Proper Procedure for Aggravating Factors

Not many sentences come from the aggravated range—four percent in Fiscal Year 2013/14, according to the North Carolina Sentencing and Policy Advisory Commission. But when you use the aggravated range, you want to make sure to do it correctly. Some recent cases offer a reminder about the proper procedure for alleging and proving aggravating factors. Notice. The State must provide a defendant with written notice of any aggravating factors it intends to prove at least 30 days before trial or the entry of a guilty or no contest plea, unless the defendant waives that right. G.S. 15A-1340.16(a6). The notice must list all the specific aggravating factors the State intends to establish. It would not suffice for the notice to say, for example, that the State intends to pursue aggravating factors generally, or solely that it will seek a sentence from the aggravated range. In State v. Mackey, discussed here, the court of appeals endorsed form AOC-CR-614 as a template for proper notice. 209 N.C. App. 116, 121 (2011) (“The State had at its disposal a form routinely used by prosecutors to comply with this minimal requirement. Therefore, it had the ability to comply with the statute using regular forms promulgated for this specific purpose by the Administrative Office of the Courts.”). Pleading. Statutory aggravating factors (the ones set out in G.S. 15A-1340.16(d)) need not be included in an indictment or other charging instrument. Nonstatutory aggravating factors, on the other hand, must be included in the charging instrument. G.S. 15A-1340.16(a4). The pleading should, [...]