Extraordinary Mitigation

Extraordinary mitigation—or, more precisely, dispositional deviation for extraordinary mitigation—under G.S. 15A-1340.13(g) is a way for the court to impose a probationary sentence for a defendant whose offense class and prior record level ordinarily require an active sentence. The provision was included in Structured Sentencing as a counterbalance to the habitual felon law, although the latter is used much more frequently. Still, the law is a useful sentencing tool in certain cases, and certainly worth knowing about. Extraordinary mitigation turns an “A” cell on the sentencing grid into an “I/A” cell, allowing the court to suspend an otherwise unsuspendable sentence. Extraordinary mitigation does not authorize the court to alter the term of imprisonment ordinarily required by the grid. It merely allows the judge to suspend that term of imprisonment and place the defendant on probation. State v. Messer, 142 N.C. App. 515 (2001). Findings. To use extraordinary mitigation, the court must, under G.S. 15A-1340.13(g), find in writing that: The case presents extraordinary mitigating factors of a kind significantly greater than in the normal case; Those factors substantially outweigh any factors in aggravation; and It would be a manifest injustice to impose an active punishment in the case. Those findings, which rest in the discretion of the trial judge, may be recorded on form AOC-CR-606. To be considered extraordinary, a mitigating factor must be significantly greater than an ordinary mitigating factor. The judge must look to the quality of the particular factor, not the overall quantity of proffered mitigators, when evaluating extraordinary mitigation. [...]