendant subject to sentencing under G.S. 20-179 may previously have been convicted of a misdemeanor impaired driving offense in district court and such convictions may be appealed within ten days of entry of judgment to superior court for trial de novo, see G.S. 15A-1431(b), questions sometimes arise regarding when a prior conviction for an impaired driving offense is final and whether the manner in which “prior conviction” is defined G.S. 20-179(c)(1) includes some prior convictions that would not, in other contexts, be considered final.
The statutory right to appeal from a conviction in district court within ten days of judgment for trial de novo, which protects a defendant’s constitutional right to trial by jury, suggests that a district court conviction may not properly be considered a “final conviction” and may not be counted under G.S. 20-179 if notice of appeal to superior court has been entered. Indeed, a previous district court conviction is considered a “prior conviction” for structured sentencing purposes only when a person is convicted in district court, has not given notice of appeal, and the time for appeal has expired. G.S. 15A-1340.11(7). The rule for determining when a prior conviction counts under G.S. 20-179 apparently differs from the Structured Sentencing rule, since G.S. 20-179(c)(1) defines convictions that occur “contemporaneously” with the current offense as prior convictions. The time for appealing those convictions necessarily will not have expired at the time of sentencing for the current offense. This departure from structured sentencing constructs is necessary if contemporaneous convictions are to be consistently counted. If such convictions could not be considered until the time for appeal expired, this would, in effect, prevent them from being considered at all in the event they were not appealed. An example may help to illustrate the point.
Consider a defendant charged with impaired driving on November 3, 2011 and again on December 8, 2011. The defendant pleads guilty to both charges on February 20, 2012. He first pleads guilty to and is sentenced at Level Five for the November 3 DWI. He doesn’t orally provide notice of appeal. He then pleads and is sentenced for the December 8, 2011 DWI. Is the conviction for the November 3 offense a grossly aggravating factor? I think it must be considered as qualifying prior conviction entered either “prior to or contemporaneously with” the current sentencing. Otherwise, by not appealing the conviction for the November 3 offense, the defendant would be sentenced for two Level Five DWIs, an outcome the legislature apparently eschewed with the enactment of G.S. 20-179(c)(1)(b), which defines contemporaneous convictions as grossly aggravating factors.
If this interpretation is correct, a qualifying conviction for purposes of G.S. 20-179(c)(1) includes district court convictions from which no notice of appeal has been filed regardless of whether the time for filing a notice of appeal has yet expired. If the prior conviction subsequently is appealed and is reversed by an appellate court, the defendant would have a right to be re-sentenced for the conviction that it enhanced. See State v. Bidgood, 144 N.C. App. 267, 276 (2001) (finding that “it would be unjust to permit an enhanced sentence to stand where it is made to appear that the Prior Record Level has been erroneously calculated due to a subsequent reversal of a conviction on appeal” and remanding to the trial court “for entry of judgment which accurately reflects defendant’s Prior Record Level”).
Whether a conviction for an impaired driving offense in superior court from which an appeal has been entered to the court of appeals may be considered a final conviction is not entirely free from doubt, though the most plausible legislative interpretation is that entry of judgment in superior court renders a conviction in that tribunal final. Arguably, G.S. 20-4.01(4a) defines a conviction as a “final conviction” to postpone many of the Chapter 20 licensure consequences that stem from misdemeanor convictions in district court until after a defendant has been afforded the opportunity to exercise the right to trial de novo in superior court. There is no such need for postponement upon entry of judgment pursuant to a conviction in superior court. Indeed, interpreting the term “conviction” in this manner would enable a defendant with a qualifying prior conviction to be sentenced for a later conviction as though he or she had no prior conviction. The matter could not be redressed if the prior conviction was affirmed on appeal. This interpretation accords with the structured sentencing rule in G.S. 15A-1340.11(7), which defines a “prior conviction” in part as a previous conviction in superior court “regardless of whether the conviction is on appeal to the appellate division.” As noted earlier, if a defendant’s prior conviction for an offense involving impaired driving was reversed on appeal, he or she would have a right to be re-sentenced for the subsequent conviction that it enhanced.
I’ll explore in a future post the matter of determining the date on which a prior conviction occurs for purposes of the seven-year-look-back period in G.S. 20-179(c)(1)(a), which may not be clear when a district court conviction for an impaired driving offense is appealed to superior court and the appeal is later withdrawn.