Posts Tagged ‘Sentencing’

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Consecutive Sentences for Misdemeanors

Monday, November 23rd, 2009

by School of Government faculty member Jamie Markham

A while ago, Alyson Grine and I wrote a post about consecutive sentences for misdemeanors. In it, we discussed the rule that when a court elects to impose consecutive sentences for two or more misdemeanors, the cumulative length of the sentences of imprisonment may not exceed twice the maximum sentence authorized for the class and prior conviction level of the most serious offense. If all the convictions are for Class 3 misdemeanors, consecutive sentences may not be imposed at all. G.S. 15A-1340.22. In that post we also opined about how those rules apply when a judge decides to suspend some or all of the misdemeanor sentences. We wrote that the rules would apply with equal force to suspended sentences, which, under G.S. 15A-1340.20(b)-(c), still include a term of “imprisonment.” Our thought was that the maximum number of days of imprisonment the court has to work with - active or suspended - in a misdemeanor sentencing episode is twice the maximum for the most serious offense.

A recent court of appeals case, State v. Remley, is leading me to rethink what we wrote in that post. The case doesn’t expressly say we were wrong, but it does do the math a little differently than we did. In Remley, the Level II defendant was convicted of 8 counts of Class 1 misdemeanor larceny. The trial court sentenced the defendant as follows, with all sentences to run consecutively:

1.       45 days, active

2.       45 days, active

3.       45 days, suspended, with 10 days active as a condition of special probation

4.       45 days, suspended, with 10 days active as a condition of special probation

5.       45 days, suspended, with 10 days active as a condition of special probation

6.       45 days, suspended, with 10 days active as a condition of special probation

7.       45 days, suspended, with 10 days active as a condition of special probation

8.       45 days, suspended, with 10 days active as a condition of special probation

The defendant complained that this sentence ran afoul of the rule on consecutive misdemeanor sentences described above by exceeding twice the maximum sentence of imprisonment for the most serious offense - 90 days. The court of appeals agreed and remanded for resentencing, but in doing so noted that the sentence was incorrect because the defendant received 150 days [45 + 45 + 10 + 10 + 10 + 10 + 10 + 10] of imprisonment. If you had asked me, I would have said the sentence was incorrect because it imposed 360 days [45 × 8] of imprisonment. That, after all, is the total amount of time the defendant would have faced upon revocation of probation. As mentioned above, I thought the limitation in G.S. 15A-1340.22 on cumulative length of “imprisonment” applied to all sentences imposed in a single episode, active or suspended. The “imprisonment” is still there in a probationary sentence, it’s just suspended. That’s how I read the language of the relevant statutes, and that outcome also makes more sense to me as a policy matter. Why would a defendant who gets fully active sentences out of the gate be exposed to less time behind bars than a defendant for whom some or all sentences are suspended?

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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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Electing to Serve a Sentence

Friday, October 23rd, 2009

by School of Government faculty member Jamie Markham

Suppose a defendant is convicted of a crime and the judge wants to (or, in a “C” or “C/I” cell in the sentencing grid, has to) suspend the sentence. Can the defendant refuse probation and elect to serve the sentence? Unless the defendant’s crime was committed prior to January 1, 1997, the answer is no.

The law that used to allow a probationer to elect to serve a sentence, G.S. 15A-1341(c), was repealed in 1995. S.L. 1995-429. The repeal was motivated in part by the fact that many pre-Structured Sentencing probationers were refusing or purposely violating their probation, knowing they would serve only ten to twenty percent of their active sentences under the emergency prison population control measures in effect at the time. Better, the thinking went, to knock out a shortened active sentence than to put up with years of probation supervision.

There were some who worried that the repeal of the elect-to-serve provision would cast doubt on the constitutionality of suspended sentences. At that time, probation was not included in the list of authorized punishments set out in Article XI, Section 1 of the state constitution, and so its validity arguably hinged on the defendant’s consent. With the elect-to-serve provision repealed, a defendant could no longer be said to have consented to his or her probation. To be safe, then, the repeal was accompanied by a state constitutional amendment, adding probation to the list of authorized punishments. Consent no longer required, problem solved. (This change in the law becomes important when you think about things like warrantless searches of probationers. No longer can you just say the searches are okay because the probationer has implicitly agreed to be on probation. Instead, the searches need to be analyzed under a more traditional Fourth Amendment framework.)

Generally speaking, there are two times when a defendant might try to elect to serve a sentence, at the time of sentencing or at a violation hearing. At sentencing, a defendant who falls within a cell on the sentencing grid that includes an “A” may certainly ask the judge for an active sentence. In many cases I suspect that request will resonate with the judge, who may not want to burden an already-overworked community corrections staff with an offender who isn’t motivated to succeed on probation in the first place. But what if the defendant falls in a grid cell without an “A”? Aside from the active-time exception for certain misdemeanors under G.S. 15A-1340.20(c1), an active sentence is simply not an option. The General Assembly has determined that those defendants don’t merit a prison bed-at least not at the outset. In those cases, if the court is inclined to let the defendant bypass probation and go directly to prison, I’m told that some judges will use a three-step process in which they (1) sentence the defendant to probation, (2) get the defendant to admit noncompliance (presumably by refusing to report to an officer), and (3) revoke the probation. If you go that route, at a minimum I think you should use a separate form for the original sentence and the revocation, and you should be sure the defendant affirmatively waives the requisite notice and hearing on the probation violation.

At a violation hearing, a defendant can certainly admit to a violation and ask the court to revoke. I imagine the court generally will grant that request, but not in every case. The court may, for example, be inclined to keep a defendant on probation when he or she owes a large amount of restitution. In any event, even if the defendant is purportedly electing to serve, the court should be sure to check the first box in the “Conclusion and Order” section on page one of AOC-CR-607 or -608, saying that the suspended sentences were activated because of the violations, not the second box referring to elections to serve.

Am I elevating form over substance? Maybe. But in addition to the underlying rule-of-law issue, there’s a risk in both situations (at sentencing or at a violation hearing) that invocation of the non-existent elect-to-serve provision will result in the judgment getting kicked back, either by DOC or by the court of appeals, as happened in State v. Davis, 186 N.C. App. 305 (2007) (unpublished), and State v. Adams, 166 N.C. App. 517 (2004) (unpublished).

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Nonstatutory Mitigating Factors

Wednesday, September 2nd, 2009

by School of Government faculty member Jamie Markham

After my earlier post about nonstatutory aggravating factors, a reader took me up on my offer to write about nonstatutory mitigating factors.

In addition to the twenty mitigating factors spelled out in G.S. 15A-1340.16(e), the law allows for “any other mitigating factor reasonably related to the purposes of sentences.” Procedurally, nonstatutory mitigating factors are a little simpler than aggravating factors. There are no notice or pleading requirements on the defendant with respect to nonstatutory mitigating factors, and Blakely has no application to mitigating factors - the defendant just needs to prove them to the court by a preponderance of the evidence. The court is required to consider evidence of any nonstatutory mitigating factor presented, but it is required to make written findings only when it departs from the presumptive range. G.S. 15A-1340.16(a) & (c).

As you might imagine, there is less case law on nonstatutory mitigating factors than there is on nonstatutory aggravating factors - the mitigators are rarely appealed. Defendants will sometimes argue that a court erred by failing to find a nonstatutory mitigating factor, but the appellate courts review such arguments for abuse of discretion. State v. Lovett, 119 N.C. App. 689 (1995). Nevertheless, some discussion of approved nonstatutory mitigating factors appears in the cases, and the list below might help a defendant think of factors applicable to his or her case.

Defendant had no prior criminal record. State v. Pender, 176 N.C. App. 688 (2006).

Defendant identified a codefendant at an early stage in the proceedings. State v. Easterling, 119 N.C. App. 22 (1995) (note the difference between this factor and statutory mitigating factor (7), that the defendant aided in the apprehension of another felon or testified truthfully on behalf of the prosecution in another prosecution).

Defendant’s continued exposure to stress and conflict created by his mother’s alcoholism contributed to and mitigated the commission of the offense. State v. Lundin, 116 N.C. App. 715 (1994).

Defendant was abused as a child. State v. Church, 99 N.C. App. 647 (1990) (factor discussed but not found in this case on account of a lack of credible evidence or relevance to the crime).

Defendant expressed genuine remorse to the victim at a voluntary meeting with the victim, where he explained the circumstances of the crime. State v. Smith, 92 N.C. App. 500 (1988).

Defendant had an extenuating relationship with the victim. State v. Canty, 321 N.C. 520 (1988) (factor not found when the victim had stabbed the defendant two days prior to the defendant shooting him).

Defendant behaved well in prison (considered at resentencing). State v. Swimm, 316 N.C. 24 (1986) (factor not found, but court noted the general propriety of considering the factor under North Carolina v. Pearce, 395 U.S. 711 (1969)).

Victim’s loss was insubstantial. State v. Litchford, 78 N.C. App. 722 (1986) (factor not found when only police intervention mitigated the victim’s loss).

Defendant aided in the possible prevention of a jailbreak while held in pretrial confinement. State v. Cameron, 314 N.C. 516 (1985) (factor not found, although issue not properly preserved on appeal).

Defendant rendered aid to the victim. State v. Spears, 314 N.C. 319 (1985) (factor not found in this case, but its “mitigating value” approved of in general terms).

Surely there are others - please post a comment with any you have used (or opposed). Another document that might be useful is the list of “Easy Mitigating Factors” compiled by Oregon attorney Michael R. Levine. He sells the most recent version, which is up to 171 factors, here. A prior version, with a mere 128 factors, can be found here. It’s geared toward federal law, but it might give you some good ideas.

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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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What’s Blakely got to do with it? Sentencing in Impaired Driving Cases after Melendez-Diaz

Friday, July 24th, 2009

by School of Government faculty member Shea Denning

Jeff Welty blogged here and Jessica Smith published a paper here about the implications of the Supreme Court’s holding in Melendez-Diaz that forensic laboratory reports are testimonial, rendering the affiants witnesses who are subject to the defendant’s right of confrontation under the Sixth Amendment. I’ve been pondering the impact of the court’s holding on the admission of evidence for purposes of sentencing in impaired driving cases.

Suppose a defendant pleads guilty to impaired driving in district court.  The judge then holds a sentencing hearing as required by GS 20-179. The state attempts to introduce the chemical analysis (a breath test showing an alcohol concentration of .15 or more) as an aggravating factor. The chemical analyst is not present at the hearing. Assuming that Melendez-Diaz would prohibit the introduction of the objected-to affidavit at a trial in district court, does the same rule apply to sentencing in the impaired driving case?

The first question is whether aggravating factors in an impaired driving case are the functional equivalent of elements of the underlying crime. As a reminder (for those who may have been lost on a deserted island for the past decade) the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000), that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum has to be submitted to a jury and proved beyond a reasonable doubt. In Blakely v. Washington, 542 U.S. 296 (2004), the court explained that that the relevant statutory maximum is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. After Blakely, the General Assembly amended GS 20-179 to require that aggravating factors in impaired driving cases, which increase the maximum sentence a defendant may receive, be proved beyond a reasonable doubt and, in superior court, to require that the state provide notice of its intent to prove such factors and that the jury determine whether the factors exist. In effect, aggravating factors are now treated as elements of the offense of impaired driving.

Yeah, yeah, yeah, you are saying. This is old news. What’s it got to do with Melendez-Diaz? Here’s what. If aggravating factors are elements for purposes of affording a defendant constitutional protections secured by the due process clause and the Sixth Amendment, does the confrontation clause apply to evidence offered at a sentencing hearing to establish such factors? I think it just might.  Here’s why.

The North Carolina Supreme Court held in State v. Bell, 359 N.C. 1 (2004), that the confrontation clause applied to bar the admission of an out-of-court testimonial statement at the sentencing phase of the defendant’s capital murder trial. In Bell, the state sought to prove as an aggravating circumstance Bell’s commission of a prior crime of violence. As proof, the state called the investigating officer to testify regarding a statement given by the victim of the robbery. The court of appeals held that the trial court  erred in allowing the state to introduce the witness’s statement through the officer.

Next up is State v. Sings, 182 N.C. App. 162 (2007), where the state court of appeals declined to extend application of the confrontation clause to non-capital sentencing hearings. Now you might think, based on this description, that Sings establishes that the confrontation clause doesn’t apply at a sentencing hearing for impaired driving - since, while the punishment for impaired driving can be stiff, it isn’t capital. But I don’t think Sings can be read that broadly. In Sings, the defendant pled no contest to voluntary manslaughter and stipulated to his prior record level and three aggravating factors. The plea agreement stated that the defendant and the state would present evidence about the appropriate sentence, which the agreement stated would be within the presumptive or aggravated range. The evidence Sings objected to was unrelated to any of the stipulated aggravating factors and did not expose Sings to greater punishment than he otherwise potentially faced because of his plea arrangement.

So I think Sings leaves open the question of whether the confrontation clause applies to bar out-of-court testimonial statements admitted to prove a sentencing factor that could potentially increase a defendant’s maximum sentence.

Given that aggravating factors in impaired driving cases are treated as elements for purposes of applying the due process requirement that the standard of proof be beyond a reasonable doubt, it makes sense that the constitutional protections afforded by the confrontation clause would apply to evidence offered at a sentencing hearing to establish such factors. Particularly given that the defendant is entitled to a jury determination of aggravating factors in superior court, it seems incongruous to hold that the confrontation clause does not apply to such determinations. See, e.g., State v. Rodriguez, 754 N.W.2d 672 (Minn. 2008) (holding that because cross-examination is a core component of a defendant’s right to a jury trial, the right of confrontation applies in jury sentencing trials).

For these reasons, my answer to the question posed at the outset of this post is this:  Upon objection by a defendant, a chemical analysis may not be introduced at a sentencing hearing in district or superior court to prove an aggravating factor in an impaired driving case if the chemical analyst is not a testifying witness in that proceeding (assuming the analysis was not previously admitted at the underlying trial).

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Go Directly to Jail (or Is It Prison?)

Thursday, June 18th, 2009

by School of Government faculty member Jamie Markham

Last week the News and Observer ran an article about a legislative proposal to send more inmates to county jails instead of DOC facilities. A separate part of the plan proposed to reduce or eliminate reimbursement payments the state sends to the counties for certain inmates held in the jails. Both proposals appear to have been tabled for now, but I get questions about these issues (where to serve, and who pays), so a blog post seemed appropriate.

Regarding where a sentence should be served, the defaults under current law are set out in G.S. 15A-1352 as follows:

* Misdemeanants sentenced to 90 days or less must serve their time in a jail, except when the custodian of a jail certifies that it is full under G.S.148-32.1. Many county jails have “overcrowding letters” on file with DOC, specifying that sentences exceeding a certain length (e.g. 30 days, or 60 days) will be served in prison, not in the jail. I sometimes hear people refer to 180 days as the jail-prison cutoff point. That was the case under older law, but Session Law 1993-538 changed the threshold to 90 days.

* For misdemeanants sentenced to over 90 days, the judge decides where the time will be served, DOC or the jail.

* Felons must be committed to DOC, unless the sheriff or the board of commissioners of a county request that the person be sentenced to a local confinement facility in their county.

As for reimbursements from the state to the counties, the state currently pays the counties a per diem rate for two categories of jail inmates: those serving a sentence of 30 days or more, and those awaiting transfer to DOC (the so-called jail backlog). For inmates serving sentences of 30 days or more, G.S. 148-32.1 requires DOC to pay the counties a per diem rate set by the General Assembly in its appropriations acts, plus any extraordinary medical expenses. The current reimbursement rate for these inmates - set by the General Assembly in 1997 - is $18 per inmate per day. That doesn’t come close to the actual cost to the county, which I believe ranges between $50 and $100, depending on the county. (Please weigh in if you have more detailed information.) Regarding the jail backlog, under G.S. 148-29, DOC pays a county $40 for every day an inmate spends in the jail after the sheriff has notified DOC that the inmate is ready for pick-up. The General Assembly set the $40 figure in 1999.

Another question I have been getting in these tough financial times relates to what fees the jail can charge inmates. Jail fees are governed by G.S. 7A-313, which establishes a uniform jail fee of $5 for every 24 hours of pretrial confinement for defendants who are ultimately convicted. That provision goes on to say that “persons ordered to pay jail fees pursuant to a probationary sentence” must pay a fee equal to the amount paid by DOC to the jail for maintaining a prisoner. I interpret that part of the law to mean a judge can order a defendant sentenced to special probation to pay $18 for each day spent in jail as part of the active component of the split sentence. G.S. 7A-313 makes no reference to assessing fees for inmates sentenced to straight active time, and aside from certain work-release inmates (who may, under G.S. 148-33.1(f), be ordered to pay for the cost of their keep), I don’t see any basis for doing so.

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Concurrent and Consecutive Sentences Upon Revocation of Probation

Thursday, June 11th, 2009

by School of Government faculty member Jamie Markham

Under G.S. 15A-1344(d), a “sentence activated upon revocation of probation commences on the day probation is revoked and runs concurrently with any other period of probation, parole, or imprisonment to which the defendant is subject during that period unless the revoking judge specifies that it is to run consecutively with the other period.”

In State v. Paige, 90 N.C. App. 142 (1988), the court of appeals addressed the last clause of that section. The case involved a defendant who was convicted of crime #1 in November of 1986 and given a 1-year sentence, suspended. He was then convicted of crime #2 in January of 1987 and given a 5-year sentence, again suspended. A few months later he violated his probation. At the revocation hearing the judge activated both sentences, ordering the 5-year sentence to begin at the expiration of the 1-year sentence. The defendant argued that the revoking judge could not run these sentences consecutively, but the court of appeals disagreed, pointing to the italicized language above.

The court reaffirmed and extended this rule last year in State v. Hanner, 188 N.C. App. 137 (2008). In that case the defendant pled guilty to 16 crimes which were consolidated (pursuant to a plea agreement) into eight judgments with eight 8-10 month sentences, all suspended. Three of the eight sentences were set by the original sentencing judge to run concurrently in the event of revocation. Nevertheless, when Mr. Hanner was found to have violated his probation, the revoking judge set all of the sentences to run consecutively. Citing to Paige, the court of appeals said this was permissible under G.S. 15A-1344(d).

The rule that emerges from Paige and Hanner is that a revoking judge can change the concurrent/consecutive decision made by the original sentencing judge - even when the original concurrent sentences were entered in the same session of court, and even (apparently) when they were entered pursuant to a plea. As to that last point, the original sentence in Hanner was entered pursuant to a plea, but it appears in the procedural history of the case that the original sentencing court ran certain sentences concurrently even though the defendant had actually agreed that they would run consecutively. In that regard Hanner is not a good case to test whether G.S. 15A-1344 is trumped by a contract theory of plea negotiation - the revoking judge really didn’t do anything the defendant hadn’t agreed to.

Suppose the original plea had explicitly been conditioned on concurrent sentences? Could a revoking judge still decide to run the sentences consecutively? Or would the defendant be entitled to the benefit of his or her bargain? I’m interested to hear your thoughts about that.

Just because judges are empowered to do this does not mean they will. As a matter of comity, I imagine many judges are hesitant to tinker with their colleagues’ sentences, absent a good reason for doing so. In any event, judges (and everyone else) should be aware that silence at revocation does not necessarily mean the activated sentence will run as originally entered. To the contrary, under the command in G.S. 15A-1344(d) that an activated sentence runs concurrently unless the revoking judge specifies that it is to run consecutively, DOC will interpret silence at revocation to mean concurrent, even if the original judgment said consecutive. So, if you want to keep consecutive sentences consecutive upon revocation, be sure to fill in the appropriate boxes at the bottom of the first page of the AOC form.

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Consecutive Sentences for Misdemeanors (a Quiz!)

Tuesday, June 2nd, 2009

by School of Government faculty members Jamie Markham and Alyson Grine

Suppose Ronald is convicted of six counts of communicating threats, a Class 1 misdemeanor. Ronald has three prior convictions, making him prior conviction level II. The facts are bad and the sentencing judge wants to max Ronald out with the longest sentence allowable. What is it?

A. 270 days

B. 240 days

C. 90 days

Here’s a link to the misdemeanor sentencing grid, in case you don’t have it memorized.

Under G.S. 15A-1340.22(a), when the court elects to impose consecutive sentences for two or more misdemeanors, the cumulative length of the sentences of imprisonment must not exceed twice the maximum sentence authorized for the class and prior conviction level of the most serious offense.

If you forgot about the “twice the maximum for the most serious offense” rule, you might have answered A (270 days), thinking the court could just stack six 45-day sentences.

If you answered B (240 days), you remembered the twice-the-maximum rule, but you thought it capped consecutive sentences at twice the absolute maximum anyone - not  just Ronald - could get for a Class 1 misdemeanor. The longest sentence in the Class 1/Level III cell is 120 days, and 2 x 120 is 240.

But G.S. 15A-1340.22(a) refers to the “maximum sentence authorized for the class and prior conviction level of the most serious offense.” That language - particularly the reference to prior conviction level - requires the judge to look not to the hypothetical maximum for the worst-case offender, but rather the maximum faced by a particular defendant based on where he or she falls on the grid. In our example, the maximum sentence authorized for Ronald’s class (Class 1) and prior conviction level (Level II) is 45 days. Double that to get 90 and you’ve got the correct answer, C.

[As an aside, a judge should use the hypothetical, worst-case maximum when advising defendants of the consequences of a guilty plea under G.S. 15A-1022(a)(6). That statute requires the court to inform the defendant of the "maximum possible sentence on the charge for the class of offense for which the defendant is being sentenced, including that possible from consecutive sentences." It does not contain the reference to prior conviction level found in G.S. 15A-1340.22(a), which makes sense when you consider that a person's record level could theoretically increase based on new convictions obtained between acceptance of a plea and entry of judgment. So, when accepting a felony guilty plea, the judge should use the maximum sentence that corresponds to the highest possible minimum sentence for a Class VI defendant sentenced in the aggravated range.]

Sometimes we’re asked how the twice-the-maximum this rule applies when the judge decides to suspend some or all of the misdemeanor sentences imposed. In other words, does the rule apply only to convictions that receive active punishment from the get-go? In our hypothetical case above, for example, could the judge give Ronald probation with a 270-day suspended sentence? Or perhaps stack two of the convictions to yield 90 days active with the rest of the convictions each sentenced to 45 days suspended, to run consecutively in the event of revocation? No. Under G.S. 15A-1340.20(b), even suspended sentences have a term of “imprisonment” assigned. The maximum number of days of imprisonment the court has to work with - active or suspended - in a misdemeanor sentencing episode is twice the maximum authorized for the class and record level of the most serious offense.

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Prior Record for Recidivist (and Recidivist-ish) Crimes

Thursday, April 16th, 2009

by School of Government faculty member Jamie Markham

I am frequently asked about what convictions may count toward a defendant’s prior record level in prosecutions under the habitual felon law and other similar laws, like habitual impaired driving.

For habitual felon prosecutions, the answer is pretty clear—G.S. 14-7.6 says convictions used to establish a person’s status as an habitual felon may not also be counted for prior record points. There are wrinkles (explored in greater detail here), like if the State happens to allege four prior felonies in the habitual felon indictment, none of them may count for prior record points, even though only three of them were necessary to habitualize the defendant. State v. Lee, 150 N.C. App. 701 (2003). But the bottom-line rule is straightforward enough.

As for habitual DWI, though the relevant statute (G.S. 20-138.5) is silent on the issue of whether the misdemeanor DWI convictions underlying a felony habitual DWI charge may count for prior record points in the habitual DWI prosecution, the Court of Appeals has told us they may not. In State v. Gentry, 135 N.C. App. 107 (1999), the court grafted the G.S. 14-7.6 rule onto G.S. 20-138.5, noting the “basic unfairness and constitutional restrictions” on using the same convictions both to elevate a defendant’s sentencing status and to increase his or her prior record level. [Note, however, that a felony habitual DWI and the misdemeanor DWIs underlying it may all count for prior record points if the defendant is later prosecuted for another offense—like involuntary manslaughter, as was the case in State v. Hyden, 175 N.C. App. 576 (2006).]

It’s been 10 years since Gentry, so that rule is pretty well known around the state. More recently, however, the Court of Appeals addressed the Gentry argument as applied to two additional laws with a recidivist-like flavor: possession of firearm by a felon and failure to register as a sex offender.

In State v. Harrison, 165 N.C. App. 332 (2004), the court held that a defendant’s prior conviction for second-degree rape could count for prior record points in his later prosecution for failure to register as a sex offender. In State v. Goodwin, 661 S.E.2d 46 (2008), the court concluded that the defendant’s conviction for possession of a firearm by a felon as well as the felony drug conviction that had cost him his guns could both count for points when he was later sentenced for murder.

In both cases, the defendants argued that the underlying crimes (the rape that got Mr. Harrison on the sex offender registry and the felony that cost Mr. Goodwin his guns) ought to be excluded from their prior records, just as they are in the sort-of analogous “habitual” offense contexts described above. In both cases, however, the court disagreed, reasoning that failure to register and felon in possession are separate substantive offenses—not a “sentencing status” like habitual felon. Of course, habitual DWI is also a separate substantive offense (something the state pointed out in arguing Gentry), but in any event, we know for now that the Gentry rule stops with habitual DWI.

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