Author's Note: The opinion discussed below was withdrawn on February 4, 2014 and replaced by an opinion discussed here. How can a sentencing factor found by a judge that doubles a defendant’s maximum sentence not implicate Blakely? I pondered this question a few years ago after the court of appeals in State v. Green, 209 N.C. App. 669 (2011), characterized a Level Four DWI sentence as “tantamount to a sentence within the presumptive range.” Yesterday’s court of appeals’ decision in State v. Geisslercrain caused me to resume my puzzling. The facts. The defendant in Geisslercrain appealed her district court conviction of impaired driving to superior court. The State did not notify the defendant in advance of trial that it intended to use any aggravating factors to enhance the defendant’s sentence. Thus, though the jury found the defendant guilty of impaired driving, it did not find any aggravating factors. The judge at sentencing nevertheless applied the aggravating factor in G.S. 20-179(d)(3) for negligent driving that leads to a reportable accident. The judge also found the mitigating factor in G.S. 20-179(e)(4) based on the defendant’s record of safe driving. The judge determined that the factors counterbalanced one another and therefore sentenced the defendant to Level Four punishment. See G.S. 20-179(f)(2) (requiring Level Four punishment when aggravating factors are substantially counterbalanced by mitigating factors). Matters went further awry from there as the judge sentenced the defendant to 12 months imprisonment, which he suspended on condition that the defendant perform 48 hours of community [...]
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