Who Proves Prior Record?

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.