1. Blakely Update for District Court Judges October 2005 John Rubin © 2005

2. The Road to Allen and the Revised Structured Sentencing Laws Jones v. United States (USSC 1999) Federal carjacking statute imposed higher penalties if offense resulted in serious bodily injury or death Footnote suggested that under Due Process Clause of Fifth Amendment and notice and jury trial guarantees of Sixth Amendment, any fact (other than prior conviction) that increases maximum penalty for crime must be charged in indictment, submitted to jury, and proven beyond reasonable doubt.

3. © 2005 Apprendi Applies Jones as Constitutional Requirement Apprendi v. New Jersey (USSC 2000) State hate crime statute authorized higher maximum sentence if defendant committed offense based on victim’s characteristics Any fact (other than a prior conviction) that increases the punishment for a crime beyond the statutory maximum must be submitted to jury and proven beyond a reasonable doubt –Court declines to decide indictment issue

4. © 2005 NC Recognizes Apprendi for Enhancements State v. Lucas (NCSC 2001) NC statute imposed extra 60 months for A through E felony if defendant possessed firearm Maximum sentence for structured sentencing purposes is theoretical maximum, which for felony sentencing is top of aggravated range in prior record level VI –Based on theoretical defendant, imposition of firearm enhancement always exceeds theoretical maximum –But, aggravators and prior record points would never increase sentence beyond theoretical maximum

5. © 2005 More Lucas Facts supporting enhancement must be alleged in indictment (as matter of state law), submitted to jury, and proven beyond reasonable doubt Statute then in effect did not contemplate this procedure, but state could seek enhancement if it complied with requirements identified by court In 2003, legislature codified Lucas requirements in firearm enhancement statute (and other enhancement statutes)

6. © 2005 Scalia Drops the Other Boot Blakely v. Washington (USSC 2004) Based on assorted sentencing factors, state statute authorized higher sentence than standard range Statutory maximum for Apprendi purposes is maximum sentence judge may impose based solely on facts reflected in jury verdict or admitted by defendant

7. © 2005 Our Supreme Court Responds State v. Allen (NCSC July 1, 2005) Statutory maximum under Blakely is top of presumptive range within each prior record level –Overruling that portion of Lucas Any fact (other than prior conviction) that increases punishment beyond statutory maximum must be admitted by defendant or decided by jury beyond reasonable doubt –Court overrules portion of Lucas requiring factors to be alleged in indictment –But, court’s ruling does not affect statutory pleading requirements enacted by legislature

8. © 2005 More of Allen Structured sentencing provisions that allow aggravated sentence based on judge’s findings by preponderance of evidence unconstitutional Imposition of aggravated sentence in violation of these requirements is structural error, requiring resentencing in every case

9. © 2005 Speight Speaks... quietly State v. Speight (NCSC July 1, 2005) Allen applies to DWI cases tried in superior court –Non-conviction GAFs and AFs must be submitted to jury and found beyond reasonable doubt (although need not be alleged in indictment). Accord Cruz, NCCA, 10/18/2005 Speight suggests, but does not hold, that Allen applies only to cases in which defendant has jury trial right –Thus, Blakely requirements might not apply to non- conviction GAFs and AFs in DWI cases in district court

10. © 2005 The Legislature Speaks... on Structured Sentencing Only Legislature revises SS statutes for offenses committed on or after June 30, 2005 –Allen therefore applies to offenses committed before June 30, 2005 DWI bill must await next session

11. © 2005 “Blakely” Bill Unless admitted by defendant, jury must find following beyond reasonable doubt –All aggravators But not that defendant has been adjudicated delinquent for A through E felony –Prior record point of being on probation, parole, etc., at time of offense But not prior convictions and not prior record point for all elements of present offense being included in prior offense

12. © 2005 Felony Plea Requirements Determine whether state is seeking aggravated sentence and prior record point that defendant was on probation, parole, etc. Determine whether state has complied with notice requirements or defendant has waived notice –State must give written notice, at least 30 days before trial or guilty plea, of statutory aggravators and prior record point that defendant on probation, parole, etc. State must get indictment or information for nonstatutory aggravators

13. © 2005 Felony Pleas If defendant admits to aggravators or prior record point, sentencing judge must –comply with 15A-1022 –advise defendant of right to jury trial and right to prove mitigators at sentencing hearing –determine that there is factual basis for admission and that admission is result of informed choice of defendant –determine mitigators and balance

14. © 2005 The Court of Appeals Does Its Best Aggravators –Lots of cases vacate aggravated sentence based on judge’s finding of aggravators. But NCSC has stayed some of decisions USSC granted cert. on 10/17 in State v. Recuenco, 110 P.3d 188 (Wash. 2005), to determine whether Blakely error can be harmless –Aggravator that defendant was adjudicated delinquent for A through E felony must go to jury (Yarrell) Decision inconsistent with new statute NCSC issues temporary stay

15. © 2005 More Court of Appeals Decisions Prior record points –Prior record point that defendant was on probation, parole, etc., must go to jury (Yarrell; Wissink; Shine, 10/18/2005) Decisions consistent with new statute NCSC issues temporary stay –Prior record point that all elements of present offense included in prior offense does not have to go to jury (Poore) Decision consistent with new statute No stay issued

16. © 2005 Improper Findings of Aggravators Stipulations to aggravators –Stipulation may not be sufficient basis on which to aggravate sentence because not knowing and intelligent waiver of jury trial right (Everette; Wissink; Meynardie; Whitehead, 10/18/2005) –Decisions consistent with procedure in new statute –NCSC issues temporary stay –But see Dierdorf, 10/18/2005 (stipulation to be sentenced in aggravated range was sufficient for aggravator) Presumptive range –If aggravator found by judge, even presumptive sentence improper (Norris) –Consistent or inconsistent with new statute??? –NCSC issues temporary stay

17. © 2005 Sentencing for Misdemeanors Subject to SS For offenses before or after June 30, 2005, Blakely does not affect how you do structured sentencing for misdemeanors –Allen states that it does not apply to prior convictions –Blakely bill does not apply to misdemeanors But, beware statutes governing particular offenses, which may make enhancement an element of offense –For example, repeat shoplifting

18. © 2005 Sentencing for Impaired Driving Statutory GAFs and AFs need not be pled for you to consider them –Not required by Allen, which Speight followed, whether or not Blakely applies to district court –Blakely bill does not apply to DWIs But, if Blakely does apply to misdemeanors in district court –state may, as constitutional matter, need to give at least some notice of non-statutory AFs

19. © 2005 More Impaired Driving If Blakely applies in district court, you may use non- conviction GAFs and AFs only if you find the factors beyond reasonable doubt or defendant admits them –You may need admissible evidence of factors If Blakely applies, –Level III is subject to above –Level IV is subject to above unless there are no AFs and no mitigators –Level V may be subject to above if there is AF

20. © 2005 Felony Pleas for Offenses Committed after June 30 Use aggravator only if defendant admits aggravator –Do this even for aggravator that defendant adjudicated delinquent of A through E felony until appellate courts say otherwise –Do this even when sentencing in presumptive range until appellate courts say otherwise You may count prior record point that defendant was on probation, parole, etc., only if defendant admits point You may do above without state having given written notice if defendant waives notice Take admissions with essentially same formality as guilty plea No admission required for prior convictions or prior record point that elements of present offense included in prior offense Determine mitigators and balance

21. © 2005 Felony Pleas for Offenses Committed before June 30 Use aggravator only if defendant admits aggravator –Do this even for aggravator that defendant adjudicated delinquent of A through E felony until appellate courts say otherwise –Do this even when sentencing in presumptive range until appellate courts say otherwise You may count prior record point that defendant was on probation, parole, etc., only if defendant admits point You probably may do above without state having given written notice –But you may need notice or waiver of notice for nonstatutory aggravator Take admissions with essentially same formality as guilty plea until appellate courts say otherwise No admission required for prior convictions or prior record point that all elements of present offense included in prior offense Determine mitigators and balance