In North Carolina, a person convicted to a felony will have an additional sentencing point added to his points for prior convictions if all the elements of the current offense are present in a prior conviction. For example, the defendant is pleading guilty to possession of cocaine and he has a prior conviction for possession with intent to sell and deliver cocaine. Not only will this defendant have sentencing points assessed for the prior conviction but, because all of the elements in the current offense are present in the prior conviction, he will have an additional sentencing point added.
This smacks of double jeopardy. Notwithstanding the apparent double jeopardy in enhancing the defendant’s sentence because of a prior conviction (for which he’s already been punished) in the first place, in the added-sentencing-point scenario, the defendant’s sentence is first enhanced for the prior conviction then enhanced again because the current offense is a lesser-included offense of that same prior conviction. Isn’t this using the same thing to punish the defendant twice? Isn’t this what the double jeopardy clause seeks to prohibit?
This issue also raises the question of whether the additional sentencing point violates the Apprendi/Blakely rule: Other than the fact of a prior conviction, any fact that increases the potential punishment beyond the statuary maximum must be found by a jury and proven beyond a reasonable doubt. Even though it’s obvious when all the elements of the current offense are included in a prior conviction, can defendants force the State to impanel a jury to determine that fact beyond a reasonable doubt? The enhancement is, after all, not a prior conviction but a feature of the present conviction that just happens to relate to a prior conviction.
The issue (or issues) only really became important when that additional sentencing point moves the defendant from one sentencing level to another; if the additional point keeps the defendant in the same sentencing level that he would have been without it, then, even if it is error to find that point, it’s harmless because the punishment won’t be affected. But if it’s error, it shouldn’t happen again. And if it is error, then, when the point increases the level, it’s not harmless.
So. It’s worth keeping an eye out on this sentencing point and considering fighting it when it changes the defendant’s level, especially if it moves the defendant from a potential probationary sentence to a mandatory active sentence.