Posts Tagged ‘aggravating factors’

Sentencing in Impaired Driving Cases

Thursday, November 5th, 2009

by School of Government faculty member Shea Denning

I first encountered North Carolina’s impaired driving sentencing scheme several years ago when I worked as an Assistant Federal Public Defender for the Eastern District of North Carolina.  I represented defendants charged under the Assimilative Crimes Act, 18 U.S.C. § 13, with committing violations of assimilated state offenses on a certain federal enclave in Fayetteville. I recall trying to determine whether a defendant charged with violating the assimilated state law offense of driving while impaired was automatically entitled to a jury trial in federal court, given that the punishment for impaired driving can only exceed six months based on a finding of at least one grossly aggravating factor. I was practicing at the time in a post-Apprendi v. New Jersey (530 U.S. 466), but pre-Blakely v. Washington (542 U.S. 296) world, and I (and others) wondered:  Did G.S. 20-138.1 and 20-179 define five separate impaired driving offenses or one offense with five levels of punishment?

North Carolina’s impaired driving statutes were amended post-Blakely to require that aggravating factors that increased the maximum punishment be found by a jury (in superior court) and be proven beyond a reasonable doubt.  By affording element-like constitutional protections to these sentencing factors, the 2006 amendments largely (though not entirely) rendered academic the question of whether G.S. 20-138.1 and G.S. 20-179 defined one-or five-offenses.

While the finder of fact and burdens of proof were altered by 2006 and 2007 amendments to the impaired driving statutes, the five-level punishment structure in G.S. 20-179 (which governs sentencing for conviction of (i) impaired driving under G.S. 20-138.1, (ii) impaired driving in a commercial vehicle under G.S. 20-138.2, (iii) a second or subsequent conviction for operating a commercial vehicle after consuming alcohol under G.S. 20-138.2A, and (iv) a second or subsequent conviction for operating a school bus, school activity bus, or child care vehicle after consuming alcohol under G.S. 20-138.2B) remains intact.  Given the relative complexity of this statutory sentencing scheme, I thought the topic of sentencing in impaired driving cases might be worthy of a blog post (or two).

Let’s start with the grossly aggravating factors (GAF).  A finding of one GAF requires that the defendant receive a Level Two punishment, which bumps the statutory maximum sentence from six to twelve months.  If the fact-finder finds more than one GAF, Level One punishment, which carries a 24-month maximum, must be imposed.

There are four types of GAFs:

1.       A prior conviction for an offense involving impaired driving, defined as

  • impaired driving under G.S. 20-138.1;
  • habitual impaired driving under G.S. 20-138.5;
  • impaired driving in commercial vehicle under G.S. 20-138.2;
  • any offense under G.S. 20-141.4 based on impaired driving;
  • first- or second-degree murder under G.S. 14-17 based on impaired driving;
  • involuntary manslaughter under G.S. 14-18 based on impaired driving; or
  • a substantially similar offense committed in another state or jurisdiction

if

a.       The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced;

b.      The conviction occurs 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.       The conviction occurred 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.

2.       Driving while license revoked at the time of the offense under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).

An impaired driving license revocation is a revocation made under any of the following statutes:

  • G.S. 20-13.2: consuming alcohol/drugs or willful refusal by driver under 21
  • G.S. 20-16(a)(8b): military driving while impaired
  • G.S. 20-16.2: refused chemical test
  • G.S. 20-16.5: pretrial civil license revocation
  • G.S. 20-17(a)(2): impaired driving or commercial impaired driving
  • G.S. 20-138.5: habitual impaired driving
  • G.S. 20-17(a)(12): transporting open container
  • G.S. 20-17.2: court order not to operate (repealed effective December 1, 2006)
  • G.S. 20-16(a)(7): impaired driving out of state resulting in N.C. revocation
  • G.S. 20-17(a)(1): manslaughter or second-degree murder involving impaired driving
  • G.S. 20-17(a)(3): felony involving use of motor vehicle, involving impaired driving
  • G.S. 20-17(a)(9): felony or misdemeanor death or serious injury by vehicle involving impaired driving
  • G.S. 20-17(a)(11): assault with motor vehicle involving impaired driving
  • G.S. 20-28.2(a)(3): The laws of another state and the offense for which the person’s license is revoked prohibits substantially similar conduct which if committed in this State would result in a revocation listed under any of the above statutes.

3.       Serious injury to another person caused by the defendant’s impaired driving at the time of the offense.

4.       Driving by the defendant while a child under the age of 16 years was in the vehicle at the time of the offense.

Level Two punishment requires a minimum sentence of seven days.  If a judge suspends a Level Two sentence, the judge must impose special probation requiring an active term of at least seven days.  Level One punishment requires a minimum sentence of thirty days.  If a judge suspends a Level One sentence, the judge must impose special probation requiring an active term of at least thirty days. There is only one substitute for jail time:  A judge may order that time be served and award credit for time served as an inpatient in a facility operated or licensed by the State for the treatment of alcoholism or substance abuse. See G.S. 20-179(k1).

The rules governing credit for jail time are closely prescribed.  A judge may not award credit for the first twenty-four hours of time spend in jail pending trial. See G.S. 20-179(p).  And, while a judge may order a term of imprisonment to be served on weekends, any term of 48 hours or more must be served in increments of 48 continuous hours. Credit for jail time is given hour for hour for time actually served.  See G.S. 20-179(s)(1).

If there are no GAFs, then Level Three, Four, or Five punishment may be imposed, depending upon the relevant weight of aggravating (as distinguished from grossly aggravating) and mitigating factors.  Each of these lower-level punishments may be satisfied by conditions other than active time.  But that is a post for another day.

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Nonstatutory Aggravating Factors

Monday, August 24th, 2009

by School of Government faculty member Jamie Markham

By special request, this post recaps the law of nonstatutory aggravating factors.

Under G.S. 15A-1340.16(d), the State may, in addition to the 25 statutory aggravating factors set out in that subsection, attempt to prove “any other aggravating factor reasonably related to the purposes of sentencing.” There’s no universal agreement on the “purposes of sentencing,” but in North Carolina, the General Assembly has set out the primary purposes in G.S. 15A-1340.12.

Unlike statutory aggravating factors, which need not be pled in a charging document,  G.S. 15A-924(a)(7) requires that a criminal pleading must include a plain and concise factual statement of any nonstatutory aggravating factors the State intends to use. Nonstatutory factors are, of course, still subject to the rules applicable to any aggravating factor: evidence necessary to prove an element of the conviction offense may not be used to prove a factor in aggravation; the same item of evidence may not be used to prove more than one aggravating factor; and a defendant’s exercise of the right to a jury trial may not be an aggravating factor.

Because Fair Sentencing also allowed for nonstatutory aggravating factors, a substantial body of case law has developed over the years. The following list (by no means a full treatment of the subject) touches on some of the factors that have been approved, some that have been deemed improper, and the general themes that run through the cases. Note that our courts have said that to be reasonably related to the purposes of sentencing, a nonstatutory aggravating factor must also be reasonably related to the crime of conviction. State v. Borders, 164 N.C. App. 120 (2004). So, a court’s acceptance of a nonstatutory factor in one case should not be read as a blanket approval of the factor. Some of these factors may also be hard to prove in a post-Blakely world.

Proper Factors

The defendant is dangerous to others as a result of social and emotional problems. State v. Ahearn, 307 N.C. 584 (1983). But see State v. Todd, 313 N.C. 110 (1985) (standing alone, a finding that a defendant has a mental or emotional disorder is not a proper nonstatutory aggravating factor, but it may be used as evidence of dangerousness).

The defendant could have been charged with additional or more serious crimes but was not. State v. Byrd, 164 N.C. App. 522 (2004); State v. Turner, 103 N.C. App. 331 (1991).

The crime was part of a pattern or course of violent conduct by the defendant. State v. Avery, 315 N.C. 1 (1985). The course of conduct may be proved by prior convictions, even when those convictions are also used to elevate the defendant’s prior record level. Borders, 164 N.C. App. at 125-26.

The defendant left a badly injured victim without making any effort to help him. State v. Applewhite, 127 N.C. App. 677 (1997) (defendant shot the victim, who was seriously injured); State v. Reeb, 331 N.C. 159 (1992). But see State v. Baldwin, 139 N.C. App. 65 (2000) (error to find nonstatutory aggravating factor that a defendant, convicted of second-degree murder, left the victim without rendering aid because it required evidence necessary to prove malice).

The offense was premeditated and deliberate, or involved an unusual degree of planning. State v. Ruff, 127 N.C. App. 575 (1997), rev’d in part on other grounds, 349 N.C. 213 (1998). As you can imagine, this factor gets complicated in homicide cases. State v. Melton, 307 N.C. 370 (1983) (proper when defendant pled guilty to second-degree murder); State v. Marley, 321 N.C. 415 (1988) (improper when defendant was tried for first-degree murder but jury convicted him of second-degree murder); State v. Easter, 101 N.C. App. 36 (1990) (proper when defendant pled guilty to voluntary manslaughter).

The defendant lacked remorse. State v. Hargrove, 104 N.C. App. 194 (1991) (after beating his father to death with a crowbar, defendant visited a bar and had a beer; four hours later he told police his father “got what he deserved”); State v. Parker, 315 N.C. 249 (1985).

The defendant gave alcohol to the victims. State v. Bowers, 146 N.C. App. 270 (2001) (defendant convicted of taking indecent liberties with children).

The victim was attacked while asleep, with the defendant knowing the victim’s husband was away. State v. Davis, 124 N.C. App. 93 (1996); see also State v. Davy, 100 N.C. App. 551 (1990) (husband away); State v. Thompson, 328 N.C. 477 (1991) (victim asleep).

The victim’s medical expenses were excessive and surpassed those normally incurred from an assault of its type. State v. Pender, 176 N.C. App. 688 (2006)

Defendant joined with one other person in committing the offense and was not charged with conspiracy. State v. Hurt, 359 N.C. 840 (2005) (notwithstanding the existence of the statutory aggravating factor that a defendant joined with more than one person).

Defendant’s conduct was intended to show disrespect to law enforcement in a manner calculated to be highly publicized. State v. Sammartino, 120 N.C. App. 597 (1995).

Improper Factors

The courts have consistently rejected as a nonstatutory aggravating factor that a “lesser sentence would unduly deprecate the seriousness of the crime,” e.g., State v. Harris, 67 N.C. App. 725 (1984), or that a longer sentence is necessary for deterrence purposes, e.g., State v. Partridge, 66 N.C. App. 427 (1984).

Subjecting a victim to degradation and undue humiliation. State v. Robertson, 149 N.C. App. 563 (2002) (masturbating in front of a rape and kidnapping victim, deemed unrelated to the purposes of sentencing).

The contraband involved in the defendant’s crime was especially dangerous to the community. State v. Coffey, 65 N.C. App. 751 (1984) (noting that the level of dangerousness is built into structure of the Controlled Substances Act).

A defendant’s refusal to accept responsibility or to cooperate with law enforcement is not a proper aggravating factor, as it would infringe on the defendant’s privilege against self-incrimination and the right to plead not guilty. State v. Rollins, 131 N.C. App. 601 (1998); State v. Blackwood, 60 N.C. App. 150 (1982). Of course, a failure to cooperate with law enforcement is not the same as affirmative misconduct directed toward law enforcement, which can support a nonstatutory aggravating factor. See United States v. Ruminer, 786 F.2d 381 (10th Cir. 1986) (giving false leads to investigators, cited in Rollins); State v. Harrington, 118 N.C. App. 306 (1995) (giving false alibi and false name to police); State v. Miller, 142 N.C. App. 435 (2001) (refusal to participate in court proceedings; fleeing the courthouse).

A nonstatutory aggravating factor stating that “defendant is a predator” was deemed improper in light of the statutory procedure for declaring someone a sexually violent predator in G.S. 14-208.20. State v. Harris, 166 N.C. App. 386 (2004), rev’d in part on other grounds, 360 N.C. 145 (2005).

If there’s interest, I’d be happy to address nonstatutory mitigating factors in another post. Let me know!

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Juvenile Adjudications . . . Aggravating

Tuesday, March 17th, 2009

by guest blogger and SOG faculty member Jamie Markham

An article in last Saturday’s paper talked about Governor Perdue’s proposed changes to the probation system. Part of her plan would give probation officers access to probationers’ juvenile records, which reminded me of a related issue I have been meaning to write about: using juvenile adjudications as an aggravating factor at sentencing.

Under G.S. 15A-1340.16(d)(18a), it is a statutory aggravating factor if the defendant has previously been adjudicated delinquent for an offense that would be a Class A – E felony if committed by an adult. The Juvenile Code allows prosecutors to access juvenile records without a court order, though they may only be used to prove an aggravating factor by order of the court after an in camera hearing to determine admissibility. G.S. 7B-3000(f). Under G.S. 15A-1340.16(b), the aggravating factor for juvenile adjudications is carefully exempted from the normal, post–Blakely v. Washington rule that aggravating factors must be admitted to or proved beyond a reasonable doubt to the jury; that factor, the statute says, may be found by the court. The legislative assumption is that prior juvenile adjudications are like prior convictions, and thus fall within the prior-conviction exception to Blakely.

The Court of Appeals has considered the juvenile adjudication aggravating factor in two cases and reached different results. In State v. Yarrell, 172 N.C. App. 135 (2005), the court looked to G.S. 7B-2412 (“An adjudication that a juvenile is delinquent . . . shall [not] be considered conviction of any criminal offense . . . .”) to conclude that juvenile adjudications are not convictions, and therefore must be presented to the jury and proved beyond a reasonable doubt to support an aggravating factor. In State v. Boyce, 175 N.C. App. 663 (2006), a different panel of the Court of Appeals reached the opposite conclusion. Without further comment the court called the defendant’s prior adjudication a “prior conviction” and determined that the testimony of the juvenile court clerk and a finding by the trial court judge were sufficient to support the aggravating factor.

As a sentencing nerd I watched in eager anticipation when the North Carolina Supreme Court granted discretionary review of Boyce, 361 N.C. 358 (2007), optimistic the Court would resolve the lower court split. But after answering a question regarding the substantive offense at issue in the case, the Court dashed my hopes: “As to the additional issues presented in defendant’s petition [including the challenge to the aggravating factor], we conclude that discretionary review was improvidently allowed.” 361 N.C. 670 (2007). So close.

What’s the right answer? Well, most federal circuit courts of appeals to consider the question have found juvenile adjudications to fall within the prior-conviction exception to the Blakely rule (that is, they said it’s okay to aggravate a sentence based on a judicial finding of a prior juvenile adjudication). See United States v. Matthews, 489 F.3d (1st Cir. 2007); United States v. Burge, 407 F.3d 1183 (11th Cir. 2005); United States v. Williams, 410 F.3d 397 (7th Cir. 2005); United States v. Smalley, 294 F.3d 1030 (8th Cir. 2002). But see United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001). [Note that some of these cases predate Blakely, 542 U.S. 296 (2004), itself. Those cases were interpreting the prior-conviction exception set out Blakely’s forerunner, Apprendi v. New Jersey, 530 U.S. 466 (2000).] The presence of the plainly worded G.S. 7B-2412 in our General Statutes may, however, make this a tougher call.

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