The following is based on actual events. Any resemblance to real persons, living or dead, is purely coincidental (How do these two disclaimers live with each other?)

As we all know, there is no such thing as a non-statutory aggravating factor (see previous blogs on this subject).  And here’s a wonderful example of how the finding of a non-statutory aggravating factor can hurt the State.

Danny Defendant has three pending DWI’s and no prior convictions.  He goes into court and pleads guilty to the second DWI (let’s call this DWI number two).  The Judge asks the State if there are any aggravating factors; the State offers none.  The judge asks  Danny’s lawyer (oh, that would be me) if there are any mitigating factors; the defense offers the statutory mitigating factor that Danny has had a substance abuse assessment and participated in the recommended treatment (in this case, he was actually in in-patient treatment).

By law (see my previous blog on this subject – the Grieslecrain case), Danny is entitled to a sentence in the mitigated (and lowest) range – a (DWI) level 5 sentence.  In this case, however,  the judge, sua sponte, finds two non-statutory aggravating factors: first, that at the time of this offense, Danny had been charged with a separate DWI (let’s call this DWI number one); and, second, that the Defendant crashed his car into a police car (both of which are true).  The judge finds that the non-statutory aggravating factors are counterbalanced by the mitigating factor, and sentences  Danny under (DWI) level 4 .

The Defense lawyer – who knows a thing or two about such matters – remains quiet on the judge’s unlawful sentence.  Why, I hear you clamour, does the defense lawyer remain silent?

Now would be an appropriate time for a quick primer on aggravating factors. (This is all Scalia.)  A non-prior conviction aggravating factor is anything other than the fact of a prior conviction that elevates the punishment beyond the statutory maximum punishment for the particular crime.  As such an aggravating factor is an element of the greater offense; the original crime plus the aggravating factor = the greater offense.  For example, in NC, misdemeanor fleeing to elude becomes a felony if the State can prove all the elements of the misdemeanor plus at least two statutory, specifically listed, aggravating factors.  This is a well-written statute; it makes clear exactly what is needed to elevate the crime (and punishment) from a misdemeanor to a felony; and, it acknowledges that aggravating factors are the same thing as elements of a crime (which, as we know,  because of separation of powers issues, only the legislative branch of government can create).  Furthermore, aggravating factors must be proven beyond a reasonable doubt in exactly the same way and subject to the same rules as elements of a crime.  Lawyers should read Apprendi, Blakely et al.

Back to Judge *******’s creation of, finding of and punishing for the non-statutory aggravating factors in Danny’s case:

In the case of a misdemeanor DWI in the lower, non-jury, division of court, Danny is probably not entitled to actual notice of the aggravating factors that might be used against him.  This is so because he is on notice of the potential aggravating factors that are listed in the DWI sentencing statute, and there are mechanisms in place for him to discover the facts (elements and factors) that the prosecution intends to use against him.  He is, however, entitled to know the crime that he is being charged with.  In the case of a DWI, he is on notice that he is charged with DWI,  which encompasses the six different levels of punishment and all of the possible aggravating factors that are listed in the statute (the catch-all “any other fact that aggravates…” is unconstitutional).  Danny obviously is not on notice of the greater offense of the DWI plus the two non-statutory aggravating factors that the judge created, found and imposed punishment on in his case (see my previous blog where we contemplate the potential non-statutory aggravating factor of the defendant’s wearing a loud shirt in a built-up area).

Danny has just been punished for a crime that he was neither charged with nor pleaded guilty to.  And that crime – DWI plus two non-statutory aggravating factors (one of which is a pending DWI that he happened to be charged with before this offense and which he is currently presumed to be innocent of))  – doesn’t even exist; it’s a crime created by the judge.  The judicial branch of government doesn’t create crimes; the legislative branch of government does – Apprendi/Blakely/Aggravating Factors Issues often raise the separation of powers question; but it’s usually the executive branch (the DA) who is trying to create new law.

Why is this a problem for the State? I hear you ask.  Why would the State care if the judge increases Danny’s punishment for this DWI because of the fact that at the time of this charge he had previously been charged in another DWI?

Because when the State tries to prosecute Danny for DWI number one, the State will be barred from doing since he’s already been punished for that crime.  Double jeopardy disallows being punished for the same crime twice.  And Judge *******’s using the fact of DWI number one against Danny when (s)he sentenced him in DWI number two means that Danny has already been punished for DWI number one, and he can’t face punishment for DWI number one again.

For example:  Defendant is charged with DWI and child abuse because he had a kid in the car with him.  If he is found (or pleads) guilty to both charges and the State wants to aggravate the DWI because of the statutory aggravating factor that the defendant had a kid in the car, the judge must arrest judgment (not punish) on the child abuse charge.  To both punish the defendant and aggravate his DWI sentence would be punishing him twice for the same offense. This is well-established law.  Everyone knows this.

So.  What am I going to do when it’s time to deal with DWI number one?  Plead not guilty, let jeopardy attach, and move to dismiss the charge on the grounds that Danny has already been punished for this offense when DWI number two was aggravated by the fact that Danny picked up that charge having been previously charged for the same offense in the current case – DWI number one.

That is why the State should care when a judge finds a non-statutory aggravating factor: it can’t prosecute DWI number one.



In Danny’s case, I appealed the matter to Superior Court.  The question then becomes: Is the Apprendi/Blakely/Double Jeopardy issue in DWI number one moot, or non-existent, since the sentence in DWI number two has been appealed?  Interestingly, North Carolina has a bit of a history messing around with DWI appeals from District Court to Superior Court.

In 2006, the legislature closed the loophole that allowed defendants with two DWI’s to be guilty of both but have neither be a prior conviction to the other.  We managed this little piece of sleight of hand by either losing or pleading guilty to one of the two DWI’s (it didn’t matter which one) and appealing, and then either losing or pleading guilty to the other DWI and  not appealing that one.  Because the prior DWI was on appeal, the sentence in the next DWI could not be aggravated by that prior conviction – it was appealed, so not a conviction. We would then remand the appealed DWI, which under the pre 2006 law-changes, resulted in the District Court sentence being automatically imposed – no re-sentencing.  This switch and bait resulted in two first-offender DWI sentences for a defendant with two DWI convictions.  No prior conviction to worry about in either case.   Genius!  We all did it.  It was the law.  In fact, if you didn’t do it, you were committing malpractice.

2006 changed all of this.  Now, an appealed DWI sentence was automatically vacated – not merely stayed as in the case of pre-2006 DWI’s and  all other misdemeanors – then and now – appealed to Superior Court.  This vacating of the lower court’s sentence meant that, upon remand of the case back to District Court, the District Court was required to conduct a new sentencing hearing.  Gone were the days when you could avoid the finding of a new conviction for DWI that didn’t exist at the first sentencing because the newly-convicted DWI was still pending at the time.  Post 2006, the District Court could conduct the new sentencing hearing only if all of the defendant’s DWI’s were resolved. No more two level 5 DWI’s; post 2006, the State would get its proverbial pound of flesh: a level 3, 4 or 5 DWI sentence on the first, and a level 1 or 2 DWI on the second.

DA’s used the 2006 law changes to increase a defendant’s original DWI sentence by offering, and being able to prove, aggravating factors it didn’t have at the original sentencing hearing – in particular, convictions for prior DWI’s.  Defense lawyers used the 2006 law-changes to our clients’ advantage as well: between the time of the appeal and the remand/re-sentencing, we would have our clients do things to provide mitigating factors that we didn’t have at the first sentencing.  The re-sentencing law provided the State and  Defense the opportunity to change the original sentence.

Then December 1, 2015 came along.  Now, DWI’s that were appealed after that date benefit from an actual re-sentencing only if there are additional aggravating factors that the  State wants to prove.  Otherwise – as in, if the Defendant would like to be heard on mitigating factors – there is no re-sentencing; the law has reverted to the pre-2006 law only if it helps the State, but not if it might help the defendant (I feel a new blog post a-comin’; this has to be a due process violation).

Danny’s appealed case still serves as a prior conviction to his pending case exactly because the legislature understands the difference between remands without a re-sentencing and remands with a re-sentencing.  If it didn’t, it wouldn’t spend so much time tinkering with those laws.  And, in a wonderful piece of irony, the combination of the new law designed to fuck the defendant and the judge creating an element of a crime that doesn’t exist, may have created the very outcome they were trying to prevent.