Re-sentencing under G.S. 20-38.7: Who Gets It and What's Game for Consideration?

I’ve written before about the General Assembly’s enactment of G.S. 20-38.7 to prevent defendants from manipulating the procedure for appealing district court convictions to superior court in order to escape enhanced punishment in impaired driving cases based upon prior convictions. G.S. 20-38.7(c) provides that “for any implied‑consent offense that is first tried in district court and that is appealed to superior court by the defendant for a trial de novo as a result of a conviction, the sentence imposed by the district court is vacated upon giving notice of appeal.”  When an appeal is withdrawn or a case is remanded back to district court, the district court must hold a new sentencing hearing and must consider any new convictions. The first item of note related to this provision is that it purports to apply to all implied consent offenses, not just to those offenses sentenced under G.S. 20-179 ((i) impaired driving under G.S. 20-138.1, (ii) impaired driving in a commercial vehicle under G.S. 20-138.2, (iii) a second or subsequent conviction for operating a commercial vehicle after consuming alcohol under G.S. 20-138.2A, and (iv) a second or subsequent conviction for operating a school bus, school activity bus, or child care vehicle after consuming alcohol under G.S. 20-138.2B). This broad application is surprising given that the manipulation to which it was addressed occurred in connection with sentencing under G.S. 20-179, which sets forth a graduated punishment scheme that significantly increases a defendant’s punishment if the defendant has a qualifying prior conviction. A qualifying prior conviction renders [...]