Egregious Aggravation Is Unconstitutional

In 2008 the General Assembly created the new crimes of rape and sexual offense with a child by an adult offender (G.S. 14-27.2A and -27.4A, respectively). S.L. 2008-117. They have special sentencing rules, described here, including the possibility of a higher maximum sentence if the judge finds “egregious aggravation” in the case. Discussing the law immediately after it passed in 2008, John Rubin wrote (here, on page 3) that placing the responsibility for determining egregious aggravation on the judge—not the jury—was “likely unconstitutional” under Blakely v. Washington. As my kids like to say, “Nailed it.” State v. Singletary, decided by the court of appeals last week (and mentioned briefly in last week’s News Roundup), ratified John’s view. In Singletary, the defendant was convicted of two counts of sexual offense with a child by an adult offender—then codified at G.S. 14-27.4A, but since moved to G.S. 14-27.28(c). That law goes beyond the standard sentencing rules for a Class B1 felony. First, it requires a mandatory minimum sentence of 300 months. Second, it allows for a sentence even longer than that provided for by the regular sentencing grid “if the court finds that the nature of the offense and the harm inflicted are of such brutality, duration, severity, degree, or scope beyond that normally committed in such crimes, or considered in basic aggravation of these crimes.” If the judge finds that sort of “egregious aggravation,” the statute authorizes a sentence of up to life without parole. The trial judge in Singletary did find egregious [...]