Finally, my adoring millions, my follow-up to the Greisslecrain case that was the subject of a recent post on this blog.  In that DWI case, the Defendant was sentenced to a Level 4 DWI when the judge found some aggravating factors of which the Defendant was never given notice and that were not submitted to, nor found by, the jury.  The notice requirement is statutory and exists because of the United Supreme Court’s decisions in Apprendi and Blakely (I don’t do citations in my blogs — if you’re a lawyer, you know or should know what I’m talking about; and if you’re not, you probably have a better idea what I’m talking about than a lawyer).  And the rule that only a jury can find the existence of aggravating factors also derives from the Apprendi rule:

 Other than the fact of a prior conviction, any fact that increases the punishment beyond the statutory maximum punishment must be presented to the jury and proven beyond a reasonable doubt.

This rule has been interpreted this way: aggravating factors are what we’re talking about, aggravating factors are the same as elements of a crime,  aggravating factors are elements of a greater offense than the indicted charge,  notice must be given to a defendant of the prosecutor’s intent to seek aggravating factors, aggravating factors must be presented to a jury, and aggravating factors must be proven beyond a reasonable doubt.  And finally, “statutory maximum sentence” has been interpreted to mean the maximum sentence within the presumptive range — the maximum in the non-aggravated range,

The relevant part of the DWI sentencing statute, 20-179(f)(3) tells us that the defendant will be sentenced to a level 5 punishment if the “mitigating factors substantially outweigh any aggravating factors.”  “Any aggravating factors.”  What does this mean for those cases in which there are no aggravating factors and at least one mitigating factor?  Well, a level 4 sentence is required in cases in which either: the aggravating factors and mitigating factors outweigh each other; or: there are no aggravating factors and no mitigating factors.  Level 4 is considered to be the presumptive sentence in a DWI.

But is it?

If, under 20-179(f)(3), the judge must determine that the mitigating factors outweigh “any aggravating factors,” before imposing a level 5 punishment, wouldn’t he have had first to find “any aggravating factors” against which he would weigh any mitigating factors?  And if there are no aggravating factors against which to weigh the mitigating factors, wouldn’t the mitigating factors inherently outweigh the lack of any aggravating factors?  Does this situation —  no aggravating factors and at least one mitigating factor — allow for a level 4 sentence?  Level 4 is deemed to be the presumptive sentence.

The answer is no (though the Court of Appeals (COA) in State v. Greisslecrain says, “yes.”).  And here’s why they got it wrong. The COA did find that the sentencing judge was wrong to have done what he did in finding aggravating factors of which the defendant had not been given notice and which were not presented to the jury.  But the COA then said that the error was harmless because the judge sentenced the defendant within the presumptive range — Level 4.  But was it harmless?  Could, actually,, the judge have sentenced Ms Greisslecrain to a level 4 punishment if he hadn’t committed the error the COA acknowledges he committed?  Again, the answer is no.  Take away the aggravating factors and all you’re left with is any mitigating factor (which we know Ms Greisslecrain had because the judge found some — which he can do).  And that, or those, mitigating factors have nothing to be weighed against.  If a level 5 sentence is required when the judge determines that the mitigating factors substantially outweigh any aggravating factors, wouldn’t a level 5 sentence be required when there are no aggravating factors and at least one mitigating factor?  Isn’t the absence of anything substantially outweighed by the existence of something?

Ms Greisslecrain’s presumptive sentence was a level 5 DWi sentence unless the finding of any aggravating factors would change that.  And since she had been provided no notice of the prosecutor’s intent to seek aggravating factors and knew she had certain statutory mitigating factors, Ms Greisslecrain would have reasonably believed that her sentence would be under a level 5 sentence.  Had the judge not violated the statute and the Constitution in the way that he found the aggravating factors, there would have been no aggravating factors against which to weigh her mitigating factor(s), and her statutory maximum sentence would have been under a level 5 sentence.  So in this case, the defendant’s statutory maximum punishment was in fact exceeded by the violation of the Apprendi Rule.  A fact that the defendant was never given notice of, and was neither presented to the jury nor proven beyond a reasonable doubt — all in violation of our constitutional rights — was used against her to increase her punishment beyond what the law would have allowed but for that fact.

The COA got it wrong in State v. (I am so happy I’ll never have to type this name again) Greisslecrain.