A Refresher on Aggravating Factors in Structured Sentencing Cases

The Supreme Court of the United States decided Blakely v. Washington in 2004, holding that any fact (other than a prior conviction) that increases a defendant’s sentence beyond the prescribed statutory maximum must be found by a jury beyond a reasonable doubt or admitted to by the defendant. 542 U.S. 296 (2004). Before Blakely—when it was permissible for the trial court to find aggravating factors by a preponderance of the evidence—about 7 percent of all felony cases in North Carolina were sentenced in the aggravated range. After Blakely (and after we amended Structured Sentencing to comply with Blakely) that number declined to 3 percent. In the past couple of years we’ve ticked back up to 4 percent. (All data courtesy the N.C. Sentencing and Policy Advisory Commission’s annual Statistical Report for Felonies and Misdemeanors.) So, a small (but perhaps growing) percentage of cases require an understanding of the law and procedure applicable to aggravating factors. Several recent cases offer a nice review and provide answers to some frequently asked questions in this area of the law. Notice. 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, but nonstatutory aggravating factors (like those described in this post) must be. G.S. 15A-1340.16(a4). In any case where the State intends to prove the existence of one or more aggravating factors (or a prior record level “bonus point” under G.S. 15A-1340.14(b)(7) for an offense committed by a defendant on probation, parole, or post-release [...]