The defendant began a relationship with B.F. in 2012. The criminal offenses occurred in 2014, when B.F. brought her daughter L.F. (age 3 at the time) to the defendant’s parents’ house. While B.F. and L.F. were sitting on a bed with the defendant and watching a children’s television show, the defendant instructed B.F. to take off both her own and L.F.’s clothes, and she complied. At the defendant’s request, B.F. touched L.F. in a sexual manner while the defendant watched and masturbated. Afterwards, again at the defendant’s request, B.F. moved L.F. into a position where the defendant could place L.F.’s mouth on his penis. When L.F. later told her stepmother what had happened, the stepmother contacted law enforcement and social services, leading to an investigation and criminal charges. At trial, the defendant was convicted of two counts of engaging in a sex offense with a child under 13 years of age, and two counts of taking indecent liberties with a child. The jury also found that the state proved two aggravating factors: the victim was very young, and the defendant took advantage of a position of trust or confidence to commit the offense. On appeal, the defendant argued that there was insufficient evidence to support the second aggravating factor under G.S. 15A-1340.16(d)(15), because the only relationship involving a position of trust or confidence was between the defendant and B.F., rather than with the victim of the offense, L.F. The Supreme Court agreed, reversing the Court of Appeals, and held that the state’s evidence “failed to show that the relationship between L.F. and defendant was conducive to her reliance on him” and only established “that L.F. trusted defendant in the same way she might trust any adult acquaintance, a fact which our courts have found to be insufficient to support this aggravating factor.” Justice Newby dissented, and would have held that the aggravating factor was appropriate on these facts because the defendant took advantage of his position of trust or confidence with B.F. in order to facilitate the commission of the offense against L.F., and the statute does not require that the relationship be between the defendant and the victim.

The evidence was sufficient to establish the aggravating factor that the defendant took advantage of a position of trust or confidence to place the victim in a vulnerable position. The defendant referred to the victim as his “twin,” was brought into the murder conspiracy as a friend of the victim, participated in hatching the details of the plan to kill the victim, and agreed to incapacitate the victim so others could kill him.

In this Buncombe County case, defendant appealed his convictions for driving while impaired and reckless driving, arguing error in (1) denying his motion to dismiss, (2) improperly applying aggravating factors to his impaired driving conviction, and (3) imposing a reckless driving sentence without making specific findings justifying the length of community punishment. The Court of Appeals vacated and remanded for new sentencing hearings on the convictions, but otherwise affirmed. 

Defendant’s driving offenses came for trial at district court in August of 2021. After being found guilty at district court, defendant timely appealed to superior court. However, due to a court system error, defendant’s appeal was not properly entered, and defendant was held in detention for six additional days. While he was in detention, he was not provided with necessary medication, and he suffered a seizure resulting in a concussion. At superior court, defendant filed a motion to dismiss arguing irreparable prejudice to his ability to prepare a defense due to the concussion, a motion denied by the trial court. Defendant was found guilty and during sentencing, the trial court found three aggravating factors: “(1) defendant’s driving was especially reckless; (2) defendant’s driving was especially dangerous; and (3) defendant was convicted of death by motor vehicle in August 2015.” Slip Op. at 3. This led to defendant receiving a sentence at Level III for the impaired driving conviction. 

Considering (1) defendant’s motion to dismiss, the Court of Appeals explained that G.S. 15A-954(a)(4) governed motions to dismiss for flagrant violations of a defendant’s constitutional rights. The court looked for “structural errors” in the framework of the trial process as explained in State v. Hamer, 377 N.C. 502 (2021). Slip Op. at 6. Defendant did not testify at the district court level, and it appeared unlikely he would have testified regardless of his injury at superior court, leading the court to conclude that he could not meet the burden of irreparable prejudice required for dismissal. The court also noted defendant was acquitted of two of the charges against him at superior court, suggesting that he mounted a solid defense.  

Considering (2) the aggravating factors for driving while impaired, the court explained that on December 1, 2006, changes in the applicable law moved the responsibility for consideration of aggravating factors from the trial judge to the jury. The current law in G.S. 20-179(a1) places the responsibility on the state to prove these factors beyond a reasonable doubt to the jury. The court examined the caselaw arising from Blakely v. Washington, 542 U.S. 296 (2004), and the concept of harmless error review when a judge fails to submit aggravating factors to the jury. Slip Op. at 9. After exploring applicable federal and state precedent on the failure to submit an aggravating factor to the jury and harmless error, the court concluded: 

Since the relevant federal cases provide the bare minimum, and all relevant state cases are distinguishable because they were decided prior to the modification of the statute where it is clear from the timing and language of the statute that the legislature intended to change the standards adopted by our courts, we hold aggravating factors must be decided by the jury or the case must be remanded for a new sentencing hearing.

Id. at 12. As a result, the court vacated the trial court’s judgement and remanded for resentencing. 

Considering the final issue, (3) defendant’s reckless driving sentence, the court explained that G.S. 15A-1343.2(d)(1) requires a trial court to make specific findings if they sentence a defendant to a community punishment longer than 18 months for a misdemeanor like reckless driving, and here defendant received a 36-month community punishment without specific findings. The state conceded this was error, and the matter was also vacated and remanded for resentencing. 

Judge Gore dissented by separate opinion, and would have found the trial court’s error as harmless under the harmless error standard. Id. at 14. 

The defendant pled guilty to felony death by motor vehicle and impaired driving in Wake County pursuant to a plea bargain. He stipulated in the plea transcript to the existence of three factors in aggravation and was sentenced to an aggravated term of imprisonment. On appeal, the defendant argued that the aggravating facts were based on the same evidence supporting the elements of the offenses of conviction. Under G.S. 15A-1340(16)(d), “evidence necessary to support an element of the offense shall not be used to prove any factor in aggravation.” One of the aggravating factors alleged that the defendant was armed with a deadly weapon—the vehicle he was driving—at the time of the offenses. The evidence to support this factor was the same evidence to support the “driving” element of felony death by motor vehicle. Similarly, the aggravating factor that the defendant caused serious and permanent injury to the victim was based only on the victim’s death, another essential element of felony death by motor vehicle. These two aggravating factors therefore violated G.S. 15A-1340(16)(d). A third aggravating factor—that the defendant knowingly created a great risk of death to more than one person by his driving—did not implicate the elements of the offenses and was properly found based on the defendant’s reckless driving and high rate of speed before the collision.

Because the defendant stipulated to the aggravating factors as a part of the plea bargain, the entire plea bargain was vacated, and the matter remanded for new proceedings. According to the unanimous court:

Defendant seeks to repudiate the portion of his agreement with the State in which he stipulated to the existence of aggravating factors while retaining the portions which are more favorable; namely, his plea of guilty to felony death by motor vehicle in exchange for the State’s agreement to not seek an indictment on the charge of second-degree murder. ‘Defendant cannot repudiate in part without repudiating the whole.’ Heggs Slip op. at 10 (quoting State v. Rico, 218 N.C. App. 109, rev’d per curiam for reasons stated in the dissent, 366 N.C. 327 (2012).

In July 2016, the defendant was the executive director of a nonprofit when she informed the board of directors that the nonprofit was out of money. Between 2012 and 2016, the balance of the nonprofit’s account had gone from $400,000 to $400. The SBI discovered $410,203.41 in unauthorized expenditures in the form of checks and credit card charges, all of which benefited the defendant. 

The defendant was charged with eight counts of embezzlement of property received by virtue of office or employment (G.S. 14-90); two of the counts alleged that the defendant embezzled property over $100,000 in value. A jury found the defendant guilty of all charges and at sentencing the defendant plead guilty to two aggravating factors: “one of the offenses involving unauthorized credit card transactions and all three offenses involving unauthorized checks ‘involved an . . . actual taking of property of great monetary value.’” Slip op. at 3. The trial court applied these aggravating factors to the defendant’s conviction of embezzling $202,242.62 in the year 2015 and sentenced the defendant within the aggravated range of 92-123 months.

On appeal, the defendant argued that the trial court erred by imposing a sentence in the aggravated range because the “great monetary value” aggravating factor could not be applied because the value embezzled, $202,242.62, was not far greater than the $100,000 amount required to support a conviction of Class C felony embezzlement under G.S. 14-90(c). See slip op. at 4. The Court of Appeals rejected the defendant’s argument saying that it would not make determinations based on a rigid ratio. The Court of Appeals noted that the amount embezzled was more than twice the $100,000 threshold and stated that “$202,242.64 is, from the standpoint of an ordinary person, a great value of money.” Therefore, “the trial court did not err by applying the aggravating factor of ‘taking of property of great monetary value’ when sentencing [the] [d]efendant.” Slip op. at 6-7.

The defendant was convicted of financial card theft and sentenced to a suspended sentence of 8 to 19 months imprisonment and 24 months supervised probation. Defendant’s sentence was based on the aggravating factor in G.S. 15A-1340.16(d)(12a), which requires the State to prove that within 10 years before the instant offense, the defendant had been found by a North Carolina court to have been in willful violation of the conditions of probation. G.S. 15A-1340.16(d)(12a).

Outside of Defendant’s presence, the trial court later entered a civil judgment of $2,250.00 against him as recoupment for fees for the attorney appointed to represent him.

The Court of Appeals granted certiorari review to consider the lawfulness of the sentence and the civil judgment entered against the defendant. As to the sentence, the State admitted on appeal that the prosecutor did not present evidence that the defendant violated conditions of probation at any time before he committed the offense of conviction. The court agreed there was insufficient evidence presented at trial to support this aggravating factor, vacated the sentence, and remanded the case to the trial court for resentencing.

As to the civil judgment, the State admitted there was no evidence that the defendant was afforded an opportunity to be heard regarding the total amount of hours and fees claimed by his court-appointed attorney. It conceded that if the petition for certiorari was granted, the civil judgment for attorney fees had to be vacated, and the case had to be remanded to the trial court for further proceedings. The court agreed with the State’s concession, noting that the trial court never directly asked the defendant whether he wished to be heard on the issue and that there was no other evidence that the defendant received notice, was aware of the opportunity to be heard on this issue, and chose not to be heard. The trial court’s request that defendant’s counsel “guesstimate [the number of hours worked] so [Defendant] will have an idea as to what the legal fees will be” was insufficient to provide the requisite notice and opportunity to be heard. The court vacated the civil judgment for attorney fees and remanded the case to the trial court for further proceedings.

Jamie Markham wrote about the case here.

In a case involving convictions for attempted first-degree murder, statutory sex offense with a child by an adult, assault with a deadly weapon inflicting serious injury, first-degree kidnapping, and taking indecent liberties with a child, the trial court did not err by denying the defendant’s MAR challenging his aggravated sentence. The defendant’s MAR asserted that the State failed to allege the aggravating factors in the indictment and to narrowly define the aggravating factors in violation of Apprendi. The court began by rejecting the defendant’s argument that aggravating factors must be alleged in the indictment. Here, the State complied with G.S. 15A-1340.16, filing a written notice of aggravating factors months before trial that informed the defendant that the State sought to prove two identified statutory aggravating factors. After the jury convicted the defendant of the underlying offenses, the court allowed the State to proceed on the aggravating factors, and the jury found that each offense was especially heinous, atrocious, or cruel and that the victim was very young. The State complied with the statute and the procedure prescribed by the statute satisfies Apprendi.

            The court went on to reject the defendant’s argument that the jury instruction for the heinous, atrocious, or cruel aggravating factor was unconstitutionally vague, citing controlling precedent.

(1) No violation of due process occurred when the defendant was sentenced in the aggravated range where proper notice was given and the jury found an aggravated factor (that the defendant committed the offense while on pretrial release on another charge). (2) Because G.S. 15A-1340.16 (aggravated and mitigated sentences) applies to all defendants, imposition of an aggravated sentence did not violate equal protection.

In this rape case involving an 82-year-old victim, the court rejected defendant’s argument that the trial court erred by failing to instruct the jury that it could not use the same evidence to find both the element of mental injury for first-degree rape and the aggravating factor that the victim was very old. The defendant argued that the jury may have relied on evidence about ongoing emotional suffering and behavioral changes experienced by the victim after the rape to find both an element of the offense and the aggravating factor. Rejecting this argument the court noted that evidence established that after the rape the victim suffered mental and emotional consequences that extended for a time well beyond the attack itself. The court further explained, in part: “These after-effects of the crime were the evidence that the jury considered in finding that the victim suffered a serious personal injury, an element of first-degree rape. None of the evidence regarding the lingering negative impact of the rape on the victim’s emotional well-being was specifically related to her age.” (citation omitted).

Because there was an insufficient factual basis to support an Alford plea that included an admission to aggravating factors, the court vacated the plea and remanded for proceedings on the original charge. The defendant was charged with the first-degree murder of his wife. He entered an Alford plea to second-degree murder, pursuant to a plea agreement that required him to concede the existence of two aggravating factors. The trial court accepted the plea agreement, found the existence of those aggravating factors, and sentenced the defendant for second-degree murder in the aggravated range. The court found that there was not a sufficient factual basis to support the aggravating factor that the offense was especially heinous, cruel, and atrocious. The record did not show excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects. The court rejected the State’s argument that the aggravating factor was supported by the fact that the victim was killed within the “sanctuary” of her home. On this issue, the court distinguished prior case law on grounds that in those cases the defendant was not lawfully in the victim’s home; here the crime occurred in a home that the defendant lawfully shared with the victim. The court also rejected the State’s argument that the mere fact that the victim did not die instantaneously supported the aggravating factor. The court also found an insufficient factual basis to support the aggravating factor that the defendant took advantage of a position of trust or confidence, reasoning that “[t]he relationship of husband and wife does not per se support a finding of trust or confidence where [t]here was no evidence showing that defendant exploited his wife's trust in order to kill her.” (quotation omitted). Here, there was no evidence that the defendant so exploited his wife’s trust.

Trial court erred by finding a statutory aggravating factor where the evidence used to support the G.S. 15A-1340.16(d)(8) aggravating factor (knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person) was the same evidence used to support an element of the involuntary manslaughter charge. That charge stemmed from a vehicle accident. The court reasoned: “[D]efendant was not impaired when the accident occurred, and defendant’s speed is the only evidence that would support the aggravating factor that he used a device in a manner normally hazardous to the lives of more than one person. Because the evidence of defendant’s speed was required to prove the charge of involuntary manslaughter and the finding of the aggravating factor, the trial court erred in sentencing defendant in the aggravated range[.]”

The trial court did not abuse its discretion by finding that one aggravating factor outweighed six mitigating factors.

In a case in which the defendant was charged with killing his infant son, the trial court erred by failing to instruct the jury, as provided in G.S. 15A-1340.16(d), that evidence necessary to prove an element of the offense may not be used to prove a factor in aggravation. After the jury found the defendant guilty of second-degree murder, the trial court submitted two aggravating factors to the jury: that the victim was young and physically infirm and that the defendant took advantage of a position of trust. The jury found both factors and the defendant was sentenced in the aggravated range. With respect to the first factor, the court noted that the State's theory relied almost exclusively on the fact that because of the vulnerability of the young victim, shaking him was a reckless act indicating a total disregard of human life (the showing necessary for malice). Because this theory of malice is virtually identical to the rationale underlying submission of the aggravating factor, there is a reasonable possibility that the jury relied on the victim’s age in finding both malice and the aggravating factor. The court came to a different conclusion as to the other aggravating factor. One judge dissented on a different issue.

There was sufficient evidence supporting the trial judge’s submission of the G.S. 15A-1340.16(d)(6) aggravating factor (offense against a law enforcement officer, etc. while engaged in the performance of or because of the exercise of official duties.) to the jury. Subsection (d)(6)'s "engaged in" prong does not require the State to prove that the defendant knew or reasonably should have known that the victim was a member of the protected class engaged in the exercise of his or her official duties; rather, submission simply requires evidence sufficient to establish the "objective fact" that the victim was a member of the protected class — here, a law enforcement officer — engaged in the performance of his or her official duties. On the facts presented, the evidence was sufficient.

The defendant was improperly sentenced in the aggravated range when the State did not provide proper notice of its intent to present evidence of aggravating factors as required by G.S. 15A-1340.16(a6). The court rejected the State’s argument that a letter regarding plea negotiations sent by the State to the defendant provided timely and sufficient notice of its intent to prove aggravating factors.

The trial court did not violate G.S. 15A-1340.16(d) (evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation) by submitting, in connection with assault with a deadly weapon charges, the aggravating factor that the defendant “knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person.” The court reasoned that for the assault charges the State was not required to prove that the defendant used a weapon or device which would normally be hazardous to the lives of more than one person.

Rejecting the defendant’s argument that the trial court erred by not holding a separate sentencing proceeding for aggravating factors.

In this Davidson County case, defendant appealed his convictions for indecent liberties with a child and statutory sexual offense with a child, arguing he was improperly sentenced. The Court of Appeals found no error.

In November of 2021, defendant was indicted for sexual offenses with his step-grandchildren. At the conclusion of his trial, defendant was sentenced in accordance with G.S. 15A-1340.17(d). Relevant for defendant’s appeal, in 2011 the General Assembly passed S.L. 2011-192, the “Justice Reinvestment Act,” that amended G.S. 15A-1340.17 to provide a stiffer penalty for offenses committed after December 1, 2011.

On appeal, defendant argued that the evidence was unclear as to the dates when he committed the offenses, and that he should have been sentenced with the version of G.S. 15A-1340.17 applicable for offenses prior to December 1, 2011. The Court of Appeals disagreed, pointing to testimony from one of the victims about how old she was when the abuse occurred. The court explained that “[e]ven drawing inferences from this testimony that are mathematically favorable to Defendant, this evidence tends to show the conduct continued until at least 2014[,]” after the December 1, 2011, effective date. Slip Op. at 6.

The Court overruled Harris v. United States, 536 U.S. 545 (2002), and held that any fact that increases a mandatory minimum sentence must be submitted to the jury. The defendant was charged with several federal offenses, including using or carrying a firearm in relation to a crime of violence under § 924(c)(1)(A). The statute provided in part that anyone who “uses or carries a firearm” in relation to a “crime of violence” shall be sentenced to a term of imprisonment of not less than 5 years and that if the firearm is “brandished,” the term of imprisonment is not less than 7 years. The jury convicted the defendant of the offense and indicated on the verdict form that he had “[u]sed or carried a firearm during and in relation to a crime of violence”; it did not indicate a finding that the firearm was brandished. The trial court applied the “brandishing” mandatory minimum and sentenced the defendant to seven years’ imprisonment. The Court of Appeals affirmed, noting that the defendant’s objection to the sentenced was foreclosed by Harris, which had held that judicial fact-finding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment. The Court reversed.

Apprendi, and later rulings do not provide a Sixth Amendment right to jury trial under an Oregon law that requires findings of fact to support a judge’s decision to impose consecutive sentences. The Court made clear that states such as North Carolina, which do not require a judge to make findings of fact to impose consecutive sentences, are not required to provide a defendant with a jury trial on the consecutive sentences issue.

In a case involving convictions for attempted first-degree murder, statutory sex offense with a child by an adult, assault with a deadly weapon inflicting serious injury, first-degree kidnapping, and taking indecent liberties with a child, the trial court did not err by denying the defendant’s MAR challenging his aggravated sentence. The defendant’s MAR asserted that the State failed to allege the aggravating factors in the indictment and to narrowly define the aggravating factors in violation of Apprendi. The court began by rejecting the defendant’s argument that aggravating factors must be alleged in the indictment. Here, the State complied with G.S. 15A-1340.16, filing a written notice of aggravating factors months before trial that informed the defendant that the State sought to prove two identified statutory aggravating factors. After the jury convicted the defendant of the underlying offenses, the court allowed the State to proceed on the aggravating factors, and the jury found that each offense was especially heinous, atrocious, or cruel and that the victim was very young. The State complied with the statute and the procedure prescribed by the statute satisfies Apprendi.

            The court went on to reject the defendant’s argument that the jury instruction for the heinous, atrocious, or cruel aggravating factor was unconstitutionally vague, citing controlling precedent.

In this sexual offense with a child by adult offender case, the State conceded, and the court held, that the trial court violated the defendant’s sixth amendment right to a trial by jury by sentencing him under G.S. 14-27.4A(c) to a term above that normally provided for a Class B1 felony on the trial court’s own determination, and without notice, that egregious aggravation existed. G.S. 14-27.4A(c) provides that a defendant may be sentenced to an active term above that normally provided for a Class B1 felony if the judge finds egregious aggravation. The court held that the statutory sentencing scheme at issue was unconstitutional under the Apprendi/Blakely rule. See Blakely v. Washington, 542 U.S. 296 (2004) (holding that any factor, other than a prior conviction, that increases punishment beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt). Specifically, the statute fails to require notice that “egregious aggravation” factors may be used, does not require that such aggravation be proved beyond a reasonable doubt and does not provide any mechanism for submitting such factors to a jury. The court rejected the State’s argument that under G.S. 14-27.4A, the trial court may submit egregious aggravation factors to a jury in a special verdict, concluding, in part, that the statute explicitly gives only “the court,” and not the jury, the ability to determine whether the nature of the offense and the harm inflicted require a sentence in excess of what is otherwise permitted by law. Because the defendant did not challenge that portion of the statute setting a 300-month mandatory minimum sentence, the court did not address the constitutionality of that provision. The court remanded for resentencing.

Where the defendant admitted that he was serving a prison sentence when the crime was committed, no Blakely violation occurred when the trial judge assigned a prior record level point on this basis without submitting the issue to the jury.

The trial court exceeded its statutory authority by mandating that any later sentence imposed on the defendant must run consecutive to the sentence imposed in the case at hand. The court, however, declined to vacate the relevant portion of the judgment, concluding that because the defendant had not yet been ordered to serve a consecutive sentence, such an opinion would be advisory.

(1) The defendant, on trial for multiple drug charges, challenged the prosecutor’s peremptory strike of the only Black juror in the venire under Batson v. Kentucky. The trial court overruled the defendant’s objection, finding that although the “100 percent rejection rate of African American jurors” established a prima facie showing of discrimination, the State gave credible race-neutral reasons for striking the prospective juror, and the defendant therefore did not prove purposeful discrimination. The defendant appealed, arguing that the trial court erred in denying his Batson challenge or, in the alternative, failed to make adequate findings of fact as required by State v. Hobbs, 374 N.C. 345 (2020). The Court of Appeals rejected the State’s argument that the defendant had not preserved the issue because the record did not disclose direct evidence of the race of the challenged juror and the jury selection process was not recorded. The Court held that the record sufficed to permit appellate review when the record of the Batson hearing included express statements, undisputed by the State, that the defendant was African American and that the lone African American in the jury pool was excluded. On the merits of the Batson challenge, the Court concluded that the trial court failed to make sufficient findings of fact on its comparative analysis of the answers regarding prior criminal history given by the stricken Black juror (who had a previous child abuse charge dismissed) and a White juror passed by the State (who had a prior drug charge dismissed). The trial court also failed to make findings of fact on the defendant’s argument that the State’s purported concern about the defendant’s “tone of voice” suggested racial bias. The Court remanded the matter to the trial court for specific findings, including, but not limited to the details of the court’s comparative juror analysis and on the defendant’s assertion that the prosecutor’s statements regarding the defendant’s answers to questions and tone of voice evinced racial bias. (2) The trial court erred by assessing costs in each of the four judgments against the defendant. Under State v. Rieger, ___ N.C. App. ___, 833 S.E.2d 699 (2019), the trial court should assess costs only once for cases adjudicated together in the same hearing or trial regarding multiple charges arising from the same underlying event or transaction.

The trial court erred by ordering costs for fingerprint examination as lab fees. G.S. 7A-304(a)(8) does not allow recovery of lab costs for fingerprint analysis.

The trial court did not err by failing to grant the defendant credit for 18 months spent in federal custody prior to trial. After the defendant was charged in state court, the State dismissed the charges to allow for a federal prosecution based on the same conduct. After the defendant’s federal conviction was vacated, the State reinstated the state charges. The defendant was not entitled to credit for time served in federal custody under G.S. 15-196.1 because his confinement was in a federal institution and was a result of the federal charge.

The trial court did not err by sentencing the defendant as a Level Two offender after finding the existence of a grossly aggravating factor based on upon his prior DWI conviction. The defendant was convicted in superior court of DWI on 15 September 2016. He appealed that conviction on 26 September 2016, which remained pending at the time of the instant 31 August 2017 sentencing hearing. The defendant argued that his prior DWI conviction could not be used to enhance his sentence because the prior conviction was pending on appeal and thus not final. The court disagreed, finding no statutory language limiting convictions that can be used as grossly aggravating factors to only those not challenged on appeal. The court noted however that if the earlier DWI conviction is later overturned, the defendant would be entitled to be resentenced.

(1) In this DWI case, the court rejected the defendant’s invitation to decide whether G.S. 20-179(d)(1) (aggravating factor to be considered in sentencing of gross impairment or alcohol concentration of 0.15 or more) creates an unconstitutional mandatory presumption. Defendant challenged that portion of the statute that provides: “For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person's alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.” In this case, instead of instructing the jury in accordance with the challenged language, the trial court refrained from incorporating any reference to the allegedly impermissible mandatory presumption and instructed the prosecutor to refrain from making any reference to the challenged language in the presence of the jury. Because the jury’s decision to find the G.S. 20-179(d)(1) aggravating factor was not affected by the challenged statutory provision, the defendant lacked standing to challenge the constitutionality of the statutory provision. (2) The court rejected the defendant’s argument that a double jeopardy violation occurred when the State used a breath test result to establish the factual basis for the defendant’s plea and to support the aggravating factor used to enhance punishment. The court reasoned that the defendant was not subjected to multiple punishments for the same offense, stating: “instead of being punished twice, he has been subjected to a more severe punishment for an underlying substantive offense based upon the fact that his blood alcohol level was higher than that needed to support his conviction for that offense.”

The court vacated the defendant’s sentence on an impaired driving conviction and remanded for a new sentencing hearing where the State failed to provide the defendant with notice of its intent to use an aggravating factor under G.S. 20-179(d).

(1) The trial court did not put the burden on the State to disprove extraordinary mitigating factors. After the defendant presented evidence of mitigating factors, the trial court asked the State to respond to the defendant’s evidence by explaining why it believed these factors were not sufficient reasons for finding extraordinary mitigation. The trial court did not presume extraordinary mitigating factors and then ask the State to present evidence to explain why they did not exist. (2) The trial court erred by finding extraordinary mitigation. The trial court found ten statutory mitigating factors and four extraordinary factors. Two extraordinary factors were the same as corresponding normal statutory mitigating factors and thus were insufficient to support a finding of extraordinary mitigation. The third factor was not a proper factor in support of mitigation; the fourth was not supported by the evidence.

The Court held that the Eighth Amendment’s Excessive Fines Clause is an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause. Tyson Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft. The trial court sentenced him to one year of home detention and five years of probation, which included a court-supervised addiction-treatment program. The sentence also required Timbs to pay fees and costs totaling $1,203. At the time of Timbs’s arrest, the police seized his vehicle, a Land Rover SUV Timbs had purchased for about $42,000. Timbs paid for the vehicle with money he received from an insurance policy when his father died. The State engaged a law firm to bring a civil suit for forfeiture of the Land Rover, charging that the vehicle had been used to transport heroin. After Timbs’s guilty plea in the criminal case, the trial court held a hearing on the forfeiture. Although finding that Timbs’s vehicle had been used to facilitate violation of a criminal statute, the court denied the requested forfeiture, observing that Timbs had recently purchased the vehicle for $42,000, more than four times the maximum $10,000 monetary fine assessable against him for his drug conviction. Forfeiture of the Land Rover, the court determined, would be grossly disproportionate to the gravity of Timbs’s offense, hence unconstitutional under the Eighth Amendment’s Excessive Fines Clause. The Indiana Court of Appeals affirmed that determination, but the Indiana Supreme Court reversed. The state Supreme Court did not decide whether the forfeiture would be excessive. Instead, it held that the Excessive Fines Clause constrains only federal action and is inapplicable to state impositions. The US Supreme Court granted certiorari. The question presented was: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause? The Court answered in the affirmative, stating:

Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminal law-enforcement authority. This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.” McDonald v. Chicago, 561 U. S. 742, 767 (2010) (internal quotation marks omitted; emphasis deleted). The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment.

The Court went on to reject the State of Indiana’s argument that the Excessive Fines Clause does not apply to its use of civil in rem forfeitures.

The Court held that the 8^th Amendment prohibits a sentencing scheme that requires life in prison without the possibility of parole for juvenile homicide offenders.

In this Columbus County case, the juvenile defendant pled guilty to the first-degree murder and first-degree rape of his aunt, offenses he committed and was arrested for when he was 15 years old.­­ The trial court conducted a sentencing hearing under the statutory procedures enacted to conform to the United States Supreme Court’s determination in Miller v. Alabama, 567 U.S. 460 (2012), that the Eighth Amendment bars the automatic, mandatory imposition of a sentence of life without the possibility of parole for a juvenile defendant. Based on its finding of numerous mitigating factors, the trial court imposed a sentence of life imprisonment with the possibility of parole after 25 years for first-degree murder. The trial court further sentenced the defendant to 240-348 months of imprisonment for the first degree rape, and ordered that the two sentences run consecutively. As a result, the defendant was to become eligible for parole after being incarcerated for 45 years, at which point he would be 60 years old.

The defendant appealed, raising, in addition to other arguments, the claim that the consecutive sentences were the functional equivalent of a sentence of life without parole and thus were unconstitutional when imposed on a juvenile who was not determined to be incorrigible or irredeemable. A divided panel of the Court of Appeals rejected this argument. The defendant appealed to the North Carolina Supreme Court.

On this issue of first impression, the Supreme Court reasoned that at some point multiple terms of active consecutive sentences imposed upon a juvenile offender, even if they expressly provide for parole, become tantamount to a life sentence without parole. This occurs when the offender has been incarcerated for such a protracted period of time that the possibility of parole is no longer “plausible, practical, or available.” Slip op. at 47. A juvenile offender entitled to parole based on the trial court’s determination that he is neither incorrigible nor irredeemable must be afforded an opportunity for parole that is “realistic, meaningful, and achievable.” Id. A sentence that fails to afford that opportunity violates the Eighth Amendment’s prohibition against cruel and unusual punishments as well as the more protective provisions in Article I, Section 27 of the North Carolina Constitution barring cruel or unusual punishments.

In determining the maximum amount of time that a redeemable juvenile offender may serve before becoming parole eligible, the Court found it necessary to balance guidance from the United States Supreme Court that parole eligibility should be sufficiently far in the future to provide a juvenile offender time to mature and rehabilitate but sufficiently early to allow the offer to experience worthwhile undertakings outside of prison in the event parole is granted. The Court said it also had to give due weight to the trial court’s discretion to determine whether multiple sentences will run concurrently or consecutively pursuant to G.S. 15A-1354. Drawing from the United States Sentencing Commission’s guidance regarding determination of a de facto life sentence, the Court established forty years of incarceration as the point in time at which a juvenile offender who has not been deemed incorrigible or irredeemable by a trial court, and who is serving a sentence of life imprisonment with the possibility of parole, is eligible to seek parole. The Court thus reversed the decision of the Court of Appeals on this issue and remanded the case to the Court of Appeals for further remand to the trial court.

Justice Berger, joined by Chief Justice Newby and Justice Barringer, dissented, reasoning that the defendant’s sentence did not violate the Eighth Amendment or corollary provisions of the North Carolina Constitution because the State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. The dissent criticized the majority for transforming the opportunity to obtain release required by the Constitution to an opportunity to seek parole early enough to experience meaningful life outside of prison based on policy preferences.

The court per curiam affirmed the decision of the Court of Appeals, which had held that his sentence of life in prison with the possibility of parole for his conviction of felony murder when he was 16 years old was not grossly disproportionate to his crime under the both the Eighth Amendment and the state constitution.  The Court of Appeals also had rejected the defendant’s argument that because G.S. 15A-1340.19B (the post-Miller first-degree murder sentencing scheme for juveniles) did not exist at the time he committed his crime, his sentence under that statute violated the prohibition against ex post facto laws.

The Supreme Court further concluded that the defendant’s Eighth Amendment arguments asserting that he has no meaningful opportunity for parole were not ripe for determination because the time at which he is eligible to apply for parole has not yet arrived.  The court “recognize[d] that the potential for parole constitutionally cannot be illusory for offenders sentenced to life with the possibility of parole and noted that the defendant was not precluded from raising such claims at a later date, in the event they become ripe for resolution.  A summary of the Court of Appeals opinion is available in the compendium here.

The State conceded and the court agreed that pursuant to Montgomery v. Louisiana, 136 S. Ct. 718 (2016), Miller v. Alabama, 132 S. Ct. 2455 (2012) (holding that imposition of a mandatory sentence of life in prison without the possibility of parole upon a juvenile violates the Eighth Amendment), applies retroactively to cases that became final before Miller was decided.

In a per curiam opinion, and for the reasons stated in Young (summarized immediately above), the court affirmed the trial court and remanded for resentencing.

In this Watauga County case, defendant appealed his convictions for first-degree murder for killing his parents one month before he turned eighteen years old, arguing error in sentencing him to two consecutive life sentences without parole. The Court of Appeals majority found no error.

On one day in April of 2019, defendant attacked and killed both of his parents in separate attacks, using a large knife to stab both of them to death. He then spent several hours cleaning the crime scene and attempting to conceal his crimes. Then defendant picked up his younger brother from his grandmother’s house, dropped him off in the home, and stayed with a friend that night. The next day defendant attempted to flee but was caught after crossing into Tennessee. Defendant was found guilty of both counts of first-degree murder by a jury, and the judge sentenced him to consecutive life sentences without parole. 

The Court of Appeals explained that defendant’s argument rested upon G.S. 15A-1340.19B, the statute providing appropriate procedure for sentencing a juvenile to life without the possibility of parole, and that his sentencing violated the Eighth Amendment of the federal constitution and Article 1, Section 27 of the state constitution. The court first looked at the Eighth Amendment issue and applicable U.S. Supreme Court precedent, concluding “[t]he procedure employed by the sentencing judge met the requirements of the Eighth Amendment as articulated by the United States Supreme Court in [Jones v. Mississippi, 141 S. Ct. 1307 (2021)] and was at least as robust as the procedure employed by the Mississippi judge in Jones.” Slip Op. at 7. 

Moving to the North Carolina statute and constitutional concerns, the court noted that G.S. 15A-134019B provides the defendant with the opportunity to offer evidence towards eight specific, non-exclusive mitigating factors. Here the court reviewed six factors provided by defendant in his brief and concluded “the sentencing judge considered the evidence presented concerning mitigating factors, including those enumerated in the sentencing statute” and complied with G.S. 15A-1340.19B. Id. at 13. Finally, looking at the North Carolina constitution’s prohibition on cruel and unusual punishment and applicable caselaw, applying State v. Kelliher, 381 N.C. 558, (2022), for the concept that the North Carolina constitution offers broader protection of juvenile offenders than the federal constitution. Id.at 14. Despite this broader protection, defendant was not entitled to reversal, as “the trial court expressly found that ‘it did not believe that there is a likelihood of rehabilitation in confinement’ and that Defendant’s crimes ‘demonstrate a condition of irreparable corruption and permanent incorrigibility.’” Id. 

Judge Arrowood provided a lengthy dissent discussing the applicable constitutional requirements and caselaw precedent, and would have vacated and remanded for resentencing because the trial court violated G.S. 15A-1340.19B, the Eighth Amendment, and Article 1, Section 27. 

In 2004, the defendant was convicted of criminal offenses related to two convenience store robberies and a separate kidnapping and murder. All three incidents occurred in 2002, when the defendant was 16 years old. The defendant pleaded guilty to two counts of armed robbery, and was subsequently convicted at trial of first-degree murder under the felony murder rule, first degree kidnapping, and attempted robbery for the third incident. Sentencing for all the offenses occurred at a single hearing and the defendant was sentenced to a total of five consecutive active terms, including a term of life without parole for the murder. The defendant appealed his convictions, asserting errors related to the use of aggravating factors and double jeopardy. The appellate courts’ resolution of those claims in State v. Oglesby, 174 N.C. App. 658, (2005), aff’d in part, vacated in part, 361 N.C. 550 (2007) and State v. Oglesby, 186 N.C. App. 681 (2007) (unpublished), disc. review denied, 362 N.C. 478 (2008), ultimately resulted in a remand to the trial court to arrest judgment on the attempted robbery conviction, but otherwise left the sentences undisturbed. 

Following the U.S. Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012), the defendant filed an MAR challenging his sentence of life without parole. The state initially requested a stay, arguing that it had not yet been decided whether Miller applied retroactively. Once that issue was resolved by Montgomery v. Louisiana, 577 U.S. 190 (2016), the state agreed that the defendant was entitled to a resentencing hearing. The trial court granted the defendant’s MAR and ordered a new sentencing hearing for the purpose of resentencing the defendant on the murder and arresting judgment on either the kidnapping or attempted robbery conviction in accordance with the prior appellate decisions.

Since the defendant’s first-degree murder conviction was based on felony murder, there was no dispute that the defendant should be resentenced to life with the possibility of parole for that offense, pursuant to G.S. 15A-1340.19B(a). The contested issue at the hearing was whether that life sentence should also be ordered to run concurrently with the kidnapping sentence. After hearing arguments from the state and defense, the trial court ordered that the sentences remain consecutive. The defendant’s consecutive sentences for the two armed robbery convictions were not altered by the order.

The defendant appealed, arguing that the trial court erred by ordering consecutive sentences on the murder and kidnapping convictions, and also by failing to consider the two robbery convictions at the resentencing. The appellate court rejected both arguments. After reviewing the Miller decision and the responsive statutory changes, the court explained that the sentencing judge retains the discretion to order either consecutive or concurrent sentences pursuant G.S. 15A-1354, and the record in this case demonstrated that the judge “duly exercised that discretion by considering all facts presented at the resentencing hearing in reaching its decision.” Additionally, the appellate court held that the defendant failed to preserve the issue of whether the armed robbery sentences should have been included in the resentencing, based on defense counsel’s statements at the resentencing hearing conceding that they were not, as well as the defendant’s failure to include that issue in the notice of appeal. However, even if the issue had been preserved, the court held that the robbery sentences were properly excluded from the resentencing because they arose from a separate transaction. When a juvenile offender is awarded a resentencing under Miller, “the juvenile is only entitled to be resentenced on his murder conviction (i.e., the conviction for which he received mandatory LWOP), and is not entitled to be resentenced for unrelated convictions which arose out of a different transaction.”

The defendant next argued that he received ineffective assistance of counsel, based on his attorney’s acknowledgement at the hearing that the two armed robbery convictions were unrelated and not before the court for resentencing. The appellate court held that the defendant’s claim failed under both prongs of Strickland v. Washington, 466 U.S. 668 (1984). First, defense counsel’s performance was not deficient because the argument that he purportedly should have raised (that the robbery convictions could also be included in the resentencing) “was, at best, resting on unsettled law, and at worst, meritless” as demonstrated by the appellate court’s rejection of the argument above. Second, the defendant likewise failed to demonstrate that he was prejudiced by this alleged failure. Given that the trial court declined to consolidate the two sentences that were before it, there was only a “highly remote possibility” that the court would have consolidated the other sentences, even if that option had been presented.

Finally, the defendant argued that his multiple consecutive sentences constituted a de facto sentence of life without parole in violation of the Eighth Amendment. Noting that there have been conflicting decisions on that issue at the Court of Appeals, and that the North Carolina Supreme Court recently issued a stay in State v. Kelliher, 854 S.E.2d 586 (N.C. 2021) pending discretionary review, the appellate court declined to rule on that argument at this time; instead, the court dismissed the claim without prejudice, allowing it to be raised on a subsequent MAR after Kelliher is decided, if warranted.

Judge Arrowood concurred with the majority in part, but dissented as to ineffective assistance of counsel and would have held that the trial court did have the authority to resentence on the robberies because the sentences were all imposed at the same time, and therefore trial counsel was deficient in failing to advance that argument at the hearing and there was a reasonable probability that the defendant suffered prejudice as a result.

The defendant was sentenced to two consecutive sentences of life without parole for two murders he committed when he was 17 years old. The defendant filed an MAR requesting resentencing on the grounds that sentencing a juvenile to life without the possibility of parole was unconstitutional, pursuant to Miller v. Alabama, 567 U.S. 460 (2012) and G.S. 15A-1340.19A, et seq. The MAR was granted and the defendant was resentenced to two consecutive life sentences with parole.

On appeal, the defendant argued that his new sentence was unconstitutional since it amounted to a de facto sentence of life without parole. The majority opinion acknowledged that an identical sentence was held unconstitutional in State v. Kelliher, __ N.C. App. __, 849 S.E.2d 333 (2020), temp. stay allowed, __ N.C. __, 848 S.E.2d 493 (2020), but found that it was not binding precedent because the state Supreme Court stayed the decision and granted discretionary review. Turning to the case at hand, the appellate court held that “the sentences imposed by the trial court, though significant, are not unconstitutional.” Assuming that a de facto life sentence without parole would be unconstitutional, that argument did not apply to this defendant since he will be eligible for parole in 50 years. However, the appellate court did find that the trial court erred at the resentencing hearing by failing to consider whether concurrent sentences might be appropriate, due to a mistaken belief that concurrent sentences were not permissible under the statutes. The two sentences of life with parole were therefore affirmed, but the portion of the judgment ordering that the terms be consecutive was vacated and remanded for a new hearing to determine whether the sentences should be consecutive or concurrent.

Chief Judge McGee concurred in part and dissented in part. Judge McGee agreed that the statutes themselves do not prohibit consecutive sentences and also agreed that the defendant must be resentenced, but would have held that two consecutive sentences of life with parole do constitute a de facto sentence of life without parole, and are therefore unconstitutional as held in Kelliher.

The defendant, 17 years old at the time of his crime, was charged with first-degree murder based on his role in a murder committed by one of his acquaintances during a robbery. Trial testimony indicated that the defendant orchestrated the killing. He was convicted by a jury of first-degree murder. At sentencing, the trial judge reviewed mitigating circumstances as required by G.S. 15A-1340.19B(c) to decide whether to impose a sentence of life without parole or life with the possibility of parole after 25 years. Among other findings, the trial court found no evidence of particular immaturity, no evidence of mental illness, and “no evidence . . . that the defendant would benefit from rehabilitation and confinement other than that of other . . . persons who may be incarcerated for . . . first degree murder.” The trial court concluded that any mitigating factors were “outweighed by other evidence in this case of the offense and the manner in which it was committed” and sentenced the defendant to life without parole. The court of appeals vacated the sentence, concluding that the trial court applied an incorrect legal standard by focusing on the nature of the offense and not whether the defendant was, within the meaning of Miller v. Alabama, 567 U.S. 460 (2012), “the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified.” The trial court also erred by comparing the young defendant to the broader class of all persons who may be incarcerated for first-degree murder, including adults. The court of appeals remanded the case to the trial court for resentencing consistent with its opinion, emphasizing that the mitigation evidence put on by the defendant (including his youth, his violent home environment, his potential for rehabilitation) “seemingly implicated every factor Miller identified as counseling against sentencing a juvenile to life without the possibility of parole.” Slip op. at 24 (emphasis in original). A dissenting judge would have affirmed the sentence of life without parole.

In this child sexual assault case, the court rejected the defendant’s argument that the trial court’s consecutive sentences, totaling a minimum of 138 years, violated his constitutional right to be free from cruel and unusual punishment under the Eighth Amendment. The court began by finding that because the defendant failed to object to the sentencing on constitutional grounds in the trial court, he failed to preserve the issue for appellate review. The court went on however to reject the defendant’s argument on the merits. It noted that a punishment may be cruel or unusual if it is not proportionate to the crime for which the defendant has been convicted. Here, the trial court exercised its discretion and consolidated the 70 verdicts into six identical judgments, each of which were sentenced in the presumptive range, and the trial court ordered that these 276-month sentences be served consecutively.

The defendant’s sentence of life imprisonment with the possibility of parole after a term of 25 years does not violate the Eighth Amendment under Miller v. Alabama, 132 S. Ct. 2455 (2012). As a 15-year-old, the defendant was charged with first-degree murder. He was found guilty under the felony murder rule and under then-applicable law, was sentenced to a mandatory term of life without the possibility of parole. While the defendant’s appeal was pending, the United States Supreme Court decided Miller, holding that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment. The General Assembly then amended the statute to provide that the sentence for a defendant found guilty of first-degree murder solely under the felony murder rule shall be life in prison with the possibility of parole; a defendant sentenced under this provision must serve a minimum of 25 years before becoming eligible for parole. The defendant’s sentence was vacated on appeal and remanded to the trial court for resentencing pursuant to the new statute. The trial court held a resentencing hearing and imposed a life sentence with the possibility of parole after 25 years. The court declined the defendant’s invitation to extend Miller to sentences that include the possibility of parole. It added, however:

Nevertheless, we note there may indeed be a case in which a mandatory sentence of life with parole for a juvenile is disproportionate in light of a particular defendant’s age and immaturity. That case is not now before us. Defendant chooses only to assert that [the statute] fails to provide a trial judge with discretion to consider the mitigating factors of youth and immaturity. He does not show the existence of circumstances indicating the sentence is particularly cruel or unusual as-applied to him.

The court affirmed the sentence, noting that the defendant had failed to meet the burden of the facial constitutional challenge and did not bring an as-applied challenge.