AGGRAVATING FACTORS IN DWI’s IN DISTRICT COURT
North Carolina General Statute 20-179(a1) provides the manner that the State must give notice of its intent to use and prove aggravating factors against Defendants charged with DWI when the matter is appealed to Superior Court. Interestingly (and crucially, as we will discuss below), the statute is silent on the issue of DWI’s with original jurisdiction in Superior Court — those misdemeanor DWI’s that, for whatever reason, are indicted by the Grand Jury to be heard in Superior Court. The statute seems to speak only to those DWI’s that are appealed to Superior Court.
This portion of the DWI sentencing statute — (a1) — exists as a result of, and in response to, various United States Supreme Court decisions dealing with a Defendant’s Sixth Amendment right to a jury trial. Generally, a Defendant has the right to have a jury determine whether the State has proven beyond a reasonable doubt all the elements of the crime he’s charged with and the State seeks to punish him for, and has the right to know what it is that he’s charged with.
In Apprendi v. New Jersey, 530 US 466 (2000), the Supreme Court established what is now known as the Apprendi Rule:
“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” Apprendi at 490.
What this means is that the State doesn’t get to charge a Defendant with a crime, and, if the verdict is guilty, then have a judge determine the existence of aggravating factors that increase the penalty beyond what the Defendant could receive with no aggravating factors. Aggravating factors are elements of a greater offense and need to be proven beyond a reasonable doubt to a jury. see Apprendi at 501 (Thomas, J concurring).
Justice Scalia, concurring in Ring v Arizona, 536 US 584 (2002), highlighted the irrelevance of legislative labels — elements/aggravating factors — when the right to trial by jury is at stake:
“…the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives — whether the statute calls them elements of the offense, sentencing factors, or Mary Jane — must be found by the jury beyond a reasonable doubt.” Ring at 610 (Scalia, J., concurring).
And Justice Thomas, concurring in Apprendi intoned in a similar vein:
“If the legislature defines some core crime and then provides for increasing the punishment of that crime upon the finding of some aggravating fact — of whatever sort, including the fact of a prior conviction — the core crime and the aggravating fact together constitute an aggravated crime, just as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime.” Apprendi at 501 (Thomas, J. concurring).
For example, no one would imagine that the State could charge someone with simple assault and then try to have him sentenced for assault inflicting serious injury. The “inflicting serious injury” fact is an element of the greater offense, which the defendant was neither charged with nor put on notice of. It is also a fact that aggravates the crime of simple assault. You can call it an element of a greater crime or you can call it an aggravating factor of the lesser crime. But whatever you call it, you have to treat it the same way: Let the defendant know what it is he needs to defend against and prove it beyond a reasonable doubt to a jury.
In Blakely v Washington, 542 US 296 (2004), the Defendant was charged with First Degree Kidnapping and pleaded guilty to Second Degree Kidnapping. At sentencing, the State offered no aggravating factors but the judge found an aggravating factor and sentenced the Defendant to a sentence in an aggravated range higher than what the statutory maximum for Second Degree Kidnapping would be without the finding of the aggravating factor (and actually put him in a sentencing range for the first degree kidnapping charge that the defendant thought he was avoiding by pleading to the second degree charge). This aggravation of the lesser offense added three years to the maximum sentence the defendant could have received if the judge hadn’t found the aggravating factor. The US Supreme Court reversed the Washington appellate court that sided with the State and remanded the case back to the Washington trial court for “further proceedings not inconsistent with this opinion.” Blakely at ___.
Also in Blakely (and without comment; Justice Antonin Scalia hardly needs the likes of John McWilliam to interpret what he says):
“…the statutory maximum for Apprendi purposes is the maximum sentence a judge my impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely at ___.
“…the judge’s authority to sentence derives wholly from the jury’s verdict.” Blakely at ___.
And this gem:
“The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to the ‘unanimous suffrage of twelve of his equals and neighbours’ rather than a lone employee of the State.” Blakely at ___.
In Cunningham v. California, 127 S.Ct. 856 (2007), the Supreme Court struck down California’s enhancement law and provided :
“This Court has repeatedly held that … any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” Cunningham at 863-864.
By the time Cunningham was decided, the Apprendi Rule had been in place about seven years and Blakely had been decided about four years prior. Many states had adapted and provided the legislative means to ensure no Apprendi/Ring/Blakely violations. Justice Ginsburg, writing for the majority, concluded her opinion with this admonition to California’s legislature:
“California may follow the paths taken by its sister States or otherwise alter its system, so long as it observes Sixth Amendment limitations declared in this Court’s decisions.” Cunningham at ___.
The alteration that most States made was to enact laws providing for notice to Defendants that the State wanted to punish at an aggravated range and the mechanism for proving those aggravators beyond a reasonable doubt before a jury. And this is exactly what North Carolina did when it enacted (with a bunch of other laws to make sure we were in compliance with the Apprendi Rule) NCGS 20-179(a1). (a1) is what saved this statute from being unconstitutional.
The question then becomes: Does the state of North Carolina have to comply with the Apprendi Rule when the crime charged is a misdemeanor DWI in district court? More specifically: Does the State have to provide notice of its intent to use aggravating factors to defendants whose DWI’s are in District Court? Prosecutors will probably argue that NCGS 20-179(a1) speaks only to those DWI’s that are appealed to Superior Court so the State doesn’t have to provide the notice in District Court. That argument fails on many grounds.
The fact that the legislature enacted (a1) of 20-179 actually illustrates the legislature’s understanding of the right articulated in Apprendi and that 20-179 was in violation of the Apprendi Rule. The legislature recognized that the DWI sentencing statute would need to be amended to comply with the Apprendi Rule, and amended it. The suggestion that the North Carolina legislature on the one hand understood and recognized the Constitutional right and on the other hand felt it had the authority to deny that right to Defendants whose DWI’s were where almost all DWI’s begin — District Court — is an absurdity that might satisfy those of us who enjoy vilifying the General Assembly but is an absurdity nonetheless. And even if that denial of the constitutional right to DWI-defendants in District Court were the legislature’s intent, it is an absurdity to think that anyone would allow our law-giving body to deny any constitutional right to a Defendant in any Court. State legislatures don’t get to trump the Constitution (a war was fought over that issue, and the issue was decided against states that would flout the Federal Constitution).
The enactment of (a1) actually weakens the argument that the notice requirement is limited to those DWI’s appealed to Superior Court because, of course, our legislature doesn’t think it can pick and choose in which courts the Constitution applies. NCGS 20-179(a1) does not provide DWI defendants the right to notice of aggravating factors; the US Constitution does. What 20-179(a1) does is acknowledge the right and then describe the mechanism for protecting the right in Superior Court. The statute merely codifies the manner in which the State must comply with the Apprendi Rule for DWI’s appealed to Superior Court. And the statutes’ silence on the matter when the DWI is in District Court in no way can be construed as the legislature’s attempt to deny the right in District Court; rather the statute’s silence is as to the manner in which the various and varied District Courts around the State will ensure that they comply with the constitutionally-mandated (and minimal) notice requirement. 20-179(a1) is a how-to manual for the matter in Superior Court, and its silence as to the “how-to” in District Court is the very sensible decision of the legislature to not micro-manage the District Courts around the State. The legislature has simply decided not to weigh in on the “how” in District Court.
Article 49 of Chapter 15A, the Criminal Procedure Act, is titled “Pleadings and Joinder,” and is composed of the nine statutes from 15A-921 to 15A-930. 15A-921 is titled “Pleadings in criminal cases.” This statute lists the seven things that may serve as the pleadings of the State in criminal cases (all criminal cases, not just felonies): Citation; Criminal Summons; Warrant for Arrest; Magistrate’s Order; Statement of Charges; Information; Indictment. 15A-922 is titled “Use of pleadings in misdemeanor cases generally.” 15A-923 is titled “Use of pleadings in felony cases and misdemeanor cases initiated in the superior court division.” This is the statute that describes the method of initiating a misdemeanor in superior court (NCGS 7A-271 is the statute that permits misdemeanors to be initiated in superior court), a mechanism that could land a DWI in superior court not by way of appeal, and therefore, not subject to the provisions of 20-179(a1). 15A-924 is entitled “Contents of Pleadings; duplicity; alleging and proving previous convictions; failure to charge crime; surplusage.” Subsection (a)(7) states: “(A criminal pleading must contain): A statement that the State intends to use one or more aggravating factors under GS 15A-1340.16(d)(20), with a plain and concise factual statement indicting the factor or factors it intends to use under the authority of that subdivision.” 15A-1340.16 is titled “Aggravated and mitigated sentences.” This statute deals with the mechanism for alleging and proving aggravating (and mitigating) factors. It also lays out the manner in which notice will be given to defendants. Subsection (d) lists 25 specific aggravating factors and one catch-all, 15A-1340.16(d)(20) — the statute referred to in 15A-924(a)(7) above. This is important because the only way that the State would be able to use the DWI-specific 20-179 aggravating factors in a DWI that was initiated in superior court would be to proceed under the 15A-1340.16(d)(20) catch-all. So misdemeanor DWI’s that are appealed to superior court are governed by the notice statute in 20-179(a1); misdemeanor DWI’s that are initiated in superior court are governed by the notice statute in 15A-924 (and 15A-1340.16(d)(20)).
So where does that leave misdemeanor DWI’s in district court? 15A-1340.10 titled “Applicability of structured sentencing.” This statute explicitly excludes, along with two other crimes, DWI’s under 20-138.1 (the misdemeanor DWI statute) from sentencing under structured sentencing. All crimes, felonies and misdemeanors, are subject to structured sentencing except misdemeanor DWI and the two other crimes. Therefore Article 81B applies to both felonies and misdemeanors. Some of the statutes in Article 81B are specific to felonies only and some are specific to misdemeanors only; those that are specific to neither felonies nor misdemeanors are applicable to both. And confusingly, some of the statutes under Article 81B make distinctions between felonies and misdemeanors in some places and no distinction between felonies and misdemeanors in others. As criminal statutes, however, they must be construed strictly in favor of the defendant. So those portions where no distinction is made apply equally to felonies and misdemeanors. 15A-1340.16(a6), titled “Notice of Intent to Use Aggravating Factors or Prior Record Level Points,” states: “The State must provide a defendant with written notice of its intent to prove the existence of one or more aggravating factors under subsection (d) of this section … at least 30 days before trial or the entry of a guilty or no contest plea. A defendant may waive the right to receive such notice. The notice shall list all the aggravating factors the State seeks to establish.” This statute makes no distinction between felonies and misdemeanors or between matters in superior or district court. Most of the rest of this statute clearly deals with aggravating factors in felony cases. This is because there is no such thing as an aggravated misdemeanor (other than prior convictions, which are not subject to the Apprendi Rule) other than DWI. So the State need never worry about failing to provide notice to a defendant charged with a misdemeanor in district court … other than a DWI that is. DWI seems to be the only misdemeanor that can be aggravated by factors other than prior convictions.
The closest offense to DWI that presents the same issues is Speeding to Elude Arrest, NCGS 20-141.5. This crime is a misdemeanor; however, the statute provides that if two or more enumerated and specific aggravating factors are present, the crime is a felony. This statute is actually a wonderful example of our legislature’s understanding of what Justices Scalia and Thomas are talking about when they tell us that there is no difference between elements of a crime and aggravating factors. But here’s why this statute is important in the context of DWI’s in district court: If the State really believes that it is relieved of the requirement to comply with the constitutional mandate, at least, to provide notice of aggravating factors to people charged with misdemeanor DWI either because no State statute specifically requires it or because the case is a misdemeanor in district court, does the State also believe that it can charge a person with misdemeanor speeding to elude, not notify him of its intent to aggravate the crime, and have him sentenced as a felon when it ambushes him with the aggravating factors that make the crime a felony? I Think we all know the answer to that question. You can’t charge a person with one crime and punish him for another.
Whether a state statute specifically recognizes the Apprendi Rule for those DWI’s in district court, or whether the lack of a specific statute for DWI’s in district court is a sensible decision by the legislature to leave alone how the Apprendi right will be preserved and the rule followed in district court, or whether the legislature’s intent was actually to circumvent the Apprendi Rule, the fact remains that the United States Supreme Court has ruled that the right must be preserved and the rule must be followed. And none of the cases – Apprendi, Blakely, Ring, Cunningham – distinguishes between misdemeanors and felonies or one court or another. The rule – the Constitution – applies in all cases and in all courts.
The State is required to provide notice of its intent to prove aggravating factors to all defendants whose accusations it seeks to aggravate, including those charged with DWI in district court in North Carolina. And the imposition of an aggravated sentence on a defendant who has not been provided notice of the greater offense/aggravated sentence of the lesser offense or “Mary Jane” is a violation of the defendant’s rights under the Sixth Amendment to the United States Constitution.