Improper Consideration at Sentencing of a Defendant's Decision to Go to Trial

A trial court is free to consider all kinds of information about a defendant when deciding on a sentence. See State v. Pope, 257 N.C. 326 (1962) (“[I]t would not be in the interest of justice to put a trial judge in a straitjacket of restrictive procedure in sentencing. . . . He should be permitted wide latitude in arriving at the truth and broad discretion in making judgment.”). One thing a judge may not consider, though, is the fact that a defendant exercised his or her right to a jury trial. The black letter rule is clear: where it can be inferred from the language of the trial judge that a sentence was imposed even in part because the defendant insisted on a trial by jury, the defendant’s constitutional rights have been abridged and a new sentencing hearing must result. State v. Boone, 293 N.C. 702 (1977). By statute, a judge “shall not consider as an aggravating factor the fact that the defendant exercised the right to a jury trial.” G.S. 15A-1340.16(d). There is, however, an inherent tension between the rule against punishing a defendant for his or her election to proceed to trial and the reality that the State routinely rewards guilty pleas by offering substantial benefits in return for them—a practice that is entirely permissible and essential to the operation of our criminal justice system. Bordenkircher v. Hayes, 434 U.S. 357 (1978). A trial judge put the paradox in black and white in a case that’s currently pending [...]