THERE IS NO SUCH THING AS A NON-STATUTORY AGGRAVATING FACTOR
Sitting in the Wake County Justice Center today watching a lawyer who has no business representing criminal defendants pleading his DWI client guilty, I was struck by several disturbing things: Number 1, this lawyer had no business representing this poor person; number 2, this poor person is, in fact, poor – and that’s why he was “represented” by this court-appointed lawyer; number 3, we allow poor people to be represented by people who …see number 1. Number 4, this lawyer allowed his client to be sentenced to a more serious crime than he had just pleaded his client guilty to. Number 5, this lawyer allowed his client to be sentenced to a crime that doesn’t even exist. Number 6, this lawyer shamed his profession and the privilege of being allowed to represent those who can’t afford to hire a lawyer.
This poor defendant pleaded guilty to Driving While Subject to an Impairing Substance (DWI), a crime described in NCGS 20-138.1. He was then sentenced under the DWI sentencing statute NCGS 20-179. The Prosecutor offered some fact under the “catch-all” 20-179 (d) (9) “Any other factor that aggravates the seriousness of the offense.” (“seriousness”: whatever that means) as an aggravating factor. This provision of the statute is plainly unconstitutional. And everyone knows it. But of course the lawyer standing next to his client as he pleaded guilty has never read 20-179 let alone any case-law. And when asked if he wanted to be heard on the catch-all, or what the DA and Judge were correctly calling the non-statutory aggravating factor, the lawyer had nothing to say. Because he had no idea what he was doing.
As the title of this blog boringly but unambiguously proclaims: there is no such thing as a non-statutory aggravating factor and here’s why the “catch-all” is unconstitutional. An aggravating factor is an element of a greater offense. (That’s not me talking; that’s the great conservative justice of the US Supreme Court, Antonin Scalia talking. Read Apprendi v. New Jersey; read Blakely v Washington; read their progeny). So, imagine this: you are found guilty of (or plead guilty to) a crime, and then suddenly your sentence is increased beyond what it could have been without the increase because of some aggravating factor that you had no idea existed or had even been told would be used against you. And therefore, the crime you’re being sentenced for is the crime of whatever the crime you were found guilty of (or what you pleaded to) plus this aggravating factor – a different crime; a greater offense. (Think assault: You can’t be tried and found guilty of simple assault, then sentenced for assault with a deadly weapon.
An aggravating factor is an element of a greater offense and must be alleged and proven beyond a reasonable doubt. Again not me, Scalia.
Yet how often are criminal defendants sentenced to crimes they weren’t found guilty of or didn’t plead guilty to? All the time. Because lazy lawyers are allowed to represent indigent criminal defendants. And that minority of lazy lawyers being given cases they have no business being given casts an awful pall over the excellent public defenders and court-appointed lawyers – which is most of them. But 10% lazy lawyers representing indigent criminal defendants is 10% too much.
So. Non-stautory aggravating factors. An aggravating factor is an element of a greater offense as Apprendi, Blakely etc. tell us (find Scalia’s wonderful “lone employee of the state ” language). And what the elements of a crime are is the province of the legislative branch of government (remember separation of powers?). It’s the legislature that decides what a crime is. It’s the legislature that decides what the elements of a crime are. The legislature. Not the executive. Not the judicial. So what’s a DA (executive branch) doing trying to create some ‘catch-all,” non-statutory aggravating factor? And what’s a judge (the lone employee of the state’s judicial branch) doing when he decides to find that factor and increase a person’s punishment because of it?
Non statutory aggravating factor number 1. The Defendant was extremely rude, profane and offensive with the officer, and repeatedly called the officer racist names while suggesting that the officer was his son because the officer’s mother was a well-known whore 23 years earlier.
Non-statutory aggravating factor number 2. The defendant was wearing a loud shirt in a built-up area.
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That’s all you get. Do your homework.
To that lawyer who did nether his client nor the struggle for freedom any service, and all like him or her: Don’t do this unless you’re serious about it.