Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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In this Cabarrus County case, the defendant was convicted of first-degree kidnapping and second-degree rape. After developing a friendship with the victim, he drugged her without her knowledge, took her to a friend’s house and raped her. The defendant appealed, raising numerous challenges.
(1) The defendant argued there was insufficient evidence to support his convictions and that his motion to dismiss should have been granted. He did not raise an argument about the rape conviction on appeal. Any argument as to the sufficiency of evidence for that offense was therefore deemed abandoned and waived. As to the kidnapping conviction, the defendant argued he could not be sentenced for both kidnapping and the rape as a matter of double jeopardy, since the rape was used to elevate the kidnapping to first degree. “The proper remedy in the event of conviction of first-degree kidnapping and the sexual assault that constitutes an element of first-degree kidnapping is to arrest judgement on the first-degree kidnapping and resentence the defendant for second-degree kidnapping.” Slip op. at 10-11 (citation omitted). While the defendant correctly noted this rule, the court found it inapplicable to the defendant’s case. The State’s evidence showed at least two distinct sexual assaults. In addition to the rape, the defendant also committed a separate sexual battery, and that offense was used to elevate the kidnapping offense to first-degree (and not the rape). Following the sexual battery in one room, the defendant moved the victim to another room to commit the rape. This showed separate and distinct offenses. The trial court also correctly instructed the jury on these principles and its instructions required the jury to find a separate and distinct sexual battery in support of the first-degree kidnapping. Because the defendant was not convicted of the underlying sexual battery used to support the first-degree kidnapping, double jeopardy did not preclude separate punishments for the distinct rape and kidnapping.
(2) The was also sufficient evidence to support the aggravating factor that the defendant took advantage of a position of trust to accomplish the crimes. The Court of Appeals noted it “has upheld a finding of the ‘trust or confidence’ factor in very limited factual circumstances.” Id. at 18 (citation omitted). Here, the State presented sufficient evidence of the factor in aggravation. The defendant was a family friend and was close with the victim. Evidence showed the defendant gave the victim’s family Christmas gifts, checked on family members, frequently spent time with the victim and advised her on various matters, among other connections. This was sufficient to demonstrate a position of trust over the victim which the defendant exploited in order to commit the crimes.
(3) The two sisters of the victim testified to prior instances of sexual assault by the defendant towards each of them. The trial court admitted this evidence pursuant to Rule 404(b) of the Rules of Evidence as proof of a common plan or scheme by the defendant. The defendant raped one of the sisters in a nearly identical manner as the victim and committed sexual battery upon the other sister “in a manner indicating an intent to go further.” Id. at 21. Like with the victim, the defendant developed a position of trust with each of the sisters before committing sexual assaults on them. The trial court therefore correctly determined the prior bad acts were substantially similar to the circumstances of the current offense. The assaults occurred 10 and 8 years before the events of the current case. The court agreed with the trial judge that this evidence was not too remote in time to satisfy the requirements of Rule 404(b):
Our Supreme Court has held that ‘[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan’ rendering the prior bad acts ‘not too remote to be considered as evidence of defendant’s common scheme to abuse the victim sexually.’ Id. at 22 (citation omitted) (emphasis in original).
The evidence showed the defendant’s acts were continuous over the course of time and therefore not too remote in time to be admitted under Rule 404(b). The trial court also conducted the necessary balancing under Rule 403 of the Rules of Evidence to determine the testimony was not more prejudicial than probative and instructed the jury about the limited purpose of the evidence. The admission of this evidence was therefore not error or an abuse of discretion.
(4) The defendant argued that the admission of toxicology results by way of a substitute analyst violated his Sixth Amendment rights to confrontation. The court disagreed, noting the rule on substitute analyst testimony:
[A]n expert witness may testify as to the testing or analysis conducted by another expert if: (i) that information is reasonably relied on by experts in the field in forming their opinions; and (ii) the testifying expert witness independently reviewed the information and reached his or her own conclusion in this case. Id. at 26 (citation omitted).
The evidence showed that the substitute analyst reviewed the results of the testing done by the non-testifying analysts and formed his own opinion about the results. “Thus, [the analyst’s] opinion was based on his own analysis and not merely surrogate testimony for an otherwise inadmissible lab report . . .” Id. at 31. Under these circumstances, the defendant was not entitled to cross-examine the analysts who actually performed the testing. According to the court, "when an expert gives an opinion, the opinion is the substantive evidence, and the expert is the witness whom the defendant has the right to confront.” Id. Because the expert opinion was properly admitted and the defendant was able to cross-examine that expert, there was no violation of the defendant’s confrontation rights.
(5a) The indictment for second-degree rape identified the victim only by reference to her initials, and the defendant argued this constituted a fatal indictment defect for failure to identify the victim. He pointed to a recent case holding that “Victim #1” was insufficient to identify the victim. State v. McKoy, 196 N.C. App. 650, 654 (2009), foreclosed this argument. Citing from that case, the court observed:
[W]here the statutes defining second-degree rape and second-degree sexual offense require the offenses to be against ‘another person,’ the indictments charging these offenses do not need to state the victim’s full name, nor do they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. Id.
Unlike the situation where the indictment names only a “victim,” the use of initials sufficed to identify the victim and did not constitute a fatal defect. [Jeff Welty blogged about the use of initials in charging documents here.]
(5b) The first-degree kidnapping indictment was also not defective. The defendant claimed a fatal flaw based on the indictment’s failure to identify the specific crime constituting the sexual assault for purposes of first-degree kidnapping. There is no requirement that an indictment for first-degree kidnapping identify the felony used to enhance the offense to first-degree. The indictment was otherwise sufficient to put the defendant on notice and was valid in all respects.
(6) The trial court’s instructions to the jury on the existence of the aggravating factor violated G.S. § 15A-1340.16(d). That statute provides in pertinent part that evidence used at trial to support the existence of an element of the offense may not thereafter be used to prove a factor in aggravation. The jury instructions permitted the jury to consider “all of the evidence,” rather than limiting its consideration to evidence not used to support the intent requirements for the two crimes. The defendant did not object to the instructions at the time and alleged plain error on appeal. Plain error requires that the defendant demonstrate “a reasonable possibility that, had the instruction been given, the jury would have failed to find the existence of the aggravating factor.” Id. at 36. The court noted that occupying a position of trust is not an element of either of the crimes at issue and rejected the contention that the same evidence was used to prove both the intent to commit the crimes and the aggravating factor. The defendant could not demonstrate the possibility of a different result absent the instructions on the aggravating factor, and accordingly could not demonstrate prejudice for plain error.
(7) The defendant’s argument that his objections to an order requiring him to enroll in satellite-based monitoring (“SBM”) were improperly overruled were abandoned on appeal, because the defendant failed to raise any argument for this issue.
A majority of the court determined there were no reversible error in the trial and the convictions were affirmed.
Judge Murphy dissented in part. He wrote separately to note his disagreement with the majority’s analysis of the Confrontation Clause issue. Judge Murphy would have granted a new trial based on the Sixth Amendment violation and would have held the plain error jury instruction issue in (5) above, as well as the SBM issue in (6), were therefore moot. He otherwise concurred in the majority’s judgment.
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.
Reversing the court of appeals, the court held the evidence necessary to prove a defendant guilty under the theory of acting in concert is not the same as that necessary to establish the aggravating factor that the defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy. Because the aggravating factor requires additional evidence beyond that necessary to prove acting in concert, the trial court properly submitted the aggravating factor to the jury. Specifically, the aggravating factor requires evidence that the defendant joined with at least two other individuals to commit the offense while acting in concert only requires proof that the defendant joined with at least one other person. Additionally, the aggravating factor requires proof that the defendant was not charged with committing a conspiracy, which need not be proved for acting in concert.
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.
The court affirmed a ruling of the North Carolina Court of Appeals finding no error in the defendant’s trial and sentence. However, it rejected the implication in the court of appeals’ opinion that a jury’s determination that a defendant is not insane resolves the presence or absence of the statutory aggravating factor, G.S. 15A-1340.16(d)(8) (knowingly creating great risk of death to more than one person by weapon normally hazardous to lives of more than one person). Nor does a jury’s finding that a defendant is not insane automatically render any Blakely error concerning this aggravating factor harmless beyond a reasonable doubt. However, the court examined the evidence and determined that the trial judge’s finding of the aggravating factor was harmless beyond a reasonable doubt.
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.
In this Haywood County case, defendant appealed his convictions for multiple felony and misdemeanor child abuse offenses, arguing a range of issues related to sentencing and errors by the trial court, as well as possible ineffective assistance of counsel. The Court of Appeals agreed with defendant’s sentencing arguments and remanded for resentencing, but found no prejudicial or plain error. The court dismissed defendant’s ineffective assistance of counsel claim without prejudice to allow him to file a motion for appropriate relief with the trial court.
Defendant came to trial in October of 2017 for abusing the children of his wife over the course of several years. Abuse included paddling one child victim so hard she suffered permanent injuries and required medical treatment. At trial, the jury found defendant guilty of all charges against him except for rape, and also found an aggravating factor that defendant took advantage of a position of trust or confidence. The trial court sentenced defendant to higher classifications of intentional child abuse inflicting serious bodily injury (“ICAISBI”) and intentional child abuse inflicting serious physical injury (“ICAISPI”) due to the aggravating factor.
The Court of Appeals first identified defendant’s meritorious issues, explaining that under applicable law, the evidence necessary to prove an element of the offense cannot be used as an aggravating factor. Here, “both misdemeanor and felony child abuse require showing the defendant is a ‘parent . . . or . . . other person providing care to or supervision of [a] child,’” meaning the aggravating factor could not be applied to defendant. Slip Op. at 10, quoting GS §§ 14-318.2 & -318.4. The state conceded this error, and the court remanded all convictions for resentencing.
The court next considered defendant’s argument that his ICAISPI and ICAISBI convictions were ambiguous due to a change in the felony classifications on December 1, 2013. Because the abuse in question occurred between January 2009 and March 2014, and the jury did not perform a specific finding of the date of the offenses, the court found that the verdict was ambiguous. Noting that this seemed to be a matter of first impression, the court explained:
[W]e have not found, and the parties have not provided, a published case resolving whether a general verdict is rendered ambiguous by evidence showing the completed offense may have been committed on either temporal side of a statutory reclassification of the crime. . . . [W]e hold that the general verdict is ambiguous under these circumstances and a defendant, absent a determination by the jury by special verdict form as to the specific date of or date range of offense sufficient to determine which sentencing regime is applicable, must be sentenced under whichever statutory classification is lower.
Id. at 12. The court remanded for resentencing the ICAISPI and ICAISBI offenses at their lower pre-elevation levels because the court could not engage in speculation about which dates supported the jury’s decision to convict defendant.
The court did not find merit in defendant’s argument that the scarring one victim suffered from paddling could not support a finding of serious bodily injury. Instead, the court drew a distinction between cases with “superficial” or “aesthetic” injuries with the more serious, permanent injuries suffered by the victim in this matter. Likewise, the court rejected defendant’s argument that the jury verdict sheet for ICAISBI represented error, as it asked the jury to determine if defendant was guilty of “inflicting permanent scarring to the buttocks and/or legs” of the victim. Id. at 23. The court explained that the indictment and jury instructions given by the trial court adequately explained all elements of the offense.
The court also rejected defendant’s arguments regarding lesser included offenses. The court considered and rejected defendant’s argument regarding lawful corporal punishment, explaining that overwhelming evidence showed the acts were not within the bounds of lawful punishment. Finally, the court rejected defendant’s argument the trial court erred by preventing the disclosure of juvenile records.
For defendant’s ineffective assistance of counsel claim, the court explained that the record was insufficient to determine whether defense counsel made certain strategic decisions, and “[w]hen the record is silent on that question of fact—as in this case—the appropriate action is to allow an evidentiary hearing by MAR.” Id. at 35.
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 this Iredell County case, the defendant pled guilty to assault inflicting serious bodily injury for a crime in which the victim suffered a fractured skull and other injuries, leaving him partially paralyzed and suffering from dementia. At sentencing, the defendant admitted to an aggravating factor based on a prior violation of his federal probation and the trial court sentenced the defendant in the aggravated range. On appeal, the defendant argued that the court erred by accepting his admission to the aggravating factor without first confirming that the State either provided him with written notice at least 30 days before trial of its intent to prove the factor, or that the defendant waived his right to notice. Reviewing the trial transcript, the Court of Appeals concluded that the State did not provide notice and that the defendant did not clearly waive his right to notice. The trial court therefore erred. As to the remedy, because the defendant’s plea agreement was based on the possibility of a sentence in the aggravated range, and because that agreement was unfulfillable without the improperly found aggravating factor, the Court of Appeals set aside the entire plea agreement. The case was therefore remanded the case to superior court for disposition on the original charge.
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 stopped by a state trooper who saw her driving erratically. The defendant smelled of alcohol, had slurred and mumbled speech, and stumbled and staggered when she got out of her car. She registered a positive result on a portable breath test and was arrested for driving while impaired. She subsequently refused to submit to a breath test. The defendant pled guilty in district court to driving while impaired and appealed. In superior court, the defendant moved to suppress evidence and requested a bench trial. The superior court denied the motion to suppress and found the defendant guilty. At sentencing, the court found the grossly aggravating factor of a prior impaired driving conviction within seven years of the date of the offense and imposed a Level Two sentence. The defendant appealed, arguing that the trial court erred in denying her motion to suppress, the evidence was insufficient to support her conviction, and that the trial court erred in in sentencing her based on a grossly aggravating factor for which the State filed to provide the statutorily required notice.
(1) The court of appeals determined that the defendant did not properly preserve the denial of her motion to suppress for review on appeal as she did not renew her objection when the evidence was offered for consideration at her bench trial. And because the defendant did not argue plain error on appeal, the court did not review the denial of the motion for plain error.
(2) The court of appeals determined that the trial court did not err by denying defendant’s motion to dismiss for insufficient evidence. The trooper testified as to his opinion that the defendant was impaired by alcohol. He based that opinion on seeing the defendant stumbling and staggering when she got out of her car, smelling a moderate odor of alcohol on her breath, hearing her mumbled and slurred speech, and observing her erratic driving. Evidence of the defendant’s refusal to submit to a breath test at the police station also was admissible evidence of impairment. The appellate court held that, viewed in the light most favorable to the State, this evidence was sufficient to show that the defendant was under the influence of an impairing substance.
(3) The State failed to file notice of its intent to rely at sentencing upon the aggravating factor of a prior impaired driving conviction. Such notice is required by G.S. 20-179(a1)(1) for misdemeanor impaired driving charges appealed to superior court. The court explained that the right to notice of the State’s intent to rely on a prior conviction is a statutory right, not a constitutional one, and thus may be waived. The defendant admitted to the prior conviction on cross-examination, and her counsel stipulated at sentencing that she “‘did have the prior DWI.’” Slip op. at 12. Moreover, defense counsel did not object to the court’s consideration of the prior conviction as an aggravating factor. The court of appeals determined that the defendant’s admission and her counsel’s stipulation along with her failure to object to lack of notice at the sentencing hearing amounted to a waiver of her statutory right to notice.
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.
Because the defendant waived his right to have a jury determine the presence of an aggravating factor, there was no error with respect to the defendant’s sentence. The defendant was arrested for selling marijuana on 7 August 2015. He was arrested a second time for the same conduct on 15 October 2015. On 11 January 2016, the defendant was indicted for charges arising from the second arrest. On 14 April 2016, the State served the defendant with the notice of intent to prove aggravating factors for the charges arising from the second arrest. On 2 May 2016, the defendant was indicted for charges in connection with the first arrest. Over a year later, but 20 days prior to trial on all of the charges, the State added the file numbers related to the defendant’s first arrest to a copy of the previous notice of intent to prove aggravating factors. The trial began on 21 August 2017 for all of the charges. The defendant was found guilty only on charges from the first arrest. When the State informed the court that it intended to prove an aggravating factor, defense counsel stated that he received proper notice and the defendant stipulated to the aggravating factor. The trial court sentenced the defendant in the aggravated range and the defendant appealed. On appeal the defendant argued that the trial court erred by sentencing him to an aggravated sentence when the State did not provide 30 days written notice of its intent to prove an aggravating factor for the charges arising from the first arrest, and that the defendant did not waive his right to such notice. Here, the defendant was tried on all pending charges and prior to sentencing stipulated to the existence of the aggravating factor. G.S. 15A-1022.1 requires the trial court, during sentencing, to determine whether the State gave the defendant the required notice or if the defendant waived his right to that notice. Here, when the trial court inquired about the notice of the aggravating factor, defense counsel informed the trial court that he was provided proper notice and had seen the appropriate documents. The trial court also asked the defendant if he had had an opportunity to speak with his lawyer about the stipulation and what it means. The defendant responded in the affirmative. The trial court’s colloquy satisfied the requirements of G.S. 15A-1022.1 and the defendant’s knowing and intelligent waiver of a jury trial on the aggravating factor under the circumstances necessarily included waiver of the 30-day advance notice of the State’s intent to use the aggravating factor.
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 violation of a domestic violence protective order (DVPO) case, the trial court did not err by sentencing the defendant within the aggravated range based in part on the G.S. 15A-1340.16(d)(15) statutory aggravating factor (the “defendant took advantage of a position of trust or confidence, including a domestic relationship, to commit the offense”). The defendant argued that because a personal relationship between the parties is a prerequisite to obtaining a DVPO, the abuse of a position of trust or confidence aggravating factor cannot be used aggravate a sentence imposed for a DVPO violation offense. The court concluded that imposing an aggravated sentence did not violate the rule that evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation.
(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 felony child abuse case the trial court erred by failing to provide an adequate instruction on the especially heinous, atrocious, or cruel (EHAC) aggravating factor. Rather than adapting the EHAC pattern instruction used in capital cases or providing any “narrowing definitions” that are required for this aggravating factor, the trial court simply instructed the jury: “If you find from the evidence beyond a reasonable doubt that . . . the offense was especially heinous, atrocious, or cruel . . . then you will write yes in the space after the aggravating factor[] on the verdict sheet.” The court concluded: “The trial court failed to deliver the substance of the pattern jury instruction on EHAC approved by our Supreme Court, and in doing so, instructed the jury in a way that the United States Supreme Court has previously found to be unconstitutionally vague.” Having found that the trial court erred, the court went on to conclude that the error did not rise to the level of plain error.
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).
In this sexual assault case, the State was not excused by G.S. 130A-143 (prohibiting the public disclosure of the identity of persons with certain communicable diseases) from pleading in the indictment the existence of the non-statutory aggravating factor that the defendant committed the sexual assault knowing that he was HIV positive. The court disagreed with the State’s argument that alleging the non-statutory aggravating factor would have violated G.S. 130A-143. It explained:
This Court finds no inherent conflict between N.C. Gen. Stat. § 130A-143 and N.C. Gen. Stat. § 15A-1340.16(a4). We acknowledge that indictments are public records and as such, may generally be made available upon request by a citizen. However, if the State was concerned that including the aggravating factor in the indictment would violate N.C. Gen. Stat. § 130A-143, it could have requested a court order in accordance with N.C. Gen. Stat. § 130A-143(6), which allows for the release of such identifying information “pursuant to [a] subpoena or court order.” Alternatively, the State could have sought to seal the indictment. (citations 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.
In this murder case, the trial court did not err by denying the defendant’s motion to dismiss for insufficient evidence as to the aggravating factor that the offense was especially heinous, atrocious, or cruel. Relying on prior N.C. Supreme Court case law, the court rejected the defendant’s argument that the State’s failure to submit any evidence showing that he played an active role in the murder precludes a finding by the jury beyond a reasonable doubt that the murder was especially heinous, atrocious, or cruel as to him. The court continued, finding that in this case, a reasonable inference can be drawn that the defendant did in fact actively participate in the murder.
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 erred by sentencing the defendant in the aggravated range without considering uncontradicted evidence of a mitigating factor. One judge declined to reach this issue.
The trial court did not abuse its discretion by finding that one aggravating factor outweighed six mitigating factors.
(1) Even though the defendant pleaded guilty to a crime and admitted an aggravating factor pursuant to a plea agreement, the trial judge still was required to find that an aggravating factor existed and that an aggravated sentence was appropriate. Failure to do so rendered the sentence invalid. (2) Where, as a here, the use of a deadly weapon was necessary to prove the unlawful killing element of the pleaded-to offense of voluntary manslaughter, use of a deadly weapon could not also be used as an aggravating factor.
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.
The trial court erred by submitting to the jury three aggravating factors that had not been alleged in the indictment as required by G.S. 15A-1340.16(a4). The three aggravating factors were that the defendant used a firearm equipped with an unregistered silencing device; the defendant's conduct included involvement in the illegal sale and purchase of narcotics; and the defendant's conduct was part of a course of conduct which included the commission of other crimes of violence against another person or persons.
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.
Where the trial court determined that one aggravating factor (heinous, atrocious or cruel) outweighed multiple mitigating factors, it acted within its discretion in sentencing the defendant in the aggravated range.
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 evidence was sufficient to support the aggravating factor that the offense committed was especially heinous, atrocious, or cruel. The defendant assaulted his 72-year-old grandmother, stabbing her, striking her in the head, strangling her, and impaling her with a golf club shaft eight inches into her back and chest.
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.
In a sexual assault case involving a 13-year-old victim, the evidence was insufficient to establish aggravating factor G.S. 15A-1340.16(d)(15) (took advantage of a position of trust or confidence, including a domestic relationship). The defendant was the stepfather of the victim’s friend. The victim required parental permission to spend the night with her friend, and had done so not more than ten times. There was no evidence that the victim’s mother had arranged for the defendant to care for the victim on a regular basis, or that the defendant had any role in the victim’s life other than being her friend’s stepfather. There was no evidence suggesting that the victim, who lived nearby, would have relied on the defendant for help in an emergency, rather than going home. There was no evidence of a familial relationship between the victim and the defendant, that they had a close personal relationship, or that the victim relied on the defendant for any physical or emotional care. The evidence showed only that the victim “trusted” the defendant in the same way she might “trust” any adult parent of a friend.
Rejecting the defendant’s argument that the trial court erred by not holding a separate sentencing proceeding for aggravating factors.
There was sufficient evidence to establish the aggravating factor that the defendant had previously been adjudicated delinquent for an offense that would be a B2 felony if it had been committed by an adult. The evidence of that prior adjudication was a Transcript of Admission from the juvenile proceeding, not the Juvenile Adjudication Order or Disposition/Commitment Order. Under G.S. 15A-1131(b), a person has been convicted when he or she has been adjudged guilty or has entered a guilty plea. An admission by a juvenile, like that recorded in a Transcript of Admission is equivalent to a guilty plea.
Under the Structured Sentencing Act a trial judge does not have authority to allow a defendant to serve an active sentence on nonconsecutive days, such as on weekends only.
The superior court judge erred by “retroactively” applying Structured Sentencing Law (SSL) provisions to a Fair Sentencing Act (FSA) case. The defendant was sentenced under the FSA. After SSL came into effect, he filed a motion for appropriate relief asserting that SSL applied retroactively to his case and that he was entitled to a lesser sentence under SSL. The superior court judge granted relief. The supreme court, exercising rarely used general supervisory authority to promote the expeditious administration of justice, allowed the State’s petition for writ of certiorari and held that the superior court judge erred by modifying the sentence. The court relied on the effective date of the SSL, as set out by the General Assembly when enacting that law. Finding no other ground for relief, the court remanded for reinstatement of the original FSA sentence.
The trial court erred by granting the defendant’s MAR and retroactively applying 2009 amendments to the Structured Sentencing Act (SSA) to the defendant’s 2005 offenses. The court reasoned that the Session Law amending the SSA stated that “[t]his act becomes effective December 1, 2009, and applies to offenses committed on or after that date.” Thus, it concluded, it is clear that the legislature did not intend for the 2009 grid to apply retroactively to offenses committed prior to December 1, 2009.
In this Wake County case, defendant appealed on several grounds after being convicted of violating the provisions of the sex offender registry and attaining habitual felon status. In 2015 defendant was residing at a homeless shelter in Raleigh, but in July of 2015 he was taken to a drug treatment program in Goldsboro. Defendant left the program after only two days, but did not update the address where he was residing with the local sheriff. Defendant was arrested in August of 2015, and indicted for violating the requirements of the sex offender registry.
At trial, defendant made motions to dismiss based in the indictment being defective and for insufficiency of the evidence presented. These motions were denied. During sentencing, the trial court did not allow defendant to get his papers in order to make a statement to the court; after a back-and-forth exchange, the court moved on without allowing defendant to make a statement. The trial court imposed a sentence in September of 2019, and defendant appealed.
Defendant argued that (1) the indictment failed to allege three essential elements of the sex offender registry violation; (2) the trial court erred by failing to instruct the jury as to an element of the offense and misstated an element of the defense; (3) the trial court improperly denied defendant’s motion to dismiss for lack of substantial evidence; (4) the trial court deprived defendant of his right to allocution; and (5) the trial court erred by ordering defendant to pay attorney fees.
The Court of Appeals examined issue (1) of the appeal by defining the three essential elements of the violation: (a) that defendant is a person who must register; (b) that defendant has changed addresses; and (c) that defendant failed to notify the last registering sheriff of the change within three business days. The court concluded that while the indictment could have been more explicit and precise, it was sufficient to support the trial court’s jurisdiction and was not subject to hyper-technical scrutiny.
Taking up issue (2) of the appeal, the court examined the jury instructions contested by defendant. In particular, the Court of Appeals reviewed the instructions regarding (a) whether they adequately put the burden of proof on the State to prove that defendant changed his address, and (b) whether they adequately directed the jury to determine whether the defendant willfully failed to report his change of address (rather than simply that he willfully changed his address). Regarding (a), the court found that the instructions were clear and showed that the standard was beyond a reasonable doubt through repeated portions of the instructions given to the jury. Considering (b), the court examined the language “willfully changed defendant’s address and failed to provide written notice of defendant’s new address” from the instruction given to the jury. When examined with the surrounding language of the instructions that more clearly connected the willfulness requirement with the failure to report, the Court of Appeals found that this language, even if erroneous, did not constitute error because it was not sufficiently prejudicial when considered with the entirety of the instruction.
When considering the existence of substantial evidence for issue (3), the court found testimony in the record showing defendant’s awareness of his obligation to update his address. Additionally, evidence in the record showed that defendant left the drug treatment facility after only two days, and did not return to his registered address, supporting willful failure to update his address with the sheriff. The court also examined the evidence supporting the felonies used to justify habitual felon status, and found sufficient evidence showing the felonies did not overlap and were all committed after defendant turned 18 years old.
The Court of Appeals found that defendant’s issue (4) had merit; the trial court did not adequately allow defendant to address the court and deprived him of his right to allocution. During the exchange with the trial court, defendant repeatedly asked to get his papers. The trial court refused to allow this, but did not provide an opportunity for defendant to speak after the third time defendant referenced needing his papers. Because defendant was not clearly told he could speak without his papers, and the court did not inquire about defendant’s desire to speak without them, the trial court effectively refused to allow defendant to make a statement. Based upon this failure, the court vacated defendant’s sentence and remanded to the trial court for a new sentencing hearing.
Finally, the court denied the petition underlying issue (5), regarding the judgment for attorney fees, as no civil judgment was entered against defendant. An order for attorney fees appears in the record, but it does not appear to be filed with the Wake County Clerk of Court. As a result, the court dismissed this portion of defendant’s appeal.
The defendant is entitled to a new sentencing hearing where the trial court violated his right to speak on his own behalf at sentencing. G.S. 15A-1334(b) provides that a defendant may make a statement on his behalf at sentencing. Here, defense counsel clearly informed the court that the defendant wanted to make a statement. Nevertheless, the defendant was sentenced without being afforded that opportunity.
Although the trial court erred by referencing the Bible or divine judgment in sentencing, given the sentence imposed, the defendant failed to show prejudice or that his sentence was based on the trial court’s religious invocation. Before pronouncing its sentence on the defendant, who was found guilty of sexually abusing his children, the trial court addressed the defendant as follows:
Well, let me say this: I think children are a gift of God and I think God expects when he gives us these gifts that we will treat them as more precious than gold, that we will keep them safe from harm the best as we’re able and nurture them and the child holds a special place in this world. In the 19th chapter of Matthew Jesus tells his disciples, suffer the little children, to come unto me, forbid them not: for such is the kingdom of heaven. And the law in North Carolina, and as it is in most states, treats sexual abuse of children as one of the most serious crimes a person can commit, and rightfully so, because the damage that’s inflicted in these cases is incalculable. It’s murder of the human spirit in a lot of ways. I’m going to enter a judgment in just a moment. But some day you’re going to stand before another judge far greater than me and you’re going to have to answer to him why you violated his law and I hope you’re ready when that day comes.
Although finding no basis for a new sentencing hearing, the court “remind[ed] trial courts that judges must take care to avoid using language that could give rise to an appearance that improper factors have played a role in the judge’s decision-making process even when they have not.” Slip Op. at 18 (quotation omitted).
In a plurality opinion, a majority of the Court held that 18 U.S.C. § 3583(k) is unconstitutional. The defendant Haymond was convicted by a jury of possessing child pornography in violation of federal law and was sentenced to a prison term of 38 months, followed by 10 years of supervised release. While on supervised release, Haymond was discovered to be in possession of apparent child pornography and the government, in the plurality’s words, “sought to revoke [his] supervised release and secure a new and additional prison sentence.” At a hearing conducted before a district judge acting without a jury, and under a preponderance of the evidence standard, the judge found that Haymond knowingly downloaded and possessed certain images. Acting in accordance with § 3583(k), the judge revoked Haymond’s supervised release and required him to serve a five-year term of imprisonment. The Tenth Circuit held that this violated Haymond’s right to a trial by jury under the Fifth and Sixth Amendments and the Supreme Court granted review to evaluate this constitutional holding.
Generally under 18 U.S.C. § 3583(e), a judge who finds a violation of a condition of supervised release by a preponderance of the evidence has discretion as to whether to revoke the term of supervised release. Upon deciding to revoke the term of release, a judge also has discretion as to the amount of time a person must serve in prison as a consequence of the revocation. 18 U.S.C. § 3583(k) modifies this general rule in situations such as Haymond’s where a defendant required to register under SORNA has his or her supervised release revoked because of a judge’s determination that he or she has committed one of several criminal offenses enumerated in the statute. In such a case, § 3583(k) requires the judge to revoke the term of supervised release and further requires the imposition of a term of imprisonment of at least five years.
Writing for himself and Justices Ginsburg, Kagan, and Sotomayor, Justice Gorsuch determined that § 3583(k) ran afoul of principles laid down in Blakely v. Washington, Apprendi v. New Jersey, and Alleyne v. United States, saying that under the statute “judicial factfinding triggered a new punishment in the form of a prison term of at least five years and up to life.” Likening this situation to that of Alleyne Gorsuch said that “the facts the judge found here increased ‘the legally prescribed range of allowable sentences’ in violation of the Fifth and Sixth Amendments.” Gorsuch continued, saying that “what was true in [Alleyne] can be no less true here: A mandatory minimum 5-year sentence that comes into play only as a result of additional judicial factual findings by a preponderance of the evidence cannot stand.” Contrasting § 3583(k) against other provisions in § 3583 regarding revoking supervised release and requiring a defendant to serve a term of imprisonment, Gorsuch explained that “§ 3583(k) alone requires a substantial increase in the minimum sentence to which a defendant may be exposed based solely on judge-found facts.”
Justice Breyer concurred in the judgment and said that § 3583(k) is unconstitutional because “it is less like ordinary revocation and more like punishment for a new offense, to which the jury right would typically attach.” However, Breyer said that he would “not transplant the Apprendi line of cases to the supervised-release context” and that he agreed with much of the dissent.
Justice Alito dissented, joined by Chief justice Roberts, Justice Thomas, and Justice Kavanaugh. Justice Alito said that the plurality opinion “is not grounded on any plausible interpretation of the original meaning of the Sixth Amendment,” and generally criticized the plurality for extending the Sixth Amendment right to a jury trial to the supervised release context.
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.
The Court held that the Apprendi rule applies to fines. Thus, any fact that increases a defendant’s statutory maximum fine must be found by a jury beyond a reasonable doubt.
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.
The court held that even if the trial court erred under Blakely by finding the existence of an aggravating factor and sentencing the defendant in the aggravated range, any error was harmless. After the jury found the defendant guilty of two counts of common-law robbery the trial court dismissed the jury and held a sentencing hearing. The State had given timely notice of his intent to prove the existence of an aggravating factor, specifically that during the 10-year period prior to the commission of the offense the defendant was found in willful violation of his conditions of probation (aggravating factor G.S. 15A-1340.16(d)(12a)). At sentencing hearing, the State offered evidence demonstrating the existence of the aggravating factor. Over the defendant’s objection that under the statutes and Blakely the existence of the aggravating factor must be found by the jury, the trial court sentenced the defendant in the aggravated range. The court opined that “Given the standard of proof that applies in this State, it is arguable whether a judgment of a willful probation violation—be it by admission or court finding—is sufficiently tantamount to a “prior conviction” to allow a sentencing judge to use that previous finding as an aggravating factor justifying an increase in the length of a defendant’s sentence beyond that authorized by the jury’s verdict alone consonant with the demands of due process.” However, it found that it need not decide the issue, concluding instead that even if an error occurred it was harmless given the State’s evidence.
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.
Where the trial court enhanced a DWI sentence based solely on the defendant’s prior convictions, the defendant’s Sixth Amendment rights were not violated. At sentencing, the trial court found the existence of two grossly aggravating factors, i.e., that defendant had two or more convictions involving impaired driving within seven years before the date of the offense. (1) The court rejected the defendant’s argument that the State violated the notice provision for aggravating factors in G.S. 20-179(a1)(1), holding that provision only applied to cases appealed to superior court (the case in question was initiated in superior court by indictment). (2) The court also rejected the defendant’s argument that the State’s failure to comply with the statutory notice provision violated his constitutional rights under Blakely (any factor other than prior conviction that elevates the sentence beyond the statutory maximum must be submitted to the jury and proved beyond a reasonable doubt).The court reasoned that because the defendant’s sentence was aggravated only because of prior convictions, Blakely did not apply.
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.
Although the trial court erred in accepting the defendant’s admission to an aggravating factor without complying with G.S. 15A-1022, as required by G.S. 15A-1022.1, the error was harmless beyond a reasonable doubt based on the uncontroverted and overwhelming evidence of the relevant factor.
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 court rejected the defendant’s argument that the trial court took into account a non-statutory aggravating factor neither stipulated to nor found by the jury beyond a reasonable doubt. The defendant’s argument was based on the trial court’s comments that (1) the defendant could have been tried for premeditated first degree murder and (2) “the State . . . made a significant concession . . . allowing [him] to plead second-degree murder.” When taken in context, these comments were merely responses to those made by defense counsel.
Trial judge’s Blakely error with respect to aggravating factors was not harmless and required a new sentencing hearing.
In this assault inflicting serious injury case, the evidence was sufficient for a bulletproof vest sentencing enhancement. The victim testified that when he punched the defendant’s chest, it felt padded; the victim told two police officers that both attackers wore bulletproof vests; and when the defendant’s vehicle was stopped after the shooting, a bulletproof vest was found on the floor where the defendant was sitting.
The trial court’s jury instruction regarding the bulletproof vest enhancement was not improper. The defendant argued that the trial court erred by instructing the jury that it could find this enhancement if it found that he wore or had in his immediate possession a bulletproof vest. The defendant argued that this instruction improperly presented the jury with two alternative theories, only one of which was supported by the evidence. The court rejected the defendant’s argument that there was no evidence that he had such a vest in his immediate possession. Among other things, the police found a bulletproof vest in the back of the vehicle where the defendant had been sitting when fleeing the crime scene.
A trial court is required to enter a commitment order at the time of judgment and sentencing. While awaiting sentencing on federal charges, on 18 May 2009 the defendant pleaded guilty to state charges. The trial court held a sentencing hearing that day and, pursuant to the plea, sentenced the defendant to prison. On 19 May 2009, the trial court entered its Judgment, ordering the defendant to be imprisoned in the custody of “N.C. DOC.” The trial court left unchecked a box on the Judgment form indicating that the sentence was to be consecutive to any other imposed sentences. It also left unchecked a box ordering the sheriff or other officer to cause the defendant to be delivered to the custody of the agency named in the judgment to serve the sentence imposed. On 12 November 2009, judgment was entered against the defendant in his federal case, sentencing him to concurrent sentences in the custody of the United States Bureau of Prisons, and the defendant began service of his federal sentence. On 30 March 2016 the North Carolina Department of Public Safety lodged a detainer in the federal system. After learning of the detainer, on 20 July 2016 the defendant filed an MAR requesting that he be adjudged to have served all of his North Carolina time. The trial court denied the MAR and the defendant appealed. The court held that the trial court erred by denying the defendant’s request for entry of a commitment order nunc pro tunc consistent with the judgment. Under G.S. 15A-1353, when a sentence includes a term of imprisonment, the court must include an order of commitment. Unless otherwise specified in the order of commitment, the date of the order is the date service of the sentence is to begin. Here, the trial court entered its Judgment imposing a term of imprisonment but failed to enter an order of commitment for N.C. DOC to take custody of the defendant for service of that term. Thus, the defendant is entitled to entry of a commitment order nunc pro tunc 19 May 2009. The court went on to reject the defendant’s argument that his sentence began on that date. Here, the very terms of the Judgment require the defendant to spend at least 80 months in the custody of N.C. DOC, and such a term necessarily cannot begin to run until he actually is remitted into the agency’s custody. Because the defendant was never remitted into the custody of N.C. DOC, and his sentence cannot begin to run consistent with the Judgment until he is so remitted, the defendant’s sentence for the state charges had not begun to run at the time of the MAR hearing. The court remanded for entry of an order of commitment specifying that the defendant’s sentence is to begin when he is released from federal custody.
Remanding for a new sentencing hearing, the court held that the trial court erred when it failed to hold a charge conference before instructing the jury during the sentencing phase of the trial, as required by G.S. 15A-1231(b). The court concluded that holding a charge conference is mandatory, and a trial court's failure to do so is reviewable on appeal even in the absence of an objection at trial. The court rejected the State’s argument that the statute should not apply to sentencing proceedings in non-capital cases. It concluded:
If, as occurred in this case, the trial court decides to hold a separate sentencing proceeding on aggravating factors as permitted by [G.S.] 15A-1340.16(a1), and the parties did not address aggravating factors at the charge conference for the guilt-innocence phase of the trial, [G.S.] 15A-1231 requires that the trial court hold a separate charge conference before instructing the jury as to the aggravating factor issues.
Although G.S. 15A-1231(b) provides that "[t]he failure of the judge to comply fully with the provisions of this subsection does not constitute grounds for appeal unless his failure, not corrected prior to the end of the trial, materially prejudiced the case of the defendant," in this case, the court noted, the trial court did not comply with the statute at all.
In this Forsyth County case, the Supreme Court modified and affirmed the Court of Appeals majority opinion denying defendant’s ineffective assistance of counsel claim.
In 2004, as a juvenile, defendant pleaded guilty to two counts of armed robbery, and was convicted of first-degree murder, first-degree kidnapping, and attempted robbery with a dangerous weapon. The two counts of armed robbery arose from the robbery of two convenience stores, a separate criminal transaction from the murder, kidnapping, and attempted robbery charges. The trial court provided a sentence of life without parole for first-degree murder, 95 to 123 months for each of the robbery charges, 77 to 102 months for the attempted robbery charge (later arrested by the court), and 29 to 44 months for the kidnapping charge, all to run consecutively.
After Miller v. Alabama, 567 U.S. 460 (2012), defendant filed a motion for appropriate relief (MAR) attempting to have his life without parole sentence converted to life with the possibility of parole, and to have all his sentences run concurrently. Defendant’s MAR was allowed by the trial court, and proceeded to resentencing at a hearing in April 2021, where defendant’s counsel specifically told the court that the two armed robbery offenses were not under consideration for resentencing, despite being identified in the motion. Defense counsel told the court she was “not referring to the other armed robberies because they are not related, even though they were sentenced at the same time.” Slip Op. at ¶10. After the hearing, defendant was resentenced to life with the possibility of parole to be run consecutively with his sentence for first-degree kidnapping. The armed robbery charges were not altered.
On appeal, defendant argued that he received ineffective assistance of counsel due to his counsel’s decision not to request concurrent sentences for all convictions. The Court of Appeals majority rejected this argument, noting that this interpretation of N.C.G.S. § 15A-1354(a) was “at best, resting on unsettled law, and at worst, meritless.” Slip Op. at ¶12, quoting State v. Oglesby, 2021-NCCOA-354 (2021). This conclusion was the basis for the Supreme Court’s modification.
Reviewing defendant’s appeal, the Supreme Court concluded that the Court of Appeals had incorrectly interpreted N.C.G.S. § 15A-1354(a), explaining “the resentencing court possessed the authority to choose to run his life with parole sentence consecutively or concurrently with the other sentences ‘imposed on [him] at the same time’ as his original sentence.” Slip Op. at ¶19. Turning to the merits of defendant’s claim of ineffective assistance, the court agreed with the Court of Appeals that defendant could not demonstrate prejudice, noting that the resentencing court chose not to run the murder and kidnapping charges concurrently after hearing the MAR, making it nonsensical that the resentencing court would have chosen to impose concurrent sentences for the two armed robbery charges in addition to the other two charges.
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.
G.S. 15A-1340.15(b) requires that when offenses are consolidated for judgment, the trial judge must enter a sentence for the most serious offense.
The defendant appealed from judgments entered upon his guilty pleas to second-degree rape and forcible sex offenses, second-degree kidnapping, assault on female, assault by strangulation, obstruction of justice, and intimidating a witness. The defendant appealed by writ of certiorari both the trial court’s imposition of lifetime SBM and the trial court’s imposition of duplicative court costs.
First, the Court of Appeals had to decide whether the defendant’s writs of certiorari properly conferred jurisdiction to the court. The defendant gave oral notice of appeal at his sex offender registration hearing, however he did not specifically raise the issue of court costs or later file a written notice of appeal. The court exercised its discretion to allow the defendant’s petition for writ of certiorari to review the lifetime SBM order because they are “authorized to issue a writ of certiorari ‘to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]’ N.C. R. App. P. 21(a)(1).” Slip op. at 8. Next, the court dismissed the defendant’s oral notice of appeal and instead used its discretion under Rule 21(a)(1) to grant the defendant’s writ of certiorari because it was not the defendant’s fault because it was defendant’s trial counsel who failed to give proper notice of appeal.
(1) The defendant’s first argument on appeal was that the trial court erred in ordering the defendant to enroll in lifetime satellite-based monitoring (SBM) upon his release from prison and contends the state did not meet its burden of proving the imposition of lifetime SBM is a reasonable search under the Fourth Amendment. Slip op. at 7.
The Court of Appeals used Gordon and Griffin II as instructive in addressing Grady III’s application to defendants convicted of an aggravated offense and outside the recidivist context. The court stated that “as this Court did in Griffin II, we employ Grady III as a roadmap, ‘reviewing [d]efendant’s privacy interests and the nature of SBM’s intrusion into them before balancing those factors against the State’s interests in monitoring [d]efendant and the effectiveness of SBM in addressing those concerns.’ Griffin II, ___ N.C. App. at ___, 840 S.E.2d at 273.” Slip op. at 10-11.
In evaluating the defendant’s privacy interests, the court determined the defendant has a diminished expectation of privacy in some respects, such as the privacy of his address or matters material to his voluntary participation in certain activities, because the defendant must submit to lifetime sex offender registration and post-release supervision upon release from prison. However, the court found that the defendant’s expectation of privacy would not always be so severely diminished and following the termination of post-release supervision, the defendant’s constitutional privacy rights will be restored and that will occur at some point before the end of the lifetime SBM order. Therefore, the court found that the “[d]efendant will enjoy ‘appreciable, recognizable privacy interests that weigh against the imposition of SBM for the remainder of’ [d]efendant’s lifetime. Griffin II, ___ N.C. App. at ___, 840 S.E.2d at 274.”
The court next evaluated the intrusive nature of SBM and found that “SBM’s ability to track Defendant’s location is ‘uniquely intrusive’, and thus weighs against the imposition of SBM.” Slip op. at 12 (citation omitted).
In considering the state’s interest, the court determined that the state failed to produce evidence that the lifetime SBM, in this case, effectively served legitimate interests such as preventing recidivism. The court explained that the state did not put forth any evidence showing that SBM served those interests and only provided legal conclusions. Therefore, the court determined “the state’s interest in monitoring [d]efendant by SBM during post-release supervision is already accomplished by a mandatory condition of post-release supervision imposing that very thing.” Slip op. 14.
Finally, the court considered the reasonableness of SBM under the totality of the circumstances and balancing the previously mentioned factors. The court decided that in this case, a lifetime SBM order is an unreasonable warrantless search in violation of the Fourth Amendment and therefore unconstitutional. The court determined that the defendant’s privacy rights, although diminished during post-release supervision, were substantially infringed upon by the lifetime SBM order and the defendant’s interests were not outweighed by a legitimate state interest because the state failed to provide evidence that a legitimate interest would be served by requiring the defendant be subject to lifetime SBM.
(2) The defendant next argued that the trial court erred by entering duplicative court costs. The court determined the duplicative costs were error because, following Rieger, “when multiple criminal charges arise from the same underlying event or transaction and are adjudicated together in the same hearing or trial, they are part of a single ‘criminal case’ for the purposes of N.C. Gen. Stat. § 7A-304(a).” Slip op. at 15.
Judge Tyson dissented because he did not think the defendant’s petition for writ of certiorari concerning the lifetime SBM order should have been granted because it was meritless. Judge Tyson also dissented from the writ of certiorari concerning the imposition of duplicative court costs because the judgements were not part of a “single criminal case.”
(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 defendant was stopped in his vehicle for following too closely, and officers discovered marijuana and drug paraphernalia in his possession. The defendant was charged with two separate misdemeanor drug offenses and convicted of both at a jury trial. The trial court entered two judgments and assessed two court costs. G.S. 7A-304(a) states that court costs shall be assessed “in every criminal case,” so the issue on appeal was whether this matter represented one case or two (i.e., the one underlying event or the two separate criminal charges). The Court of Appeals concluded that there were reasonable arguments in favor of both interpretations, and neither the plain language nor the legislative history of the statute provides a clear answer. Turning to the spirit and purpose behind the act, the appellate court held that court costs are not intended to be a punishment or a fine; instead, they are only intended to recoup the actual costs imposed on the justice system. “With this in mind, we hold that when multiple criminal charges arise from the same underlying event or transaction and are adjudicated together in the same hearing or trial, they are part of a single ‘criminal case’ for purposes of the costs statute. Accordingly, we vacate the imposition of costs in one of the two judgments against Rieger.”
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 defendant had adequate notice and opportunity to be heard before the trial court imposed court costs.
(1) The trial court erred by failing to exercise discretion when ordering the defendant to pay court costs. Ordering payment of costs, the court stated: “I have no discretion but to charge court costs and I'll impose that as a civil judgment.” Amended G.S. 7A-304(a) does not mandate imposition of court costs; rather, it includes a limited exception under which the trial court may waive court costs upon a finding of just cause. The trial court’s statement suggests that it was unaware of the possibility of a just cause waiver. (2) Court costs must be limited to the amounts authorized by G.S. 7A-304.
After the defendant pled guilty to multiple offenses, the trial court suspended his sentence and placed him on supervised probation. At a later probation violation hearing, the trial court revoked the defendant’s probation, reactivated his sentence, and awarded him 343 days of jail credit. The defendant appealed, asking the Court of Appeals to remand the case to the trial court to determine whether he should have received an additional 107 days of credit. The Court of Appeals dismissed the defendant’s appeal without prejudice to seek relief from the trial court pursuant to G.S. 15-196.4, which allows the defendant to petition the court for credit not previously allowed. Then, if necessary, the defendant could appeal the trial court’s determination with a record suitable for meaningful review by the Court of Appeals.
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 erred by denying credit for the time the defendant was incarcerated pending a revocation hearing on his first violation of post-release supervision. Under G.S. 15-196.1, the trial court was required to credit the defendant with eight days he spent in custody awaiting a revocation hearing for his first violation of post-release supervision when the defendant’s sentence later was activated upon the revocation of his post-release supervision following his second violation.
The defendant was not entitled to credit under G.S. 15-196.1 for time spent in a drug treatment program as a condition of probation because the program was not an institution operated by a State or local government.
On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 786 S.E.2d 73 (2016), in this murder case where the defendant, who was a juvenile at the time of the offense, was resentenced to life in prison without parole under the state’s Miller-compliant sentencing scheme (G.S. 15A-1340.19A to -1340.19D), the court modified and affirmed the opinion below and remanded for further proceedings. In the Court of Appeals, the defendant argued that the trial court had, by resentencing him pursuant the new statutes, violated the constitutional prohibition against the enactment of ex post facto laws, that the statutory provisions subjected him to cruel and unusual punishment and deprived him of his rights to a trial by jury and to not be deprived of liberty without due process of law, and that the trial court failed to make adequate findings of fact to support its decision to impose a sentence of life without parole. In a unanimous opinion, the Court of Appeals upheld the constitutionality of the statutes while reversing the trial court’s resentencing order and remanding for further proceedings. The Court of Appeals remanded for the trial court to correct what it characterized as inadequate findings as to the presence or absence of mitigating factors to support its determination. Before the Supreme Court, the defendant argued that the Court of Appeals erred by holding that the statute creates a presumption in favor of life without parole and by rejecting his constitutional challenges to the statutory scheme.
The Supreme Court began its analysis by addressing whether or not G.S. 15A-1340.19C gives rise to a mandatory presumption that a juvenile convicted of first-degree murder on the basis of a theory other than felony murder should be sentenced to life imprisonment without the possibility of parole. The court concluded, in part: “the relevant statutory language, when read in context, treats the sentencing decision required by N.C.G.S. § 15A-1340.19C(a) as a choice between two equally appropriate sentencing alternatives and, at an absolute minimum, does not clearly and unambiguously create a presumption in favor of sentencing juvenile defendants convicted of first-degree murder on the basis of a theory other than the felony murder rule to life imprisonment without the possibility of parole.” Thus, the Court of Appeals erred by construing the statutory language as incorporating such a presumption. The court offered this instruction for trial judges:
On the contrary, trial judges sentencing juveniles convicted of first-degree murder on the basis of a theory other than the felony murder rule should refrain from presuming the appropriateness of a sentence of life imprisonment without the possibility of parole and select between the available sentencing alternatives based solely upon a consideration of “the circumstances of the offense,” “the particular circumstances of the defendant,” and “any mitigating factors,” N.C.G.S. § 15A-1340.19C(a), as they currently do in selecting a specific sentence from the presumptive range in a structured sentencing proceeding, in light of the United States Supreme Court’s statements in Miller and its progeny to the effect that sentences of life imprisonment without the possibility of parole should be reserved for those juvenile defendants whose crimes reflect irreparable corruption rather than transient immaturity.
The court then rejected the defendant’s argument that the statutory scheme was unconstitutionally vague, concluding that the statutes “provide sufficient guidance to allow a sentencing judge to make a proper, non-arbitrary determination of the sentence that should be imposed upon a juvenile convicted of first-degree murder on a basis other than the felony murder rule to satisfy due process requirements.” The court also rejected the defendant’s arbitrariness argument. Finally, the court rejected the defendant’s ex post facto argument, holding that the Court of Appeals correctly determined that the statutory scheme does not allow for imposition of a different or greater punishment than was permitted when the crime was committed. In this respect, it held: because the statutes “make a reduced sentence available to defendant and specify procedures that a sentencing judge is required to use in making the sentencing decision, we believe that defendant’s challenge to the validity of the relevant statutory provisions as an impermissible ex post facto law is without merit.” Justices Beasley and Hudson dissented.
Because the State failed to give notice of its intent to use aggravating sentencing factors as required by G.S. 20-179(a1)(1), the trial court committed reversible error by using those factors in determining the defendant’s sentencing level. The case involved an appeal for trial de novo in superior court. The superior court judge sentenced the defendant for impaired driving, imposing a level one punishment based on two grossly aggravating sentencing factors. On appeal, the defendant argued that the State failed to notify him of its intent to prove aggravating factors for sentencing in the superior court proceeding. The State did not argue that it gave notice to the defendant prior to the superior court proceeding. Instead, it argued that the defendant was not prejudiced because he received constructive notice of the aggravating factors when they were used at the earlier district court proceeding. The court rejected this argument, determining that allowing the State to fulfill its statutory notice obligations by relying on district court proceedings “would render the statute effectively meaningless.” The court concluded that the State “must provide explicit notice of its intent to use aggravating factors in the superior court proceeding.” The court vacated the defendant’s sentence and remanded for resentencing.
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.
Where the trial court enhanced a DWI sentence based solely on the defendant’s prior convictions, the defendant’s Sixth Amendment rights were not violated. At sentencing, the trial court found the existence of two grossly aggravating factors, i.e., that defendant had two or more convictions involving impaired driving within seven years before the date of the offense. (1) The court rejected the defendant’s argument that the State violated the notice provision for aggravating factors in G.S. 20-179(a1)(1), holding that provision only applied to cases appealed to superior court (the case in question was initiated in superior court by indictment). (2) The court also rejected the defendant’s argument that the State’s failure to comply with the statutory notice provision violated his constitutional rights under Blakely (any factor other than prior conviction that elevates the sentence beyond the statutory maximum must be submitted to the jury and proved beyond a reasonable doubt).The court reasoned that because the defendant’s sentence was aggravated only because of prior convictions, Blakely did not apply.
(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.”
(1) In this DWI case the trial court committed a Blakely error by finding an aggravating factor. The trial court found the aggravating factor, determined that it was counterbalanced by a mitigating factor and sentenced the defendant at Level Four. If the aggravating factor had not been considered the trial court would have been required to sentence the defendant to a Level Five punishment. Thus, the aggravating factor, which was improperly found by the judge, increased the penalty for the crime beyond the prescribed maximum. (2) The State failed to provide notice that it intended to seek aggravating factors as required by G.S. 20-179(a1)(1).
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).
No Blakely error occurred in the defendant’s sentence for impaired driving. The trial court found two aggravating factors, two factors in mitigation, and imposed a level four punishment. The level four punishment was tantamount to a sentence within the presumptive range, so that the trial court did not enhance defendant’s sentence even after finding aggravating factors. Therefore, Blakely is not implicated.
G.S. 20-179(a1)(1) (requiring the state, in an appeal to superior court, to give notice of grossly aggravating factors) only applies to offenses committed on or after the effective date of the enacting legislation, December 1, 2006.
On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 792 S.E.2d 898 (2016), the court held that G.S. 90-95(e)(3), which provides that a Class 1 misdemeanor “shall be punished as a Class I felon[y]” when the misdemeanant has committed a previous offense punishable under the controlled substances act, establishes a separate felony offense rather than merely serving as a sentence enhancement of the underlying misdemeanor. The trial court treated the conviction as a Class I felony because of the prior conviction, and then elevated punishment to a Class E felony because of the defendant’s habitual felon status. The defendant appealed to the Court of Appeals, which reversed, reasoning that while the Class 1 misdemeanor was punishable as a felony under the circumstances presented, the substantive offense remained a misdemeanor to which habitual felon status could not apply. The State sought discretionary review. The Supreme Court reversed, holding that 90-95(e)(3) creates a substantive felony offense which may be subject to habitual felon status.
In this Duplin County case, defendant appealed his convictions for sale and delivery of cocaine, arguing error (1) in denying his motion to suppress certain eyewitness testimony for due process violations, (2) denying the same motion to suppress for Eyewitness Identification Reform Act (“EIRA”) violations, (3) in permitting the jury to examine evidence admitted for illustrative purposes only, and (4) in entering judgment for both selling and delivering cocaine. The Court of Appeals affirmed the denial of defendant’s motion and found no plain error with the jury examining illustrative evidence, but remanded for resentencing due to the error of sentencing defendant for both the sale and delivery of cocaine.
In December of 2017, the Duplin County Sheriff’s Office had confidential informants performing drug buys from defendant in a trailer park. The informants purchased crack cocaine on two different days from defendant, coming within three to five feet of him on clear days. At a trial preparation meeting in October of 2020, the prosecutor and a detective met with the lead informant; at the meeting, the informant saw a DMV picture of defendant with his name written on it, and responded “yes” when asked if that was the person from whom the informant purchased cocaine. No other pictures were shown to the informant at this meeting. Defense counsel subsequently filed a motion to suppress the testimony of the informant based on this meeting, as well as motions in limine, all of which the trial court denied.
The Court of Appeals first considered (1) the denial of defendant’s motion to suppress, where defendant argued that the identification procedure violated his due process rights. The due process inquiry consists of two parts: whether the identification procedure was “impermissibly suggestive,” and if the answer is yes, “whether the procedures create a substantial likelihood of irreparable misidentification” after a five-factor analysis. Slip Op. at 9-10, quoting State v. Rouse, 284 N.C. App. 473, 480-81 (2022). Applying the Rouseframework and similar circumstances in State v. Malone, 373 N.C. 134 (2019) and State v. Jones, 98 N.C. App. 342 (1990), the court determined that “[the informant] seeing the photo of Defendant in the file during the trial preparation meeting was impermissibly suggestive,” satisfying the first part. Id. at 18. However, when the court turned to the five-factor analysis, it determined that only the third factor (accuracy of the prior description of the accused) and the fifth factor (the time between the crime and the confrontation of the accused) supported finding of a due process violation. The court concluded that “[b]ecause there was not a substantial likelihood of irreparable misidentification, the identification did not violate due process.” Id. at 24.
The court also considered (2) defendant’s argument that the EIRA applied and supported his motion to suppress. After reviewing the scope of the EIRA, the court applied State v. Macon, 236 N.C. App. 182 (2014), for the conclusion that a single-photo identification could not be a lineup for EIRA purposes. Slip Op. at 28. The court then considered whether the procedure was a show-up:
In contrast to our longstanding description of show-ups, the procedure here was not conducted in close proximity to the crime and, critically, it was not conducted to try to determine if a suspect was the perpetrator. The identification here took place during a meeting to prepare for [trial]. As a result, the State, both the police and the prosecution, had already concluded Defendant was the perpetrator. The identification acted to bolster their evidence in support of that conclusion since they would need to convince a jury of the same. Since the identification here did not seek the same purpose as a show-up, it was not a show-up under the EIRA.
Id. at 30. The court emphasized the limited nature of its holding regarding the scope of the EIRA, and that this opinion “[did] not address a situation where the police present a single photograph to a witness shortly after the crime and ask if that was the person who committed the crime or any other scenario.” Id. at 32.
Moving to (3), the court rejected defendant’s argument of plain error in allowing the jury to review his DMV photograph as substantive evidence when it was admitted for illustrative purposes, pointing to the “overwhelming evidence” of defendant’s guilt in the record, including other photographs and recordings of defendant. Id. at 34.
Finally, the court considered (4) the sentencing issues by the trial court. Here, the trial court improperly sentenced defendant for both selling and delivering cocaine. The court explained that while “a defendant can be tried for both the sale and delivery of a controlled substance, he cannot be sentenced for ‘both the sale and the delivery of a controlled substance arising from a single transfer.’” Id. at 35, quoting State v. Moore, 327 N.C. 378, 382-83 (1990). This error required remand to the trial court for resentencing in keeping with only one conviction for sale or delivery.
The trial court erred by enhancing under G.S. 50B-4.1(d) defendant’s conviction for assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI) and attempted second-degree kidnapping. G.S. 50B-4.1(d) provides that a person who commits another felony knowing that the behavior is also in violation of a domestic violence protective order (DVPO) shall be guilty of a felony one class higher than the principal felony. However, subsection (d) provides that the enhancement “shall not apply to a person who is charged with or convicted of a Class A or B1 felony or to a person charged under subsection (f) or subsection (g) of this section.” Subsection (g) enhances a misdemeanor violation of a DVPO to a Class H felony where the violation occurs while the defendant possesses a deadly weapon. Here, defendant was indicted for attempted first-degree murder; first-degree kidnapping, enhanced under G.S. 50B-4.1(d); AWDWIKISI, enhanced; and violation of a DVPO with the use of a deadly weapon. He was found guilty of three crimes: attempted second-degree kidnapping, enhanced; AWDWIKISI, enhanced; and violation of a DVPO with a deadly weapon pursuant to G.S. 50B-4.1(g). The court held:
We believe the limiting language in G.S. 50B-4.1(d) - that the subsection “shall not apply to a person charged with or convicted of” certain felonies - is unambiguous and means that the subsection is not to be applied to “the person,” as advocated by Defendant, rather than to certain felony convictions of the person, as advocated by the State. Accordingly, we hold that it was error for Defendant’s convictions for AWDWIKISI and for attempted second-degree kidnapping to be enhanced pursuant to G.S. 50B- 4.1(d) since he was “a person charged” under subsection (g) of that statute.
In this voluntary manslaughter case, the trial court did not abuse its discretion by failing to find extraordinary mitigation. Although the court found numerous mitigating factors, it found no extraordinary mitigation in the defendant’s case; the trial court sentenced the defendant to the lowest possible sentence in the mitigated range. The court rejected the defendant’s argument that the trial court misunderstood the applicable law, finding that the transcript of the sentencing hearing reveals that the trial court understood the extraordinary mitigation statute and exercised proper discretion.
(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 trial court abused its discretion by determining that two normal mitigating factors, without additional facts being present, constituted extraordinary mitigation.
In the case of a defendant who committed a homicide when he or she was under 18, Miller and Montgomery do not require the sentencer to make a separate factual finding of permanent incorrigibility before sentencing the defendant to life without parole. In such a case, a discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.
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.
In a per curiam decision, the Court held that the Virginia Supreme Court’s ruling, holding that Virginia’s “geriatric release” provision satisfies Graham v. Florida was not an objectively unreasonable application of Graham. In 1999, the defendant, who was 16 years old at the time, raped a 62-year-old woman. In 2003, a state court sentenced him to life in prison. At the time, Virginia had abolished traditional parole. However it had a geriatric release parole program which allowed older inmates to receive conditional release under some circumstances. Specifically, the statute provided: “Any person serving a sentence imposed upon a conviction for a felony offense . . . (i) who has reached the age of sixty-five or older and who has served at least five years of the sentence imposed or (ii) who has reached the age of sixty or older and who has served at least ten years of the sentence imposed may petition the Parole Board for conditional release.” Seven years after the defendant was sentenced, the Court decided Graham, holding that the Eighth Amendment prohibits juvenile offenders convicted of non-homicide offenses from being sentenced to life without parole. Graham held that while a “State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime,” it must give defendants “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” The Graham Court left it to the States, “in the first instance, to explore the means and mechanisms for compliance” with the Graham rule. The defendant then sought to vacate his sentence in light of Graham. The Virginia courts rejected this motion, holding that Virginia’s geriatric release statute satisfied Graham’s requirement of parole for juvenile offenders. The defendant then brought a federal habeas action. The federal district court held that “there is no possibility that fairminded jurists could disagree that the state court’s decision conflicts wit[h] the dictates of Graham.” The Fourth Circuit affirmed. The Supreme Court reversed, noting in part:
The Court of Appeals for the Fourth Circuit erred by failing to accord the state court’s decision the deference owed under AEDPA. Graham did not decide that a geriatric release program like Virginia’s failed to satisfy the Eighth Amendment because that question was not presented. And it was not objectively unreasonable for the state court to conclude that, because the geriatric release program employed normal parole factors, it satisfied Graham’s requirement that juveniles convicted of a nonhomicide crime have a meaningful opportunity to receive parole.
The Court held that the 8th Amendment prohibits a sentencing scheme that requires life in prison without the possibility of parole for juvenile homicide offenders.
The Eighth Amendment’s Cruel and Unusual Punishments Clause does not permit a juvenile offender to be sentenced to life in prison without the possibility of parole for a non-homicide crime. For a more detailed discussion of this case, click here.
This Cumberland County case came before the Supreme Court on discretionary review of the opinion of the Court of Appeals, 273 N.C. App. 616 (2020). The defendant, James Kelliher, pled guilty to two counts of first-degree murder for crimes committed when he was 17 years old in 2001. He received consecutive sentences of life without parole. After the Supreme Court of the United States decided Miller v. Alabama, 567 U.S. 460 (2012), the defendant was resentenced to consecutive sentences of life with the possibility of parole after 25 years, which would make him parole eligible after 50 years, when he will be 67 years old. The Court of Appeals concluded that because the trial court had found that Kelliher was “neither incorrigible nor irredeemable,” the lengthy period he would have to serve before being eligible for parole was a de facto sentence of life without parole in violation of the Eighth Amendment.
After the Court of Appeals decided the case but before it was heard before the Supreme Court of North Carolina, the Supreme Court of the United States decided Jones v. Mississippi, 141 S. Ct. 1307 (2021) (summarized here), holding that no specific findings are required to authorize a sentence of life without parole for a defendant who was a juvenile at the time of the offense. The decision in Jones prompted the State to argue before the Supreme Court that the defendant’s federal and state constitutional claims lacked merit.
The Court held that it violates the Eighth Amendment and article I, section 27 of the state constitution to sentence a juvenile defendant who, like Kelliher, has been determined to be “neither incorrigible nor irredeemable” to life without parole. The Court rejected the State’s argument that Jones repudiated the substantive Eighth Amendment rule of Miller and Montgomery v. Louisiana, 577 U.S. 190 (2016). Rather, Jones merely established that the Eighth Amendment does not require a sentencing court to make a specific finding that a juvenile homicide offender is permanently incorrigible before sentencing him or her to life without parole. Jones did not change the rule from Miller and Montgomery that a sentence of life without parole is unconstitutional for a defendant found to be “neither incorrigible nor irredeemable.”
The Court next considered whether Kelliher’s lengthy aggregate parole-eligibility period amounted to a de facto sentence of life without parole. The Court observed that the focus of the United States Supreme Court’s Eighth Amendment jurisprudence as applied to youthful defendants has been on “the nature of the offender, not the circumstances of the crime.” Slip op. ¶ 42. Therefore, the Court concluded, the underlying rule should not differ between sentences arising from a single offense and those arising from multiple offenses. Applying that principle, the Court concluded that Kelliher’s 50-year aggregate parole eligibility period is a de facto sentence of life without parole within the meaning of the Eighth Amendment to the United States Constitution.
The Court went on to conclude that article I, section 27 of the North Carolina Constitution offers even broader protection for the defendant than the Eighth Amendment in this context. The Court disavowed a prior case, State v. Green, 348 N.C. 588 (1998), in which it had said that cruel and/or unusual punishment claims under article I, section 27 and the Eighth Amendment had historically been analyzed the same. Analyzing that broader protection in light of a clear majority of other jurisdictions to have considered the issue, the Court concluded that a 50-year parole eligibility period deprived the defendant of a meaningful opportunity to be released. In answer to the ultimate question of “how long is too long” under the state constitution, the Court “identif[ied] forty years as the threshold distinguishing a permissible sentence from an impresmissible de facto life without parole sentence for juveniles not found to be irredeemable.” Slip op. at ¶ 68. That number was informed by data from the United States Sentencing Commission, which has defined any sentence of 470 months (39 years and 2 months) or longer as a de facto life sentence in light of the average life expectancy of an inmate, as well as employment and retirement data from North Carolina.
The Court clarified that its interpretation of what constitutes cruel or unusual punishment as applied to a juvenile offender does not extend to adult offenders.
Having concluded that a 50-year parole-eligibility period constituted an impermissible de facto life without parole sentence, the Court remanded the case to the trial court with instructions to enter two concurrent sentences of life with the possibility of parole after 25 years, as that would be the only sentencing option that would not run afoul of the Court’s 40-year parole-eligibility threshold.
The Chief Justice, joined by Justice Berger and Justice Barringer, dissented, writing that North Carolina’s post-Miller statutory scheme for sentencing juvenile defendants, including the authority to impose consecutive sentences, complies with the federal and state constitutions, and that the consecutive sentences imposed here were not improper.
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.
On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 786 S.E.2d 73 (2016), in this murder case where the defendant, who was a juvenile at the time of the offense, was resentenced to life in prison without parole under the state’s Miller-compliant sentencing scheme (G.S. 15A-1340.19A to -1340.19D), the court modified and affirmed the opinion below and remanded for further proceedings. In the Court of Appeals, the defendant argued that the trial court had, by resentencing him pursuant the new statutes, violated the constitutional prohibition against the enactment of ex post facto laws, that the statutory provisions subjected him to cruel and unusual punishment and deprived him of his rights to a trial by jury and to not be deprived of liberty without due process of law, and that the trial court failed to make adequate findings of fact to support its decision to impose a sentence of life without parole. In a unanimous opinion, the Court of Appeals upheld the constitutionality of the statutes while reversing the trial court’s resentencing order and remanding for further proceedings. The Court of Appeals remanded for the trial court to correct what it characterized as inadequate findings as to the presence or absence of mitigating factors to support its determination. Before the Supreme Court, the defendant argued that the Court of Appeals erred by holding that the statute creates a presumption in favor of life without parole and by rejecting his constitutional challenges to the statutory scheme.
The Supreme Court began its analysis by addressing whether or not G.S. 15A-1340.19C gives rise to a mandatory presumption that a juvenile convicted of first-degree murder on the basis of a theory other than felony murder should be sentenced to life imprisonment without the possibility of parole. The court concluded, in part: “the relevant statutory language, when read in context, treats the sentencing decision required by N.C.G.S. § 15A-1340.19C(a) as a choice between two equally appropriate sentencing alternatives and, at an absolute minimum, does not clearly and unambiguously create a presumption in favor of sentencing juvenile defendants convicted of first-degree murder on the basis of a theory other than the felony murder rule to life imprisonment without the possibility of parole.” Thus, the Court of Appeals erred by construing the statutory language as incorporating such a presumption. The court offered this instruction for trial judges:
On the contrary, trial judges sentencing juveniles convicted of first-degree murder on the basis of a theory other than the felony murder rule should refrain from presuming the appropriateness of a sentence of life imprisonment without the possibility of parole and select between the available sentencing alternatives based solely upon a consideration of “the circumstances of the offense,” “the particular circumstances of the defendant,” and “any mitigating factors,” N.C.G.S. § 15A-1340.19C(a), as they currently do in selecting a specific sentence from the presumptive range in a structured sentencing proceeding, in light of the United States Supreme Court’s statements in Miller and its progeny to the effect that sentences of life imprisonment without the possibility of parole should be reserved for those juvenile defendants whose crimes reflect irreparable corruption rather than transient immaturity.
The court then rejected the defendant’s argument that the statutory scheme was unconstitutionally vague, concluding that the statutes “provide sufficient guidance to allow a sentencing judge to make a proper, non-arbitrary determination of the sentence that should be imposed upon a juvenile convicted of first-degree murder on a basis other than the felony murder rule to satisfy due process requirements.” The court also rejected the defendant’s arbitrariness argument. Finally, the court rejected the defendant’s ex post facto argument, holding that the Court of Appeals correctly determined that the statutory scheme does not allow for imposition of a different or greater punishment than was permitted when the crime was committed. In this respect, it held: because the statutes “make a reduced sentence available to defendant and specify procedures that a sentencing judge is required to use in making the sentencing decision, we believe that defendant’s challenge to the validity of the relevant statutory provisions as an impermissible ex post facto law is without merit.” Justices Beasley and Hudson dissented.
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.
The State conceded and the court agreed that pursuant to Montgomery, Miller applies retroactively. The court further rejected the State’s argument that the defendant’s sentence was not in violation of Miller because it allowed for a meaningful opportunity for the defendant to obtain release. The State argued that the defendant had an opportunity for release under G.S. 15A-1380.5, a repealed statue which applied to the defendant’s case. Recognizing that the statute might increase the chance for a sentence to be altered or commuted, the court rejected the argument that the defendant’s sentence did not violate Miller. It noted that under the statute although a defendant is entitled to review of the sentence by the trial court, the statute guarantees no hearing, no notice, and no procedural rights. Furthermore, it provides minimal guidance as to what type of circumstances would support alteration or commutation, it requires only that the judge “consider the trial record,” and notes that the judge “may” review other information “in his or her discretion.” Ultimately the decision of what to recommend is in the judge’s discretion and the only effect of the judge’s recommendation is that the Governor or a designated executive agency must “consider” that recommendation. The court stated:
Because of these provisions, the possibility of alteration or commutation pursuant to section 15A-1380.5 is deeply uncertain and is rooted in essentially unguided discretion. Accordingly, this section does not reduce to any meaningful degree the severity of a sentence of life imprisonment without the possibility of parole.
Moreover, section 15A-1380.5 does not address the central concern of Miller—that a sentencing court cannot treat minors like adults when imposing a sentence of life imprisonment without the possibility of parole. (citations omitted).
The court noted that the Supreme Court’s “foundational concern” in Miller was “that at some point during the minor offender’s term of imprisonment, a reviewing body will consider the possibility that he or she has matured.” It concluded:
Nothing in section 15A-1380.5 requires consideration of this factor. In fact, after the judge’s recommendation is submitted to “[t]he Governor or an executive agency designated under this section,” N.C.G.S. § 15A-1380.5(e), nothing in section 15A-1380.5 gives any guidance to the final decision maker because this framework simply was not developed to address the concerns the Supreme Court raised in Miller and Montgomery.
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 this Mecklenburg County case, the defendant was charged with two class H felonies (felonious breaking or entering and larceny after breaking or entering) in October of 2016, when he was 16 years of age and before “raise the age” was implemented through the Juvenile Justice Reinvestment Act. The charges were under the exclusive jurisdiction of the criminal law under the law in place at the time of the offense. Raise the age was passed in 2017 and applied prospectively, beginning with offenses committed on December 1, 2019. This case was set for trial in late 2017 and the defendant failed to appear. The defendant was arrested in 2019 and his case proceeded. The trial court granted a pretrial motion to dismiss, finding that the defendant’s constitutional rights to equal protection, protection from cruel and unusual punishment, and due process were violated by prosecution as an adult. The trial court went on to conclude that the loss of the benefit of Juvenile Court irreparably prejudiced the preparation of his case such that dismissal was the only remedy. The State appealed.
The Court of Appeals concluded that the defendant’s constitutional rights were not violated by trying him as an adult. As to the defendant’s equal protection argument, the Court concluded that under State v. Howren, 312 N.C. 454 (1984), there is no equal protection violation when the same group of people (here, 16-year-olds alleged to have committed a Class H felony) are treated differently at different times (here, before and after the effective date of the Juvenile Justice Reinvestment Act).
As to the defendant’s Eighth Amendment argument, the Court of Appeals concluded that trying a young defendant as an adult does not implicate the substantive limits on what can be made criminal without violating the constitutional prohibition on cruel and unusual punishment. Those limits have been invoked only in relation to the status of addiction to drugs or alcohol. Robinson v. California, 370 U.S. 660 (1962). In addition, the prosecution of juveniles as adults involves the procedure taken regarding a criminal offense alleged against a juvenile, not the substance of what is made criminal. Trying the defendant as an adult does not, the Court reasoned, criminalize a status like addiction. Rather, it punishes criminal behavior—here, breaking or entering and larceny, “offenses that are undoubtedly within the police powers of North Carolina.” ¶ 21. The Court thus rejected the defendant’s Eighth Amendment claim.
As to the defendant’s due process argument, the Court concluded that there is no fundamental right to be tried as a juvenile in criminal cases, and therefore no particular process due in relation to being tried in that way. The Court distinguished Kent v. United States, 383 U.S. 541 (1966), noting that the District of Columbia statutory structure at issue in Kent, which did mandate certain procedures before a case was transferred from juvenile to adult court, was distinct from North Carolina’s, in which a defendant’s case began in superior court by default. Turning to substantive due process, because no fundamental right was at issue, the Court applied rational basis review and concluded that the State had a legitimate interest in prosecuting and sentencing juveniles under the statutory scheme in place at the time they commit their offense.
In the absence of any constitutional violation, the Court of Appeals concluded that the trial court erred in granting the defendant’s motion to dismiss under G.S. 15A-954(a)(4). The Court thus reversed the trial court and remanded the case.
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 pleaded guilty to raping and murdering his aunt, and received a sentence of 240-348 months for the rape followed by a consecutive sentence of life with parole for the murder. On appeal, the defendant argued that: (i) a consecutive sentence of life with parole was not permitted under G.S. 15A-1340.19A, et seq. (the “Miller-fix statutes”); (ii) his sentence was unconstitutional since it amounted to a de facto sentence of life without parole; and (iii) the trial court erred in ordering lifetime satellite-based monitoring (SBM) without holding a hearing.
The majority first held that consecutive sentences are permissible under the statutes, and trial courts have discretion to decide whether to order consecutive or concurrent sentences, so the defendant’s first argument was overruled. Next, the court held that the consecutive sentence imposed in this case was not unconstitutional. The majority 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. 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 at age 60, after serving 45 years. However, the trial court did err at the sentencing hearing by failing to conduct a hearing before ordering the defendant to enroll in lifetime SBM, so that order was vacated and remanded with instructions to conduct a hearing.
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 order for lifetime SBM should be vacated, but would have held that the consecutive sentence of life with parole constituted a de facto sentence of life without parole, and was therefore unconstitutional as held in Kelliher.
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 was a participant in a double murder at the age of 17 and sentenced to consecutive terms of life without parole (“LWOP”) in Cumberland County in 2001. He moved for resentencing pursuant to Miller v. Alabama, 567 U.S. 460 (2012) (holding that mandatory life without parole sentences for juvenile offenders violates the 8th Amendment) and its progeny. The trial court determined at resentencing that the defendant did not present the rare case of an “irredeemable” or” incorrigible” juvenile, and therefore did not qualify for an LWOP sentence. The defendant’s evidence at resentencing showed an abusive childhood, early substance abuse, substantial educational and self-improvement while in prison. He also presented expert mental health testimony indicating he was at low-risk to reoffend and evidence of a near-perfect disciplinary record while in prison (among other evidence). The trial court resentenced the defendant to two consecutive terms of life with parole, which meant that the defendant would be parole-eligible after a term of at least 50 years. The defendant appealed, arguing that the sentence amounted to a de facto life sentence in violation of state and federal constitutional protections. The Court of Appeals unanimously agreed.
(1) The defendant’s challenge to his sentence was preserved. He raised Miller, the 8th Amendment, and comparable provisions of the state constitution in his MAR seeking resentencing, and specifically argued for concurrent life with parole sentences. The specific grounds of his objections to the sentence were thus clear from context and at least amounted to “an implied argument” that his sentence violated constitutional protections. Even if the argument was not preserved, the defendant asked the court to invoke Rule 2 of the Rules of Appellate Procedure to consider the argument, and the court found that invocation of the rule was appropriate here to review the constitutional issue.
(2) Conducting an extensive review of the Miller line of cases, the court made three rulings of first impression in the state. (2a) A “clear majority” of jurisdictions have held that a de facto life sentences are reviewable under Miller, and North Carolina joined that majority. To allow Miller protections to be circumvented by labeling a sentence a term of years as opposed to life without parole when the effect of the sentence would preclude a meaningful opportunity for release would render the constitutional protections hollow. “Roper, Graham, and Miller are all concerned with ‘imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.’ A de jure LWOP sentence is certainly as ‘harsh’ as its functional equivalent.” Kelliher Slip op. at 30. (2b) Concurrent sentences that aggregate to create a de facto life sentence for juveniles not otherwise eligible for LWOP violate the constitutional protections for the punishment of juveniles. The court recognized that courts around the country are “sharply divided” on this point. A majority of jurisdictions have determined that concurrent sentences may lead to an impermissible de facto life sentence, and North Carolina again joined that majority. “The applicability and scope of protection found in the Eighth Amendment . . . [turn] on the identity of the defendant, not on the crimes perpetrated.” Id. at 35. The court distinguished North Carolina law from that of other jurisdictions holding otherwise. (2c) The defendant’s sentence to consecutive life with parole terms was unconstitutional. The defendant would become eligible for parole at age 67 under his current sentence. This was long enough to constitute a de facto life sentence. In the words of the court:
To release an individual after their opportunity to directly contribute to society—both through a career and in other respects, like raising a family—does not provide a meaningful opportunity to demonstrate the ‘maturity and rehabilitation’ required to obtain release and reenter society as required by Graham. Id. at 40 (citation omitted) (cleaned up).
The court observed that the defendant would not necessarily be released from prison even after becoming parole eligible. However, to afford the defendant the constitutional protections established by the Miller line of cases, the defendant’s consecutive sentences could not stand. The sentences were therefore vacated, and the trial court was ordered to impose concurrent life with parole sentences on remand.
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.
The defendant’s sentence of life in prison with the possibility of parole for his conviction of felony murder when he was 16 years old is constitutional.
The defendant asserted that his sentence violates the Eighth Amendment. The court concluded that an as applied challenge is not legally available to the defendant and that he is limited to a review of whether his sentence was grossly disproportionate to his crime. Considering that issue, the court concluded that the defendant sentence of life in prison with the possibility of parole was not grossly disproportionate to his crime. Among other things the defendant was an active participant in the murder, did not provide assistance to the victim, and tried to profit from the crime by selling the murder weapon.
Turning to the defendant’s argument as to Article 1, Section 27 of the state constitution, the court noted that the North Carolina Supreme Court has historically analyzed cruel and unusual punishment claims similarly under both the federal and state constitutions. Having determined that the defendant’s sentence does not violate the Eighth Amendment, the court concluded that it passes muster under the state constitution.
Finally, the defendant argued that because G.S. 15A-1340.19B did not exist at the time he committed his crime, his sentence violates the prohibition against ex post facto laws. As his lawyer conceded at oral argument, however, a virtually identical contention was rejected by the court in State v. James, 371 N.C. 77 (2018), and that case forecloses his argument on this issue.
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 trial court did not err by imposing a sentence of life imprisonment without parole on the juvenile defendant. In 2001 the defendant was tried capitally and convicted of first-degree murder, first-degree kidnapping and burning of personal property. The jury recommended a sentence of life imprisonment without parole, and the trial court entered judgment. The defendant’s direct appeal was unsuccessful. In 2013 the defendant filed an MAR requesting a new sentencing hearing in light of the United States Supreme Court’s decision in Miller which held that mandatory life without parole for juvenile offenders violates the eighth amendment. The trial court granted the defendant’s MAR and ordered a new sentencing hearing. At the end of that hearing the trial court ordered that the defendant’s sentence remain life without parole. The defendant appealed. On appeal the defendant argued that the trial court violated his eighth amendment constitutional protection against cruel and unusual punishment by imposing a sentence of life without parole and erred by imposing a sentence of life without parole because it failed to make findings on the presence or absence of Miller factors and the findings it did make do not support the conclusion that the sentence was warranted. The court disagreed finding that the trial court complied with the statutory requirements in determining that life imprisonment without parole was warranted. Additionally, the trial court properly made ultimate findings of fact on each of the Miller factors as set forth in section 15A-1340.19B(c) and did not abuse its discretion in weighing those factors and concluding that life imprisonment without parole was appropriate in the defendant’s case.
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.
The defendant’s constitutional rights were not violated when the trial court sentenced him on three counts of first-degree sexual offense, where the offenses were committed when the defendant was fifteen years old. The court found that the defendant had not brought the type of categorical challenge at issue in cases like Roper or Graham. Rather, the defendant challenged the proportionality of his sentence given his juvenile status at the time of the offenses. The court concluded that the defendant failed to establish that his sentence of 202-254 months for three counts of sexual offense against a six-year-old child was so grossly disproportionate as to violate the Eighth Amendment.
The trial court erred by concluding that the defendant’s 300-month minimum, 420-month maximum sentence for statutory rape and statutory sex offense violated the Eighth Amendment. The court concluded: “A 300-month sentence is not grossly disproportionate to the two crimes to which Defendant pled guilty. Furthermore, Defendant’s 300-month sentence … is less than or equal to the sentences of many other offenders of the same crime in this jurisdiction.”
he court declined to extend Miller to this felony-murder case, where the defendant turned 18 one month before the crime in question.
In this case, arising from the defendant’s conviction for first-degree murder of UNC student Eve Carson, the court upheld the constitutionality of the State’s “Miller fix” statute and determined that the trial court’s findings supported a sentence to life in prison without the possibility of parole. The defendant—who was 17 years old at the time of the murder—was originally sentenced to life in prison without parole. In his first appeal the court vacated the sentence and remanded for resentencing under G.S. 15A-1340.19A et. seq., the new sentencing statute enacted by the N.C. General Assembly in response to the U.S. Supreme Court’s ruling in Miller v. Alabama, 567 U.S. ___, ___, 183 L.Ed. 2d 407, 421-24 (2012). On remand, the trial court held a new sentencing hearing and resentenced the defendant under the new sentencing statute to life imprisonment without parole after making extensive findings of fact as to any potential mitigating factors revealed by the evidence. Among other things, the court rejected the defendant’s argument that the Miller fix statute was constitutionally infirm because it “vests the sentencing judge with unbridled discretion providing no standards.” It also rejected the defendant’s arguments that the evidence was insufficient to support the trial court’s findings of fact in connection with the resentencing and that without findings of irretrievable corruption and no possibility of rehabilitation the trial court should not have imposed a sentence of life imprisonment without parole. It concluded:
As noted by Miller, the “harshest penalty will be uncommon[,]” but this case is uncommon. Miller, 567 U.S. at ___, 183 L.E. 2d at 424. The trial court’s findings support its conclusion. The trial court considered the circumstances of the crime and defendant’s active planning and participation in a particularly senseless murder. Despite having a stable, middleclass home, defendant chose to take the life of another for a small amount of money. Defendant was 17 years old, of a typical maturity level for his age, and had no psychiatric disorders or intellectual disabilities that would prevent him from understanding risks and consequences as others his age would. Despite these advantages, defendant also had an extensive juvenile record, and thus had already had the advantage of any rehabilitative programs offered by the juvenile court, to no avail, as his criminal activity had continued to escalate. Defendant was neither abused nor neglected, but rather the evidence indicates for most of his life he had two parents who cared deeply for his well-being in all regards.
he trial court erred by concluding that a 50-year sentence with the possibility of parole on a defendant who was a juvenile at the time the crimes were committed subjected him to cruel and unusual punishment in violation of the Eighth Amendment. The defendant was convicted of second degree burglary (1 count), felonious breaking or entering (3 counts), felonious larceny (four counts), and possession of stolen property (2 counts). Assessing the number of felony convictions, the fact that one was particularly serious, and the fact that the defendant’s conduct involved great financial harm and led to criminal activity on the part of a younger individual, the court concluded that the sentence was not “grossly disproportionate.”
he trial court erred by concluding that a 50-year sentence with the possibility of parole on a defendant who was a juvenile at the time the crimes were committed subjected him to cruel and unusual punishment in violation of the Eighth Amendment. The defendant was convicted of second degree burglary (1 count), felonious breaking or entering (3 counts), felonious larceny (four counts), and possession of stolen property (2 counts). Assessing the number of felony convictions, the fact that one was particularly serious, and the fact that the defendant’s conduct involved great financial harm and led to criminal activity on the part of a younger individual, the court concluded that the sentence was not “grossly disproportionate.”
The court held that the trial court erred by concluding that the defendant’s sentence of life in prison with the possibility of parole violated of the Eighth Amendment. In 1973, the 17-year-old defendant was charged with first-degree burglary and other offenses. After he turned 18, he defendant pleaded guilty to second-degree burglary and another charge. On the second-degree burglary conviction, he was sentenced to an active term for “his natural life.” In 2011 the defendant filed a MAR challenging his life sentence, asserting, among other things, a violation of the Eighth Amendment. The trial court granted relief and the State appealed. The court began by noting that the defendant had properly asserted a claim in his MAR under G.S. 15A-1415(b)(8) (sentence invalid as a matter of law) and (b)(4) (unconstitutional sentence). On the substance of the Eighth Amendment claim, the court noted that under the statutes in effect at that time, prisoners with life sentences were eligible to have their cases considered for parole after serving 10 years. Although the record was not clear how often the defendant was considered for parole, it was clear that in 2008, after serving over 35 years, he was paroled. After he was convicted in 2010 of driving while impaired, his parole was revoked and his life sentence reinstated. Against this background, the court concluded that the “defendant’s outstanding sentence of life in prison with possibility of parole for second-degree burglary, though severe, is not cruel or unusual in the constitutional sense.” The dissenting judge believed that the court lacked jurisdiction to consider the State’s appeal.
The court rejected the defendant’s argument that a sentence of life in prison without the possibility of parole for first-degree felony-murder (child abuse as the underlying felony) violated the 8th Amendment.
Under Miller v. Alabama, 132 S. Ct. 2455 (2012), the trial court violated the defendant’s constitutional right to be free from cruel and unusual punishment by imposing a mandatory sentence of life imprisonment without the possibility of parole upon him despite the fact that he was under 18 years old at the time of the murder. Because the defendant was convicted of first-degree murder solely on the basis of the felony-murder rule, he must be resentenced to life imprisonment with parole in accordance with G.S. 15A-1340.19B(a).
In an appeal from a conviction obtained in the Eve Carson murder case, the court held that the defendant was entitled to a new sentencing hearing in accordance with G.S. 15A-1476 (recodified as G.S. 15A-1340.19A), the statute enacted by the North Carolina General Assembly to bring the State’s sentencing law into compliance with Miller v. Alabama, 567 U.S. 460 (2012) (Eighth Amendment prohibits a sentencing scheme that requires life in prison without the possibility of parole for juvenile homicide offenders). The State conceded that the statute applied to the defendant, who was seventeen years old at the time of the murder and whose case was pending on direct appeal when the Act became law.
No violation of the Eighth Amendment’s prohibition against cruel and unusual punishment occurred when the defendant, who was 16 years old at the time of his arrest, was convicted of first degree murder and sentenced to life in prison without the possibility of parole . The court rejected the defendant’s argument that Graham v. Florida, 130 S. Ct. 2011 (2010) (the Eighth Amendment does not permit a juvenile offender to be sentenced to life in prison without the possibility of parole for a non-homicide crime), warranted a different result; the court distinguished Graham on grounds that the case at hand involved a murder conviction.
The defendant, who was sixteen years old when he committed the sexual offenses at issue, was sentenced to 32 to 40 years imprisonment. The court held that the sentence did not violate the constitutional prohibitions against cruel and unusual punishment.
The Court held that retroactive application of amended Federal Sentencing Guidelines to the defendant’s convictions violated the Ex Post Facto Clause. The defendant was convicted for conduct occurring in 1999 and 2000. At sentencing he argued that the Ex Post Facto Clause required that he be sentenced under the 1998 version of the Guidelines in effect when he committed the offenses, not under the 2009 version, which was in effect at the time of sentencing. Under the 1998 version, his sentencing range was 30-37 months; under the 2009 version it was 70-87 months. The lower courts rejected the defendant’s argument and the Supreme Court reversed.
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.
On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 786 S.E.2d 73 (2016), in this murder case where the defendant, who was a juvenile at the time of the offense, was resentenced to life in prison without parole under the state’s Miller-compliant sentencing scheme (G.S. 15A-1340.19A to -1340.19D), the court modified and affirmed the opinion below and remanded for further proceedings. In the Court of Appeals, the defendant argued that the trial court had, by resentencing him pursuant the new statutes, violated the constitutional prohibition against the enactment of ex post facto laws, that the statutory provisions subjected him to cruel and unusual punishment and deprived him of his rights to a trial by jury and to not be deprived of liberty without due process of law, and that the trial court failed to make adequate findings of fact to support its decision to impose a sentence of life without parole. In a unanimous opinion, the Court of Appeals upheld the constitutionality of the statutes while reversing the trial court’s resentencing order and remanding for further proceedings. The Court of Appeals remanded for the trial court to correct what it characterized as inadequate findings as to the presence or absence of mitigating factors to support its determination. Before the Supreme Court, the defendant argued that the Court of Appeals erred by holding that the statute creates a presumption in favor of life without parole and by rejecting his constitutional challenges to the statutory scheme.
The Supreme Court began its analysis by addressing whether or not G.S. 15A-1340.19C gives rise to a mandatory presumption that a juvenile convicted of first-degree murder on the basis of a theory other than felony murder should be sentenced to life imprisonment without the possibility of parole. The court concluded, in part: “the relevant statutory language, when read in context, treats the sentencing decision required by N.C.G.S. § 15A-1340.19C(a) as a choice between two equally appropriate sentencing alternatives and, at an absolute minimum, does not clearly and unambiguously create a presumption in favor of sentencing juvenile defendants convicted of first-degree murder on the basis of a theory other than the felony murder rule to life imprisonment without the possibility of parole.” Thus, the Court of Appeals erred by construing the statutory language as incorporating such a presumption. The court offered this instruction for trial judges:
On the contrary, trial judges sentencing juveniles convicted of first-degree murder on the basis of a theory other than the felony murder rule should refrain from presuming the appropriateness of a sentence of life imprisonment without the possibility of parole and select between the available sentencing alternatives based solely upon a consideration of “the circumstances of the offense,” “the particular circumstances of the defendant,” and “any mitigating factors,” N.C.G.S. § 15A-1340.19C(a), as they currently do in selecting a specific sentence from the presumptive range in a structured sentencing proceeding, in light of the United States Supreme Court’s statements in Miller and its progeny to the effect that sentences of life imprisonment without the possibility of parole should be reserved for those juvenile defendants whose crimes reflect irreparable corruption rather than transient immaturity.
The court then rejected the defendant’s argument that the statutory scheme was unconstitutionally vague, concluding that the statutes “provide sufficient guidance to allow a sentencing judge to make a proper, non-arbitrary determination of the sentence that should be imposed upon a juvenile convicted of first-degree murder on a basis other than the felony murder rule to satisfy due process requirements.” The court also rejected the defendant’s arbitrariness argument. Finally, the court rejected the defendant’s ex post facto argument, holding that the Court of Appeals correctly determined that the statutory scheme does not allow for imposition of a different or greater punishment than was permitted when the crime was committed. In this respect, it held: because the statutes “make a reduced sentence available to defendant and specify procedures that a sentencing judge is required to use in making the sentencing decision, we believe that defendant’s challenge to the validity of the relevant statutory provisions as an impermissible ex post facto law is without merit.” Justices Beasley and Hudson dissented.
The defendant’s sentence of life in prison with the possibility of parole for his conviction of felony murder when he was 16 years old is constitutional.
The defendant asserted that his sentence violates the Eighth Amendment. The court concluded that an as applied challenge is not legally available to the defendant and that he is limited to a review of whether his sentence was grossly disproportionate to his crime. Considering that issue, the court concluded that the defendant sentence of life in prison with the possibility of parole was not grossly disproportionate to his crime. Among other things the defendant was an active participant in the murder, did not provide assistance to the victim, and tried to profit from the crime by selling the murder weapon.
Turning to the defendant’s argument as to Article 1, Section 27 of the state constitution, the court noted that the North Carolina Supreme Court has historically analyzed cruel and unusual punishment claims similarly under both the federal and state constitutions. Having determined that the defendant’s sentence does not violate the Eighth Amendment, the court concluded that it passes muster under the state constitution.
Finally, the defendant argued that because G.S. 15A-1340.19B did not exist at the time he committed his crime, his sentence violates the prohibition against ex post facto laws. As his lawyer conceded at oral argument, however, a virtually identical contention was rejected by the court in State v. James, 371 N.C. 77 (2018), and that case forecloses his argument on this issue.
The trial court did not err by refusing to admit during the sentencing hearing the defendant’s evidence consisting of a notebook prepared in connection with earlier sentencing proceedings and containing recitations of an accomplice’s confessions, a forensic blood spatter expert report, and medical reports. The trial court declined to admit the notebook and instead asked that the defendant call live witnesses from his witness list, expressing concern about the “unsupported” and “unauthenticated” nature of the writings.
In 2007 the defendant was convicted of DWI and felonious speeding to elude arrest, charges arising from a single incident. In 2018 he filed a petition for expunction of the speeding to elude charge. The trial court denied his petition, agreeing with the State’s argument that because the charge for “fleeing to elude [was filed under] the same file number as DWI” it was an offense “involving impaired driving” and was therefore ineligible for an expunction. While “[w]hether to grant an expunction is a discretionary determination” normally reviewed for abuse of discretion, the court reviewed de novo whether the trial court had erred as a matter of law by interpreting G.S. 15A-145.5(a)(8a) as to render the defendant ineligible for expunction due to the speeding to elude charge being an “offense involving impaired driving as defined in G.S. 20-4.01(24a).” Noting that the speeding to elude conviction involved impaired driving as a matter of fact, the court explained that “the statutory regime defines expunction eligibility in term of the offense in question” and that felonious speeding to elude arrest is not defined in G.S. 20-4.01(24a) as an “offense involving impaired driving.” Thus, the trial court made an error of law in determining that the defendant was categorically ineligible for expunction.
Because the trial court failed to consider evidence of the defendant’s eligibility for conditional discharge pursuant to G.S. 90-96, the court vacated the judgment and remanded for resentencing. The defendant pleaded guilty to driving while impaired and possession of LSD. According to the plea agreement, the defendant stipulated to his prior record level for each offense, and that he would be placed on probation. In exchange, the State agreed to dismiss additional drug possession charges against the defendant. Pursuant to the plea agreement, the defendant received suspended sentences. On appeal, the defendant argued that the trial court erred by granting a suspended sentence rather than a conditional discharge. The trial court had denied this request, concluding that the defendant was asking for something beyond the scope of his plea agreement. The Court of Appeals agreed with the defendant, noting that defense counsel asked for such a discharge during the plea hearing and that the conditional discharge statute was mandatory for eligible defendants. The court rejected the State’s argument that the defendant failed to present evidence that he was qualified for conditional discharge, concluding instead that the burden is on the State to establish that the defendant is not eligible for conditional discharge by proving the defendant’s prior record. Here, the trial court did not afford either party the opportunity to establish whether or not the defendant was eligible for conditional discharge. The court therefore vacated the judgment and remanded for a new sentencing hearing, directing the trial court to follow the procedure for the consideration of eligibility for conditional discharge.
The trial court erred by applying G.S. 14-50.30 and expunging the defendant’s conviction for an offense occurring on February 6, 1995. At the time, the statute only applied to offenses occurring on or after December 1, 2008.
The defendant was convicted of trafficking in opium or heroin. He argued on appeal that the trial court committed plain error by allowing the State to introduce into evidence the drugs found in his vehicle. The Court of Appeals concluded that the defendant waived appellate review of this claim because he did not move before the trial court to suppress evidence of the hydrocodone tablets and there was no suppression hearing. In such circumstances, the appellate court lacks the fully developed record necessary to conduct plain error review.
The Court of Appeals further held that the trial court improperly imposed attorney’s fees and an attorney-appointment fee against Defendant without providing him with notice and an opportunity to be heard. Thus, the court vacated the civil judgments imposing attorney’s fees and the attorney-appointment fee, and remanded for further proceedings.
Because the defendant was not given notice and an opportunity to be heard as to the final amount of attorneys’ fees that would be entered against him, the court vacated the civil judgment entered pursuant to G.S. 7A-455 and remanded to the trial court. At sentencing, the trial court may enter a civil judgment against an indigent defendant for fees incurred by the defendant’s court-appointed attorney. However, before entering judgment the trial court must give the defendant notice and opportunity to be heard regarding the total amount of hours and fees claimed by court-appointed counsel. Although the trial court discussed attorneys fees with the defendant’s appointed attorney in the defendant’s presence, the trial court did not ask the defendant whether he wished to be heard on the issue. Additionally, while the exchange reveals that the appointed lawyer claimed seven hours of work, the record contains no evidence that the defendant was notified of and given an opportunity to be heard regarding the total amount of fees that would be entered.
The defendant attempted to cash a forged check at a bank in Burke County. He submitted his driver’s license and social security card along with the check through the tube system at the bank’s drive-through. The bank teller handling the transaction became suspicious upon seeing the check and contacted the account owner. The account owner informed the bank employee that she had not authorized the check, did not know the defendant, and that the check had been recently taken from her mailbox. The defendant left the scene without recovering his documents and was later indicted for uttering a forged instrument. He was convicted at trial and appealed.
(1) Sufficient evidence existed for the jury to determine that the defendant was the perpetrator. The State introduced the defendant’s driver’s license and social security card, which had been left with the bank teller. A detective established the chain of custody of those items from the bank teller to the police. The bank teller testified that the defendant was the person who initially passed those documents to at the bank window, and that he verified at the time that the defendant was the person on the license. In the light most favorable to the State, this was sufficient evidence to show that the defendant was the person responsible for the crime.
(2) The defendant’s attorney testified that he had 28 hours in the case, and the trial judge awarded attorney fees as a condition of probation in the amount of $1,680.00. The defendant complained that he was not provided an opportunity to be heard on the award. Because the attorney fees were ordered as a condition of probation and not as a civil judgment, the defendant was not entitled to be heard. “[T]his Court has only required notice and an opportunity to be heard when the court has imposed a civil judgment against an indigent defendant for attorney fees pursuant to [G.S. 7A-]455(b).” Gibson Slip op. at 10 (citing State v. Jacobs, 172 N.C. App. 220 (2005) and State v. Friend, 257 N.C. App. 516 (2018)). G.S. 15A-1343(b)(10) authorizes payment of attorney fees as a condition of probation, and the trial court correctly calculated the rate for appointed attorney fees for the class of offense ($60 x 28 hours) to arrive at the award. Because the award was authorized as a matter of probation and no civil judgment was involved, the award would only be reversed for an abuse of discretion. Finding none, the award of attorney fees was affirmed. Judges Dietz and Collins concurred.
The defendant was convicted of armed robbery and resisting a public officer in Columbus County. Immediately before trial, the defendant moved to continue the case. He argued that he had only just received and reviewed recorded statements of the robbery victim and needed time to subpoena the victim’s wife to provide exculpatory evidence and to impeach the victim’s credibility. The trial court declined to continue the case. (1) Defense counsel had been involved in the case for more than nine months and the victim’s wife was listed in discovery materials provided to the defense as a potential witness for the State. Despite being on notice of her potential value as a witness before trial, defense counsel made no effort to locate or interview her. Further, the oral motion to continue did not specifically describe what testimony the witness would provide other than calling it “exculpatory” and “impeaching,” nor was it supported by affidavit. According to the court:
[T]he oral motion for continuance is not supported by affidavit or other proof. In fact, the record suggests only a natural reluctance to go to trial . . . [and] [w]e are left with the thought that defense counsel suffered more from lack of a defense than from lack of time. McMillian Slip op. at 9 (citation omitted).
The denial of the motion to continue therefore did not violate the defendant’s constitutional rights nor amount to an abuse of discretion.
(2) At the conclusion of the case, defense counsel was not able to provide the numbers of hours he had in the case and only later provided a fee application to the judge. This was done outside the presence of the defendant, who was in custody at the time. Attorney fees were awarded without the defendant being notified or present, and there was no other evidence in the record that the defendant had notice or waived his right to be heard. The defendant sought review on the issue.
Attorney fee awards are civil judgments that must be appealed in accordance with appellate rules for civil cases. Because the defendant failed to give written notice of appeal, his appeal was dismissed for lack of jurisdiction. However, the defendant also filed a petition for writ of certiorari on the issue. The Court of Appeals granted the petition to reach the merits of the issue. The State agreed that the defendant did not receive an opportunity to be heard on attorney fees, and the court vacated the order for attorney fees. The matter was remanded the matter for a hearing to be conducted on the issue with the defendant having notice and an opportunity to be heard.
The defendant pled guilty to possession of cocaine and possession of methamphetamine pursuant to a plea agreement that required the State to dismiss other charges and to refrain from indicting him as a habitual felon. At the plea hearing, the trial court conducted a plea colloquy and asked defense counsel, “‘How much time do you have in this?’” Counsel replied “‘9.5 hours.’” Slip op. at ¶ 2. The trial court accepted the plea and sentenced the defendant to two consecutive active terms of seven to 18 months. The trial court also entered a civil judgment ordering the defendant to pay $570 in attorney’s fees and a $60 appointment fee.
The defendant appealed the civil judgment for attorney’s fees and petitioned for certiorari review. The Court dismissed the defendant’s pro se appeal based on his failure to specify the judgment from which he was appealing, but granted certiorari review.
The Court noted that while a trial court may enter a civil judgment against a convicted defendant for the amount of fees incurred by his or her court-appointed attorney, the defendant must be provided notice and an opportunity to heard before such a judgment may be entered. Trial courts must ask defendants personally (not through counsel) whether they wish to be heard on the issue before imposing judgment. The record in the case below demonstrated that the defendant was not provided notice or an opportunity to be heard. Thus, the Court of Appeals held that the trial court erred by imposing the civil judgment for attorney’s fees, vacated the judgment, and remanded for further proceedings.
(1) In this Buncombe County case, the State prepared the defendant’s prior record level worksheet and calculated that the defendant had fourteen prior record points based on ten out-of-state felony and misdemeanor convictions. The defendant and her counsel stipulated to these prior convictions by signing the sentencing worksheet. At the plea hearing, the state provided “the trial court with copies of each out-of-state misdemeanor statute as evidence that the offenses were ‘substantially similar’ to a North Carolina offense to support their classification as Class 1 misdemeanors.” Slip op. at ¶ 5. Upon accepting the copies, the trial court did not review them further, and only asked the defendant’s counsel whether they objected to the trial court finding that the out-of-state misdemeanors were of similar status in North Carolina. The defendant’s counsel did not respond because of an interruption by the prosecutor, but following the interruption, the defendant and her counsel agreed to “14 prior record points and a prior record level, therefore, of five for felony sentencing purposes.” Id. at ¶ 5.
On appeal, the defendant claimed that the trial court erred by failing to consider whether each conviction was substantially similar to any North Carolina Class A1 or Class 1 misdemeanor, and thus miscalculated her prior sentencing points. The Court of Appeals agreed that the trial court may not accept a stipulation that an out-of-state conviction is “substantially similar” to a particular North Carolina felony or misdemeanor. Instead, the trial court must compare the elements of the out-of-state statute with the elements of the North Carolina statute to determine as a matter of law whether they are substantially similar. The Court of Appeals remanded the case for resentencing.
(2) Prior to sentencing, the defendant’s counsel told the trial court that they were appointed, their hours on the case, and that it totaled to $990 in attorney’s fees. The trial court did not, however, ask the defendant herself about the attorney’s hours or fees. Under State v. Friend, 257 N.C. App. 516 (2018), indigent defendants have a right to notice and the opportunity to be heard before civil judgments are entered against them for court-appointed attorney’s fees. The trial court did not offer the defendant an opportunity to be heard and thus erred. The Court of Appeals vacated the imposed civil judgment for attorney’s fees.
The defendant was charged with first degree burglary after she was found inside the victims’ home in the early morning hours, having taken items from their cars and placed them inside a purse belonging to one of the homeowners. The defendant appeared to be impaired at the time she was arrested. She claimed during the encounter that, alternatively, she was an emergency medical worker, someone had chased her inside the house, and someone had invited her to the house.
(1) Before making an opening statement, defense counsel notified the court that he would be admitting all of the elements of the charged offense besides intent. The trial court asked the defendant whether she understood and agreed with this decision. She said she did. While defense counsel’s express or implied admission of the defendant’s guilt of a charged offense to the jury without the defendant’s consent is per se ineffective assistance of counsel, such an admission may be made with the defendant’s consent. Here, the trial court had an exchange with the defendant where she expressed her understanding and agreed to admit the elements of felony breaking and entering other than intent. Therefore, even assuming, without deciding, that defense counsel impliedly admitted that defendant was guilty of misdemeanor breaking and entering, that admission was consensual and did not constitute ineffective assistance of counsel.
(2) An expert in forensic psychology testified for the defendant that she had diagnosed the defendant with post-traumatic stress disorder, severe alcohol use disorder, severe amphetamine use disorder, and a personality disorder. The expert testified that the defendant admitted to using methamphetamine daily and that such use can result in a methamphetamine-associated psychosis which presents with delusions, paranoia, and hallucinations. The expert characterized the defendant’s symptoms as congruent with this condition.
During closing argument, the prosecutor attacked the expert’s credibility, stating that “‘psychosis is quite convenient as an excuse’” and that the defendant “‘had Dr. James come and testify . . . with the end in mind.’” Slip op. at 14. The prosecutor argued to the jury that the expert was “‘paid by the defense, for the defense, to give good stuff for the defense’” and that “‘[y]ou get what you put out. What you put in, you get out.’” Id. After questioning the utility of Dr. James’s diagnoses of the defendant, the prosecutor remarked to the jury, “‘So I ask you to take that for what it is. At the end of the day, hired by the defense, for the defense, to say good things for the defense . . . .’” Id. The defendant did not object to the remarks. The court of appeals held that the prosecutor’s remarks were improper because they went beyond arguing that the expert witness was potentially biased, which is permissible. Instead, the prosecution impermissibly suggested to the jury that the defendant’s expert was paid to fabricate an excuse for her conduct and acts, regardless of the truth. The court explained:
By arguing that psychosis was an “excuse,” Dr. James testified with an end in mind, Dr. James was paid “to give good stuff for the defense,” and Dr. James was hired “to say good things for the defense,” the prosecutor inappropriately suggested that Dr. James “should not be believed because [s]he would give untruthful or inaccurate testimony in exchange for pay.”
Slip op. at 14 (quoting, in last clause of last sentence, State v. Huey, 370 N.C. 174, 183 (2017)).
While these remarks were improper, the court of appeals held that in the absence of an objection by the defendant, they were not so grossly improper as to impede the defendant’s right to a fair trial. The court noted that similar remarks had been held not to amount to prejudicial error. Moreover, the court said it could not conclude that the remarks were so prejudicial as to merit a new trial considering the substantial amount of evidence tending to show that the defendant had the requisite intent for first-degree burglary.
(3) The Court vacated the civil judgment for attorney’s fees and remanded the matter to the trial court for a waiver by the defendant or a hearing on the issue. Although at trial the defendant stated she had no objection to the entry of a civil judgment, she did not know at that time the number of hours her appointed counsel planned to submit or what amount she would owe. She was, therefore, deprived of a meaningful opportunity to be heard before the judgment was entered.
The defendant was convicted at trial of driving while impaired and habitual DWI in Guilford County. (1) In its discretion, the Court of Appeals granted the defendant’s petitions for writ of certiorari to review the criminal judgment and civil judgment for attorney fees. Following his conviction for habitual impaired driving, the defendant filed two pro se notices of appeal. Those notices did not contain a certificate of service indicating service on the State and failed to name the court to which the appeals were taken. Appellate counsel was later appointed, who recognized the pro se notices of appeal were potentially defective and filed two petitions for writ of certiorari seeking appellate review. The pro se notices of appeal were an indication that the defendant intended to preserve his right to appellate review, and the Court of Appeals previously held in an unpublished case that the types of defects in the notices of appeal at issue did not require dismissal for lack of jurisdiction. Where (as happened here) the State does not object, the Court of Appeals may exercise jurisdiction by granting the petitions for writ of certiorari. Thus, the Court of Appeals had jurisdiction to consider the defendant’s arguments.
(2) During trial, the defendant moved to dismiss for insufficiency of the evidence at the close of the State’s case in chief. The defendant thereafter presented evidence and failed to renew the sufficiency motion at the close of all evidence. Because sufficiency review was therefore not preserved, the defendant requested that the Court of Appeals invoke Rule 2 of the Rules of Appellate Procedure to suspend the preservation rules and review the issue. The court declined to do so and thus affirmed the habitual DWI conviction.
(3) The trial court awarded the defendant’s trial counsel attorney fees as a civil judgment without giving the defendant an opportunity to personally be heard, in violation of G.S. § 7A-455. More than 35 recent cases have reversed the attorney fee award in similar circumstances. Following that line of cases, the majority of the panel vacated the attorney fee order and remanded for a hearing on the matter where the defendant could be personally heard or for “other evidence in the record demonstrating that the defendant received notice, was aware of the opportunity to be heard on the issue, and chose not to be heard.” Slip op. at 11.
Judge Tyson dissented. He would have refused to grant the petitions for writ of certiorari and dismissed all the defendant’s arguments as frivolous.
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.
(1) The court rejected the defendant’s argument that the trial court considered inadmissible hearsay in finding him in criminal contempt, reasoning that the evidence was admitted not for the truth of the matter asserted but rather for corroboration. At the show cause hearing the trial court found that the defendant was seen by a testifying State’s witness to have made a hand gesture indicating a gun to his head and shaking his head. This interaction interrupted the State’s direct examination of the witness. At the hearing, the State introduced two transcripts into evidence. The first was a one-page excerpt of the witness’s trial testimony. The second reflected an additional interview with the witness taken after the witness’s trial testimony was completed. Over the defendant’s hearsay objection, the trial court admitted the transcripts. The State further called three witnesses to testify to the events in question, one of whom was the ADA who testified that he saw the defendant make the gesture. The trial court found the defendant to be in willful contempt of court and entered a civil judgment for attorney’s fees and costs. The defendant gave oral notice of appeal. He later filed a petition for a writ of certiorari seeking a belated appeal of the civil judgment. On appeal the defendant argued that he was found in criminal contempt based on inadmissible hearsay. The court rejected this argument, noting that the first transcript was used to illustrate the context in which the incident arose and to corroborate other testimony that the witness seemed agitated and distracted on the stand. The second transcript was used to corroborate the ADA’s testimony. The court concluded: “Because [the transcripts] were used to corroborate the testimony of the State’s witnesses, and were not offered into evidence to prove that Defendant was speaking and making a gun gesture, the trial court did not err when admitting them into evidence.”
(2) The trial court’s findings of fact support its conclusion that the defendant’s conduct was willful. The trial court found, in part, that the defendant’s willful behavior committed during court was intended to interrupt the proceedings and resulted in the witness ceasing testimony and challenging the defendant’s action on the stand in front of the jury. The court held that this finding of fact supported the trial court’s conclusion that the defendant willfully interrupted the proceedings.
(3) The court granted the defendant’s petition for certiorari with respect to review of the civil judgment and held that the trial court erred by entering the civil judgment against the defendant for attorney’s fees without first affording the defendant an opportunity to be heard. Before entering a civil judgment under G.S. 7A-455(b) the defendant must be given notice and an opportunity to be heard. Here, after the defendant was convicted of criminal contempt, the trial court asked defense counsel how much time she spent on the case. After counsel responded that she spent about 9½ hours, the court set a civil judgment in the amount of $570. Because the defendant was present in the courtroom when attorney’s fees were imposed, the defendant received notice. However he was not given an opportunity to be heard. The court vacated the judgment and remanded to the trial court for further proceedings.
In this case involving armed robbery and other charges, the trial court erred by assessing a fee against the defendant for the State’s expert witness. The expert medical witness testified regarding treatment he administered to the victim. The trial court ordered that the defendant, as a condition of any early release or post-release supervision, reimburse the State $780 for the expert’s testimony. The court concluded that there was no statutory authority for the trial court to require this payment as a condition of early release or post-release supervision.
The trial court erred in calculating the amount of jail fees due where it used the daily rate provided in the wrong version of G.S. 7A-313. The court rejected the State’s argument that because the defendant failed to object to the fees on this basis at sentencing, the issue was not properly before the court or, alternatively was bared by res judicata because of the defendant’s prior appeals.
The trial court erred by imposing jail fees of $2,370 pursuant to G.S. 7A-313. The trial court orally imposed an active sentence of 60 days, with credit for 1 day spent in pre-judgment custody. The written judgment included a $2,370.00 jail fee. Although the trial court had authority under G.S. 7A-313 to order the defendant to pay $10 in jail fees the statute did not authorize an additional $2,360 in fees where the defendant received an active sentence, not a probationary one.
The superior court judge erred by “retroactively” applying Structured Sentencing Law (SSL) provisions to a Fair Sentencing Act (FSA) case. The defendant was sentenced under the FSA. After SSL came into effect, he filed a motion for appropriate relief asserting that SSL applied retroactively to his case and that he was entitled to a lesser sentence under SSL. The superior court judge granted relief. The supreme court, exercising rarely used general supervisory authority to promote the expeditious administration of justice, allowed the State’s petition for writ of certiorari and held that the superior court judge erred by modifying the sentence. The court relied on the effective date of the SSL, as set out by the General Assembly when enacting that law. Finding no other ground for relief, the court remanded for reinstatement of the original FSA sentence.
Finding that the trial court erred by sentencing the defendant in the aggravated range in this Fair Sentencing Act (FSA) child sexual assault case, the court remanded for a new sentencing hearing in compliance with Blakely and in accordance with the court’s opinion regarding how Blakely applies to FSA cases.
On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 786 S.E.2d 73 (2016), in this murder case where the defendant, who was a juvenile at the time of the offense, was resentenced to life in prison without parole under the state’s Miller-compliant sentencing scheme (G.S. 15A-1340.19A to -1340.19D), the court modified and affirmed the opinion below and remanded for further proceedings. In the Court of Appeals, the defendant argued that the trial court had, by resentencing him pursuant the new statutes, violated the constitutional prohibition against the enactment of ex post facto laws, that the statutory provisions subjected him to cruel and unusual punishment and deprived him of his rights to a trial by jury and to not be deprived of liberty without due process of law, and that the trial court failed to make adequate findings of fact to support its decision to impose a sentence of life without parole. In a unanimous opinion, the Court of Appeals upheld the constitutionality of the statutes while reversing the trial court’s resentencing order and remanding for further proceedings. The Court of Appeals remanded for the trial court to correct what it characterized as inadequate findings as to the presence or absence of mitigating factors to support its determination. Before the Supreme Court, the defendant argued that the Court of Appeals erred by holding that the statute creates a presumption in favor of life without parole and by rejecting his constitutional challenges to the statutory scheme.
The Supreme Court began its analysis by addressing whether or not G.S. 15A-1340.19C gives rise to a mandatory presumption that a juvenile convicted of first-degree murder on the basis of a theory other than felony murder should be sentenced to life imprisonment without the possibility of parole. The court concluded, in part: “the relevant statutory language, when read in context, treats the sentencing decision required by N.C.G.S. § 15A-1340.19C(a) as a choice between two equally appropriate sentencing alternatives and, at an absolute minimum, does not clearly and unambiguously create a presumption in favor of sentencing juvenile defendants convicted of first-degree murder on the basis of a theory other than the felony murder rule to life imprisonment without the possibility of parole.” Thus, the Court of Appeals erred by construing the statutory language as incorporating such a presumption. The court offered this instruction for trial judges:
On the contrary, trial judges sentencing juveniles convicted of first-degree murder on the basis of a theory other than the felony murder rule should refrain from presuming the appropriateness of a sentence of life imprisonment without the possibility of parole and select between the available sentencing alternatives based solely upon a consideration of “the circumstances of the offense,” “the particular circumstances of the defendant,” and “any mitigating factors,” N.C.G.S. § 15A-1340.19C(a), as they currently do in selecting a specific sentence from the presumptive range in a structured sentencing proceeding, in light of the United States Supreme Court’s statements in Miller and its progeny to the effect that sentences of life imprisonment without the possibility of parole should be reserved for those juvenile defendants whose crimes reflect irreparable corruption rather than transient immaturity.
The court then rejected the defendant’s argument that the statutory scheme was unconstitutionally vague, concluding that the statutes “provide sufficient guidance to allow a sentencing judge to make a proper, non-arbitrary determination of the sentence that should be imposed upon a juvenile convicted of first-degree murder on a basis other than the felony murder rule to satisfy due process requirements.” The court also rejected the defendant’s arbitrariness argument. Finally, the court rejected the defendant’s ex post facto argument, holding that the Court of Appeals correctly determined that the statutory scheme does not allow for imposition of a different or greater punishment than was permitted when the crime was committed. In this respect, it held: because the statutes “make a reduced sentence available to defendant and specify procedures that a sentencing judge is required to use in making the sentencing decision, we believe that defendant’s challenge to the validity of the relevant statutory provisions as an impermissible ex post facto law is without merit.” Justices Beasley and Hudson dissented.
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 Apprendi rule applies to fines. Thus, any fact that increases a defendant’s statutory maximum fine must be found by a jury beyond a reasonable doubt.
The trial court did not err by ordering the defendant to pay a $1000 fine as part of her sentence upon a conviction for assault by strangulation. North Carolina statutes provide that a person who has been convicted of a crime may be ordered to pay a fine as provided by law and that unless otherwise provided the amount of the fine is in the discretion of the court. The court noted that there is no statutory provision specifically addressing the fine amount that may be imposed for the offense at issue. Accordingly, the amount is left to the trial court’s discretion. Here, the court found itself unable to identify any basis for determining that the fine was an abuse of discretion or otherwise unlawful. The court specifically rejected the defendant’s argument that the fine violated the prohibition on excessive fines under the Eighth Amendment.
The trial court erred by finding that the defendant had “gang affiliation” and ordering gang restrictions in the judgment. G.S. 14-50.25 provides that when a defendant is found guilty of a criminal offense relevant to the statute “the presiding judge shall determine whether the offense involved criminal street gang activity.” If the judge makes this determination, then he “shall indicate on the form reflecting the judgment that the offense involved criminal street gang activity.” Here, the judge made a judicial, not clerical error, where there was no evidence to support such a finding. The court declined to reach the defendant’s argument that the statute was unconstitutional under the Apprendi line of cases (holding that any fact other than a prior conviction that elevates a sentence must be submitted to the jury).
The trial court erred by making a determination under G.S. 14-50.25 that the offenses involved criminal street gang activity outside of defendant’s presence and without giving him an opportunity to be heard; vacating and remanding for a new sentencing hearing. A finding of criminal street gang activity was a “substantive change” in the judgments that must be made in defendant’s presence and with an opportunity to be heard.
In this Wake County case, the Supreme Court (1) affirmed the Court of Appeals holding that Rule 404(b) testimony was properly admitted, but (2) reversed the Court of Appeals decision vacating defendant’s sentence for improper consideration of the choice to pursue a jury trial, reinstating defendant’s original sentence.
From August-September of 2015, defendant, a middle-school chorus teacher, repeatedly raped and assaulted an eleven-year old student in the bathroom of the middle school as the student took her daily trips to the school nurse for medication. The student eventually reported the details of the assaults, leading to defendant’s trial for statutory rape and statutory sexual offense with a child in October of 2019. At trial, defendant filed a motion in limine to prevent the State from admitting testimony under Rule of Evidence 404(b) regarding defendant’s alleged rape of a previous student, but the trial court denied his motion. After the jury found defendant guilty of all charges, he was sentenced to three consecutive active sentences. During sentencing, the trial court addressed defendant regarding the testimony of the two victims and the traumatizing nature of the proceedings. At the end of this statement, the trial court said “[t]hey didn’t have a choice and you, [defendant], had a choice.” Slip Op. at 16. Defendant appealed, and the Court of Appeals majority found no error in admitting the Rule 404(b) testimony, but did find that the trial court improperly considered defendant’s choice to pursue a jury trial when imposing his sentence. The State subsequently appealed based upon the divided panel, leading to the current opinion.
Taking up (1), the Supreme Court explained that “Rule 404(b) has been characterized as a rule of inclusion, and evidence of prior bad acts is admissible unless the only reason that the evidence is introduced is to show the defendant’s propensity for committing a crime like the act charged.” Id. at 8. However, prior acts must be sufficiently similar and contain “some unusual facts that go to a purpose other than propensity” common to both crimes to be admissible under Rule 404(b). Id. at 13, quoting State v. Beckelheimer, 366 N.C. 127, 132 (2012). Here, the State offered testimony from a victim who was one of defendant’s chorus students in February of 2015. The victim testified that defendant raped her in his apartment while he was taking her to practice for a competition. The State offered this Rule 404(b) testimony to show defendant’s “intent, motive, plan, and design to sexually assault middle school students from schools where he was a teacher.” Id. at 10. Analyzing seven similarities and unique facts shared by assaults, the Court noted the age of the children, defendant’s use of his position as a teacher to gain access, and the style of intercourse defendant attempted with the children. The Court explained the proper analysis “involves focusing on the similarities and not the differences between the two incidents,” and concluded that admission of the Rule 404(b) testimony was not error. Id. at 13.
Turning to (2), the Court first noted the strong protection for an accused’s right to a trial by jury, and the necessity of a new sentencing hearing if the trial court imposed a sentence “at least in part because defendant . . . insisted on a trial by jury.” Id. at 15, quoting State v. Boone, 293 N.C. 702, 712 (1977). The issue in the current case was whether the “choice” referenced in the sentencing hearing was defendant’s decision to plead not guilty and pursue a jury trial. The Court examined relevant precedent and explained that the statement must be reviewed with the entire record. Here, reviewing the entirety of the trial court’s statement, it was unclear if the trial court was referring to defendant’s choice to pursue a jury trial or to “the egregious nature of [defendant]’s crimes and his decision to commit those crimes.” Id. at 20. The Court concluded that this ambiguity did not overcome the “presumption of regularity” enjoyed by the trial court’s sentence. Id. This led the Court to reinstate defendant’s original sentence.
In a per curiam opinion, the court reversed, for the reasons stated in the dissenting opinion below, the decision of the court of appeals in State v. Pinkerton, 205 N.C. App. 490 (July 20, 2010). The court of appeals had held, over a dissent, that when sentencing the defendant in a child sexual assault case, the trial court impermissibly considered the defendant’s exercise of his right to trial by jury. After the jury returned a guilty verdict and the defendant was afforded the right to allocution, the trial court stated that “if you truly cared–if you had one ounce of care in your heart about that child–you wouldn’t have put that child through this.” Instead, according to the trial court, defendant “would have pled guilty, and you didn’t.” The trial court stated: “I’m not punishing you for not pleading guilty . . . I would have rewarded you for pleading guilty.” The dissenting judge found no indication of improper motivation by the trial court judge in imposing the defendant’s sentence.
In this Wake County case, defendant appealed his convictions for first-degree rape of a child and first-degree sexual offense with a child based on error in the admission of testimony regarding a prior alleged assault and in sentencing. The Court of Appeals found no error in the admission of evidence under North Carolina Rule of Evidence 404(b), but improper considerations in sentencing that justified remanding the matter for resentencing.
The State filed a pretrial notice of Rule 404(b) evidence, and defendant countered with a motion in limine to preclude the State from introducing any evidence related to sexual assaults in Durham, NC. At trial, the State offered testimony from the victim in this matter regarding the sexual assaults she experienced in or around August or September of 2015. The State then called the Rule 404(b) witness to testify about an alleged sexual assault by defendant that she experienced in in February of 2015, in Durham. Both the victim and the other witness were students at middle schools where defendant was a teacher. The trial court allowed testimony from the Rule 404(b) witness in front of the jury.
The Court of Appeals considered defendant’s argument that the Rule 404(b) testimony was not similar to the crime charged and was unduly prejudicial, noting that Rule 404(b) is generally an inclusive rule if the evidence is relevant to any issue besides propensity to commit the crime charged. Slip Op. at ¶ 17. Additionally, the court noted that North Carolina precedent regarding the admissibility of Rule 404(b) evidence in sexual assault cases has been “very liberal.” Slip Op. at ¶ 20, quoting State v. White, 331 N.C. 604, 612 (1992). Because the crimes charged in this matter and the assault described by the Rule 404(b) witness were sufficiently similar and not too remote in time, the court found no error in admitting the testimony.
Considering defendant’s second argument regarding sentencing, the court found error due to the trial court’s improper consideration of defendant’s choice to receive a trial by jury. At the sentencing hearing, the trial court addressed defendant regarding the victim and 404(b) witness, saying “[a]nd in truth, they get traumatized again by being here, but it’s absolutely necessary when a defendant pleads not guilty. They didn’t have a choice and you, Mr. Pickens, had a choice.” Slip Op. at ¶ 32. Immediately after this quote, the trial court imposed consecutive sentences. The Court of Appeals found a clear inference that the trial court imposed consecutive sentences because defendant did not plead guilty and went to trial. As such, the court vacated the sentence and remanded for resentencing.
Judge Murphy dissented by separate opinion.
Although the trial court erred when it based its imposition of sentence on the defendant’s exercise of his right to appeal, the issue was moot because the defendant had served his sentence and could not be resentenced. Although the 120-day sentence was within the statutorily permissible range, the trial court changed its judgment from a split sentence of 30 days followed by probation to an active term in response to the defendant’s decision to appeal.
The trial court did not improperly base its sentencing decision on the defendant’s decision to reject an offered plea agreement and go to trial. However, the court repeated its admonition that “judges must take care to avoid using language that could give rise to an appearance that improper factors have played a role in the judge's decision-making process even when they have not.”
Where the defendant’s sentence was within the presumptive range, the trial court did not abuse its discretion by imposing an intermediate sanction of a term of special probation of 135 days in the Division of Adult Correction. The court rejected the defendant’s argument that the sentence was a discriminatory sentence predicated on poverty, namely that the trial court chose a sentence with active time as opposed to regular probation because the defendant would never make enough money at his current job to pay monies as required.
The defendant’s sentence was impermissibly based on his exercise of his constitutional rights. At the sentencing hearing, the trial court noted more than once that the defendant "was given an opportunity to plead guilty[,]" and that his failure to plead was one of the "factors that the Court considers when the Court fashions judgment." The trial court also admonished the defendant and defense counsel for "unnecessarily" protracting the trial for 6 days when it should have only taken 2 days.
The defendant’s sentence was impermissibly based on his exercise of his constitutional rights. At the sentencing hearing, the trial court noted more than once that the defendant "was given an opportunity to plead guilty[,]" and that his failure to plead was one of the "factors that the Court considers when the Court fashions judgment." The trial court also admonished the defendant and defense counsel for "unnecessarily" protracting the trial for 6 days when it should have only taken 2 days.
Ordering a new sentencing hearing where there was a reasonable inference that the trial judge ran the defendant’s ten felony sentences consecutively in part because of the defendant’s rejection of a plea offer and insistence on going to trial. Even though the sentences were elevated to Class C felonies because of habitual felon status, the trial judge could have consolidated them into a single judgment. At a pretrial hearing and in response to an offer by the prosecutor to recommend a ten-year sentence, the defendant asked the trial court to consider a sentence of five years in prison and five years of probation. The trial court responded saying, “So I’m just telling you up front that the offer the State made is probably the best thing.” The defendant declined the state’s offer, went to trial, and was convicted. At sentencing, the trial judge stated: “[w]ay back when we dealt with that plea different times and, you know, you told me . . . what you wanted to do, and I told you that the best offer you’re gonna get was that ten-year thing, you know.” This statement created an inference arises that the trial court based its sentence at least in part on defendant’s failure to accept the State’s plea offer.
Rejecting the defendant’s argument that the trial court imposed a greater sentence because the defendant chose to proceed to trial rather than plead guilty. At a conference between the judge, prosecutor, and defense counsel, the judge commented that if the parties were engaged in plea discussions, he would be amenable to a probationary sentence. Defense counsel objected to the judge’s comments, stating that it could be inferred that the judge would be less likely to give the defendant probation if he did not plead guilty. The judge stated that he had not meant to make any such implication, but rather to encourage the parties to enter plea negotiations. The defendant failed to show that it can be reasonably inferred that the defendant’s sentence was improperly based, even in part, on his insistence on a jury trial.
The defendant was tried in Guilford County on charges of discharging a weapon into occupied property, firearm by felon, first-degree burglary, trafficking cocaine, possession with intent, and two counts of habitual felon. At the charge conference, the defendant requested an instruction on misdemeanor breaking or entering, which the trial judge agreed to give. The defendant objected to jury instructions on actual and constructive possession for the drug offenses, but the trial court overruled the objection and instructed the jury on both theories of possession. The jury convicted on all counts and the defendant appealed.
(1) In its instruction to the jury on misdemeanor breaking or entering, the trial court deviated from the language of the pattern instruction. While the pattern instruction states the offense need not require felonious intent “so long as the breaking or entering was wrongful, that is, without any claim of right,” the trial court instructed the jury that the defendant could be found guilty of the crime if they believe he lacked felonious intent but acted “without consent of the owner or tenant.” Slip op. at 11-12. This “minor deviation” from the pattern instruction did not amount to error, as the instruction was supported by the evidence and “correct in law.” Id. at 13. Even assuming error, the defendant could not show prejudice—he did not make any claim of right to enter the property and the jury convicted on first-degree burglary in any event.
(2) As to the jury instructions on actual and constructive possession, it was error to instruct the jury on actual possession where no evidence supported that theory. However, the defendant again could not demonstrate prejudice. The evidence of defendant’s constructive possession of the drugs was “exceedingly strong,” and this defeated any claim of prejudice.
(3) At the initial sentencing hearing, the trial court failed to impose a sentence for one of the two habitual felon convictions. The next day, the trial court realized its error and imposed the second habitual sentence. The defendant gave notice of appeal following the first hearing and contended the trial court lacked jurisdiction to sentence the defendant at the second hearing. The trial court normally loses jurisdiction to act once notice of appeal has been given. However, G.S. 15A-1448(a)(3) authorizes the trial court to act to correct a sentencing error within 14 days of the original sentence, even if the defendant has given notice of appeal and even without a motion for appropriate relief. See State v. Lebeau, ___ N.C. App. ___, 843 S.E.2d 317 (April 21, 2020). The trial court was required to sentence the defendant as a habitual felon once the verdict was returned and doing so was not a substantive amendment of the sentence but merely a “statutorily ‘necessary by-product’ of the sentence.” McMillan Slip op. at 20. The trial court therefore retained jurisdiction to correct the sentence, and the convictions were unanimously affirmed.
(1) When the defendant was convicted of drug trafficking, the sentence initially announced by the trial judge was “a mandatory 70 months” of active imprisonment. The following Monday (five days later), without the defendant being present, the court entered an amended judgment stating both the minimum and maximum sentence: 70 to 93 months. The defendant argued on appeal that the trial court lacked jurisdiction to amend the sentence when it did because the defendant had already appealed by that point. The Court of Appeals disagreed, concluding that, under G.S. 15A-1448(a)(3), the jurisdiction of the trial court is divested when notice of appeal has been given and the time for giving notice of appeal has expired. For an appeal to the appellate division, that time period is 14 days. N.C. R. App. P. 4(a)(2). Because only 5 days had passed at the time of change, the time for appeal had not expired, and the trial court therefore retained jurisdiction.
(2) The defendant argued in the alternative that amending the judgment in her absence deprived her of her right to be present at sentencing. The appellate court again disagreed, concluding that the amended judgment did not amount to a “substantive change” to the original sentence. Because the 93-month maximum that accompanies a 70-month minimum is statutorily required under G.S. 90-95(h)(4), it was not the product of judicial discretion. The record showed that the trial court understood from the outset that the sentence was statutorily mandatory, and the amendment was therefore clerical in nature and not a substantive change.
The trial court had jurisdiction to sentence the defendant after a mandate issued from the Court of Appeals. The defendant appealed his sentence following multiple convictions for sex offense charges. He argued that after the Court of Appeals filed an opinion vacating his original sentence and remanding for resentencing, the trial court improperly resentenced him before the Court of Appeals had issued the mandate. The court rejected the defendant’s argument that the mandate had not issued at the time of resentencing. It held that the mandate from the appellate division issues on the day that the appellate court transmits the mandate to the lower court, not the day that the lower court actually receives the mandate.
In this drug case, the court held, over a dissent, that the trial judge improperly considered her personal knowledge of matters outside the record when sentencing the defendant and that a resentencing was required. The defendant asserted that during sentencing the trial court improperly considered her personal knowledge of unrelated charges arising from a heroin-related death in her home community. A sentence within the statutory limit is presumed regular and valid. However that presumption is not conclusive. If the record discloses that the trial court considered irrelevant and improper matter in determining the sentence, the presumption of regularity is overcome, and the sentence is improper. The verbatim transcript indicates that the trial court did in fact consider an unrelated homicide. The State did not dispute that there was no evidence of the homicide charge in the record, nor did it argue that the charge was relevant to the defendant’s sentencing. Instead, the State argued that, in context, the trial court’s statement reflects the seriousness of the drug charges, an appropriate sentencing consideration. The court agreed that the trial court’s remarks must be considered in context and that the seriousness of drug crimes is a valid consideration. It noted that if the trial court had only addressed the severity of the offenses by reference to the effects of the drug epidemic in her community or nationwide, “there would be no issue in this case.” Here, however, the trial court did not just consider the impact of the defendant’s drug offenses on the community, “but clearly indicated in her remarks that she was considering a specific offense in her community for which the defendant was not charged.” This was error. The court remanded for resentencing without consideration of matters outside the record.
In this Cumberland County case, defendant appealed the superior court order sentencing him to life in prison without the possibility of parole (LWOPP) for two counts of first-degree murder committed while he was a juvenile. The Court of Appeals affirmed the lower court’s order.
In 1998, defendant was convicted of murdering two law enforcement officers and was sentenced to death. Defendant was 17 years old at the time of the murders. Defendant’s convictions were upheld on direct appeal in State v. Golphin, 352 N.C. 364 (2000). After defendant was convicted, the U.S. Supreme Court issued Roper v. Simmons, 543 U.S. 551 (2005), holding death sentences for juveniles violated the Eighth Amendment; Miller v. Alabama, 567 U.S. 460 (2012), holding that a mandatory sentence of LWOPP was unconstitutional for a juvenile; and Montgomery v. Louisiana, 577 U.S. 190 (2016), holding that Miller’sprohibition on mandatory LWOPP must be applied retroactively to those already sentenced to mandatory LWOPP. Defendant was initially resentenced to mandatory LWOPP in December of 2005, after filing a motion for appropriate relief (MAR) under Roper. In the current case, defendant filed a MAR in July of 2018, alleging his sentence was unconstitutional under Miller and Montgomery. A sentencing hearing was held in 2022, where the MAR court reviewed the nine mitigating factors from G.S. 15A-1340.19B and sentenced defendant to consecutive sentences of LWOPP.
The Court of Appeals first explained the scope of its review was abuse of discretion, and that the relevant considerations were the mitigating factors from G.S. 15A-1340.19B(c), along with the additional factor from State v. Kelliher, 381 N.C. 558 (2022), that the sentencing court must make an express finding of “a juvenile’s permanent incorrigibility” before imposing LWOPP. Slip Op. at 12. The court then grouped defendant’s arguments in two categories, (1) that defendant’s sentence of LWOPP should be reversed based on Kelliherbecause he was capable of reform, and (2) the MAR court incorrectly weighed the mitigating factors of G.S. 15A-1340.19B. Taking up (1), the court quickly dispensed with defendant’s arguments, as defendant did not challenge the findings of fact as unsupported by the evidence and they were binding on his appeal.
Because defendant did not challenge the findings of fact, the court moved to (2), and specifically the weight the MAR court gave to each of the nine mitigating factors and the express finding of incorrigibility under Kelliher. A significant portion of the opinion (pages 15 to 30) were spent examining the factors and the weight given by the MAR court to each. The court ultimately concluded that “the Sentencing Order properly addressed each factor as required by [G.S.] 15A-1340.19A and Kelliher.” Id. at 31. After noting the possible differing views on the mitigating impact of the factors, the court found no abuse of discretion and affirmed the order.
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.
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 a case where the trial court found that the juvenile’s likelihood of rehabilitation was uncertain and sentenced him to life in prison without parole, the court vacated and remanded for the defendant to be resentenced to life with the possibility of parole. The defendant was convicted of two counts of first-degree murder. He was 17 years old at the time of the crimes. The trial court sentenced the defendant to two consecutive terms of life in prison without the possibility of parole. Following the United States Supreme Court’s Miller decision, the defendant sought and obtained a new sentencing hearing. After considering the evidence and arguments by counsel at the new hearing, the trial court entered an order that concluded, in part: “There is no certain prognosis of Defendant[’]s possibility of rehabilitation. The speculation of Defendant’s ability to be rehabilitated can only be given minimal weight as a mitigating factor.” The trial court sentenced the defendant to two consecutive sentences of life without parole and the defendant appealed.
Citing state Supreme Court precedent, the court quickly rejected the defendant’s argument that G.S. 15A-1340.19B (the post-Miller sentencing scheme for juveniles) is unconstitutional on its face.
However, the court agreed with the defendant that the trial court’s finding that the defendant’s potential for rehabilitation was speculative rendered him ineligible for life without parole. The court noted that the case required it to address a question of first impression: whether the Supreme Court’s holdings require trial courts to determine, as a threshold matter, whether a juvenile defendant is eligible for such punishment independent of other relevant factors, or whether it merely identifies additional factors that the trial court must consider as it weighs the totality of circumstances in making its sentencing decision. Considering the case law, the court stated:
[W]e hold that whether a defendant qualifies as an individual within the class of offenders who are irreparably corrupt is a threshold determination that is necessary before a life sentence without parole may be imposed by the trial court. This holding is not inconsistent with the North Carolina Supreme Court’s rejection of a specific factfinding requirement. Rather, we hold that, when a trial court does make a finding about a juvenile offender’s possibility of rehabilitation that is inconsistent with the limited class of offenders defined by the United States Supreme Court, a sentence of life in prison without the possibility of parole is unconstitutional as applied to that offender.
Turning to the case at hand, the court concluded that “the trial court erred by imposing a sentence of life in prison without the possibility of parole after making a finding contrary to the defined class of irreparably corrupt offenders described in our precedent.” The trial court made an explicit finding that “there is no certain prognosis” for the defendant’s potential for rehabilitation. This finding directly conflicts with the limitation of life in prison without parole to juveniles who are “irreparably corrupt” and “permanently incorrigible.” It concluded: “Because the trial court made an explicit finding contrary to a determination that Defendant is one of those rarest of juvenile offenders for whom rehabilitation is impossible and a worthless endeavor, we hold the trial court erred by imposing a life sentence without the possibility of parole.”
In this case involving a defendant who was 15 years old at the time of his crimes, and as conceded by the State, the trial court failed to make sufficient findings to support two sentences of life without parole. On appeal the defendant argued that although the trial court listed each of the statutory mitigating factors under G.S. 15A-1340.19B(c), it failed to expressly state the evidence supporting or opposing those mitigating factors as required by relevant case law. The State conceded that this was error and the court remanded.
(1) Because the trial court failed to make statutorily required findings of fact addressing statutory mitigating factors prior to sentencing the juvenile defendant to life imprisonment without the possibility of parole, a new sentencing hearing was required. The defendant was convicted of first-degree murder and attempted robbery with a dangerous weapon. The trial court sentenced the defendant to life imprisonment without the possibility of parole on the murder charge. Immediately after judgment was entered, the defendant gave oral notice of appeal. Almost one month later, the trial court entered an order making findings of fact based on G.S. 15A-1340.19B to support its determination that the defendant should be sentenced to life imprisonment without the possibility of parole, as opposed to a lesser sentence of life imprisonment with the possibility of parole. The court agreed with the defendant that the trial court erred by sentencing him to life imprisonment without the possibility of parole, where it failed to make findings of fact and conclusions of law in support of the sentence. (2) Because the trial court had no jurisdiction to enter findings of fact after the defendant gave notice of appeal, the court vacated the order entered upon these findings. Once the defendant gave notice of appeal, the trial court’s jurisdiction was divested. Note: one judge concurred, but wrote separately to note concern about how the trial courts are addressing discretionary determinations of whether juvenile should be sentenced to life imprisonment without the possibility of parole.
Where the defendant was convicted of first-degree murder on the theories of felony murder and premeditation and deliberation, the trial court violated G.S. 15A-1340.19C(a) by imposing a sentence of life imprisonment without the possibility of parole without assessing mitigating factors, requiring a remand for a new sentencing hearing. The trial court’s findings of fact and order failed to comply with the statutory mandate requiring it to “include findings on the absence or presence of any mitigating factors[.]” The trial court’s order made “cursory, but adequate findings as to some mitigating circumstances but failed to address other factors at all. The court added:
We also note that portions of the findings of fact are more recitations of testimony, rather than evidentiary or ultimate findings of fact. The better practice is for the trial court to make evidentiary findings of fact that resolve any conflicts in the evidence, and then to make ultimate findings of fact that apply the evidentiary findings to the relevant mitigating factors . . . . If there is no evidence presented as to a particular mitigating factor, then the order should so state, and note that as a result, that factor was not considered. (citations omitted).
G.S. 12-3(12) (defining “imprisonment for one month” as imprisonment for 30 days) is inapplicable to sentences imposed under structured sentencing. For purposes of structured sentencing, the term “month” is defined by G.S. 12-3(3) to mean a calendar month.
The trial court erred by consolidating for judgment convictions for first-degree murder and robbery with a dangerous weapon where the jury did not specify whether it had found the defendant guilty of first-degree murder based on premeditation and deliberation or on felony-murder. In this situation, the robbery merged with the murder.
The trial court violated G.S. 15A-1340.22(a) when it imposed a consecutive sentence on multiple misdemeanor convictions that was more than twice that allowed for the most serious misdemeanor, a Class 1 misdemeanor. The statute provides, in part, that if the trial court imposes consecutive sentences for two or more misdemeanors and the most serious offense is a Class A1, Class 1, or Class 2 misdemeanor, the total length of the sentences may not exceed twice the maximum sentence authorized for the most serious offense.
Prejudice enhancement in G.S. 14-3(c) was properly applied where the defendant, a white male, assaulted another white male because of the victim’s interracial relationship with a black female.
In this Alamance County case, defendant appealed his convictions for driving while impaired (DWI), resisting a public officer, and being intoxicated and disruptive, arguing error in (1) excusing potential jurors for cause, (2) denying defendant’s motion to dismiss the DWI charge, and (3) calculating the appropriate sentence. The Court of Appeals found no error in (1) and (2), but in (3) remanded for resentencing for the resisting a public officer and intoxicated and disruptive offenses.
In April of 2021, police officers noticed a wrecked vehicle in the middle of the road and saw defendant attempting to hide behind a building nearby. Officers eventually arrested defendant, and found a key fob in his pocket that opened the doors of the wrecked vehicle. When defendant came to trial for the charges at superior court, he pleaded guilty to resisting an officer and being intoxicated and disruptive prior to the jury trial. During voir dire, the trial court dismissed two jurors for cause own its own initiative. Defense counsel did not object to either dismissal. Defendant was found guilty of the DWI charge, and the court sentenced defendant for all three charges.
Taking up defendant’s argument (1), the Court of Appeals noted that the two dismissed jurors “both expressed strong emotions against law enforcement based upon their personal experiences with officers.” Slip Op. at 10. The court noted the defendant also did not use all of his peremptory challenges. Because there was no evidence that the empaneled jury was unfair, the court overruled defendant’s argument.
Moving to (2), defendant argued that no evidence showed he operated or owned the wrecked vehicle involved in the DWI charge. The court disagreed, noting there was no direct evidence of defendant operating the car while impaired, but sufficient circumstantial evidence to support the conviction. The officers observed defendant near the wrecked vehicle, found a key fob corresponding to the vehicle in his pocket, and observed him at the Cook-Out intoxicated and with a fresh cut on his forehead.
Finally, in (3) the court noted that defendant was sentenced to 120 days’ confinement for the resisting a public officer and intoxicated and disruptive misdemeanors, while “the maximum, combined sentence allowed by law is 80 days.” Id. at 14. The court remanded to allow resentencing based on the correct calculation of possible confinement.
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 was charged with driving while license revoked, operating a motor vehicle without displaying a current approved inspection certificate (G.S. 20-183.8(a)(1)), and displaying an expired registration plate (G.S. 20-111(2)) after being pulled over for driving his truck without a license plate. He was convicted of all three offenses, first in district court and then by a jury in superior court. (1) On appeal, the State conceded and the Court of Appeals agreed that the trial court erred by denying the defendant’s motion to dismiss the charge of displaying an expired registration plate. The defendant’s truck had no plate whatsoever, and so he was not displaying an expired one. (The court noted that the evidence would have supported a conviction under G.S. 20-111(1), driving without a current registration plate.) (2) As to the inspection certificate infraction, the defendant argued that there was insufficient evidence to support his conviction when the jury was instructed on a theory of guilt—here, display of an expired inspection certificate—that did not apply in his case when, again, he did not display any certificate. The Court of Appeals disagreed, concluding that display of an expired inspection is not one of multiple theories of guilt for this offense. As such, the jury instruction referencing display was erroneous, but the defendant did not object on that basis, and the issue was therefore not properly before the appellate court. (3) Finally, the State conceded and the Court of Appeals agreed that the defendant’s sentence was erroneous. Despite being Prior Conviction Level I with no prior convictions, the defendant received a 10-day suspended sentence with probation for this Class 3 misdemeanor. Under G.S. 15A-1340.23(d), unless otherwise provided for a specific offense, a Class 3 misdemeanor sentence for a defendant with no more than three prior convictions may consist of a fine only. The appellate court remanded for resentencing.
In this Guilford County case, the Supreme Court affirmed the Court of Appeals majority that found no abuse of discretion by the trial court when declining to adjust defendant’s sentence downward for defendant’s substantial assistance to law enforcement.
Defendant was first arrested in 2016 after a search of his home, leading to charges of trafficking a controlled substance and possession of a firearm by a felon. In 2018, after defendant was released but before the charges reached trial, defendant was arrested and indicted with a second trafficking charge. Defendant ultimately pleaded guilty to two trafficking a controlled substance charges and a firearm possession charge. During sentencing, defense counsel argued that defendant had provided substantial assistance to law enforcement and deserved a downward deviation in the required minimum sentences. The trial court acknowledged that defendant had provided substantial assistance but declined to lower the sentences, instead choosing to consolidate the three offenses to one sentence of 90 to 120 months.
The Supreme Court agreed with the opinion of the Court of Appeals majority that the actions of the trial court did not represent abuse of discretion, explaining that G.S. 90-95(h)(5) granted complete discretion to the trial court. The court noted two decision points, (1) whether the defendant provided substantial assistance, and (2) whether this assistance justified a downward adjustment in the mandatory minimum sentencing. Further, the court noted that this assistance could come from any case, not just the case for which the defendant was being charged; this was the basis of the dissent in the Court of Appeals opinion, but the Supreme Court did not find any evidence that the trial court misinterpreted this discretion. Slip Op. at 15. Instead, the court found that the trial court appropriately exercised the discretion granted by the statute, as well as G.S. 15A-1340.15(b), to consolidate defendant’s offenses.
Justice Earls dissented and would have remanded for resentencing. Id. at 20.
In this Wake County case, defendant petitioned for writ of certiorari after pleading guilty to robbery and trafficking heroin charges, arguing the trial court did not properly consider mitigating factors during his sentencing. The Court of Appeals disagreed, denying the petition for writ.
Defendant argued that his cooperation and testimony against a co-conspirator represented mitigating factors the trial court should have applied in sentencing. Summarizing why defendant’s petition did not have merit, the court noted that defendant’s appeal was based on precedent related to the Fair Sentencing Act, which was repealed and replaced with the Structured Sentencing Act. Under the Structured Sentencing Act, a trial court is under no obligation to mitigate a sentence, and in the current matter the trial court sentenced defendant within the presumptive range for his offenses. The court explained that “[b]ecause the trial court sentenced defendant within the presumptive range, as this Court has stated many times, it was not required to find mitigating factors or sentence defendant to a mitigated sentence.” Slip Op. at 5.
(1) In this child sexual assault case, the trial court did not err by failing to find the mitigating factor that the defendant successfully completed a substance abuse program. Because the defendant completed the program prior to his arrest, his participation in it did not meet the requirements of G.S. 15A-1340.16(e)(16). (2) The court rejected the defendant’s argument that the trial court abused its discretion by failing to treat his completion of the program as a non-statutory mitigating factor. (3) The trial court did not err by failing to find the mitigating factor that the defendant had a positive employment history. Even if the defendant’s evidence established that he had a professional bull riding career, he retired from that profession in 2007 and did not present evidence that he was gainfully employed between that date and his arrest in 2014.
Because the trial court did not depart from the presumptive range in sentencing the defendant, it was not required to make any findings regarding mitigation. The court rejected the defendant’s argument that the trial court erroneously failed to “consider” evidence of mitigating factors proved by the State’s own evidence.
The trial court did not abuse its discretion by failing to find two statutory mitigating factors with respect to a 17-year-old defendant: G.S. 15A-1340.16(e)(4) (defendant’s “age, or immaturity, at the time of the commission of the offense significantly reduced defendant’s culpability for the offense") and G.S. 15A-1340.16(e)(18) (“defendant has a support system in the community”).
Trial court did not err by declining to find two statutory mitigating factors: G.S. 15A-1340.16(e)(12) (good character/reputation in the community) and 15A-1340.16(e)(19) (positive employment history). The court rejected the defendant’s argument that the evidence supporting each factor was uncontradicted and manifestly credible.
In a drug trafficking case, the trial court did not err by failing to intervene ex mero motu during the prosecutor’s closing argument. The prosecutor asserted: “Think about the type of people who are in that world and who would be able to testify and witness these type of events. I submit to you that when you try the devil, you have to go to hell to get your witness. When you try a drug case, you have to get people who are involved in that world. Clearly the evidence shows that [the defendant] was in that world. He’s an admitted drug dealer and admitted drug user.” Citing State v. Willis, 332 N.C. 151, 171 (1992), the court concluded that the prosecutor was not characterizing the defendant as the devil but rather was using this phrase to illustrate the type of witnesses which were available in this type of case.
The trial court did not abuse its discretion by refusing the defendant’s request for a mitigated sentence despite uncontroverted evidence of mitigating circumstances. The defendant offered uncontroverted evidence of mitigating factors and the trial court considered this evidence during the sentencing hearing. That the trial court did not, however, find any mitigating factors and chose to sentence the defendant in the presumptive range was within its discretion.
The trial court did not abuse its discretion by failing to find mitigating factors. As to acceptance of responsibility, the court found that although the defendant apologized for her actions, her statement did not lead to the “sole inference that [s]he accepted [and that] [s]he was answerable for the result of [her] criminal conduct.” Although defense counsel argued other mitigating factors, no supporting evidence was presented to establish them. Finally, although the defendant alleged that a drug addiction compelled her to commit the offenses, the court noted that drug addiction is not per se a statutorily enumerated mitigating factor and in any event, the defendant did not present any evidence on this issue at sentencing.
The trial court did not err by failing to find the G.S. 15A-1340.16(e)(8) mitigating factor that the defendant acted under strong provocation or that the relationship between the defendant and the victim was otherwise extenuating. As to an extenuating relationship, the evidence showed only that the victim (who was the defendant’s wife) repeatedly had extra-marital sexual relationships and that the couple fought about that behavior. As to provocation, there was no evidence that the victim physically threatened or challenged the defendant in any way; the only threat she made was to commit further adultery and to report the defendant as an abuser.
The trial court did not err in ordering that an indigent defendant reimburse the State for the costs of providing a transcript of the defendant’s prior trial as a condition of post-release supervision.
In 1999, the defendant was found guilty of assault on a female, and the trial judge entered a prayer for judgment continued (PJC) with a condition that the defendant pay costs of court. In 2017, the defendant was denied a concealed carry permit in West Virginia on the ground that his 1999 case resulted in a conviction for domestic violence and that he misstated in his permit application that he had never been convicted of an act of violence or act of domestic violence. In 2018, the defendant filed a motion in North Carolina to enter judgment in the 1999 case, which he then would be able to appeal to superior court for a trial de novo. The district court denied the motion, and the defendant appealed to the Court of Appeals. The Court found that the defendant did not have a right to appeal and refused to treat the defendant’s brief as a petition for a writ of certiorari. The Court therefore dismissed the defendant’s appeal. In addition to its holding, the Court made several other observations. (1) The District Attorney’s office that handled the defendant’s 1999 assault on a female case advised West Virginia that the case involved domestic violence even though the remaining records in ACIS indicated that the case did not involve domestic violence. (2) The Court recognized that it could be argued that the defendant’s representation on his permit application was not a misrepresentation about whether he had a conviction because the question is ambiguous and he could have believed in good faith that a PJC was not a conviction. (3) The Court observed that although a PJC with a condition that the defendant pay costs is not a condition that converts a PJC into a final judgment, a trial judge may not impose that condition without the defendant’s consent. When a defendant consents to a PJC, the defendant waives any right to appeal. (4) In support of its refusal to treat the defendant’s brief as a petition for a writ of certiorari, the Court stated that it would be unfair to the State to allow the defendant to renege on a twenty-year-old deal for a PJC with costs, ask the trial court to enter judgment, and appeal the judgment to superior court, which would most certainly result in dismissal of the charges because the State no longer has the evidence to proceed. (5) The court observed that G.S. 15A-1416(b)(1) gives the State the right to move for appropriate relief to enter a final judgment on a PJC, presumably when a defendant has not satisfied the conditions of a PJC, but the defendant does not have the same statutory right. (6) The court noted that the defendant can petition the superior court for a writ of certiorari under Rule 19 of the North Carolina Rules of Superior and District Court.
The court per curiam affirmed the decision below, Walters v. Cooper, 226 N.C. App. 166 (Mar. 19, 2013), in which the court of appeals had held, over a dissent, that a PJC entered upon a conviction for sexual battery does not constitute a “final conviction” and therefore cannot be a “reportable conviction” for purposes of the sex offender registration statute.
In this Robeson County case, defendant appealed his conviction for misdemeanor death by vehicle, arguing error as (1) the prayer for judgment continued (PJC) was intended to be a final judgment in the matter, and (2) the almost seven-year delay in entering judgment was unreasonable. The Court of Appeals affirmed the trial court’s judgment.
In October of 2011, defendant crossed the center line of a roadway when attempting to turn left, causing a collision with a motorcyclist who died of injuries sustained in the collision. Defendant pleaded guilty to misdemeanor death by vehicle in October of 2014. Defendant’s plea agreement required him to plead guilty and acknowledge responsibility in open court, and stated the trial court would then enter a prayer for judgment in the matter. In August of 2020, defendant was charged with involuntary manslaughter due to another motor vehicle accident, and the State moved to pray judgment in the misdemeanor death by vehicle case. Over defendant’s opposition, the trial court granted the State’s motion and entered a judgment imposing a sentence of imprisonment that was suspended for supervised probation.
Considering issue (1), the Court of Appeals noted that applicable precedent has made a distinction between PJCs that impose conditions “amounting to punishment” versus PJCs that do not. Slip Op. at 5. Conditions amounting to punishment include fines and imprisonment terms, whereas orders such as requiring defendant to obey the law or pay court costs do not represent punishment for this distinction. Here the court found no conditions amounting to punishment and rejected defendant’s argument that the trial court’s statement “that he hoped ‘both sides can have some peace and resolution in the matter’” represented an intention for the judgment to be final. Id. at 7.
Turning to (2), the court noted that a sentence from a PJC must be entered “within a reasonable time” after the conviction, and looked to State v. Marino, 265 N.C. App. 546 (2019) for the considerations applicable to determining whether the sentence was entered in a reasonable time. Slip Op at 8-9. Here, the court noted the circumstances supported a finding of reasonableness, as (1) the State delayed its motion to pray judgment until defendant committed a second motor vehicle offense, (2) defendant tacitly consented to the delay by not objecting to the PJC and not asking for judgment to be entered, and (3) defendant could not show actual prejudice by the delay of entering a sentence.
Judge Riggs dissented by separate opinion, and would have held that the delay divested the trial court of jurisdiction to enter the sentence.
The petitioner was found guilty of simple assault in a bench trial before a district court judge, who entered a prayer for judgment continued (PJC). In reliance on the advice of his attorney, the petitioner, an insurance agent, did not believe that he was required to report the PJC to the North Carolina Department of Insurance (DOI). The DOI found that the petitioner’s failure to report the PJC violated G.S. 58-2-69(c), which requires licensees to notify the DOI of criminal convictions and defines conviction as including “an adjudication of guilt, a plea of guilty, or a plea of nolo contendere.” Because of his reliance on the advice of counsel, the DOI imposed a $100 civil penalty instead of suspending or revoking the petitioner’s license. The petitioner appealed. Reviewing several previous decisions about the treatment of PJCs, the Court of Appeals recognized that a PJC constitutes an adjudication of guilt and upheld the DOI’s determination.
In this drug trafficking case, G.S. 15A-1331.2 did not deprive the trial court of jurisdiction to enter judgment after a PJC. The defendant pled guilty pursuant to a plea arrangement that provided for a PJC to allow the defendant to provide testimony in another case. Approximately 19 months later, the State prayed for entry of judgment. After judgment was entered, the defendant unsuccessfully filed a motion for appropriate relief, asserting that the trial court lacked jurisdiction to enter the sentence because G.S. 15A-1331.2 requires the trial court to enter final judgment on certain high-level felonies, such as the one at issue here, within 12 months of the PJC. The court noted that the issue was one of first impression. It noted that the trial court’s judgment unquestionably failed to comply with the statute, which provides that if the trial court enters a PJC for a class D felony, it must include a condition that the State pray for judgment within a specific period of time not to exceed 12 months. Here, the plea agreement contained no such provision and, approximately 19 months after the defendant’s conviction, the State prayed for judgment and judgment was entered. Analyzing the issue as one of legislative intent, the court determined although the PJC failed to comply with the statute, this did not constitute a jurisdictional issue. The court went on to conclude that the trial court’s delay in sentencing the defendant was not unreasonable nor was the defendant prejudiced by it.
The court remanded for a determination of whether the trial court had jurisdiction to sentence the defendant more than a year after the date set for the PJC.
When the trial court enters a PJC, there is no final judgment from which to appeal.
The court had jurisdiction to enter judgment on a PJC. The defendant was indicted on August 7, 2006, and entered a guilty plea on January 22, 2007, when a PJC was entered, from term to term. Judgment was entered on March 13, 2009. Because the defendant never requested sentencing, he consented to continuation of sentencing and the two-year delay was not unreasonable.
The following conditions went beyond requirements to obey the law and transformed a PJC into a final judgment: abide by a curfew, complete high school, enroll in an institution of higher learning or join the armed forces, cooperate with random drug testing, complete 100 hours of community service, remain employed, and write a letter of apology.
Because the defendant was sentenced in the presumptive range, the trial court did not err in failing to make findings regarding a mitigating factor.
The trial court did not err by considering the seriousness of the offense when exercising its discretion to choose a minimum term within the presumptive range.
The court rejected the defendant’s argument that because his sentence at the top of the presumptive range overlapped with the low end of the aggravated range, it was improper without findings of an aggravating factor. No such findings are required to support the defendant’s presumptive range sentence.
The trial judge’s comments about the judgment and conviction form did not suggest that it incorrectly thought that it could not impose a sentence in the presumptive range when aggravating and mitigating factors were in equipoise.
Distinguishing State v. Hamby, 129 N.C. App. 366, (1998), the court held that the defendant could appeal the trial court’s calculation of her prior record level even though she had stipulated to her prior convictions on the sentencing worksheet.
The court rejected the defendant’s argument that the trial court violated his rights under the ex post facto clause when it assigned points to his prior record level based upon a conviction that was entered after the date of the offenses for which he was sentenced in the present case. The court noted that the conviction for the prior was entered more than a year before entry of judgment in the present case and G.S. 15A-1340.11(7) (defining prior conviction) was enacted prior to the date of the present offense.
The trial court erred when sentencing the defendant as a habitual felon by assigning prior record level points for an assault inflicting serious bodily injury conviction where that same offense was used to support the habitual misdemeanor assault conviction and establish the defendant’s status as a habitual felon. “Although defendant’s prior offense of assault inflicting serious bodily injury may be used to support convictions of habitual misdemeanor assault and habitual felon status, it may not also be used to determine defendant’s prior record level.”
Distinguishing State v. Gentry, 135 N.C. App. 107 (1999), the court held that the trial court did not err by using a felonious breaking or entering conviction for the purpose of both supporting a possession of a firearm by a felon charge and calculating the defendant’s prior record level.
The trial court correctly determined the defendant’s prior record level (PRL) points. At sentencing, the State submitted a print-out of the defendant’s Administrative Office of the Courts (AOC) record. The defendant offered no evidence. On appeal, the defendant argued that the State failed to meet its burden of proving that one of the convictions was the defendant’s, arguing that the birthdate in the report was incorrect and that he did not live at the listed address at the time of sentencing. The court held that the fact that the defendant was living at a different address at the time of sentencing was of no consequence, in part because people move residences. As to the birthdate, under G.S. 15A-1340.14(f), a copy of a AOC record “bearing the same name as that by which the offender is charged, is prima facie evidence that the offender named is the same person as the offender before the court.”
Criminal Procedure > Sentencing > Prior Record Level > Elements of Current Offense Included in Prior Conviction
(1) In this Franklin County case, the defendant was convicted of felony larceny pursuant to a breaking or entering, felony larceny of a firearm, firearm by felon, fleeing to elude, and armed robbery. The larceny pursuant to breaking or entering and larceny of a firearm occurred at the same time as a part of a continuous transaction and could not support separate convictions. Under the single taking rule, “a single larceny offense is committed when, as part of one continuous act or transaction, a perpetrator steals several items at the same time and place.” Posner Slip op. at 4. The State conceded this error, and the court remanded the for judgment to be arrested on one of the larceny counts. [Brittany Williams recently blogged about the single taking rule here.]
(2) The defendant also challenged the trial court’s calculation of his prior record level. The trial court included a point based on a prior 2012 conviction for possession of drug paraphernalia. When determining record level points, prior convictions are classified by the law in effect at the time the present offense was committed. In 2014, the legislature created the class 3 misdemeanor offense of possession of marijuana paraphernalia. The State conceded that the defendant’s paraphernalia 2012 conviction was for marijuana paraphernalia. The conviction therefore should not have counted under current law and the trial court erred in including this point.
The trial court also erred in part in assigning the defendant an additional record level point for having been previously convicted of offenses with “all of the elements of the present offense.” G.S. 15A-1340.14(b)(6). This point applied to the defendant based on his prior convictions for possession of firearm by felon and felony breaking and entering. The defendant had not previously been convicted of larceny of a firearm, fleeing to elude arrest, or armed robbery, however, and it was error to assign this record level point in the judgments for those offenses. Both errors were prejudicial, as they raised the defendant’s prior record level from a level IV to a level V. The matter was therefore remanded for resentencing as well.
No prejudicial error occurred with respect to the trial court’s finding that the defendant’s prior federal conviction of unlawful possession of a firearm was substantially similar to the North Carolina conviction of possession of a firearm by a felon, for purposes of assigning an extra point when all of the elements of the present offense are included in any prior offense for which the defendant has been convicted. Here, the extra point elevated the defendant from Level I to Level II. The defendant argued that the State failed to present evidence of substantial similarity. The court held that because the trial court’s finding was in fact correct, any error that occurred was harmless. In its holding the court concluded that a finding that an out-of-state offense is substantially similar to a North Carolina offense is sufficient for a finding that the elements of the present offense are included in any prior conviction under G.S. 1340.14(b)(6).
In calculating the defendant’s prior record level, the trial court erred by assigning an additional point on grounds that all the elements of the present offense were included in a prior offense. The defendant was found guilty of possession of a stolen vehicle. The court rejected the State’s argument that the defendant’s prior convictions for possession of stolen property and larceny of a motor vehicle were sufficient to support the additional point. The court noted that while those offenses are “similar to the present offense” neither contains all of its elements. Specifically, possession of a stolen vehicle requires that the stolen property be a motor vehicle, while possession of stolen property does not; larceny of a motor vehicle requires proof of asportation but not possession while possession of a stolen vehicle requires the reverse.
The trial court erred by assigning a PRL point under G.S. 15A-1340.14(b)(6) (one point if all the elements of the present offense are included in any prior offense). The trial court assigned the point because the defendant was convicted of felony speeding to elude (Class H felony) and had a prior conviction for that offense. However, the new felony speeding to elude conviction was consolidated with a conviction for assault with a deadly weapon on a governmental officer (AWDWOGO), a more serious offense (Class F felony). When offenses are consolidated, the most serious offense controls, here AWDWOGO. Analyzed in this fashion, all of the elements of AWDWOGO are not included in the prior felony speeding to elude conviction. The court rejected the State’s argument that because both felonies were elevated to Class C felonies under the habitual felon law, assignment of the prior record level was proper.
Following Ford, discussed above, and holding that the trial court properly assigned a prior record level point based on the fact that all elements of the offense at issue−delivery of a controlled substance, cocaine−were included in a prior conviction for delivery of a controlled substance, marijuana.
The defendant was convicted of attempted felony larceny and then pled guilty to being a habitual felon. The defendant previously had been convicted of felony larceny. That the judge properly found one point under G.S. 15A-1340.14(b)(6) (all elements of current offense are included in offense for which defendant was previously convicted) in calculating prior record level. Attempted felony larceny is a lesser-included offense of felony larceny regardless of the theory of felony larceny. It was irrelevant that the defendant’s prior felony larceny convictions did not include the element that the defendant took property valued over $1,000.
There was no ex post facto violation in determining the defendant’s prior record level when prior record level points were calculated using the classification of the prior offense at the time of sentencing (Class G felony) rather than the lower classification in place when the defendant was convicted of the prior (Class H felony).
When calculating prior record level points for a new felony, points may be assigned based on a prior substantive felony supporting a prior habitual felon conviction, but not based on the prior habitual felon conviction itself.
Although the trial court incorrectly determined that the defendant had a total of 8 prior record level points rather than six, the error was harmless. The defendant was assigned to prior record level III, which requires 5-8 points. A correct calculation of defendant’s points would have placed him in the same level.
In this Cleveland County case, defendant petitioned for a writ of certiorari, arguing error in sentencing him at an inflated prior record level. The State conceded the error. The Court of Appeals vacated the judgment and remanded for resentencing with the appropriate prior record level.
In March of 2021, a jury convicted defendant of two charges related to controlled substances; after the verdict but before sentencing, defendant entered a plea agreement to two additional charges and attaining habitual felon status. During the sentencing hearing, the State submitted a worksheet showing sixteen points assigned to defendant based on his seven prior misdemeanors and three prior felonies, along with defendant being on probation at the time of the offenses. The court sentenced defendant as a level V offender.
Taking up defendant’s argument, the Court of Appeals explained that the trial court improperly calculated defendant’s prior record level, which should have been level IV. The State conceded that defendant was improperly assigned additional points based on previous convictions that should have been excluded. The court walked through the appropriate calculation, noting that the highest total that could be assigned to defendant was thirteen points, justifying level IV. As a result, the court remanded for resentencing.
The trial court erred in calculating the defendant’s prior record level points. Specifically, it made an arithmetic error, finding that the points totaled 18 when in fact they totaled 17. This error lead the trial court to sentence the defendant as a prior record level VI offender instead of as a record level V offender. The State conceded the mathematical error but argued the error was harmless. The court agreed, noting that it has repeatedly held that an erroneous prior record level calculation does not prejudice the defendant if the trial court’s sentence is within the presumptive range at the correct level, as it was here.
Criminal Procedure > Sentencing > Prior Record Level > Multiple Offenses in One Court Week & Related Issues
The trial court erred in calculating the defendant’s prior record level, which was proved by stipulation, by using a joinable offense as a prior conviction for sentencing purposes. In 2004 the defendant was convicted of first-degree murder and armed robbery based on an incident where he killed his father and took money from his father’s bedroom. The defendant was 15 years old at the time of the offenses but was tried as an adult and sentenced to life in prison without the possibility of parole. In 2014 post-conviction proceedings based on Miller v. Alabama, the first-degree murder conviction was vacated and the defendant pleaded guilty to second-degree murder. As part of that plea agreement, the State and the defendant stipulated that the defendant had a prior record level of III, a record level that was the result of six prior record points arising from the 2004 armed robbery conviction. Noting that a defendant’s stipulation regarding his or her prior record level does not preclude the court’s review where calculation of the record level requires answering a legal question, the court found that use of the 2004 armed robbery conviction violated the rule from State v. West, 180 N.C. App. 664 (2006) that a joinable offense may not be used in calculating a defendant’s prior record level.
The defendant was charged with possession of various drugs found in his bedroom and an adjoining alcove, which he said was his personal space. The defendant shared the house with a number of people, including a woman named Ms. Stepp. The defendant consented to a search of his bedroom and alcove, stating to the officers he did not believe they would find any illegal substances, only drug paraphernalia. When asked whether he had ingested any illegal substances, the defendant admitted having used methamphetamine and prescription pills. The search of the defendant’s bedroom uncovered a white rectangular pill marked G3722, a small bag of marijuana, and drug paraphernalia. The search of the alcove uncovered a metal tin containing methamphetamine, cocaine, heroin, and a small pill similar to the one found in his bedroom. The defendant was charged with and convicted of possession of methamphetamine, heroin, and cocaine and having attained the status of an habitual felon.
Based on the stipulation of counsel to the prior record worksheet, the trial judge found that the defendant had 47 prior convictions and was in prior record level VI. The Court found that the following 32 convictions should not have been counted: convictions used to support habitual felon status in this case; convictions rendered in the same week or session of court other than the one with the highest points; and Class 2 and lower misdemeanor convictions. The Court held that of the 15 remaining convictions, six were out-of-state convictions and were incorrectly classified. Only two should have been counted and then as Class I felonies. The Court held that precedent continues to prohibit the parties from stipulating to the similarity of out-of-state convictions or the resulting North Carolina classification. The Court distinguished State v. Arrington, ___ N.C. ___, 819 S.E.2d 329 (2018), which held that when an offense is split into two separate crimes and the defendant stipulates to the higher offense class, it is assumed that the higher classification is sufficiently supported by the underlying facts of the crime. For out-of-state convictions, in contrast, the parties must establish that the elements of the out-of-state conviction are similar to those of a North Carolina offense; only then may a stipulation determine the underlying facts of the offense and the appropriate classification. Based on this review, the Court found the defendant had 11 convictions that could be used, which placed him in prior record level V. A judge who dissented on a different issue concurred in this part of the opinion but would not have reached the issue because she found that the defendant was entitled to a new trial.
(No. COA13-925). Citing, State v. West, 180 N.C. App. 664 (2006) (the same case cited in Perkins above), the court held that the trial court erred by increasing the defendant’s sentence based on convictions for charges that originally had been joined for trial with the charges currently before the court. The charges were joined for trial and at the first trial, the defendant was found guilty of some charges, not guilty of others and there was a jury deadlock as to several others. The defendant was retried on charges that resulted in a deadlock and convicted. The trial court used the convictions from the first trial when calculating the defendant’s PRL.
Although the trial court erred by assigning the defendant one point for a misdemeanor breaking and entering conviction when it also assigned two points for a felony possession of a stolen vehicle conviction that occurred on the same date, the error did not increase the defendant’s PRL and thus was harmless.
On appeal, a defendant is bound by his or her stipulation to the existence of a prior conviction. However, even if a defendant has stipulated to his or her prior record level, the defendant still may appeal the propriety of counting a stipulated-to conviction for purposes of calculating prior record level points. In this case, the trial court erred by counting, for prior record level purposes, two convictions in a single week of court in violation of G.S. 15A-1340.14(d).
In this New Hanover County case, defendant appealed his conviction for possessing a firearm as a felon, arguing error in the denial of his motion to suppress and improper sentencing. The Court of Appeals found no error.
In February of 2020, a Wilmington police officer observed defendant enter a parking lot known for drug activity and confer with a known drug dealer. When defendant exited the parking lot, the officer followed, and eventually pulled defendant over for having an expired license plate. During the stop, the officer determined that defendant was a “validated gang member,” and had previously been charged with second-degree murder; the officer was also aware that a local gang war was underway at that time. Slip Op. at 2. The officer frisked defendant and did not find a weapon, but defendant told the officer there was a pocketknife in the driver’s door compartment. When the officer went to retrieve the pocketknife he did not find it, but while looking around the driver’s area he discovered a pistol under the seat. During sentencing for defendant, his prior record level was calculated with nine points for prior crimes and one additional point for committing a crime while on probation/parole/post-release supervision, leading to a level IV offender sentence.
Reviewing defendant’s appeal, the court first noted that the initial traffic stop for an expired plate was proper. The frisk of defendant’s person and vehicle required the officer to have “a reasonable suspicion that the suspect of the traffic stop is armed and dangerous.” Id. at 7, quoting State v. Johnson, 378 N.C. 236 (2021). The court found the totality of the officer’s knowledge about defendant satisfied this standard, as defendant had just exited a parking lot known for drug transactions, had a history of being charged with murder, was a known gang member, and was in an area experiencing a local gang war. Because the officer had a reasonable suspicion that defendant might be armed and dangerous, the frisk of the vehicle leading to the discovery of the pistol was acceptable.
Turning to defendant’s sentencing, the court explained that under G.S. 15A-1340.14(b)(7), the state was obligated to provide defendant with notice of its intent to add a prior record level point by proving his offense was committed while on probation, parole, or post-release supervision. While the record did not contain evidence that defendant received the required notice 30 days before trial, the court found that the exchange between defense counsel and the trial court represented waiver for purposes of the requirement. While the trial court did not confirm the receipt of notice through the colloquy required by G.S. 15A-1022.1, the exchange between the trial court and defense counsel fell into the exception outlined in State v. Marlow, 229 N.C. App 593, meaning “the trial court was not required to follow the precise procedures . . . as defendant acknowledged his status and violation by arrest in open court.” Slip Op. at 18.
A police officer stopped the defendant for suspected texting while driving. When the officer returned to his vehicle to check on the defendant’s identity, the defendant fled. (1) Before his trial on charges of texting while driving and felony fleeing to elude, the defendant moved to suppress the evidence obtained during the stop. At the suppression hearing, the officer testified that he did not stop the defendant for merely using the phone, but rather for using it in a manner that he reasonably believed ran afoul of G.S. 20-137.4A(a), North Carolina’s prohibition on texting and emailing while driving. The officer testified that the defendant was using and handling the phone in a manner more consistent with texting or reading text messages than with using a mapping system. The trial court denied the defendant’s motion and the defendant was convicted of felonious fleeing to elude. On appeal, the defendant argued that the trial court committed plain error by concluding that the officer was justified in stopping his car solely based on his observation that the operator was using a cell phone while driving. The Court of Appeals disagreed, holding that under the specific facts of this case, which included additional indicia of criminal activity beyond mere phone use, the trial court did not err by finding that the officer had reasonable, articulable suspicion to believe that the defendant was using the phone in a manner proscribed by law. The Court emphasized that its holding should not be viewed as establishing a test for meeting the reasonable suspicion requirement in other texting while driving cases. (2) The Court remanded the case for the defendant to be sentenced at prior record level two instead of level three, as his prior record level worksheet improperly counted a point for a prior misdemeanor. The Court rejected the State’s argument that the improperly counted point could be offset by adding for the first time an additional point under G.S. 15A-1340-14(b)(7) for the defendant being on probation at the time of the offense, as the State did not comply with the statutory notice procedures for that point.
The trial court erred by assessing one prior record level point because the offense was committed while the offender was on probation, parole, or post-release supervision where the State did not give notice of its intent to seek this point. Including a prior record level worksheet in discovery materials is insufficient to meet the notice requirement.
The trial court erred by including a prior record level point under G.S. 15A-1340.14(b)(7) where the State did not provide the defendant with notice of intent to prove the existence of the point as required by the statute.
The trial court erred by sentencing the defendant as a PRL III offender when State failed to provide the notice required by G.S. 15A-1340.16(a6) and the defendant did not waive the required notice.
On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 845 (2017), the court reversed, holding that as part of a plea agreement a defendant may stipulate on his sentencing worksheet that a second-degree murder conviction justified a B1 classification. In 2015 the defendant entered into a plea agreement with the State requiring him to plead guilty to two charges and having attained habitual felon status. Under the agreement, the State consolidated the charges, dismissed a second habitual felon status count, and allowed the defendant to be sentenced in the mitigated range. As part of the agreement, the defendant stipulated to the sentencing worksheet showing his prior offenses, one of which was a 1994 second-degree murder conviction, designated as a B1 offense. Over a dissent, the Court of Appeals vacated the trial court’s judgment and set aside the plea, holding that the defendant improperly stipulated to a legal matter. The Court of Appeals reasoned that because the legislature divided second-degree murder into two classifications after the date of the defendant’s second-degree murder offense, determining the appropriate offense classification would be a legal question inappropriate for a stipulation. Reversing, the Supreme Court noted that the crime of second-degree murder has two potential classifications, B1 and B2, depending on the facts. It continued: “By stipulating that the former conviction of second-degree murder was a B1 offense, defendant properly stipulated that the facts giving rise to the conviction fell within the statutory definition of a B1 classification. Like defendant’s stipulation to every other offense listed in the worksheet, defendant’s stipulation to second-degree murder showed that he stipulated to the facts underlying the conviction and that the conviction existed.” The court went on to reject the defendant’s argument that he could not legally stipulate that his prior second-degree murder conviction constituted a B1 felony. It noted that before 2012, all second-degree murders were classified at the same level for sentencing purposes. However, in 2012 the legislature amended the statute, elevating second-degree murder to a B1 offense, except when the murder stems from either an inherently dangerous act or omission or a drug overdose. Generally, a second-degree murder conviction is a B1 offense which receives nine sentencing points; when the facts of the murder meet one of the statutory exceptions thereby making it a B2 offense, it receives six points. It is undisputed that the State may prove a prior offense through a stipulation. “Thus,” the court continued “like a stipulation to any other conviction, when a defendant stipulates to the existence of a prior second-degree murder offense in tandem with its classification as either a B1 or B2 offense, he is stipulating that the facts underlying his conviction justify that classification.” Here, the defendant could properly stipulate to the facts surrounding his offense by either recounting the facts at the hearing or stipulating to a general second-degree murder conviction that has a B1 classification. By stipulating to the worksheet, the defendant simply agreed that the facts underlying his second-degree murder conviction fell within the general B1 category because the offense did not involve either of the two factual exceptions recognized for B2 classification.
In this Mecklenburg County case, defendant appealed his convictions for first-degree felony murder and possession of a firearm by a felon, arguing plain error in admitting an interview recording and error in calculating his prior record level. The Court of Appeals found no plain error or error.
Defendant was convicted of a murder committed at a Charlotte bus stop in May of 2018. At trial, a recording of an interview conducted by detectives with defendant was published to the jury. The recording was redacted by agreement between the parties. Defendant did not object to the publication of the recording to the jury during trial. However, on appeal, defendant argued that admitting the recording was plain error as portions contained hearsay, inadmissible character evidence, was unfairly prejudicial, and shifted the burden of proving his innocence.
Although the State argued that defendant’s appeal was barred by the invited error doctrine, the Court of Appeals rejected this argument, noting that although defendant agreed to the redactions of the recording, he did not take any affirmative action to admit the recording. Despite this, the court found no plain error in admitting the recording, noting that the record also contained two eyewitnesses who identified defendant as the shooter, surveillance evidence showing someone dressed like defendant at the scene, and testimony from defendant himself corroborating the testimony of the witnesses and surveillance footage. The court also found no issue with the prior record level calculation, noting the trial court used computerized criminal history information known as DCI-CCH to establish defendant’s prior convictions. The court explained that “a DCI-CCH is a record maintained by the Department of Public Safety and may be used to prove Defendant’s prior convictions pursuant to N.C. Gen. Stat. § 15A-1340.14(f).” Slip Op. at 10.
The defendant was convicted at a jury trial of three felony drug charges for the possession, sale, and delivery of heroin, and pleaded guilty to attaining habitual felon status. The defendant stipulated to a sentencing worksheet that indicated a total of 12 record points, giving the defendant a prior record level IV for sentencing.The trial court found mitigating factors and sentenced the defendant to a term of 80 to 108 months.
The defendant argued on appeal that there was insufficient evidence in the record to support the determination that he had a level IV prior record with 12 points, and the appellate court agreed. The sentencing worksheet included several felony convictions that were used to establish defendant’s habitual felon status, along with a number of prior convictions from out-of-state, although most of those convictions were marked out. Next to the felony convictions was a notation indicating 18 points, but the total for this section of the worksheet was listed as 14, which was then crossed out and replaced by a 10 (plus 2 points for the defendant’s misdemeanor convictions). The appellate court agreed with the defendant that it was unclear from the record which felony convictions the trial court relied on in reaching this total. Moreover, in order to reach a total of 12 points, the trial court must have either found that one or more of the out-of-state convictions was substantially similar to a North Carolina offense, or included one or more of the felonies that were used to establish the habitual felon status, neither of which was permitted. The court disagreed with the state’s argument that the defendant’s stipulation was sufficient to support the record level determination, distinguishing this case from State v. Arrington, 371 N.C. 518 (2018), where the stipulations were limited to questions of fact. A defendant may stipulate to the existence of a prior conviction and whether or not it is a felony, but he may not stipulate that an out-of-state conviction is substantially similar to a North Carolina offense; that is a legal determination which must be made by the trial court based on a preponderance of the evidence standard, and there was no such showing or finding made in this case.
The case was remanded for a new sentencing hearing. The court noted that the prior worksheet may serve as evidence at that hearing of the defendant’s stipulation to the existence of the prior convictions, but the state must meet its burden of establishing the substantial similarity of any out-of-state convictions. Since the case was remanded for a new sentencing hearing, the court did not reach the defendant’s remaining arguments as to whether he received ineffective assistance of counsel at sentencing, or whether the trial court committed prejudicial error by miscalculating his record.
The defendant pled guilty to various offenses in Wilson County and the State offered a prior record level (“PRL”) worksheet alleging 12 points, making her a Level IV for felony sentencing purposes. The defendant did not expressly stipulate to the prior convictions and neither she nor her attorney signed the worksheet. The trial court sentenced the defendant as a record level IV without objection. The court then adjourned immediately without asking the parties if they wished to be heard. The defendant appealed, complaining that the State failed to prove her prior record level by a preponderance of the evidence. The Court of Appeals granted certiorari and reversed.
While the defendant did not object at sentencing, an error in prior record level calculation is automatically preserved under G.S. 15A-1444(a2)(1). A bare prior record level worksheet is insufficient to establish the defendant’s criminal record by a preponderance of the evidence, but “an explicit stipulation is not necessary for the State to carry its burden.” The court reviewed precedent regarding when and how the State meets its burden to prove prior record level. Where the defendant’s counsel acknowledged the worksheet and directed the court’s attention to it during sentencing, those acts were deemed a stipulation to the accuracy of the PRL worksheet. State v. Alexander, 359 N.C. 824 (2005). “[A] stipulation need not follow any particular form, [but] its terms must be definite and certain.” Silence can be deemed a stipulation if the trial court or prosecutor states the alleged record level and the defense is clearly given an opportunity to object but fails to do so. On the other hand, where the defendant is not clearly given an opportunity to object and does not otherwise acknowledge the PRL, “[n]either defense counsel’s lack of objection . . . nor the PRL worksheet, alone or in combination, is sufficient to meet the State’s burden.”
Here, there was no stipulation and counsel did not have an opportunity to object to the record level. That the defendant had signed a plea transcript with a notation “IV” under the “Pun. Cl.” (punishment class) column on the plea transcript next to a list of the offenses to which she was pleading did not amount to a stipulation.
[I]t was the State’s burden to prove by a preponderance of the evidence that these roman numerals on the plea transcript indicated that Defendant stipulated to the sentencing level, and we cannot find here that this ambiguous evidence amounts to a ‘definite and certain’ stipulation, as required.
Similarly, a reference by the defendant to her “criminal record” during the plea colloquy did not rise to the level of a stipulation. The State therefore failed to meet its burden and the matter was vacated and remanded for resentencing.
Judge Tyson would have denied the defendant’s petition for certiorari, finding no merit to the defendant’s arguments on appeal.
The defendant fired a gun from his car toward a park where over a dozen people were playing basketball and hanging out. He was later found asleep in his car in a ditch by a Highway Patrol officer, who arrested him for driving while impaired. He was convicted by a jury of second-degree murder and assault with a deadly weapon. The defendant argued that the trial court erred by admitting three phone calls the defendant made from the jail because they contained hearsay and violated the defendant’s confrontation rights. (1) As to the hearsay argument, the court of appeals concluded that any error was harmless in light of the overwhelming evidence of the defendant’s guilt. (2) As to the alleged violation of the Confrontation Clause, the court adopted the reasoning of a case from the Fourth Circuit, United States v. Jones, 716 F.3d 851 (4th Cir. 2013), and concluded that, despite automated warnings indicating that the calls were being recorded and monitored, the statements made by the woman the defendant was talking to on the jail phone were not intended to bear witness against him, and were therefore not testimonial. Because the statements were not testimonial, their admission did not violate the Confrontation Clause. (3) Next, the court declined to consider whether the trial court committed plain error by admitting, without objection, video interviews in which the defendant discussed prior assault and rape charges with the police. Again, in light of the overwhelming evidence of the defendant’s guilt, the defendant failed to show how the admission of the evidence resulted in a miscarriage of justice or an unfair trial. (4) At sentencing, the trial court did not err by sentencing the defendant as a Class B1 felon upon jury’s general verdict of guilty of second-degree murder when no evidence or jury instruction supported the depraved-heart malice that makes the crime a Class B2 felony. As in State v. Lail, 251 N.C. App. 463 (2017), it was readily apparent from the evidence here that the jury found the defendant guilty of a Class B1 second-degree murder. (5) Finally, the court of appeals rejected the defendant’s argument that his stipulation to a prior conviction identified as “M-PUBLIC DISTURBANCE” as a Class 1 misdemeanor was ambiguous in light of the multiple potential classifications of disorderly conduct. To the contrary, under State v. Arrington, 371 N.C. 518 (2018), when a defendant stipulates to a prior conviction of a particular offense classification, he or she also stipulates to the facts underlying that conviction. The trial court has no duty to enquire further in the absence of clear record evidence suggesting the defendant stipulated to an incorrect classification, and there was no such evidence here.
The defendant was charged with possession of various drugs found in his bedroom and an adjoining alcove, which he said was his personal space. The defendant shared the house with a number of people, including a woman named Ms. Stepp. The defendant consented to a search of his bedroom and alcove, stating to the officers he did not believe they would find any illegal substances, only drug paraphernalia. When asked whether he had ingested any illegal substances, the defendant admitted having used methamphetamine and prescription pills. The search of the defendant’s bedroom uncovered a white rectangular pill marked G3722, a small bag of marijuana, and drug paraphernalia. The search of the alcove uncovered a metal tin containing methamphetamine, cocaine, heroin, and a small pill similar to the one found in his bedroom. The defendant was charged with and convicted of possession of methamphetamine, heroin, and cocaine and having attained the status of an habitual felon.
Based on the stipulation of counsel to the prior record worksheet, the trial judge found that the defendant had 47 prior convictions and was in prior record level VI. The Court found that the following 32 convictions should not have been counted: convictions used to support habitual felon status in this case; convictions rendered in the same week or session of court other than the one with the highest points; and Class 2 and lower misdemeanor convictions. The Court held that of the 15 remaining convictions, six were out-of-state convictions and were incorrectly classified. Only two should have been counted and then as Class I felonies. The Court held that precedent continues to prohibit the parties from stipulating to the similarity of out-of-state convictions or the resulting North Carolina classification. The Court distinguished State v. Arrington, ___ N.C. ___, 819 S.E.2d 329 (2018), which held that when an offense is split into two separate crimes and the defendant stipulates to the higher offense class, it is assumed that the higher classification is sufficiently supported by the underlying facts of the crime. For out-of-state convictions, in contrast, the parties must establish that the elements of the out-of-state conviction are similar to those of a North Carolina offense; only then may a stipulation determine the underlying facts of the offense and the appropriate classification. Based on this review, the Court found the defendant had 11 convictions that could be used, which placed him in prior record level V. A judge who dissented on a different issue concurred in this part of the opinion but would not have reached the issue because she found that the defendant was entitled to a new trial.
The court determined that the trial court erred in calculating the defendant’s prior record level (PRL) based on the defendant’s stipulation that a prior conviction for expired operators’ license was a Class 2 misdemeanor. At the time of the instant offense, driving with an expired license had been reclassified as an infraction. G.S. 15A-1340.21(b) provides that an offense may be included in determining a defendant’s PRL only “if it is either a felony or misdemeanor at the time the offense for which the offender is being sentenced is committed.” DistinguishingState v. Arrington, ___ N.C. ___, 819 S.E.2d 329 (2018), which held that a defendant’s stipulation regarding the classification of a prior felony conviction was binding as a factual determination where two possible classifications existed for the offense at issue, the court explained that because “no misdemeanor category crime for possession of an expired operators’ license existed” at the relevant time, as a matter of law the defendant could not stipulate as he did.
The defendant pled guilty pursuant to Alford to drug and firearms offenses and to habitual felon status. The plea agreement specified that the offenses would be consolidated for judgment and the defendant sentenced in a specific mitigated range. The defense stipulated to a Prior Record Level Worksheet, identifying 19 prior conviction points and classifying the defendant as a Level VI for felony sentencing. On appeal, the defendant argued that three convictions on the record level worksheet were improperly counted. The three convictions at issue were (1) a 1994 drug paraphernalia conviction, listed as a class 1 misdemeanor on the worksheet; (2) a 1993 conviction for maintaining a vehicle/dwelling, listed as a class I felony; and (3) a 1993 conviction for carrying a concealed weapon, listed as a class 1 misdemeanor. A copy of the judgment for the maintaining a vehicle/dwelling was introduced at trial and classified the offense as a misdemeanor (but failed to identify the class).
- In the recent case of State v. Arrington, 371 N.C. 518 (2018), the North Carolina Supreme Court instructed: “[W]hen a defendant stipulates to a prior conviction on a worksheet, the defendant is admitting that certain past conduct constituted a stated criminal offense.” (internal citation omitted) As to the drug paraphernalia conviction, the court found that Arrington applied:
Here, on the Worksheet, Defendant—as ‘the person most familiar with the facts surrounding his offense’—stipulated that his 1994 Possession-of-Drug-Paraphernalia conviction was classified as a class 1 misdemeanor. Thus, Defendant was stipulating that the facts underlying his conviction justify that classification. (citing Arrington)
There was therefore no error to include a record level point for that conviction.
- As to the 1993 maintaining a vehicle/dwelling conviction, the court determined Arrington did not apply when a copy of the judgment of conviction was before the court, which showed the offense was classified as a misdemeanor. In the court’s words:
[W]hen evidence (such as a certified copy of the judgment) is presented to the trial court conclusively showing a defendant’s stipulation is to an incorrect classification—as is the case here—Arrington does not apply, and a reviewing court should defer to the record evidence rather than a defendant’s stipulation.
- As to the final conviction for carrying a concealed weapon, the defendant pointed out that that offense is typically a class 2 misdemeanor under G.S. 14-269, and therefore should not have been counted as a felony sentencing point. That offense may be elevated to a class H felony when the defendant has been previously convicted of the misdemeanor, but in no case is a violation of that statute a class 1 misdemeanor. Here, nothing showed the defendant had a prior conviction for the crime. The court acknowledged this was a “conundrum” under Arrington. The court identified one circumstance under the statutes where the offense could possibly be classified as a class 1 misdemeanor—when a defendant with a concealed weapon permit carries a concealed handgun while consuming alcohol, under G.S. 14-415.21(a1) (and by reference to G.S. 14-415.11). It was therefore possible for the conviction to be counted as a class 1 misdemeanor. However, the court observed:
[W]e do not believe the intent of Arrington was to require a reviewing court to undertake sua sponte a voyage of discovery through our criminal statutes to locate a possibly applicable statute and imagine factual scenarios in which it could apply. Rather, we defer to the parties who stipulated to the prior conviction as to what statute applies. Therefore, because Section 14-269 does not provide for a violation of its provisions to be classified as a Class 1 misdemeanor, we conclude Arrington is inapplicable and that the trial court erred in accepting the Defendant’s stipulation.
The maintaining a vehicle/dwelling and carrying concealed weapon convictions added two points to the defendant’s record level worksheet, without which the defendant would have been classified as a prior record level V. The errors were therefore not harmless. Because the defendant’s sentence was imposed pursuant to a plea bargain, remand for resentencing was inappropriate. The court instead vacated the judgment, set aside the entire plea, and remanded for trial or plea on the original charges.
The trial court did not err by accepting the defendant’s stipulation that a prior conviction for “No Operator’s License” was a Class 2 Misdemeanor. In making this stipulation, the defendant stipulated that the facts underlying his conviction justify that classification. The trial court was under no duty to pursue further inquiry or require the defendant to recount the facts regarding the prior conviction.
Because the State failed to meet its burden of proving that the defendant’s 2012 possession of drug paraphernalia conviction was related to a drug other than marijuana, the court remanded for resentencing. Since 2014, state law has distinguished possession of marijuana paraphernalia, a Class 3 misdemeanor, from possession of paraphernalia related to other drugs, a Class 1 misdemeanor. Here, where the State failed to prove that the 2012 conviction was for non-marijuana paraphernalia, the trial court erred in treating the conviction as a Class 1 misdemeanor.
The trial court did not err by sentencing the defendant as a PRL IV offender. The State used the defendant’s prior Michigan conviction at the default level as a Class I felony. On appeal the defendant argued that since the prior record level worksheet did not clearly show that the Michigan conviction was classified as a felony in Michigan and the State did not present any evidence regarding the conviction or its classification there, it was improperly treated as a felony. The worksheet clearly indicated that the offense would be classified as a Class I felony and the defendant stipulated to this classification.
There was sufficient evidence to sentence the defendant as a PRL IV offender. Defense counsel stipulated to the defendant’s prior record level as stated on the prior record level worksheet where counsel did not dispute the prosecutor’s description of the defendant’s prior record or raise any objection to the contents of the proffered worksheet. Additionally, counsel referred to the defendant’s record during his sentencing argument.
The evidence supported sentencing the defendant as a PRL II offender where defense counsel’s lack of objection to the PRL worksheet, despite the opportunity to do so, constituted a stipulation to the defendant’s prior felony conviction.
The trial court correctly calculated the defendant’s PRL. The defendant argued that the trial court erred by basing its PRL calculation on an ineffective stipulation. The defendant’s only prior conviction was one in Michigan for carrying a concealed weapon, which he contended is substantially similar to the NC Class 2 misdemeanor offense of carrying a concealed weapon. The court concluded that the defendant did not make any stipulation as to the similarity of the Michigan offense to NC offense. Instead, the prior conviction was classified as a Class I felony, the default classification for an out-of-state felony. Thus, defendant’s stipulations in the PRL worksheet that he had been convicted of carrying a concealed weapon in Michigan and that the offense was classified as a felony in Michigan, were sufficient to support the default classification of the offense as a Class I felony.
The court rejected the defendant’s argument that the trial court erred by sentencing the defendant as a PRL III offender without complying with G.S. 15A-1022.1 (procedure for admissions in connection with sentencing). At issue was a point assigned under G.S. 15A-1340.14 (b)(7) (offense committed while on probation). As a general rule, this point must be determined by a jury unless admitted to by the defendant pursuant to G.S. 15A-1022.1. However, the court noted, “these procedural requirements are not mandatory when the context clearly indicates that they are inappropriate” (quotation omitted). Relying on State v. Marlow, 229 N.C. App. 593 (2013), the court noted that the defendant stipulated to being on probation when he committed the crimes, defense counsel signed the PRL worksheet agreeing to the PRL, and at sentencing, the defendant stipulated that he was a PRL III..
The trial court did not err by accepting a stipulation to a PRL point under G.S. 15A-1340.14(b)(7) without engaging in the mandated colloquy where the context clearly indicated that it was not required.
The evidence supported the trial court’s determination that the defendant was in PRL V. The trial court based its determination on NC and NY DCI records. The defendant argued that the NY DCI record was not sufficient because it was inconsistent with the NC DCI record. The court found any inconsistencies to be minor clerical errors.
Sufficient evidence supported the trial court’s determination of the defendant’s prior record level. Counsel’s oral stipulation and the prior record level worksheet established the existence of an out-of-state felony conviction, even though neither the defendant nor defense counsel signed the worksheet.
Where the defendant stipulated that he was previously convicted of one count of conspiracy to sell or deliver cocaine and two counts of selling or delivering cocaine and that these convictions were Class G felonies, there was sufficient proof to establish his prior conviction level. The class of felony for which defendant was previously convicted was a question of fact, to which defendant could stipulate, and was not a question of law requiring resolution by the trial court.
The State’s evidence regarding the defendant’s prior record level was insufficient. The State offered only an in-court statement by the prosecutor and the prior record level worksheet. The court rejected the State’s argument that the prior record level was agreed to by stipulation, noting that defense counsel objected to the worksheet and to two listed convictions.
The defendant was properly assigned two prior record level points for a federal felony. The State presented a prior record level worksheet, signed by defense counsel, indicating that the defendant had two points for the federal conviction. During a hearing, the prosecutor asked defense counsel if the defendant stipulated to having two points and defense counsel responded: “Judge, I saw one conviction on the worksheet. [The defendant] has agreed that’s him. Two points.” Defense counsel made no objection to the worksheet. When the defendant was asked by counsel if he wanted to say anything, the defendant responded, “No, sir.” The worksheet, defense counsel’s remark, and defendant’s failure to dispute the existence of his out-of-state conviction are sufficient to prove that the prior conviction exists, that the defendant is the person named in the prior conviction, and that the prior offense carried two points.
A printed copy of a screen-shot from the N.C. Administrative Office of the Courts (AOC) computerized criminal record system showing the defendant’s prior conviction is sufficient to prove the defendant’s prior conviction under G.S. 15A-1340.14(f)(3). Additionally, the information in the printout provides sufficient identifying information with respect to the defendant to give it the indicia of reliability to prove the prior conviction under subsection (f)(4).
The trial court erred by sentencing the defendant at prior record level VI. Although the prosecutor submitted a Felony Sentencing Worksheet (AOC-CR-600), there was no stipulation, either in writing on the worksheet or orally by the defendant. The court noted that the relevant form now includes signature lines for the prosecutor and either the defendant or defense counsel to acknowledge their stipulation to prior conviction level but that this revision seems to have gone unnoticed.
A printout from the FBI’s National Crime Information Center (NCIC) contained sufficient identifying information to prove, by a preponderance of the evidence, that the defendant was the subject of the report and the perpetrator of the offenses specified in it. The printout listed the defendant’s prior convictions as well as his name, date of birth, sex, race, and height. Because the printout included the defendant’s weight, eye and hair color, scars, and tattoos, the trial court could compare those characteristics to those of the defendant. Additionally, the State tendered an official document from another state detailing one of the convictions listed in the NCIC printout. Although missing the defendant’s year of birth and social security number, that document was consistent in other respects with the NCIC printout.
A defendant’s stipulation to the existence of out-of-state convictions and their classification as felonies or misdemeanors can support a “default” classification for prior record level purposes. However, a stipulation to substantial similarity is ineffective, as that issue is a matter of law that must be determined by the judge.
The defendant’s stipulation that certain out-of-state convictions were substantially similar to specified North Carolina offenses was ineffective. However, the defendant could stipulate that the out-of-state convictions occurred and that they were either felonies or misdemeanors under the other state’s law, for purposes of assigning prior record level points. Based on the stipulation in this case, the defendant’s out-of-state convictions could be counted for prior record level purposes using the “default” classifications in G.S. 15A-1340.14(e).
A stipulation signed by the prosecutor and defense counsel in Section III of AOC-CR-600 (prior record level worksheet) supported the judge’s finding regarding prior record level. The court distinguished a prior case on grounds that the current version of the form includes a stipulation to prior record level.
The defendant’s stipulation that a New Jersey conviction was substantially similar to a North Carolina offense for prior record level points was ineffective. The “substantially similar” issue is a question of law that must be determined by a judge.
The Court of Appeals properly applied the comparative elements test of State v. Sanders, 367 N.C. 716 (2014) in affirming the trial court’s consideration of the defendant’s Georgia conviction for statutory rape as equivalent to a North Carolina Class B1 felony for purposes of calculating the defendant’s PRL for sentencing. Comparing the elements of the Georgia statutory rape offense with the elements of G.S. 14-27.25, the Court found the offenses substantially similar despite variations in the states’ punishment schemes based on the ages of the offender and the victim.
Justice Earls, joined by Justice Ervin, dissented, expressing the view that the majority misapplied Sanders and that the offenses were not substantially similar because the Georgia statute “indisputably encompasses conduct which is not a Class B1 felony in North Carolina.” Justice Earls explained that, at the time of the defendant’s Georgia offense, a person who was 18 years old who had sexual intercourse with a 14-year-old would have violated the Georgia statute at issue but would not have violated any North Carolina statute creating a Class B1 felony.
(1) The trial court erred by determining that a Tennessee offense of “domestic assault” was substantially similar to the North Carolina offense of assault on a female without reviewing all relevant sections of the Tennessee code. Section 39-13-111 of the Tennessee Code provides that “[a] person commits domestic assault who commits an assault as defined in § 39-13-101 against a domestic abuse victim.” Section 39-13-101 defines when someone commits an “assault.” Here the State provided the trial court with a photocopy section 39-13-111 but did not give the trial court a photocopy of section 39-13-101. The court held: “We agree with the Court of Appeals that for a party to meet its burden of establishing substantial similarity of an out-of-state offense to a North Carolina offense by the preponderance of the evidence, the party seeking the determination of substantial similarity must provide evidence of the applicable law.” (2) Comparing the elements of the offenses, the court held that they are not substantially similar under G.S. 15A-1340.14(e). The North Carolina offenses does not require any type of relationship between the perpetrator and the victim but the Tennessee statutes does. The court noted: “Indeed, a woman assaulting her child or her husband could be convicted of “domestic assault” in Tennessee, but could not be convicted of “assault on a female” in North Carolina. A male stranger who assaults a woman on the street could be convicted of “assault on a female” in North Carolina, but could not be convicted of “domestic assault” in Tennessee.”
In this Mecklenburg County case, defendant appealed his convictions for attempted first-degree murder and various assault and firearms charges, arguing error in the determination of his prior record level by finding his federal carjacking conviction was substantially similar to common law robbery. The Court of Appeals found no error.
In 2018, defendant fired multiple shots during an altercation, one of which struck a child waiting at a bus stop, attracting the attention of an off-duty sheriff’s deputy. Defendant jumped into a vehicle, and as the driver sped away from the deputy, defendant fired multiple shots at the deputy’s vehicle. Defendant was eventually caught, and was convicted of all charges against him at trial. During the sentencing phase, the trial court considered whether defendant’s conviction for carjacking under 18 U.S.C. § 2119 was substantially similar to the North Carolina common law offense of robbery. After hearing from the parties, the trial court concluded that the State had proven by a preponderance of the evidence that the two offenses were substantially similar, increasing defendant’s prior record level by four sentencing points.
The Court of Appeals began by noting the similarities between the two offenses, as “[b]oth the federal carjacking statute and North Carolina’s common law robbery require the forceful and violent taking of property.” Slip Op. at 9. Defendant raised four arguments on appeal. First, defendant argued that the similarity between the two offenses failed the test from State v. Sanders, 367 N.C. 716 (2014). The Court of Appeals disagreed, explaining “[h]ere, unlike in Sanders, the elements of carjacking and common law robbery require similar conduct, and no elements are mutually exclusive.” Slip Op. at 11. In defendant’s second argument, he pointed to the connection to interstate commerce requirement for the federal offense, an element not present in common law robbery. The court dismissed this argument, pointing to a similar determination in State v. Riley, 253 N.C. App. 819 (2017), and explaining that the additional federal element of “interstate commerce” did not distinguish the two crimes. Slip Op. at 13.
Defendant pointed to the sentencing enhancements of the federal statute not present in the North Carolina offense for his third argument. The court again disagreed, noting the N.C. Supreme Court has explained “the test in Sanders does not ‘require identicalness between compared statutes from different states and mandate identical outcomes between cases which originate both in North Carolina and in the foreign state.’” Id. at 15, quoting State v. Graham, 379 N.C. 75, 84 (2021). Finally, defendant argued that the North Carolina offense was broader than the federal offense, as the federal offense is limited to theft of motor vehicles. This final argument also failed, as the court referenced State v. Key, 180 N.C. App. 286 (2006), and concluded that the two offenses were substantially similar as “both the federal carjacking statute and North Carolina common law robbery require a non-consensual taking of property under threat, force, or intimidation.” Slip Op. at 17.
(1) In this Buncombe County case, the State prepared the defendant’s prior record level worksheet and calculated that the defendant had fourteen prior record points based on ten out-of-state felony and misdemeanor convictions. The defendant and her counsel stipulated to these prior convictions by signing the sentencing worksheet. At the plea hearing, the state provided “the trial court with copies of each out-of-state misdemeanor statute as evidence that the offenses were ‘substantially similar’ to a North Carolina offense to support their classification as Class 1 misdemeanors.” Slip op. at ¶ 5. Upon accepting the copies, the trial court did not review them further, and only asked the defendant’s counsel whether they objected to the trial court finding that the out-of-state misdemeanors were of similar status in North Carolina. The defendant’s counsel did not respond because of an interruption by the prosecutor, but following the interruption, the defendant and her counsel agreed to “14 prior record points and a prior record level, therefore, of five for felony sentencing purposes.” Id. at ¶ 5.
On appeal, the defendant claimed that the trial court erred by failing to consider whether each conviction was substantially similar to any North Carolina Class A1 or Class 1 misdemeanor, and thus miscalculated her prior sentencing points. The Court of Appeals agreed that the trial court may not accept a stipulation that an out-of-state conviction is “substantially similar” to a particular North Carolina felony or misdemeanor. Instead, the trial court must compare the elements of the out-of-state statute with the elements of the North Carolina statute to determine as a matter of law whether they are substantially similar. The Court of Appeals remanded the case for resentencing.
(2) Prior to sentencing, the defendant’s counsel told the trial court that they were appointed, their hours on the case, and that it totaled to $990 in attorney’s fees. The trial court did not, however, ask the defendant herself about the attorney’s hours or fees. Under State v. Friend, 257 N.C. App. 516 (2018), indigent defendants have a right to notice and the opportunity to be heard before civil judgments are entered against them for court-appointed attorney’s fees. The trial court did not offer the defendant an opportunity to be heard and thus erred. The Court of Appeals vacated the imposed civil judgment for attorney’s fees.
The defendant was charged with four counts of engaging in sexual acts against a child under 13 and taking indecent liberties with a child. The defendant was alleged to have touched a child, A.M.D., in sexual manner on several occasions over a period of one to two years. The state’s evidence at trial consisted primarily of testimony from the victim, A.M.D., and corroborating testimony from other witnesses to whom she had disclosed the abuse. The state dismissed some of the charges prior to verdict, and the jury ultimately convicted the defendant of one count of sexual offense against a child under age 13.
At sentencing, the trial court concluded that a prior sex offense conviction from Georgia was substantially similar to a North Carolina offense classified as a B1 felony, adding 9 points to defendant’s criminal history. The Georgia statute was not formally introduced into evidence, but the appellate court determined the record was sufficient to review the issue and reject defendant’s argument. Although there were some minor differences in the statutes regarding the age requirements for perpetrators and victims, such that some acts might qualify under one statute but not the other, overall the prohibited conduct was substantially similar and “[b]oth N.C. Gen. Stat. § 14-27.25 and Ga. Code Ann. § 16-6-3 seek to protect persons under age sixteen from those who would engage in sexual intercourse with them, and seek greater deterrence for offenders significantly older than their victims by punishing them more severely.”
The defendant was charged with possession of various drugs found in his bedroom and an adjoining alcove, which he said was his personal space. The defendant shared the house with a number of people, including a woman named Ms. Stepp. The defendant consented to a search of his bedroom and alcove, stating to the officers he did not believe they would find any illegal substances, only drug paraphernalia. When asked whether he had ingested any illegal substances, the defendant admitted having used methamphetamine and prescription pills. The search of the defendant’s bedroom uncovered a white rectangular pill marked G3722, a small bag of marijuana, and drug paraphernalia. The search of the alcove uncovered a metal tin containing methamphetamine, cocaine, heroin, and a small pill similar to the one found in his bedroom. The defendant was charged with and convicted of possession of methamphetamine, heroin, and cocaine and having attained the status of an habitual felon.
Based on the stipulation of counsel to the prior record worksheet, the trial judge found that the defendant had 47 prior convictions and was in prior record level VI. The Court found that the following 32 convictions should not have been counted: convictions used to support habitual felon status in this case; convictions rendered in the same week or session of court other than the one with the highest points; and Class 2 and lower misdemeanor convictions. The Court held that of the 15 remaining convictions, six were out-of-state convictions and were incorrectly classified. Only two should have been counted and then as Class I felonies. The Court held that precedent continues to prohibit the parties from stipulating to the similarity of out-of-state convictions or the resulting North Carolina classification. The Court distinguished State v. Arrington, ___ N.C. ___, 819 S.E.2d 329 (2018), which held that when an offense is split into two separate crimes and the defendant stipulates to the higher offense class, it is assumed that the higher classification is sufficiently supported by the underlying facts of the crime. For out-of-state convictions, in contrast, the parties must establish that the elements of the out-of-state conviction are similar to those of a North Carolina offense; only then may a stipulation determine the underlying facts of the offense and the appropriate classification. Based on this review, the Court found the defendant had 11 convictions that could be used, which placed him in prior record level V. A judge who dissented on a different issue concurred in this part of the opinion but would not have reached the issue because she found that the defendant was entitled to a new trial.
(1) In calculating prior record level, the trial court did not err by concluding that the defendant’s South Carolina conviction for criminal sexual conduct in the third degree was substantially similar to the North Carolina Class C felonies of second-degree forcible rape and second-degree forcible sex offense. The court rejected the defendant’s argument that the South Carolina conviction could be a violation of either second-degree forcible rape or second-degree forcible sexual offense, but not both because North Carolina’s rape statute only applies to vaginal intercourse and the sexual offense statute specifically excludes vaginal intercourse. This argument was “a distinction without a difference.” (2) Over a dissent, the court held that the trial court erred by concluding that the defendant’s South Carolina conviction for criminal sexual conduct in the first degree was substantially similar to the North Carolina Class BI felonies of statutory rape of a child by an adult and statutory sex offense with the child by an adult. These offenses are not substantially similar due to their disparate age requirements. Specifically, although both North Carolina statutes require that the offender be at least 18 years old, a person of any age may violate the South Carolina statute. Also, the North Carolina statutes apply to victims under the age of 13, while South Carolina’s protects victims who are less than 11 years old. Thus, the North Carolina and South Carolina statutes apply to different offenders and different victims and are not substantially similar.
To the extent the State failed to meet its burden at sentencing to establish that the defendant’s prior conviction in federal court was substantially similar to a Class G felony in North Carolina, the error was harmless. The court found that there is sufficient information in the record to conclude that the federal offense of being a felon in possession of a firearm is substantially similar to the North Carolina offense of possession of a firearm by a felon, a Class G felony.
The trial court did not err by assigning points for two out-of-state felony convictions. “[B]ecause defendant stipulated to his prior record and the prosecutor did not seek to assign a classification more serious than Class I to his out-of-state convictions for second-degree burglary and breaking and entering, the State was not required to offer proof that these offenses were considered felonies in South Carolina or that they were substantially similar to specific North Carolina felonies.”
The trial court correctly calculated the defendant’s PRL. The defendant argued that the trial court erred by basing its PRL calculation on an ineffective stipulation. The defendant’s only prior conviction was one in Michigan for carrying a concealed weapon, which he contended is substantially similar to the NC Class 2 misdemeanor offense of carrying a concealed weapon. The court concluded that the defendant did not make any stipulation as to the similarity of the Michigan offense to NC offense. Instead, the prior conviction was classified as a Class I felony, the default classification for an out-of-state felony. Thus, defendant’s stipulations in the PRL worksheet that he had been convicted of carrying a concealed weapon in Michigan and that the offense was classified as a felony in Michigan, were sufficient to support the default classification of the offense as a Class I felony.
The trial court did not err in calculating the defendant’s prior record level when it counted a New Jersey third-degree theft conviction as a Class I felony. The court rejected the defendant’s argument that because New Jersey does not use the term “felony” to classify its offenses, the trial court could not determine that third-degree theft is a felony for sentencing purposes, noting that the State presented a certification that third-degree theft is considered a felony in New Jersey. The court also rejected the defendant’s argument that the offense was substantially similar to misdemeanor larceny.
Although the trial court erred by accepting the defendant’s stipulation that a Tennessee conviction for “theft over $1,000” was substantially similar to a NC Class H felony, the error did not affect the computation of the defendant’s PRL and thus was not prejudicial.
Based on the elements of the two offenses, the trial court erred by concluding that a prior Ohio conviction was substantially similar to the North Carolina crime of assault with a deadly weapon with intent to kill.
Where the defendant stipulated to the worksheet’s classification of a South Carolina conviction as a Class I felony, the trial court correctly assigned two points for that conviction. The court reasoned that the defendant knew of the worksheet’s contents and had ample opportunity to object to them. It thus concluded that the defendant’s silence regarding the worksheet’s classification of the conviction as a Class I felony constituted a stipulation. Moreover, it reasoned, because Class I is the default classification for an out-of-state felony the State met its burden and was required to prove nothing further in support of that classification.
When determining prior record level, the trial court erroneously concluded that a Georgia conviction for theft was substantially similar to misdemeanor larceny without hearing any argument from the State. Additionally, the Georgia offense is not substantially similar to misdemeanor larceny; the Georgia offense covers both temporary and permanent takings but misdemeanor larceny covers only permanent takings.
The trial court did not err in calculating the defendant’s prior record level. The trial court considered the defendant’s two federal felony convictions as Class I felonies for purposes of calculating prior record level. Because the defendant made no showing that either conviction was substantially similar to a North Carolina misdemeanor, the trial court did not err by using the default Class I categorization.
The trial court did not err by finding that a NY drug conviction for third-degree drug sale was substantially similar to a NC Class G felony under G.S. 90-95. Comparing the two states’ statutes, the offenses were substantially similar, notwithstanding the fact that the states’ drug schedules are not identical. The court noted: the requirement in G.S. 15A-1340.14(e) “is not that the statutory wording precisely match, but rather that the offense be ‘substantially similar.’”
In determining whether out-of-state convictions were substantially similar to NC offenses, the trial court erred by failing to compare the elements of the offenses and instead comparing their punishment levels.
The trial court erred by determining that the defendant was a prior record level VI when the defendant’s Florida conviction for burglary was not sufficiently similar to the corresponding N.C. burglary offense. The Florida statute is broader than the N.C. statute in that it encompasses more than a dwelling house or sleeping apartment. Significantly, the Florida statute does not require that the offense occur in the nighttime or that there be a breaking as well as an entry. Based on these differences, the Florida burglary statute is not sufficiently similar to N.C.’s burglary statute. The court went on to find the Florida crime sufficiently similar to G.S. 14-54, felonious breaking or entering.
The trial court erred in calculating the defendant’s prior record level with respect to whether a federal conviction was substantially similar to a N.C. felony. The determination of substantial similarity is a question of law which cannot be determined by stipulation to the worksheet.
The trial court erred by sentencing the defendant as a level IV offender when the State failed to present sufficient evidence establishing that out-of-state offenses were substantially similar to North Carolina offenses. The State presented printed copies of out-of-state statutes purportedly serving as the basis for the out-of-state convictions. However, the State’s worksheet did not identify the out-of-state crimes by statute number and instead used brief and non-specific descriptions that could arguably describe more than one crime, making it unclear whether the statutes presented were the basis for the defendant’s convictions. Also, the State presented 2008 versions of statutes when the defendant’s convictions were from 1993 and 1994, and there was no evidence that the statutes were unchanged. Finally, the trial erred by accepting the classification of the defendant’s out-of-state offenses without comparing the elements of those offenses to the elements of the North Carolina offenses the State contended were substantially similar.
Since the State failed to demonstrate the substantial similarity of out-of-state New York and Connecticut convictions to North Carolina crimes and the trial court failed to determine whether the out-of-state convictions were substantially similar to North Carolina offenses, a resentencing was required. The State neither provided copies of the applicable Connecticut and New York statutes, nor provided a comparison of their provisions to the criminal laws of North Carolina. Also, the trial court did not analyze or determine whether the out-of-state convictions were substantially similar to North Carolina offenses.
For purposes of assigning one prior record level point for out-of-state misdemeanors that are substantially similar to a North Carolina A1 or 1 misdemeanor, North Carolina impaired driving is a Class 1 misdemeanor. Thus, the trial court did not err by assigning one prior record level point to each out-of-state impaired driving conviction. The state presented sufficient evidence that the out-of-state convictions were misdemeanors in the other state.
The defendant was placed on probation in district court pursuant to a formal deferred prosecution agreement under G.S. 15A-1341(a1). A district court judge found him in violation and revoked his deferred prosecution probation. The defendant appealed to superior court for a de novo violation hearing, but a superior court judge dismissed the appeal for lack of jurisdiction. The court of appeals affirmed the dismissal, concluding that there is no statutory right to appeal a revocation of probation in the deferred prosecution context, as that revocation does not “activate[] a sentence” within the meaning of G.S. 15A-1347(a). The court noted that the superior court could, in some cases, review district court revocations of deferred prosecution probation through its authority to issue writs of certiorari under Rule 19 of the General Rules of Practice for the Superior and District Courts.
Reversing the court of appeals, the court held that on direct appeal from the activation of a suspended sentence, a defendant may not challenge the jurisdictional validity of the indictment underlying his original conviction. The court reasoned that a challenge to the validity of the original judgment constitutes an impermissible collateral attack. It explained:
[D]efendant failed to appeal from his original judgment. He may not now appeal the matter collaterally via a proceeding contesting the activation of the sentence imposed in the original judgment. As such, defendant’s present challenge to the validity of his original conviction is improper. Because a jurisdictional challenge may only be raised when an appeal is otherwise proper, we hold that a defendant may not challenge the jurisdiction over the original conviction in an appeal from the order revoking his probation and activating his sentence. The proper procedure through which defendant may challenge the facial validity of the original indictment is by filing a motion for appropriate relief under [G.S.] 15A-1415(b) or petitioning for a writ of habeas corpus. Our holding here does not prejudice defendant from pursuing these avenues.
Slip Op. at 9-10 (footnote and citation omitted).
In this Buncombe County case, defendant appealed an order revoking his probation, arguing the trial court failed to make a finding of good cause to revoke his probation along with other errors. The Court of Appeals agreed with defendant and vacated the trial court’s judgment without remand.
Defendant’s probation was revoked at a hearing held 700 days after the expiration of his probation term. The court noted that “the trial court failed to find good cause to revoke probation after the expiration of the probation period as required by [G.S.] 15A-1344(f)(3).” Slip Op. at 2. Subsection (f)(3) requires a finding of good cause to support the trial court’s jurisdiction to revoke probation; here, the record did not show any findings supporting good cause. Considering the appropriate remedy, the court applied State v. Sasek, 271 N.C. App. 568 (2020), holding that where no evidence in the record supports a finding of “reasonable efforts” by the state to hold a revocation hearing sooner, the appropriate remedy for failure to make findings of good cause under G.S. 15A-1344(f)(3) is vacating the judgment without remand. Slip Op. at 4.
In this Caldwell County case, the Court of Appeals denied the state’s motion to dismiss defendant’s appeal as untimely, but found no error with the trial court’s decision to revoke defendant’s probation for violations related to a search of his truck.
In May of 2020, defendant was pulled over after sheriff’s deputies observed him cross the center line while driving 55 mph in a 35 mph zone. During the traffic stop, the deputies determined that defendant was on probation for manufacturing methamphetamine and possessing stolen goods, and was subject to warrantless searches. The deputies searched defendant and his truck, finding a shotgun, smoking pipes and a baggie containing methamphetamine. Defendant’s probation officer filed violation reports with the trial court; the trial court subsequently revoked defendant’s probation and activated his sentences, leading to defendant’s appeal.
The Court of Appeals first reviewed the state’s motion to dismiss defendant’s appeal as untimely, applying State v. Oates, 366 N.C. 264 (2012), as controlling precedent for criminal appeals. Slip Op. at 7-8. The court explained that Rule of Appellate Procedure 4 requires an appeal to be filed either (1) orally at the time of trial, or (2) in writing within 14 days of the entry of the judgment or order. In the present case, the trial court announced its decision to revoke defendant’s probation on April 30, 2021, but did not enter an order until May 24, 2021, a delayed entry similar to the circumstances in Oates. Defendant filed a written notice of appeal on May 25, 2021, easily satisfying the 14-day requirement.
Turning to the substance of defendant’s appeal, the court noted that the Fourth and Fourteenth Amendment protections and formal rules of evidence do not apply in a probation revocation hearing. Id. at 9. As a result, defendant’s arguments that the evidence obtained by searching his truck should have been suppressed were invalid, and the trial court did not err by using this evidence as the basis for revocation of his probation.
Judge Jackson concurred in part A, the denial of state’s motion to dismiss, but concurred only in the result as to part B, the evidence found in defendant’s truck. Id. at 10.
The court declined to consider the defendant’s argument that the trial court had no jurisdiction to revoke his probation because the sentencing court failed to make findings supporting a probation term of more than 30 months. It reasoned that a defendant cannot re-litigate the legality of a condition of probation unless he or she raises the issue no later than the hearing at which his probation is revoked.
A defendant may not challenge the validity of an indictment in an appeal challenging revocation of probation. In such circumstances, challenging the validity of the original judgment is an impermissible collateral attack.
On appeal from judgment revoking probation, the defendant could not challenge the trial court’s jurisdiction to enter the original judgment as this constituted an impermissible collateral attack on the original judgment.
Defendant had no right to appeal from the trial court’s orders modifying the terms of his probation and imposing Confinement in Response to Violation. For a discussion of this case, see my colleague’s blog post here.
Over a dissent, the court dismissed as moot the defendant’s appeal from a judgment revoking his probation and activating his suspended sentence. After finding that the defendant was not at home during a mandatory curfew on two occasions, that these absences constituted willful violations of probation, and that the violations constituted absconding, the trial court revoked the defendant’s probation and activated his suspended sentence. The defendant appealed. The case was before the appellate court on writ of certiorari. The State conceded that the trial court lacked jurisdiction to revoke the defendant’s probation under the Justice Reinvestment Act because the underlying offenses occurred prior to December 1, 2011. The State argued however that the appeal was moot because the defendant had served his time. The defendant countered, arguing that he may suffer collateral consequences as a result of the trial court’s alleged error if he is subsequently convicted of a new crime. Specifically, he noted that under North Carolina law, an aggravating sentencing factor may be found when the defendant previously has been found in willful violation of probation. The court rejected this argument, noting that the defendant made no assertion that the trial court erred in finding him in willful violation of probation, the factor that triggers application of the aggravating factor. Rather, the defendant only argued that the trial court erred in revoking his probation based on application of the Justice Reinvestment Act, which did not take effect until after he violated his probation. However, the fact that the defendant’s probation was revoked does not in itself trigger application of the aggravating factor. The only part of the trial court’s judgment which could have any future detrimental effect is the finding that the defendant was in willful violation of probation, a finding he did not challenge. Here, the trial court acted within its authority in entering its finding of willfulness. Specifically, the court stated: “the conditions of Defendant’s probation included a mandatory curfew; Defendant was cited for violating this curfew; the trial court had the jurisdiction to hold its hearing to consider Defendant’s violation; and the trial court found that Defendant violated his curfew and that the violation was willful. Therefore, since Defendant will not suffer future collateral consequences stemming from the trial court’s error in revoking his probation, we conclude that Defendant’s appeal is moot.”
The court held that it had no authority to consider the defendant’s challenge to the trial court’s imposition of a special condition of probation.
Reversing an unpublished decision of the court of appeals, the court held that the trial court did not abuse its discretion by basing its decision to revoke the defendant’s probation on hearsay evidence presented by the State. The court noted that under Rule 1101, the formal rules of evidence do not apply in probation revocation hearings.
In this Wilson County case, defendant appealed the revocation of her probation, arguing (1) insufficient evidence to support the finding she committed a new crime on probation and (2) violation of her right to confront the probation officer who filed the violation reports against her. The Court of Appeals found no error.
Defendant’s probation officer “W” filed two probation violation reports against her from November and December 2021. The reports alleged defendant was committed new crimes while on probation as she was charged with obtaining property by false pretenses and uttering a forged instrument. When the matter came before the trial court in May 2022, probation officer W was replaced by probation officer “H,” who testified regarding the two 2021 reports, as well as a third report from February 2022 that officer H prepared alleging a second uttering a forged instrument offense. Defendant objected to the absence of officer W, as she wished to cross-examine the officer who filed the 2021 reports against her. The trial court noted the objection in the record but otherwise proceeded with the hearing. At the conclusion of the hearing the trial court revoked defendant’s probation and activated her prison sentences.
For (1), defendant argued “the State needed to call law enforcement witnesses to present evidence about the investigations relating to the crimes, civilian victim witnesses, or [bank] employees” to support the alleged crimes committed by defendant. Slip Op. at 10. The Court of Appeals disagreed, explaining that the violation reports, arrest warrants, and testimony from Officer H supported the conclusion that defendant was the person on security camera footage committing the crimes. The court explained “[a] probation revocation hearing is not a trial, and the State need not present evidence sufficient to convict Defendant nor call as witnesses the investigating officers of the crimes alleged.” Id. at 12.
Turning to (2), the court noted that the Sixth Amendment did not apply to a probation revocation hearing, and that G.S. 15A-1345(e) was the basis for confrontation rights in the proceeding. Because G.S. 15A-1345(e) controlled, the issue before the court was “whether the trial court committed prejudicial error by not making an explicit finding that good cause existed for not allowing Defendant to confront [officer W].” Id. at 14. The court referenced State v. Terry, 149 N.C. App. 434 (2002), explaining that failure to require an adverse witness to testify is not error if “(1) the adverse witness’s testimony would have been merely extraneous evidence in light of other competent evidence presented through the probation officer’s testimony and (2) defendant failed to request the professor be subpoenaed.” Slip Op. at 14. Here, the court found the testimony of Officer W would have been extraneous in light of the other evidence in the record supporting defendant’s commission of the crimes. Additionally, defendant did not subpoena Officer W. This led the court to conclude the trial court did not abuse its discretion in allowing the hearing to proceed without Officer W. Finally, the court noted that if any error occurred, it was not prejudicial, as sufficient competent evidence before the trial court supported the revocation of defendant’s probation without the testimony from Officer W.
In this Caldwell County case, the Court of Appeals denied the state’s motion to dismiss defendant’s appeal as untimely, but found no error with the trial court’s decision to revoke defendant’s probation for violations related to a search of his truck.
In May of 2020, defendant was pulled over after sheriff’s deputies observed him cross the center line while driving 55 mph in a 35 mph zone. During the traffic stop, the deputies determined that defendant was on probation for manufacturing methamphetamine and possessing stolen goods, and was subject to warrantless searches. The deputies searched defendant and his truck, finding a shotgun, smoking pipes and a baggie containing methamphetamine. Defendant’s probation officer filed violation reports with the trial court; the trial court subsequently revoked defendant’s probation and activated his sentences, leading to defendant’s appeal.
The Court of Appeals first reviewed the state’s motion to dismiss defendant’s appeal as untimely, applying State v. Oates, 366 N.C. 264 (2012), as controlling precedent for criminal appeals. Slip Op. at 7-8. The court explained that Rule of Appellate Procedure 4 requires an appeal to be filed either (1) orally at the time of trial, or (2) in writing within 14 days of the entry of the judgment or order. In the present case, the trial court announced its decision to revoke defendant’s probation on April 30, 2021, but did not enter an order until May 24, 2021, a delayed entry similar to the circumstances in Oates. Defendant filed a written notice of appeal on May 25, 2021, easily satisfying the 14-day requirement.
Turning to the substance of defendant’s appeal, the court noted that the Fourth and Fourteenth Amendment protections and formal rules of evidence do not apply in a probation revocation hearing. Id. at 9. As a result, defendant’s arguments that the evidence obtained by searching his truck should have been suppressed were invalid, and the trial court did not err by using this evidence as the basis for revocation of his probation.
Judge Jackson concurred in part A, the denial of state’s motion to dismiss, but concurred only in the result as to part B, the evidence found in defendant’s truck. Id. at 10.
The defendant in this case was on supervised probation for a conviction of possession with intent to sell or deliver methamphetamine. The defendant’s probation officer filed a violation report, alleging that the defendant had absconded from supervision and committed several other violations. The defendant waived counsel and testified at the hearing held on the violation; he admitted to absconding and committing the other violations, but also maintained that he had given his current address to his probation officer. The trial court found that the defendant had absconded and committed the other alleged violations, revoked his probation, and activated his sentence. The defendant filed a handwritten notice of appeal.
The appellate court first held that the notice of appeal was defective, but granted discretionary review and addressed the merits. The court rejected the defendant’s argument that the state presented insufficient evidence of absconding, because the defendant admitted to it in his testimony and thereby waived the requirement that the state present sufficient evidence of the violation. Citing State v. Sellers, 185 N.C. App. 726 (2007), the court held that “when a defendant admits to willfully violating a condition of his or her probation in court, the State does not need to present evidence to support the violations.” Defendant’s arguments that he did not understand the legal definition of absconding, had provided his probation officer with an address, and that the trial court should have conducted a more thorough examination of his admission, were unavailing given that the defendant “unequivocally and repeatedly admitted that he had absconded.” The court affirmed the revocation based on absconding, but remanded the judgment to correct three clerical errors regarding the name of the underlying offense of conviction, the total number of alleged violations, and an incorrect indication on the judgment form that the other violations besides absconding would also support revocation. The latter was deemed a clerical error because the transcript clearly indicated that the trial court’s revocation order was properly based only on the absconding violation, in accordance with G.S. 15A-1344(d2).
The defendant was on felony probation. During a traffic stop, a law enforcement officer found a pistol in the defendant’s car, which resulted in criminal charges for possession of firearm by a felon and carrying a concealed weapon and the filing of a probation violation report for committing new criminal offenses. In the trial for the new criminal charges, the judge denied the defendant’s motion to suppress the pistol, but the case nonetheless resulted in a mistrial. At the subsequent probation violation hearing, the court found that the defendant committed the alleged criminal offenses and revoked probation. After granting the defendant’s petition for writ of certiorari, the Court of Appeals rejected his argument that he was deprived of the right to confront and cross-examine the law enforcement officer at his probation violation hearing. The right to confront and cross-examine witnesses at a probation violation hearing as provided in G.S. 15A-1345(e) is grounded in a probationer’s Fourteenth Amendment due process rights, which are more flexible than his or her confrontation rights at trial under the Sixth Amendment. As such, the court held that the law enforcement officer’s testimony at the prior motion to suppress was competent evidence of the alleged violations, and that the trial court did not err by finding the new criminal offense violations despite the earlier mistrial. The defendant did not request findings for good cause as to why confrontation should not be allowed, and therefore no such findings were required. The Court of Appeals affirmed the revocation of probation but remanded the case for correction of a clerical error.
On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 814 S.E.2d 843 (2018), the Supreme Court considered the statutory requirements for revoking probation after it has expired. In this case the defendant’s probation officer filed a violation report on May 12, 2016 alleging, among other things, that the defendant committed a new criminal offense. His probation expired on August 28, 2016, and then came on for a violation hearing in early September. The trial court revoked the defendant’s probation based on the defendant’s admission that he absconded and committed a new criminal offense. On appeal, the defendant argued that the trial court erred by revoking his probation after expiration without making a specific finding that it was doing so for good cause shown and stated as required by G.S. 15A-1344(f)(3). The Court of Appeals held, over a dissent, that under State v. Regan, 253 N.C. App. 351 (2017), no specific findings were required. The Supreme Court reversed, concluding that the plain language of the statute does require a finding of good cause—just as former G.S. 15A-1344(f)(2) required a finding that the State had made a “reasonable effort” to notify a probationer and conduct a violation hearing earlier to give a court jurisdiction to act on a case after probation expired. See State v. Bryant, 361 N.C. 100 (2006). The court remanded the case to the trial court to make a determination of whether good cause existed to revoke the defendant’s probation after it had already expired and, if so, to make an appropriate finding of fact.
In this Perquimans County case, defendant appealed the trial court’s finding that he violated the terms of his probation, arguing the trial court extended his probation after the probationary term had expired without a finding of good cause. The Court of Appeals agreed, vacating the order and remanding to the trial court to determine if good cause exists.
Defendant, a town council member, was placed on probation for striking another council member in October 2018. After entering an Alford plea to assault of a government official, defendant was sentenced in December 2019 to 60 days of imprisonment, suspended for 24 months supervised probation with 15 days of active term, and a curfew from 7pm to 6am. Defendant’s probation officer filed violation reports alleging that defendant violated the curfew and left the county without prior approval. The matter was initially set for an August 2020 hearing, but after continuances, the matter did not reach a hearing until February of 2022. By that time, defendant’s probationary term had expired, ending in December 2021. After the February 2022 hearing, the trial court entered an order extending defendant’s probation for another 12 months and ordering a 45-day active term as a condition of special probation. Defendant appealed.
The Court of Appeals looked first to G.S. 15A-1344(f), which allows a trial court to extend probation after the expiration of the term in certain circumstances. Relevant for this case, a trial court must find that the defendant violated a condition of probation, and then make a finding under (f)(3) that “for good cause shown and stated the probation should be extended.” Slip Op. at 4. The court explained that “A finding of good cause ‘cannot simply be inferred from the record.’” Id., quoting State v. Morgan, 372 N.C. 609, 617 (2019). Because the hearing here occurred after defendant’s probation term expired, and the record contained no finding of good cause to satisfy G.S. 15A-1344(f)(3), the court remanded for further determination by the trial court.
The court also vacated the 45-day active term imposed after the expiration of defendant’s probation, finding error by the trial court for two reasons. First, under the calculation required by G.S. 15A-1351(a), “the maximum period of confinement that could have been imposed as a condition of special probation was 15 days,” which defendant had served at the beginning of his sentence. Id. at 6. Second, because the statute sets an outer deadline of “the end of the probationary term or two years after the date of conviction, whichever comes first,” defendant’s additional 45-day active term was outside the acceptable period. Id. at 7.
In this Pitt County case, defendant appealed the revocation of her probation, arguing the trial court improperly considered all of defendant’s probation violations as bases to revoke her probation in violation of G.S. 15A-1344(a). The Court of Appeals found that the trial court committed error in one of its findings, but affirmed the revocation of defendant’s probation.
In June of 2021, while defendant was on probation for a driving while intoxicated offense, the probation officer filed a violation report with the trial court identifying (1) positive drug screens for marijuana, (2) failure to pay court costs, and (3) commission of a new criminal offense. At the revocation hearing, defendant admitted to the violations and requested confinement in response to a violation (CRV) rather than revocation. The trial court declined this request and revoked her probation due to willful and intentional violations. When filling out form AOC-CR-343 after the judgment, the trial court checked box 4, which represented a finding that “each violation is, in and of itself, a sufficient basis upon which [the trial court] should revoke probation and activate the suspended sentence.” Slip Op. at 4.
Reviewing defendant’s argument, the Court of Appeals first explained that G.S. 15A-1344(a) only permitted revocation of defendant’s probation after the new criminal offense, not the other two violations in the report. To revoke defendant’s probation under this provision, the trial court was required to exercise discretion in determining that there was a willful violation of the terms of probation when defendant committed the new criminal offense. Here the trial court made just such a finding by checking box 5(a) on form AOC-CR-343. The court determined that checking box 4 was error, but that “[the trial court] properly considered and understood the statutory basis for revoking Defendant’s probation and properly exercised its discretion.” Slip Op. at 8. As a result, the court reversed the finding represented by checking box 4, but affirmed the judgment revoking probation.
The defendant was placed on 18 months of supervised probation following his guilty pleas to possession of a firearm by a felon, possession of a stolen motor vehicle, fleeing to elude, and RDO. Shortly before his probationary term expired, the defendant’s probation officer filed a violation report alleging that he had committed four new criminal offenses. Approximately a year later, after the defendant prevailed on a motion to suppress evidence in those cases, the new charges were dismissed. Nevertheless, the defendant’s probation was revoked based on the allegations in the violation report, and the defendant appealed. In State v. Geter, 843 S.E.2d 489 (N.C. App. 2020) (unpublished), the appellate court remanded this matter because the revocation judgments failed to identify which of the four new offenses were the basis for the revocation, and also failed to make a finding that good cause existed to revoke the defendant’s probation after the probationary period had expired (by 399 days), as required by G.S. 15A-1344(f). After a rehearing, the trial court found that good cause existed for the revocation because the new charges were not resolved before the probationary period had ended, and the disposition of those charges would have had a direct impact on the violation hearing. The defendant again appealed his revocation, arguing that the trial court’s finding of good cause failed as a matter of law.
The appellate court disagreed and affirmed the revocation. Applying an abuse of discretion of standard, and distinguishing State v. Sasek, 844 S.E.2d 328 (N.C. App. 2020) in which no findings were made nor was there any evidence in the record that good cause existed, the trial court in this case did make findings and they were supported by facts in the record. The appellate court acknowledged that a revocation occurring 399 days after the probationary period had ended was “significant” and “unadvisable in the administration of justice,” but in this case the violation report was not filed until shortly before the end of the probationary period, there was only one session of hearings held each week in the county, and the trial court found that waiting for a disposition on the underlying new charges constituted good cause for the delay. The trial court did not abuse its discretion in so finding, and the revocation order was affirmed.
The defendant was placed on 18 months of supervised probation following his guilty pleas to possession of a firearm by a felon, possession of a stolen motor vehicle, fleeing to elude, and RDO. Shortly before his probationary term expired, the defendant’s probation officer filed a violation report alleging that he had committed four new criminal offenses. Approximately a year later, after the defendant prevailed on a motion to suppress evidence in those cases, the new charges were dismissed. Nevertheless, the defendant’s probation was revoked based on the allegations in the violation report, and the defendant appealed. In State v. Geter, 843 S.E.2d 489 (N.C. App. 2020) (unpublished), the appellate court remanded this matter because the revocation judgments failed to identify which of the four new offenses were the basis for the revocation, and also failed to make a finding that good cause existed to revoke the defendant’s probation after the probationary period had expired (by 399 days), as required by G.S. 15A-1344(f). After a rehearing, the trial court found that good cause existed for the revocation because the new charges were not resolved before the probationary period had ended, and the disposition of those charges would have had a direct impact on the violation hearing. The defendant again appealed his revocation, arguing that the trial court’s finding of good cause failed as a matter of law.
The appellate court disagreed and affirmed the revocation. Applying an abuse of discretion of standard, and distinguishing State v. Sasek, 844 S.E.2d 328 (N.C. App. 2020) in which no findings were made nor was there any evidence in the record that good cause existed, the trial court in this case did make findings and they were supported by facts in the record. The appellate court acknowledged that a revocation occurring 399 days after the probationary period had ended was “significant” and “unadvisable in the administration of justice,” but in this case the violation report was not filed until shortly before the end of the probationary period, there was only one session of hearings held each week in the county, and the trial court found that waiting for a disposition on the underlying new charges constituted good cause for the delay. The trial court did not abuse its discretion in so finding, and the revocation order was affirmed.
(1) The defendant was convicted of possession with intent to sell or deliver a Schedule II controlled substance and sale of methamphetamine. At trial, the State presented the testimony of an expert in drug chemistry from the North Carolina State Crime Lab. She testified that she performed a gas chromatography mass spectrometer (GCMS) test on the substance. She explained how the GCMS test works and how the examiner analyzes the results. Before she explained how she applied those methods on the sample in this case and the result she obtained, the State interrupted her testimony and asked about recognition of GCMS testing in the scientific community. The witness testified that GCMS was well-respected in the scientific community and confirmed that she had recorded the results of her testing in the lab report. The lab report was then admitted into evidence without objection, and the witness testified without objection that the substance was methamphetamine, Schedule II. The Court of Appeals held that although the witness was prepared to explain how she conducted GCMS testing in this case, she never did so. Further, the lab report stated only that the material that was examined was found to contain methamphetamine. The Court of Appeals found that this evidence failed to satisfy North Carolina Rule of Evidence 702(a)(3), which requires that the witness demonstrate that she applied the principles and methods reliably to the facts of the case. The Court ruled, however, that the defendant failed to establish plain error because the witness testified that she conducted the GCMS test, obtained positive results, and produced a lab report recording the results. (2) The trial judge revoked the defendant’s probation, imposed for other charges before the offenses in this case, based on violation of the condition that the defendant commit no criminal offense. The defendant argued and the State conceded that the trial judge erred by activating his suspended sentence without making a finding that good cause existed to revoke his probation after the period of probation expired. The defendant argued further that the probation revocation should be vacated, without remand, because the record was devoid of any evidence to show good cause to revoke after the expiration of the defendant’s probation. The Court of Appeals agreed. A violation report was filed May 17, 2017, and a probation hearing was scheduled for June 13, 2017, but a hearing did not take place until March 2019, fourteen months after the defendant’s probation expired. The Court found nothing in the record to show why the probation hearing was not held in June 2017 or at least before expiration of his probation in January 2018. The Court noted that a criminal conviction is not required for the trial judge to revoke probation for a defendant’s commission of a criminal act in violation of probation. A concurring judge would have remanded for further proceedings on whether the State made reasonable efforts to conduct a probation hearing before expiration of the defendant’s probation.
The trial court did not err by revoking the defendant’s probation based on its finding that he willfully absconded from supervision. In so ruling, the court rejected the defendant’s argument that the trial court abused its discretion by making its oral findings of fact without explicitly stating the legal standard of proof. Noting that it has held that a trial court’s failure to state the standard of proof underlying its findings may constitute reversible error when certain protected interests are involved, it has never so held in the context of a probation hearing. The court noted that “Although the trial court failed to employ the best practice and explicitly state the legal standard of proof,” the totality of the trial court’s statements indicate that it was reasonably satisfied in light of all the evidence presented that a willful violation had occurred. Reviewing the facts of the case, the court also rejected the defendant’s argument that there was insufficient evidence that he willfully absconded from supervision.
On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 810 S.E.2d 828 (2018), the court affirmed per curiam, holding that the State failed to carry its burden of presenting sufficient evidence to support the trial court’s decision to revoke the defendant’s probation based upon a finding that the defendant willfully absconded probation. It went on, however, to “disavow the portion of the opinion analyzing the pertinence of the fact that defendant’s probationary term expired prior to the date of the probation violation hearing and holding ‘that the trial court lacked jurisdiction to revoke defendant’s probation after his case expired.’” In the opinion below, the Court of Appeals held that because the State presented insufficient evidence to support a finding of willful absconding, the trial court lacked jurisdiction to revoke the defendant’s probation after the term of probation ended. When the defendant’s probation officer visited his reported address, an unidentified woman advised the officer that the defendant did not live there. The State presented no evidence regarding the identity of this person or her relationship to the defendant. The officer never attempted to contact the defendant again. However when the defendant contacted the officer following his absconding arrest, the officer met the defendant at the residence in question. The Court of Appeals held that the evidence was insufficient to establish absconding. It went on to hold that the trial court’s decision was not only an abuse of discretion but also was an error that deprived the court of jurisdiction to revoke the defendant’s probation after his probationary term expired.
The defendant was on supervised probation in Gaston County after pleading guilty to two counts of uttering a forged instrument. 24 months into a 30-month period of probation, a probation violation was filed, accusing the defendant of willful failure to pay. The defendant was not represented by counsel at the hearing, and the trial court ultimately extended probation by 12 months. A year later, probation filed a violation report accusing the defendant of numerous violations. An absconding violation was filed soon after. A hearing was held where the defendant’s probation was revoked, and his sentence activated.
On appeal, the defendant argued that the initial extension of his probation was invalid based on a violation of his right to counsel. (1) The State argued that the defendant was not permitted to collaterally attack the underlying judgment. The court disagreed, finding that the defendant sought to challenge the order extending his probation, not the underlying criminal judgment placing him on probation. Because the defendant had no right of appeal from that order, he retained the right to challenge it in the present case.
(2) The trial court failed to conduct a colloquy pursuant to G.S. 15A-1242 to ensure the defendant knowingly, intelligently, and voluntarily waived his right to counsel at the first probation hearing. While the defendant and judge had signed a waiver of counsel form indicating that the defendant waived all counsel, the judge failed to check either box (indicating partial or total waiver of counsel) on the certification section of the form. The certification attests that the G.S. 15A-1242 colloquy with the defendant was completed. This was a substantive error and not a clerical mistake—the trial court only had jurisdiction to revoke probation in the current case if the initial extension was valid, and the initial extension was only valid if the defendant’s right to counsel was honored, so a mistake here spoke directly to the length of the defendant’s probation. While a knowing, voluntary, and intelligent waiver of counsel may be presumed from the defendant’s signature on the waiver form, that presumption will not be indulged where other record evidence contradicts that conclusion. According to the court:
[A]lthough a signed written waiver is generally ‘presumptive evidence that a defendant wishes to act as his or her own attorney,’ we conclude that the written waiver in the instant case is insufficient—notwithstanding the presence of both parties’ signatures—to pass constitutional and statutory muster. Guinn Slip op. at 18 (cleaned up).
Further, the transcript revealed that no waiver of counsel colloquy occurred. Even assuming the signed waiver of counsel form was valid, the trial court still has a duty to conduct the colloquy of G.S. 15A-1242 and its failure to do so was prejudicial error. The trial court’s original order extending probation by 12 months was therefore invalid, as those proceedings violated the defendant’s right to counsel. Accordingly, the trial court lacked jurisdiction at the later probation violation hearing, and the order of revocation was vacated.
Judge Tyson dissented. He would have found that the signed form conclusively established the defendant’s valid waiver of counsel and would have affirmed the trial court’s revocation order.
A Watauga County trial court lacked jurisdiction to revoke the defendant’s probation imposed in two separate cases in other counties, one probationary sentence imposed in Lincoln County and the other in Catawba County. As to the Lincoln County case, the State failed to meet its burden to show that the defendant was properly being supervised in Watauga County as there was no evidence that the probation was imposed in Watauga County, that the defendant violated probation imposed in the Lincoln case while she was in Watauga, or that the defendant resided in Watauga County at any relevant time. The State failed to meet its burden to show the same with respect to the Catawba County case.
The defendant pled guilty to aggravated felony serious injury by vehicle, driving while impaired, and injury to real property. The trial court sentenced the defendant to 29 – 47 months imprisonment and suspended the sentence, placing the defendant on 60 months of supervised probation. The trial court also ordered the defendant to serve 330 days of imprisonment as a condition of special probation.
Defendant began to serve his term of special probation on October 7, 2014, and then served a 26-day term of imprisonment in a separate case. The defendant was released from imprisonment to supervised probation on September 28, 2015. The probation officer filed violation reports on January 23, 2020, February 5, 2020, and February 25, 2020. The trial court determined in a March 10, 2020 hearing that the defendant willfully violated the terms of his probation and activated the defendant’s suspended sentence. The defendant appealed.
The Court of Appeals determined that the trial court lacked subject matter jurisdiction to revoke the defendant’s probation. Pursuant to G.S. 15A-1351(a), the defendant’s total probationary period included his 330-day imprisonment as a condition of special probation. The Court reasoned that, at the latest, the defendant’s probationary period began on November 3, 2014, after he served his 26-day sentence in the other case. Thus, the defendant’s 60-month probationary period would have ended, at the latest, on November 3, 2019. Because the violation reports were all filed after that date, the trial court lacked subject-matter jurisdiction to revoke the defendant’s probation and activate his suspended sentence.
In this probation revocation case that was appealed by a petition for writ of certiorari, the court held that the defendant failed to demonstrate error with respect to the district court’s exercise of subject matter jurisdiction to revoke her probation. On May 5, 2017, the defendant was placed on 12 months of supervised probation pursuant to a conditional discharge plea agreement related to a felony drug charge. On March 4, 2018, the defendant’s probation officer filed a violation report asserting that she had only completed a small fraction of her court-ordered community service hours and had not yet paid in full her court costs and supervised probation fee. At a May 4, 2018, hearing on the violation report, which resulted in the trial court finding a willful violation of probation and entering judgment on the felony drug charge, the defendant did not object to the district court’s jurisdiction and fully participated in the hearing.
The court first addressed its appellate jurisdiction, noting that the defendant’s various attempts to appeal the judgment did not comply with the Rules of Appellate Procedure but deciding to use its discretion to allow the defendant’s petition for writ of certiorari, in part because the issue of the district court’s subject matter jurisdiction to revoke her probation was one of first impression. The court then turned to the merits, first explaining that under G.S. 7A-271(e) “the superior court generally exercises exclusive jurisdiction over probation revocation hearings even when the underlying felony conviction and probationary sentence were imposed through a guilty plea in district court.” The court went on to explain that notwithstanding the statute’s general rule, it further provides as an exception that the district court has jurisdiction over probation revocation hearings when the State and the defendant, using the statute’s term, “consent” to the district court’s jurisdiction. Noting that the term “consent” is not defined in the statute and has not been construed in this context by a North Carolina appellate court, the court rejected the defendant’s argument that it was necessary that her “express consent” appear in the record. Instead, the court held that the term encompasses implied consent and that the defendant’s conduct in this case – fully participating in the hearing without objection and even going so far as to request additional relief from the court during the hearing – constitutes implied consent.
The defendant was serving an active sentence when he pled guilty to other felony charges. The sentencing court imposed two 20 to 24 month sentences, suspended for 36 months on the condition of supervised probation. In the event the defendant violated probation, the two sentences would be run consecutively to the then-existing sentence. In one of the new sentences, the court indicated the probation would run at the expiration of the defendant’s current sentence. The other new sentence did not. The defendant violated probation and the consecutive terms were imposed. On appeal, the defendant complained that the violation report for one of the cases was filed too late—since only one judgment indicated probation was to begin at the expiration of his existing sentence, probation from the other judgment began running concurrently while the defendant was still incarcerated. The court agreed. Under G.S. 15A-1346, probation runs concurrently to any active sentence if not otherwise specified. Because one of the judgments failed to indicate probation ran consecutive to the defendant’s existing sentence, it was concurrent by default and probation began on the day of that judgment. Here, the violation was filed after that probationary period expired, and the trial court lacked jurisdiction to revoke the defendant’s probation. The judgement of revocation in that case was therefore vacated.
The trial court lacked jurisdiction to conduct a probation revocation hearing because the defendant was not provided with adequate notice, including a written statement of the violations alleged. The trial court revoked the defendant’s probation after the defendant made multiple repeated objections to probation. The court rejected the State’s argument that the defendant waived her right to statutory notice by voluntarily appearing before the court and participating in the revocation hearing. Because the defendant was not provided with prior statutory notice of the alleged violations, the trial court lacked jurisdiction to revoke probation. The court went on to note that the trial court is not without recourse to compel a recalcitrant defendant in these circumstances. The violation report could have been filed and an arrest warrant could have been issued to provide the defendant with proper notice. Alternatively, the trial court could have found the defendant in contempt of court. And, regardless of the defendant’s statements and protests, the trial court could have simply ordered the defendant to be accompanied by a law enforcement or probation officer to register and implement probation supervision.
The trial court lacked jurisdiction to revoke the defendant’s probation based on the violations alleged. Here, the defendant did not waive his right to notice of his alleged probation violations and the State failed to allege a revocation-eligible violation. Thus, the trial court lacked jurisdiction to revoke.
The trial court had jurisdiction to revoke the defendant’s probation. The court rejected the defendant’s argument that the trial court in Harnett County lacked jurisdiction to commence a probation revocation hearing because the probation originated in Sampson County. It held: “A trial court located in a county where a defendant resides and violates the terms of her probation is vested with jurisdiction to revoke the defendant’s probation.” The court added however:
In order to avoid disputes, uncertainty, and costly litigation, the better practice for probation officers is to specify on probation violation reports any address relevant to alleged probation violations, such as the last known address of a probationer who has left the jurisdiction without permission or the address of the probation office where a defendant failed to attend a scheduled meeting. Additionally, in a probation violation hearing, the better practice for the State is to introduce direct evidence of any address relevant to an alleged probation violation. In this case, the indirect evidence—sufficient to allow the reasonable inference that Defendant resided in Harnett County when she fled the jurisdiction and violated her probation in Harnett County by failing to meet with her probation officer there—supports the trial court’s presumed findings necessary to support its judgment.
The court also rejected the defendant’s argument that the trial court lacked jurisdiction to revoke her probation because there was no record showing that her probation had been transferred from Sampson County to Harnett County. The court noted that the defendant had offered no authority to support this assertion.
The trial court lacked subject matter jurisdiction to revoke the defendant’s probation because the State failed to prove that the violation reports were timely filed. As reflected by the file stamps on the violation reports, they were filed after the expiration of probation in all three cases at issue.
Because the probation officer filed violation reports after probation had expired, the trial court lacked jurisdiction to revoke the defendant’s probation. The court rejected the State’s argument that the defendant’s period of probation did not begin until he was released from incarceration and thus that the violation reports were timely. The State acknowledged that the trial court failed to check the box on the judgment form indicating that the period of probation would begin upon release from incarceration, but argued that this was a clerical error. The court noted that under G.S. 15A-1346, the default rule is that probation runs concurrently with imprisonment. The court rejected the notion that the trial court’s failure to check the box on the form was a clerical, in part because the trial court failed to do so five times with respect to five separate judgments. Additionally, the court held that if a mistake was made it was substantive not clerical, reasoning: “[c]hanging this provision would retroactively extend the defendant’s period of probation by more than one year and would grant the trial court subject matter jurisdiction to activate [the sentences].”
(1) In this case, which came to the court on a certiorari petition to review the trial court’s 2013 probation revocation, the court concluded that it had jurisdiction to consider the defendant’s claim that the trial court lacked jurisdiction to extend her probation in 2009. (2) The trial court lacked jurisdiction to extend the defendant’s probation in 2009. The defendant’s original period of probation expired on 27 June 2010. On 18 February 2009, 16 months before the date probation was set to end, the trial court extended the defendant’s probation. Under G.S. 15A-1343.2(d), the trial court lacked statutory authority to order a three-year extension more than six months before the expiration of the original period of probation. Also, the trial court lacked statutory authority under G.S. 15A-1344(d) because the defendant’s extended period of probation exceeded five years. Because the trial court lacked jurisdiction to extend probation in 2009, the trial court lacked jurisdiction to revoke the defendant’s probation in 2013.
The trial court lacked subject matter jurisdiction to revoke the defendant’s probation when it did so after his probationary period had expired and he was not subject to a tolling period.
The trial court lacked subject matter jurisdiction to revoke the defendant’s probation when it did so after his probationary period had expired and he was not subject to a tolling period.
Because the trial court revoked defendant’s probation before the period of probation expired, the court rejected defendant’s argument that under G.S. 15A-1344(f) the trial court lacked jurisdiction to revoke.
(1) The trial court lacked jurisdiction to revoke the defendant’s probation and activate her suspended sentences where the defendant committed her offenses prior to 1 December 2009 but had her revocation hearing after 1 December 2009 and thus was not covered by either statutory provision—G.S. 15A-1344(d) or 15A-1344(g)—authorizing the tolling of probation periods for pending criminal charges. (2) The trial court erred by revoking her probation in other cases where it based the revocation, in part, on probation violations that were neither admitted by the defendant nor proven by the State at the probation hearing.
A Sampson County superior court judge had jurisdiction to revoke the defendant’s probation where the evidence showed that the defendant resided in that county.
(1) The trial court erred by revoking the defendant’s probation where the State failed to present evidence that the violation report was filed before the termination of the defendant’s probation. As a result, the trial court lacked jurisdiction to revoke. (2) The court declined to consider the defendant’s argument that the trial court had no jurisdiction to revoke his probation in another case because the sentencing court failed to make findings supporting a probation term of more than 30 months. It reasoned that a defendant cannot re-litigate the legality of a condition of probation unless he or she raises the issue no later than the hearing at which his probation is revoked.
The trial court lacked jurisdiction to extend the defendant’s probation after his original probation period expired. Although the probation officer prepared violation reports before the period ended, they were not filed with the clerk before the probation period ended as required by G.S. 15A-1344(f). The court rejected the State’s argument that a file stamp is not required and that other evidence established that the reports were timely filed.
The trial court lacked jurisdiction to revoke the defendant’s probation and activate his sentence. Although the trial court revoked on grounds that the defendant had committed a subsequent criminal offense, such a violation was not alleged in the violation report. Thus, the defendant did not receive proper notice of the violation. Because the defendant did not waive notice, the trial court lacked jurisdiction to revoke.
The trial court lacked jurisdiction to revoke the defendant’s probation on the basis of a violation that was not alleged in the violation report and of which she was not given notice. The violation reports alleged that the defendant violated two conditions of her probation: to “[n]ot use, possess or control any illegal drug” and to “participate in further evaluation, counseling, treatment or education programs recommended . . . and comply with all further therapeutic requirements.” The specific facts upon which the State relied were that “defendant admitted to using 10 lines of cocaine” and that the defendant failed to comply with treatment as ordered. However, the trial court found that the defendant’s probation was revoked for “violation of the condition(s) that he/she not commit any criminal offense . . . or abscond from supervision.”
The court lacked jurisdiction to consider an appeal when the defendant failed to timely challenge an order revoking his probation. If a trial judge determines that a defendant has willfully violated probation, activates the defendant’s suspended sentence, and then stays execution of his or her order, a final judgment has been entered, triggering the defendant’s right to seek appellate review of the trial court’s decision. In this case, the defendant appealed well after expiration of the fourteen-day appeal period prescribed in the appellate rules.
The trial court had jurisdiction to revoke the defendant’s probation. In 2003, the defendant was convicted in Haywood County and placed on probation. In 2007, the defendant’s probation was modified in Buncombe County. In 2009, it was revoked in Buncombe County. Appealing the revocation, the defendant argued that under G.S. 15A-1344(a), Buncombe County was not a proper place to hold the probation violation hearing. The court held that the 2007 Buncombe County modification made that county a place “where the sentence of probation was imposed,” and thus a proper place to hold a violation hearing.
Holding, in a case decided under the old version of G.S. 15A-1344(f), that the trial court lacked jurisdiction to hold a probation revocation hearing where the state failed to make reasonable efforts to notify the defendant and to hold the hearing before the period of probation expired.
In this probation revocation case from Buncombe County, the defendant failed to contact his probation officer for nearly three months until his arrest. After more than month of not being able to contact the defendant, the probation officer filed a violation report accusing him of absconding and other violations. The absconding violation alleged that the defendant failed to report to the probation office, failed to return his probation officer’s calls, failed to provide his current address, failed to make himself available for supervision, and noted that the last in-person contact with the defendant was more than a month ago. The defendant represented himself at hearing, admitted the violations, and was revoked. At the Court of Appeals, a divided panel affirmed the revocation (summarized here). A dissenting judge there would have held that the violation report did not sufficiently plead absconding and that the State’s evidence was insufficient to establish willful absconding. The defendant appealed based on the dissent, and the North Carolina Supreme Court affirmed.
The Court found that the defendant had adequate notice that he was accused of absconding probation. The allegation of violation need only describe the defendant’s conduct in violating probation and need not state the condition of probation violated by the conduct. The allegations here described the defendant’s conduct with appropriate specificity. That the conduct described in the absconding violation also violated regular, non-revocable conditions of probation did not render the allegation improper—an argument the Court called “meritless.” Crompton Slip op. at 12. The defendant’s admission to absconding at the hearing and argument to the trial judge to run his suspended sentences concurrent further demonstrated that the defendant had effective notice of the allegations. In the words of the Court:
[The] defendant here was sufficiently and properly informed by the probation violation reports of his alleged violations and his alleged conduct which constituted the alleged violations, including the alleged absconding behavior which defendant admitted. Id. at 13.
The trial court therefore did not abuse its discretion in revoking the defendant’s probation.
Justice Earls dissented. She would have found that the violation report only alleged violations of regular, non-revocable conditions of probation and that the defendant only admitted to as much.
On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 795 S.E.2d 598 (2016), the court modified and affirmed the decision below, holding that the defendant received adequate notice of his probation revocation hearing pursuant to G.S. 15A-1345(e). The trial court revoked the defendant’s probation for violating the condition that he commit no criminal offenses, specifically fleeing to allude arrest and no operator’s license. On appeal, the defendant argued that because the probation violation reports did not specifically list the “commit no criminal offense” condition as the condition violated, the statutory notice requirement was not satisfied. The court determined that the issue was one of first impression. The statute requires that the State give the probationer notice of the hearing and its purpose, including a statement of the violations alleged. The words “violation” and “violations” as used in the statute refer to violations of conditions of probation. It follows that the phrase “statement of the violations alleged” refers to a statement of what the probationer did to violate his conditions of probation. It does not require a statement of the underlying conditions that were violated. The court also overruled post-Justice Reinvestment Act cases decided by the Court of Appeals that had created a different notice requirement. Here, the State sought to prove that the defendant had violated the condition that he commit no criminal offense. Thus, the notice needed to contain a statement of the actions the defendant allegedly took that constituted a violation of the probation— that is, a statement of what the defendant actually did that violated a probation condition. The defendant received proper notice when the violation report named the specific offenses that the defendant was alleged to have committed, listing his pending criminal charges.
In this Forsyth County case, defendant appealed the revocation of his probation, arguing (1) he did not receive notice that his probation could be revoked at the hearing, and (2) that the State did not prove he committed a new criminal offense. The Court of Appeals disagreed, finding no error.
While on probation for 15 counts of third-degree exploitation of a minor, defendant admitted to looking at child abusive materials during a group therapy session. This led to an investigation by defendant’s probation officer; defendant eventually admitted to looking at child pornography on his girlfriend’s phone. The probation officer filed a report, and the matter came for a hearing in September 2022, where defendant’s probation was revoked and his sentence was activated.
Taking up (1), the Court of Appeals rejected defendant’s argument that he was not given adequate notice that his probation could be revoked at the hearing. Here, the report filed by defendant’s probation officer described conduct that could be criminal, specifically viewing child pornography. Although the report did not explicitly allege defendant violated probation by committing this criminal offense, the court explained that “[t]he Report’s description of Defendant’s alleged behavior was sufficient to give Defendant notice of possible probation revocation.” Slip Op. at 8.
Considering (2), the court explained that while the trial court did not explicitly reference the new crime that defendant committed (third-degree exploitation of a minor), the evidence admitted at the hearing was sufficient to support the trial court’s determination that defendant committed the offense when revoking his probation. The court noted that defendant’s admissions, along with the evidence gathered from his girlfriend’s phone, were sufficient to support the conclusion that defendant “possessed material containing a visual representation of a minor engaging in sexual activity and committed third-degree exploitation of a minor.” Id. at 11.
Judge Collins concurred in the result only.
The trial court lacked jurisdiction to conduct a probation revocation hearing because the defendant was not provided with adequate notice, including a written statement of the violations alleged. The trial court revoked the defendant’s probation after the defendant made multiple repeated objections to probation. The court rejected the State’s argument that the defendant waived her right to statutory notice by voluntarily appearing before the court and participating in the revocation hearing. Because the defendant was not provided with prior statutory notice of the alleged violations, the trial court lacked jurisdiction to revoke probation. The court went on to note that the trial court is not without recourse to compel a recalcitrant defendant in these circumstances. The violation report could have been filed and an arrest warrant could have been issued to provide the defendant with proper notice. Alternatively, the trial court could have found the defendant in contempt of court. And, regardless of the defendant’s statements and protests, the trial court could have simply ordered the defendant to be accompanied by a law enforcement or probation officer to register and implement probation supervision.
Where counsel stated at the revocation hearing that defendant acknowledged that he had received a probation violation report and admitted the allegations in the report and defendant appeared and participated in the hearing voluntarily, the defendant waived the notice requirement of G.S. 15A-1345(e).
A probation violation report provided the defendant with adequate notice that the State intended to revoke his probation on the basis of a new criminal offense. The report alleged that the defendant violated the condition that he commit no criminal offense in that he had several new pending charges which were specifically identified. The report further stated that “If the defendant is convicted of any of the charges it will be a violation of his current probation.”
Although the probation report might have been ambiguous regarding the condition allegedly violated, because the report set forth the specific facts at issue (later established at the revocation hearing), the report gave the defendant sufficient notice of the alleged violation, as required by G.S. 15A-1345(e). The State presented sufficient evidence that the defendant violated a special condition of probation requiring compliance with the rules of intensive probation. The State’s evidence included testimony by probation officers that they informed the defendant of his curfew and their need to communicate with him during curfew checks, and that compliance with curfew meant that the defendant could not be intoxicated in his home. During a curfew check, the defendant was so drunk that he could not walk; later that evening the defendant was drunk and disruptive, to the extent that his girlfriend was afraid to enter the residence.
The trial court erred by allowing the defendant to proceed pro se at a probation revocation hearing without taking a waiver of counsel as required by G.S. 15A-1242. The defendant’s appointed counsel withdrew at the beginning of the revocation hearing due to a conflict of interest and the trial judge allowed the defendant to proceed pro se. However, the trial court failed to inquire as to whether the defendant understood the range of permissible punishments. The court rejected the State’s argument that the defendant understood the range of punishments because “the probation officer told the court that the State was seeking probation revocation.” The court noted that as to the underlying sentence, the defendant was told only that, “[t]here’s four, boxcar(ed), eight to ten.” The court found this insufficient, noting that it could not assume that the defendant understood this legal jargon as it related to his sentence. Finally, the court held that although the defendant signed the written waiver form, “the trial court was not abrogated of its responsibility to ensure the requirements of [G.S.] 15A-1242 were fulfilled.”
Criminal Procedure > Sentencing > Probation > Violations & Revocation > Grounds for Revocation & Related Issues
In this Moore County case, the Supreme Court per curiam affirmed and modified State v. Bradley, 282 N.C. App. 292 (2022), a case where the Court of Appeals majority concluded the trial court did not err by revoking defendant’s probation after finding substantial evidence showed defendant had possessed controlled substances. The Supreme Court noted there was additional competent evidence through the testimony of one witness to support the trial court’s findings of fact and conclusions of law. The court modified the opinion of the Court of Appeals to the extent that “the lower appellate court may have mistakenly misconstrued [the witness’s] statements as incompetent evidence upon which the trial court could not and did not rely.” Slip Op. at 2.
On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 810 S.E.2d 828 (2018), the court affirmed per curiam, holding that the State failed to carry its burden of presenting sufficient evidence to support the trial court’s decision to revoke the defendant’s probation based upon a finding that the defendant willfully absconded probation. It went on, however, to “disavow the portion of the opinion analyzing the pertinence of the fact that defendant’s probationary term expired prior to the date of the probation violation hearing and holding ‘that the trial court lacked jurisdiction to revoke defendant’s probation after his case expired.’” In the opinion below, the Court of Appeals held that because the State presented insufficient evidence to support a finding of willful absconding, the trial court lacked jurisdiction to revoke the defendant’s probation after the term of probation ended. When the defendant’s probation officer visited his reported address, an unidentified woman advised the officer that the defendant did not live there. The State presented no evidence regarding the identity of this person or her relationship to the defendant. The officer never attempted to contact the defendant again. However when the defendant contacted the officer following his absconding arrest, the officer met the defendant at the residence in question. The Court of Appeals held that the evidence was insufficient to establish absconding. It went on to hold that the trial court’s decision was not only an abuse of discretion but also was an error that deprived the court of jurisdiction to revoke the defendant’s probation after his probationary term expired.
In this Forsyth County case, defendant appealed the revocation of his probation, arguing (1) he did not receive notice that his probation could be revoked at the hearing, and (2) that the State did not prove he committed a new criminal offense. The Court of Appeals disagreed, finding no error.
While on probation for 15 counts of third-degree exploitation of a minor, defendant admitted to looking at child abusive materials during a group therapy session. This led to an investigation by defendant’s probation officer; defendant eventually admitted to looking at child pornography on his girlfriend’s phone. The probation officer filed a report, and the matter came for a hearing in September 2022, where defendant’s probation was revoked and his sentence was activated.
Taking up (1), the Court of Appeals rejected defendant’s argument that he was not given adequate notice that his probation could be revoked at the hearing. Here, the report filed by defendant’s probation officer described conduct that could be criminal, specifically viewing child pornography. Although the report did not explicitly allege defendant violated probation by committing this criminal offense, the court explained that “[t]he Report’s description of Defendant’s alleged behavior was sufficient to give Defendant notice of possible probation revocation.” Slip Op. at 8.
Considering (2), the court explained that while the trial court did not explicitly reference the new crime that defendant committed (third-degree exploitation of a minor), the evidence admitted at the hearing was sufficient to support the trial court’s determination that defendant committed the offense when revoking his probation. The court noted that defendant’s admissions, along with the evidence gathered from his girlfriend’s phone, were sufficient to support the conclusion that defendant “possessed material containing a visual representation of a minor engaging in sexual activity and committed third-degree exploitation of a minor.” Id. at 11.
Judge Collins concurred in the result only.
In this Wilson County case, defendant appealed the revocation of her probation, arguing (1) insufficient evidence to support the finding she committed a new crime on probation and (2) violation of her right to confront the probation officer who filed the violation reports against her. The Court of Appeals found no error.
Defendant’s probation officer “W” filed two probation violation reports against her from November and December 2021. The reports alleged defendant was committed new crimes while on probation as she was charged with obtaining property by false pretenses and uttering a forged instrument. When the matter came before the trial court in May 2022, probation officer W was replaced by probation officer “H,” who testified regarding the two 2021 reports, as well as a third report from February 2022 that officer H prepared alleging a second uttering a forged instrument offense. Defendant objected to the absence of officer W, as she wished to cross-examine the officer who filed the 2021 reports against her. The trial court noted the objection in the record but otherwise proceeded with the hearing. At the conclusion of the hearing the trial court revoked defendant’s probation and activated her prison sentences.
For (1), defendant argued “the State needed to call law enforcement witnesses to present evidence about the investigations relating to the crimes, civilian victim witnesses, or [bank] employees” to support the alleged crimes committed by defendant. Slip Op. at 10. The Court of Appeals disagreed, explaining that the violation reports, arrest warrants, and testimony from Officer H supported the conclusion that defendant was the person on security camera footage committing the crimes. The court explained “[a] probation revocation hearing is not a trial, and the State need not present evidence sufficient to convict Defendant nor call as witnesses the investigating officers of the crimes alleged.” Id. at 12.
Turning to (2), the court noted that the Sixth Amendment did not apply to a probation revocation hearing, and that G.S. 15A-1345(e) was the basis for confrontation rights in the proceeding. Because G.S. 15A-1345(e) controlled, the issue before the court was “whether the trial court committed prejudicial error by not making an explicit finding that good cause existed for not allowing Defendant to confront [officer W].” Id. at 14. The court referenced State v. Terry, 149 N.C. App. 434 (2002), explaining that failure to require an adverse witness to testify is not error if “(1) the adverse witness’s testimony would have been merely extraneous evidence in light of other competent evidence presented through the probation officer’s testimony and (2) defendant failed to request the professor be subpoenaed.” Slip Op. at 14. Here, the court found the testimony of Officer W would have been extraneous in light of the other evidence in the record supporting defendant’s commission of the crimes. Additionally, defendant did not subpoena Officer W. This led the court to conclude the trial court did not abuse its discretion in allowing the hearing to proceed without Officer W. Finally, the court noted that if any error occurred, it was not prejudicial, as sufficient competent evidence before the trial court supported the revocation of defendant’s probation without the testimony from Officer W.
In this Buncombe County case, defendant appealed an order revoking his probation, arguing the trial court failed to make a finding of good cause to revoke his probation along with other errors. The Court of Appeals agreed with defendant and vacated the trial court’s judgment without remand.
Defendant’s probation was revoked at a hearing held 700 days after the expiration of his probation term. The court noted that “the trial court failed to find good cause to revoke probation after the expiration of the probation period as required by [G.S.] 15A-1344(f)(3).” Slip Op. at 2. Subsection (f)(3) requires a finding of good cause to support the trial court’s jurisdiction to revoke probation; here, the record did not show any findings supporting good cause. Considering the appropriate remedy, the court applied State v. Sasek, 271 N.C. App. 568 (2020), holding that where no evidence in the record supports a finding of “reasonable efforts” by the state to hold a revocation hearing sooner, the appropriate remedy for failure to make findings of good cause under G.S. 15A-1344(f)(3) is vacating the judgment without remand. Slip Op. at 4.
The defendant was sentenced to 25 to 42 months in prison, suspended for 30 months of supervised probation. The defendant’s probation officer subsequently filed a violation report alleging that the defendant committed the crime of misdemeanor breaking or entering. At the probation violation hearing, the trial court found that the defendant violated his probation by committing a new offense of misdemeanor breaking or entering and activated the defendant’s suspended sentence. The defendant filed a motion for appropriate relief the following month, which the trial court denied.
On appeal, the defendant argued that insufficient evidence existed to show he violated his probation, or, in the alternative, that the trial court abused its discretion by revoking his probation. The Court of Appeals rejected the defendant’s first argument, noting that a probation proceeding is more informal than a criminal prosecution and, accordingly, “the court is not bound by strict rules of evidence, and the alleged violation of a valid condition of probation need not be proven beyond a reasonable doubt.” Slip op. at ¶ 9. The evidence presented at the hearing showed that the defendant was known to associate with the victim “on a routine basis”; the officer recovered several prints from the point of entry of the victim’s apartment, one of which was identified as belonging to the defendant; the defendant did not have permission to be inside the apartment; and the defendant lived next door to the apartment. The Court of Appeals thus concluded that competent evidence existed that the defendant willfully violated his probation by committing a new offense of misdemeanor breaking or entering.
The Court also held that because competent evidence existed to support the trial court’s finding, the trial court had authority to revoke the defendant’s probation and thus did not constitute an abuse of discretion.
The defendant pled guilty to second-degree murder and possession of a firearm by a convicted felon. The defendant was sentenced to active terms of 176-221 months imprisonment for the second-degree murder charge and 16-20 months imprisonment for the possession of a firearm by a convicted felon charge. The active sentence for possession of a firearm by a convicted felon was suspended for 36 months of supervised probation, which commenced in August 2019 after the defendant was released from prison following his active sentence for second-degree murder.
In February 2021, the State filed a violation report alleging that the defendant violated his probation by failing to pay the full monetary judgment entered against him and because he was arrested and charged with possession of a firearm by a felon. Following a hearing, the trial court found that the defendant committed a crime and revoked the defendant’s probation. The Court of Appeals granted the defendant’s petition for writ of certiorari.
On appeal, the defendant argued that the trial court erred in revoking his probation. The Court of Appeals agreed, reasoning that in order to revoke a defendant’s probation for committing a criminal offense, there must be some form of evidence that a crime was committed. The only evidence presented at the probation revocation hearing was the probation officer’s violation report and testimony from the probation officer. The Court concluded that this evidence only established that defendant was arrested for possession of a firearm by a felon and that there was no evidence beyond the fact that defendant was arrested that tended to establish he committed a crime. The Court thus held that the trial court abused its discretion in concluding a crime was committed and revoking defendant’s probation.
The Court of Appeals vacated the trial court’s judgments revoking the defendant’s probation and activating his suspended sentences imposed in connection with felonies charged in two CRS case numbers – 17 CRS 86913 and 18 CRS 338 – because discrepancies between the record and the judgements left the basis for revocation in both case numbers unclear. The Court likened this case to State v. Sitosky, 238 N.C. App. 558 (2014) because in both cases the trial court marked the boxes on the judgments indicating that the defendants had admitted to all violations alleged in the violation reports when in fact the defendants had not done so. Here, among other inconsistencies, the trial court indicated in its judgments that the defendant had waived his revocation hearing and admitted all alleged violations despite the fact that the record indicated that the defendant did not waive the hearing and expressly denied the alleged violations. The Court discussed other discrepancies in the judgments and the record, including that the trial court appeared to have revoked the defendant’s probation in 17 CRS 86913 on the basis of violating an SRG Agreement that was a valid condition of probation in 18 CRS 338 but was not a valid condition of 17 CRS 86913 as it had not been included in a written order in that case. The Court of Appeals remanded the case to the trial court for further determinations and findings.
The defendant was on supervised probation for a conviction of possession with intent to sell or deliver marijuana, and the state alleged that he violated his probation by testing positive for cocaine and committing a new criminal offense. At a hearing held on the violation, the defendant’s probation officer testified about the positive drug screen, and a police officer testified about the alleged new criminal activity. Officers used a confidential informant to conduct two controlled buys of a white powdery substance from the defendant, and then obtained a search warrant for his home where they discovered cash and additional drugs, resulting in new criminal charges against the defendant. The informant did not testify at the probation hearing. At the conclusion of the hearing, the trial court revoked the defendant’s probation and the defendant appealed.
The trial court’s oral pronouncement only indicated that the revocation was based on the commission of a new criminal offense, but the written findings indicated that the revocation was based on both allegations, so per case precedent the written order was deemed controlling on appeal. The appellate court agreed that pursuant to the Justice Reinvestment Act, the defendant’s probation could not be revoked for using cocaine; instead, the trial court was only authorized to modify his conditions of probation or impose a 90-day CRV, so the order of revocation based on this allegation was reversed. But the state presented sufficient evidence at the hearing that the defendant also committed a new criminal offense by possessing and selling crack cocaine, which would support revoking the defendant’s probation.
However, rather than affirming the trial court’s order, the appellate court remanded the matter to determine whether the trial court properly exercised its discretion under G.S. 15A-1345(e), which provides that “the probationer may […] confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation.” (Since this was a probation revocation hearing, only the statutory confrontation right was at issue, rather than the confrontation rights under the Sixth Amendment.) The confidential informant did not testify at the hearing, and the defense objected to the admission of her hearsay statements. The trial court overruled those objections based on “the nature of these proceedings,” and the appellate court held that it was unclear whether that ruling reflected an exercise of discretion and finding of good cause. The court distinguished this case from State v. Jones, 269 N.C. App. 440 (2020), where it had previously held that a failure to find good cause was not reversible error, because in Jones the defendant did not challenge the testimony on this basis and did not request findings of good cause as to why confrontation should not be allowed, so no findings were required.
Judge Tyson concurred in part, finding that the defendant waived his statutory confrontation objection and failed to meet his burden of showing prejudice, and the trial court did not err in revoking the defendant’s probation.
(1) The defendant was convicted of drug offenses in Gaston County on July 5, 2017 and was sentenced to 24 months of supervised probation. After reporting for his intake visit with a Gaston County probation officer, the defendant avoided probation officers for several months. Probation officers attempted on six separate occasions to verify defendant’s residence at the address he provided. He was not present for any of these visits. On two of the visits, individuals who knew the defendant told the officers that the defendant no longer lived at the residence or that he planned to move from the residence.
Despite being on notice to maintain regular contact with probation officers, no probation officer met with the defendant in person following his initial intake visit before the first violation report alleging absconding was filed on September 14, 2017. On the few occasions that a probation officer could reach the defendant by phone, the officer notified the defendant that a home visit was scheduled. The defendant was absent from the home on those occasions and failed to apprise his probation officer of his whereabouts.
Even after the defendant was released from custody after being arrested for alleged probation violations relating to absconding, he failed to report to his probation officer within 24 hours as instructed. After defendant’s case was transferred from Gaston County to Lincoln County in March 2018, officers continued to have difficulty contacting him. And he failed to notify officers upon getting evicted from his listed residence.
An addendum was filed to the defendant’s probation violation report on May 31, 2018 alleging an additional incident of absconding. The trial court found that the defendant violated his probation by absconding and ordered his probation revoked. The defendant appealed, arguing that the trial court erred in revoking his probation based on its finding that he willfully absconded from supervision.
The Court of Appeals found the State’s allegations and supporting evidence––reflecting defendant’s continuous, willful pattern of avoiding supervision and making his whereabouts unknown––sufficient to support the trial court’s exercise of discretion in revoking defendant’s probation for absconding.
(2) The trial court checked the box on the judgment form stating that the defendant waived a violation hearing and admitted the violations. This was inaccurate, as the record reflects that the defendant was present for his probation hearing and testified as a witness. The Court of Appeals determined that the trial court committed a clerical error when it checked the box indicating otherwise and remanded the case to allow the trial court to correct the error.
The Court of Appeals upheld the trial judge’s revocation of the defendant’s probation for absconding on the following facts: The defendant was released from custody on December 21, 2018, following a plea of guilty to assault with a deadly weapon on a government official. He failed to report to his probation officer by January 11, 2019, when the probation violation report was filed. The probation officer tried to contact the defendant at his sister’s house, which the defendant had given to the probation officer as his address. When the probation officer called the listed phone number, his sister said she had not had contact with him in some time and didn’t know he was out of custody; and when the officer went to the address provided by the defendant, the homeowner said he didn’t know the defendant. On this evidence, the Court concluded that the trial judge did not abuse his discretion in finding that the defendant had absconded. The Court rejected the defendant’s argument that the trial judge may have revoked his probation based on other alleged violations that could not be grounds for revocation, such as failing to attend community support meetings. The Court found that the trial judge specifically revoked the defendant’s probation for absconding.
The trial court did not abuse its discretion when it revoked the defendant’s probation. The State presented sufficient evidence that the defendant willfully absconded by failing to report within 72 hours of his release from custody and thereafter avoiding supervision and making his whereabouts unknown from August 20 through the filing of a violation report on September 22. At the hearing, the defendant admitted that he knew he had to report to the probation office within 72 hours of release, that his mother had informed him that a probation officer had stopped by their home, and that his mother had given him a business card with the probation officer’s information on it. Moreover, the trial court found the defendant’s testimony that he did in fact report to the probation office as instructed to be lacking in credibility. The court rejected the defendant’s argument that the trial court abused its discretion because missing scheduled appointments cannot constitute absconding. The court noted that here the defendant did not simply miss an appointment or phone call with his probation officer. After the defendant was taken into custody for a violation based on absconding, the defendant knowingly failed to notify his probation officer of his release from custody. Thereafter, he actively avoided supervision each day after the initial 72-hour time period through and until September 22, 2017. This was a willful course of conduct by the defendant that thwarted supervision. His actions were a persistent avoidance of supervision and a continual effort to make his whereabouts unknown. Thus, the trial court did not abuse its discretion by finding that the defendant had absconded.
Finding that the trial court properly revoked the defendant’s probation, the court affirmed but remanded for correction of a clerical error. While on probation for another offense, the defendant was convicted of possession of drug paraphernalia. A probation officer filed a violation report noting three violations: arrears for $800 in court indebtedness, $720 in probation supervision fees, and the new conviction. The trial court revoked the defendant’s probation and he appealed. On appeal the defendant argued that the trial court abused its discretion and acted under a misapprehension of the law when it revoked probation based on the three alleged violations when only one provided a statutory basis for revocation. Because the defendant committed a criminal offense while on probation, the trial court properly revoked probation on that ground. The court acknowledged the trial court could not have revoked based on the other two violations and, as noted by the defendant, the trial court improperly checked the box on the form indicating that each violation is in and of itself a sufficient basis for revocation. However, other evidence in the record indicated that the trial court recognized that only one of the violations was sufficient to revoke probation. The court thus remanded for correction of the clerical error.
The trial court abused its discretion by revoking the defendant’s probation, where the evidence was insufficient to establish absconding. The probation officer testified that the defendant absconded a week after a 26 October 2016 meeting by failing attend meetings scheduled for 28 October and 2 November and by failing to contact the officer thereafter even though the officer attempted to call and visit the defendant multiple times and left messages for the defendant with the defendant’s parents. However, the officer could not support her testimony with records and did not recall the number of times and dates on which these contacts were made. The defendant testified that her cell phone was missing, that she was not at home when the officer visited, and that she received no messages that the officer was trying to reach her. She testified that since she had seen the officer at the end of October, it did not occur to her to contact the officer. Although the officer testified to attempts to call and visit the defendant and to having left messages with the defendant’s parents for the defendant, there was no evidence that any message was given to the defendant or that the defendant knew the officer was trying to reach her. Although there was competent evidence that the officer attempted to contact the defendant, there was insufficient evidence that the defendant willfully refused to make herself available for supervision.
The trial court did not have jurisdiction to revoke the defendant’s probation. Four days before his 30 months of probation was to expire, the trial court entered an order extending the defendant’s probation for 12 months with the defendant’s consent. The purpose of the extension was to allow the defendant time “to complete Substance Abuse Treatment.” During the 12-month extension the defendant violated probation and after a hearing the trial court revoked probation. The defendant appealed. The court began by rejecting the State’s argument that the defendant’s appeal was moot because he had already served the entire sentence assigned for the revocation. Turning to the merits, the court held that the trial court lacked jurisdiction to revoke the defendant’s probation because his probationary period was unlawfully extended. In order to extend an individual’s probationary period, the trial court must have statutory authority to do so. No statue authorizes a trial court to extend the defendant’s probation to allow him time to complete a substance abuse program. The court rejected the State’s argument that because the statutes allow an extension of probation for completion of medical or psychiatric treatment ordered as a condition of probation, the trial court’s extension was proper. It reasoned, it part, that the General Assembly did not intend for a probation condition to complete “substance-abuse treatment” to be synonymous with, or a subset of, a probation condition to complete “medical or psychiatric treatment.”
The trial court did not err by revoking the defendant’s probation based on its finding that he willfully absconded from supervision. Reviewing the facts of the case, the court rejected the defendant’s argument that there was insufficient evidence that he willfully absconded from supervision.
The court rejected the defendant’s argument that the trial court erred by revoking her probation after its expiration because it did not make adequate findings of fact. Specifically, the defendant argued that the trial court erred by failing to make any written or oral findings of good cause to revoke her probation. The court noted that the statute at issue, G.S. 15A-1344(f), does not require that the trial court make any specific findings and that, here, the record indicates that the trial court found good cause to revoke.
The trial court properly revoked the defendant’s probation, where the defendant committed a new crime while on probation.
The trial court did not err by revoking the defendant’s probation where the evidence showed that he willfully absconded. The defendant moved from his residence, without notifying or obtaining prior permission from his probation officer, willfully avoided supervision for multiple months, and failed to make his whereabouts known to his probation officer at any time thereafter.
(1) The trial court erred by revoking the defendant’s probation where the State failed to prove violations of the absconding provision in G.S. 15A-1343(b)(3a). The trial court found that the defendant “absconded” when he told the probation officer he would not report to the probation office and then failed to report as scheduled on the following day. This conduct does not rise to the level of absconding supervision; the defendant’s whereabouts were never unknown to the probation officer. (2) The other alleged violations could not support a probation revocation, where those violations were “unapproved leaves” from the defendant’s house arrest and “are all violations of electronic house arrest.” This conduct was neither a new crime nor absconding. The court noted that the defendant did not make his whereabouts unknown to the probation officer, who was able to monitor the defendant’s whereabouts via the defendant’s electronic monitoring device.
Under Justice Reinvestment Act (JRA) changes, the trial court erred by revoking the defendant’s probation. After reviewing the requirements of the JRA, the court noted that the trial judge did not check the box on the judgment form indicating that it had made a finding that the defendant violated the statutory absconding provision, G.S. 15A–1343(b)(3a).
Applying the Justice Reinvestment Act (JRA), the court held that the trial court improperly revoked the defendant’s probation. The defendant violated the condition of probation under G.S. 15A-1343(b)(2) that she not leave the jurisdiction without permission and monetary conditions under G.S. 15A-1343(b). She did not commit a new crime, was not subject to the new absconding condition codified by the JRA in G.S. 15A-1343(b)(3a), and had served no prior CRVs under G.S. 15A 1344(d2). Thus, under the JRA, her probation could not be revoked.
(1) The trial court did not err by activating the defendant’s sentence on the basis that the defendant absconded by willfully avoiding supervision. The defendant’s probation required that he remain in the jurisdiction and report as directed to the probation officer. The violation report alleged violations of both of these conditions. Despite the trial court’s use of the term “abscond,” it was clear that the trial court revoked the defendant’s probation because he violated the two listed conditions. (2) The trial court did not abuse its discretion in finding a violation and revoking his probation where the evidence supported its determination.
The trial court erred by revoking the defendant’s probation. The defendant pleaded guilty and was sentenced to 120 days confinement suspended for one year of supervised probation. The trial court ordered the defendant to perform 48 hours of community service, although no date for completion of the community service was noted on the judgment, and to pay $1,385 in costs, fines, and fees, as well as the probation supervision fee. The schedule required for the defendant’s payments and community service was to be established by the probation officer. The probation officer filed a violation report alleging that the defendant had willfully violated his probation by failing to complete any of his community service, being $700 in arrears of his original balance, and being in arrears of his supervision fee. The defendant was found to have willfully violated and was revoked. The court concluded that absent any evidence of a required payment schedule or schedule for community service, the evidence was insufficient to support a finding of willful violation.
The trial court did not abuse its discretion by revoking the defendant’s probation under the Justice Reinvestment Act when the defendant was convicted of another criminal offense while on probation.
(1) The trial court did not abuse its discretion by revoking the defendant’s probation. The defendant asserted that the revocation was improper because he never received a written statement containing the conditions of his probation, as required by G.S. 15A-1343(c). The court noted that the statute requires written notice. However, citing an unpublished opinion, it noted that a different approach applies when the violation is a failure to initially report for processing, as happened here. In this case the defendant walked away from the probation office before he could be given the written notice. The court concluded that because the trial judge informed the defendant of his obligation to report and the defendant failed to do so, written confirmation was not necessary. (2) The court also rejected the defendant’s argument that he could not have violated probation because he was not assigned a probation officer, reasoning that the defendant was not so assigned because he left in the middle of intake procedure.
The trial court erred by finding that the defendant willfully violated probation by failing to have an approved residence plan. The defendant was placed on supervised probation to begin when he was released from incarceration on separate charges. On the day that the defendant was scheduled to be released, a probation officer filed a violation report. The defendant demonstrated that he was unable to obtain suitable housing before his release from incarceration because of circumstances beyond his control; the trial court abused its discretion by finding otherwise.
The trial court erred by revoking the defendant’s probation on grounds that he willfully violated the condition that he reside at a residence approved by the supervising officer. The defendant was violated on the day he was released from prison, before he even “touched outside.” Prior to his release the defendant, who was a registered sex offender and indigent, had tried unsuccessfully to work with his case worker to secure a residence. At the revocation hearing, the trial judge rejected defense counsel’s plea for a period of 1-2 days for the defendant to secure a residence. The court concluded that the defendant’s violation was not willful and that probation was “revoked because of circumstances beyond his control.”
The defendant’s explanation that she was addicted to drugs was not a lawful excuse for violating probation by failing to complete a drug treatment program.
The trial court erred by failing to make findings of fact that clearly show it considered and evaluated the defendant’s evidence before concluding that the defendant violated his probation by failing to pay the cost of his sexual abuse treatment program. The defendant presented ample evidence of an inability to pay after efforts to secure employment; the probation officer corroborated this evidence and testified that he believed that the defendant would complete the treatment program if he could pay for it.
(1) The trial court abused its discretion by revoking the defendant’s probation when the State failed to present evidence that he violated the condition of probation that he “not reside in a household with a minor child.” Although the trial court interpreted the term “reside” to mean that the defendant could not have children anywhere around him, State v. Strickland, 169 N.C. App. 193 (2005), construed that term much more narrowly, establishing that the condition is not violated simply when a defendant sees or visits with a child. Because the evidence showed only that the defendant was visiting with his fiancée’s child, it was insufficient to establish a violation. (2) The trial court improperly revoked the defendant’s probation for violating conditions that he not (a) socialize or communicate with minors unless accompanied by an approved adult; or (b) be alone with a minor without approval. The conditions were not included in the written judgments and there was no evidence that the defendant ever was provided written notice of them. As such, they were not valid conditions of probation.
On July 19, August 24, and October 23, 2018, the defendant plead guilty to several charges. On each of these dates, the trial court suspended the sentences for twelve months of supervised probation and other special conditions of probation.
Between December 7, 2018 and November 22, 2019, the defendant engaged in numerous acts which prompted his probation officer to file violation reports. On December 2, 2019, the defendant appeared in district court for a hearing on the January 18, 2019 and April 4, 2019 violation reports. While in district court, the defendant waived his violation hearing and admitted he violated the conditions of his probation. The district court revoked the defendant’s probation and activated the sentences in his misdemeanor cases. The defendant gave notice of appeal to the superior court.
On December 23, 2019, the probation officer filed violation reports in superior court. At a February 5, 2020 hearing, the defendant admitted to willfully violating his probation. The superior court revoked the defendant’s probation and activated his suspended sentences in his remaining misdemeanor and felony cases. The defendant appealed.
The Court of Appeals held that the superior court did not have jurisdiction to hear the defendant’s appeal from district court. In reaching this conclusion, the Court cited G.S. 15A-1347(b), which states “If a defendant waives a revocation hearing, the finding of a violation of probation, activation of sentence, or imposition of special probation may not be appealed to the superior court.” The Court vacated the judgment of the superior court and reinstated the judgment of the district court.
The court rejected the defendant’s argument that his revocation was improper because the attorney who represented him at the revocation hearing was not his appointed attorney and trial court made no findings about a substitute attorney. Any error that occurred was not prejudicial.
G.S. 15A-1023(b), which grants a defendant the right to a continuance when a trial court refuses to accept a plea, does not apply when the trial court refuses to accept a plea in the context of a probation revocation proceeding.
(1) The trial court improperly ordered a forfeiture of the defendant’s licensing privileges without making a finding of fact required by G.S. 15A-1331A that the defendant failed to make reasonable efforts to comply with the conditions of her probation. The court noted that form AOC-CR-317 does not contain a section specifically designated for the required finding and encouraged revision of the form to add this required finding. (2) The term of the forfeiture exceeded statutory limits. A trial court revoking probation may order a license forfeiture under G.S. 15A-1331A(b)(2) at any time during the probation term, but the term of forfeiture cannot exceed the original probation term set by the sentencing court at the time of conviction. The defendant was placed on 24 months probation by the sentencing court, to end on December 15, 2009. His probation was revoked on Apr. 1, 2009, eight months before his probation was set to expire, and the trial court ordered the forfeiture for 24 months from the date of revocation. Because the forfeiture term extended beyond the defendant’s original probation, it was invalid. The court encouraged further revision of AOC-CR-317 (specifically the following note: “The ‘Beginning Date’ is the date of the entry of this judgment, and the ‘Ending Date’ is the date of the end of the full probationary term imposed at the time of conviction.”) “to clarify this issue and perhaps avoid future errors based upon misinterpretation of the form.”
The trial court did not abuse its discretion by declining to further stay another judge’s order finding a probation violation for failure to pay restitution and activating the sentence but staying execution of the order when the defendant presented no evidence of an inability to pay.
Although a trial court has authority under G.S. 15A-1344(d) to modify conditions of probation, modifications only may be made after notice and a hearing, and if good cause is shown. Although one modification made in this case was permissible as a clerical change, a second modification was substantive and was invalid as it was made without notice and a hearing.
In an assault on a female case, the State conceded that the trial court erred by sentencing the defendant to 24 months of supervised probation without making a specific finding, as required by G.S. 15A-1343.2(d), that a probationary period longer than 18 months was necessary. The court remanded the case for resentencing.
In this Perquimans County case, defendant appealed the trial court’s finding that he violated the terms of his probation, arguing the trial court extended his probation after the probationary term had expired without a finding of good cause. The Court of Appeals agreed, vacating the order and remanding to the trial court to determine if good cause exists.
Defendant, a town council member, was placed on probation for striking another council member in October 2018. After entering an Alford plea to assault of a government official, defendant was sentenced in December 2019 to 60 days of imprisonment, suspended for 24 months supervised probation with 15 days of active term, and a curfew from 7pm to 6am. Defendant’s probation officer filed violation reports alleging that defendant violated the curfew and left the county without prior approval. The matter was initially set for an August 2020 hearing, but after continuances, the matter did not reach a hearing until February of 2022. By that time, defendant’s probationary term had expired, ending in December 2021. After the February 2022 hearing, the trial court entered an order extending defendant’s probation for another 12 months and ordering a 45-day active term as a condition of special probation. Defendant appealed.
The Court of Appeals looked first to G.S. 15A-1344(f), which allows a trial court to extend probation after the expiration of the term in certain circumstances. Relevant for this case, a trial court must find that the defendant violated a condition of probation, and then make a finding under (f)(3) that “for good cause shown and stated the probation should be extended.” Slip Op. at 4. The court explained that “A finding of good cause ‘cannot simply be inferred from the record.’” Id., quoting State v. Morgan, 372 N.C. 609, 617 (2019). Because the hearing here occurred after defendant’s probation term expired, and the record contained no finding of good cause to satisfy G.S. 15A-1344(f)(3), the court remanded for further determination by the trial court.
The court also vacated the 45-day active term imposed after the expiration of defendant’s probation, finding error by the trial court for two reasons. First, under the calculation required by G.S. 15A-1351(a), “the maximum period of confinement that could have been imposed as a condition of special probation was 15 days,” which defendant had served at the beginning of his sentence. Id. at 6. Second, because the statute sets an outer deadline of “the end of the probationary term or two years after the date of conviction, whichever comes first,” defendant’s additional 45-day active term was outside the acceptable period. Id. at 7.
The defendant was a passenger in a car stopped at a traffic checkpoint. An officer smelled marijuana emanating from the vehicle. The defendant told the officer that the marijuana was located in a bag behind the driver’s seat. The officer found a drawstring bag there, which the defendant said was his. Inside the bag, the officer found two plastic bags containing marijuana, a hookah, a snort straw, and a beer can. The beer can was altered to be a container that could be unscrewed. Inside the beer can the officer found two white crystallized substances later identified as Methylone and a Lorazepam tablet.
The defendant was charged with felony possession of a Schedule I controlled substance (Methylone), misdemeanor possession of marijuana, and misdemeanor possession of drug paraphernalia based on his possession of the altered beer can. He was convicted and sentenced to 6 to 17 months for the felony and 120 days (to run consecutively) for each misdemeanor offense. Each sentence was suspended, and the defendant was placed on probation for 36 months. He also was ordered to serve 12 days of special probation for the felony.
The defendant argued on appeal that the sentences for the misdemeanor offenses were unlawful because the trial court did not make finding that a longer period of probation was necessary. The court of appeals agreed.
G.S. 15A-1343.2(d)(2) provides that “[u]nless the court makes specific findings that longer or shorter periods of probation are necessary,” the probationary period for a misdemeanant sentenced to intermediate punishment (which includes any suspended sentence that requires supervised probation) must be not less than 12 nor more than 24 months. The record supported the defendant’s argument that the trial court made no specific findings; therefore, the court of appeals vacated the misdemeanor judgments and remanded for resentencing.
The trial court erred by entering a period of probation longer than 18 months without making the findings that the extension was necessary.
The trial court made sufficient findings to support its decision to place the defendant on probation for sixty months.
No statutory authority supported the trial court’s orders extending the defendant’s probation beyond the original 60-month period and they were thus void. The orders extending probation were not made within the last 6 months of probation and the defendant did not consent to the extension. The orders also resulted in an 8-year period of probation, a term longer that the statutory maximum. Turning to the issue of whether the original 60-month probation was tolled pending resolution of New Jersey criminal charges, the court found the record insufficient and remanded for further proceedings.
The trial judge violated G.S. 15A-1351 by imposing a period of special probation that exceeded ¼ of the maximum sentence of imprisonment imposed. The trial judge also violated G.S. 15A-1343.2 by imposing a term of probation greater than 36 months without making the required specific findings supporting the period imposed.
In this Cabarrus County case involving a defendant convicted of obtaining property by false pretenses, the Supreme Court affirmed the decision of the Court of Appeals, 2021-NCCOA-313, which had concluded that the trial court did not abuse its discretion in imposing a special condition of probation under G.S. 15A-1343. Though not discussed in the Supreme Court’s opinion, the special condition at issue was that the defendant not have any contact with the victim—his mother-in-law, who also had legal custody of his three children. The defendant had argued that a probation condition forbidding all contact with his mother-in-law would conflict with the terms of his child custody order, which allowed limited visitation with his children each week. Highlighting the Court of Appeals’ observation that trial judges have substantial discretion in devising probation conditions, the Supreme Court affirmed the lower court’s conclusion that the condition was reasonably related to protection of the victim and the defendant’s rehabilitation.
In this Brunswick County case, defendant appealed her convictions for forgery, uttering forged paper, altering court documents, residential mortgage fraud, and obtaining property by false pretense, arguing error in (1) denying her motion to dismiss the charges of altering court documents and obtaining property by false pretense, (2) ordering restitution, and (3) imposing an extended probation term. The Court of Appeals found error in denying the motion to dismiss the charge of altering court documents and remanded for resentencing, but otherwise affirmed the trial court.
Defendant applied for a home loan in 2016, and submitted documentation showing her income from a full time job, a part time job, and from child support payments under a Florida court order. After the bank granted the loan, defendant applied for several forbearances, claiming a hardship due to losing her part-time job. The bank suspected fraud after her third application for forbearance, and an investigation determined there were many inconsistencies in the documentation; the bank eventually foreclosed on defendant’s home. Defendant eventually came to trial for submitting altered and forged documents to the bank, and the jury convicted defendant on all charges. The trial court imposed a 6 to 17 month imprisonment sentence, suspended for 30 months probation, but then extended the probation to 60 months to allow defendant to pay $25,061 in restitution.
Considering (1), the Court of Appeals noted that the State had conceded it did not present evidence to show defendant altered the child support records from Florida. Under G.S. 14-211.2, evidence that the defendant altered official court records is required for a conviction, but at trial the State only admitted evidence the defendant altered a copy of an order showing income. Because the court could not determine “what weight, if any, the trial court gave to each of Defendant’s convictions, and because Defendant was sentenced at the top of the presumptive range of sentences rather than the lowest,” the court vacated the conviction and remanded for resentencing. Slip Op. at 7. The court did not find error with the obtaining property by false pretense charge, as the bank funded defendant’s loan based upon the false information she submitted.
Turning to (2) the order of restitution, the court disagreed with defendant’s argument that the record did not contain evidence showing the banks’ monetary loss, as the record showed the bank relied on defendant’s statements to fund the loan and grant the forbearances. Additionally, the court noted that the trial court was aware of defendant’s marital and employment status, and gave her an extended term of probation to allow her more time to pay, indicating that it properly considered defendant’s ability to pay restitution.
Finally, reviewing (3) the court explained that G.S. 15A-1343.2(d) permits a trial court to extend the term of probation when necessary for payment of restitution. Because the court found that the order of restitution was appropriate in (2), defendant’s argument that the probation term was improperly extended due to an erroneous restitution award also failed.
The defendant was charged with insurance fraud and obtaining property by false pretenses based on her submission of claims for living expenses that she did not incur. Following Hurricane Matthew, the defendant submitted a lease agreement purportedly signed by her stepfather providing that the defendant would pay $100 per day to stay in his home. Defendant’s stepfather subsequently told investigators that he did not have a lease agreement with the defendant and that she had not stayed in his home. The defendant was convicted of both charges at a jury trial. The trial court consolidated the convictions for judgment and sentenced the defendant to 10 to 21 months imprisonment, suspended for 24 months of supervised probation. The trial court ordered the defendant to serve 60 days imprisonment as a condition of special probation. The defendant appealed, arguing that the trial court erred by sentencing her for both obtaining property by false pretenses and insurance fraud for the same alleged misrepresentation. She also argued that the trial court improperly delegated its authority to the defendant’s probation officer by failing to set a date by which the term of special probation had to be completed.
(1) The court of appeals determined that the trial court did not err by sentencing her for obtaining property under false pretenses and insurance fraud even though both offenses arose from the same misrepresentation. To determine whether multiple punishments may be imposed for multiple convictions in a single trial based on a single course of conduct, the court must look to the intent of the legislature. Each of the offenses for which the defendant was convicted contained an element the other did not. Insurance fraud requires proving that the defendant presented a statement in support of a claim for payment under an insurance policy; obtaining property by false pretenses requires proving that the defendant’s misrepresentation did in fact deceive. Based on the separate and distinct elements that must be proven, the appellate court reasoned that the legislature clearly expressed its intent to proscribe and punish a misrepresentation intended to deceive under both statutes. Additionally, the court noted that the subject of each crime is violative of two separate, distinct social norms: “Where obtaining property by false pretenses is generally likely to harm a single victim, a broader class of victims is harmed by insurance fraud.” Slip. op. at 8. Finally, regarding the history of the treatment of the two crimes for sentencing purposes, the court noted that previous panels had sustained sentencing for convictions of obtaining property by false pretenses and insurance fraud arising from the same misrepresentation. For these reasons, the court of appeals determined that the trial court did not err by consolidating the Class H felony convictions for judgment and sentencing the defendant in the high presumptive range for one Class H felony.
(2) The trial court did not err by delegating authority to the defendant’s probation officer and by not setting a completion deadline for the active term of the sentence as a condition of special probation. G.S. 15A-1351(a) permits a trial court to require that a defendant submit to periods of imprisonment during probation at “whatever time or intervals within the period of probation . . . the court determines,” so long as the total period of such confinement does not exceed one-fourth of the maximum sentence imposed. It further requires that imprisonment imposed as a condition of special probation be completed within two years of conviction.
In this case, the trial court sentenced the defendant to 10 to 21 months of imprisonment and suspended that sentence for 24 months of supervised probation. As a condition of probation, the trial court ordered the defendant to serve 60 days of imprisonment as a condition of special probation. The court specified that the defendant was “‘TO SERVE 30 DAYS AT ONE TIME AND 30 DAYS AT ANOTHER TIME AS SCHEDULED BY PROBATION.’” Slip op. at 11. The court of appeals held that the trial court appropriately determined the “intervals within the period of probation” as two 30-day periods, and the completion date was set by statute as August 27, 2021—which, in defendant’s case, was both the end of the two-year probationary period and two years from the date of conviction.
The defendant was convicted and placed on probation for several crimes, including drug-related crimes. The trial judge ordered as a special condition of probation that the defendant “[r]eport for initial evaluation by TASC” and “participate in all further evaluation, counseling, treatment, or education programs recommended as a result of that evaluation.” The Court of Appeals upheld the condition, rejecting the defendant’s argument that it was an improper delegation of the trial court’s authority to require participation in treatment dictated by the TASC evaluation and not specifically ordered by the court. The appellate court concluded that the condition was reasonably related to his drug-related conviction and his rehabilitation, and therefore proper as a discretionary condition under G.S. 15A-1343(b1)(10).
The defendant was speaking at an anti-abortion event outside an abortion clinic in Charlotte. He was using an amplified microphone and was sitting at the table where the amplification controls were located. Officers measured his amplified voice at more than 80 decibels and approached him to cite him for violating the city’s noise ordinance. The defendant refused to produce identification, so the officers arrested him and charged him with resisting, delaying, and obstructing a law enforcement officer as well as the noise ordinance violation. At a bench trial in superior court, a judge convicted the defendant of R/D/O and dismissed the noise ordinance violation because, although the judge concluded that the defendant had violated the ordinance, the city “had discretion to decide which enforcement penalties it would levy against a violator of the noise ordinance, but . . . failed to do so.” The judge sentenced the defendant to probation, one condition of which was that the defendant stay at least 1,500 feet away from the abortion clinic where the event took place. The defendant appealed. Among other issues: (1) The defendant’s conduct was covered by the ordinance, so the officers’ initial stop was valid. The ordinance applies, in part, to persons “operating . . . sound amplification equipment.” The defendant contended that simply speaking into a microphone does not amount to “operating” any “amplification equipment.” The court of appeals viewed that construction as “unduly narrow” and found that the “plain meaning” of the ordinance was that speaking into an amplified microphone, while sitting at a table with the amplification controls present, was covered. (2) The probation condition is reasonably related to the defendant’s rehabilitation as required by statute, in part because it reduces the likelihood that he will commit a similar offense again.
In this Forsyth County case, the Supreme Court modified and affirmed the Court of Appeals majority opinion denying defendant’s ineffective assistance of counsel claim.
In 2004, as a juvenile, defendant pleaded guilty to two counts of armed robbery, and was convicted of first-degree murder, first-degree kidnapping, and attempted robbery with a dangerous weapon. The two counts of armed robbery arose from the robbery of two convenience stores, a separate criminal transaction from the murder, kidnapping, and attempted robbery charges. The trial court provided a sentence of life without parole for first-degree murder, 95 to 123 months for each of the robbery charges, 77 to 102 months for the attempted robbery charge (later arrested by the court), and 29 to 44 months for the kidnapping charge, all to run consecutively.
After Miller v. Alabama, 567 U.S. 460 (2012), defendant filed a motion for appropriate relief (MAR) attempting to have his life without parole sentence converted to life with the possibility of parole, and to have all his sentences run concurrently. Defendant’s MAR was allowed by the trial court, and proceeded to resentencing at a hearing in April 2021, where defendant’s counsel specifically told the court that the two armed robbery offenses were not under consideration for resentencing, despite being identified in the motion. Defense counsel told the court she was “not referring to the other armed robberies because they are not related, even though they were sentenced at the same time.” Slip Op. at ¶10. After the hearing, defendant was resentenced to life with the possibility of parole to be run consecutively with his sentence for first-degree kidnapping. The armed robbery charges were not altered.
On appeal, defendant argued that he received ineffective assistance of counsel due to his counsel’s decision not to request concurrent sentences for all convictions. The Court of Appeals majority rejected this argument, noting that this interpretation of N.C.G.S. § 15A-1354(a) was “at best, resting on unsettled law, and at worst, meritless.” Slip Op. at ¶12, quoting State v. Oglesby, 2021-NCCOA-354 (2021). This conclusion was the basis for the Supreme Court’s modification.
Reviewing defendant’s appeal, the Supreme Court concluded that the Court of Appeals had incorrectly interpreted N.C.G.S. § 15A-1354(a), explaining “the resentencing court possessed the authority to choose to run his life with parole sentence consecutively or concurrently with the other sentences ‘imposed on [him] at the same time’ as his original sentence.” Slip Op. at ¶19. Turning to the merits of defendant’s claim of ineffective assistance, the court agreed with the Court of Appeals that defendant could not demonstrate prejudice, noting that the resentencing court chose not to run the murder and kidnapping charges concurrently after hearing the MAR, making it nonsensical that the resentencing court would have chosen to impose concurrent sentences for the two armed robbery charges in addition to the other two charges.
The trial court had jurisdiction to sentence the defendant after a mandate issued from the Court of Appeals. The defendant appealed his sentence following multiple convictions for sex offense charges. He argued that after the Court of Appeals filed an opinion vacating his original sentence and remanding for resentencing, the trial court improperly resentenced him before the Court of Appeals had issued the mandate. The court rejected the defendant’s argument that the mandate had not issued at the time of resentencing. It held that the mandate from the appellate division issues on the day that the appellate court transmits the mandate to the lower court, not the day that the lower court actually receives the mandate.
In this Brunswick County case, defendant appealed her convictions for forgery, uttering forged paper, altering court documents, residential mortgage fraud, and obtaining property by false pretense, arguing error in (1) denying her motion to dismiss the charges of altering court documents and obtaining property by false pretense, (2) ordering restitution, and (3) imposing an extended probation term. The Court of Appeals found error in denying the motion to dismiss the charge of altering court documents and remanded for resentencing, but otherwise affirmed the trial court.
Defendant applied for a home loan in 2016, and submitted documentation showing her income from a full time job, a part time job, and from child support payments under a Florida court order. After the bank granted the loan, defendant applied for several forbearances, claiming a hardship due to losing her part-time job. The bank suspected fraud after her third application for forbearance, and an investigation determined there were many inconsistencies in the documentation; the bank eventually foreclosed on defendant’s home. Defendant eventually came to trial for submitting altered and forged documents to the bank, and the jury convicted defendant on all charges. The trial court imposed a 6 to 17 month imprisonment sentence, suspended for 30 months probation, but then extended the probation to 60 months to allow defendant to pay $25,061 in restitution.
Considering (1), the Court of Appeals noted that the State had conceded it did not present evidence to show defendant altered the child support records from Florida. Under G.S. 14-211.2, evidence that the defendant altered official court records is required for a conviction, but at trial the State only admitted evidence the defendant altered a copy of an order showing income. Because the court could not determine “what weight, if any, the trial court gave to each of Defendant’s convictions, and because Defendant was sentenced at the top of the presumptive range of sentences rather than the lowest,” the court vacated the conviction and remanded for resentencing. Slip Op. at 7. The court did not find error with the obtaining property by false pretense charge, as the bank funded defendant’s loan based upon the false information she submitted.
Turning to (2) the order of restitution, the court disagreed with defendant’s argument that the record did not contain evidence showing the banks’ monetary loss, as the record showed the bank relied on defendant’s statements to fund the loan and grant the forbearances. Additionally, the court noted that the trial court was aware of defendant’s marital and employment status, and gave her an extended term of probation to allow her more time to pay, indicating that it properly considered defendant’s ability to pay restitution.
Finally, reviewing (3) the court explained that G.S. 15A-1343.2(d) permits a trial court to extend the term of probation when necessary for payment of restitution. Because the court found that the order of restitution was appropriate in (2), defendant’s argument that the probation term was improperly extended due to an erroneous restitution award also failed.
(1) Over a dissent, the court held that the trial court properly conducted a de novo sentencing hearing on remand from the appellate division. Notwithstanding the fact that the new sentence was the same as the original sentence, the court rejected the defendant’s argument that the trial court merely deferred to the prior judge’s sentencing determination. (2) On remand the trial court did not err by leaving the original restitution order in place against the defendant. The appellate decision remanding the case found no error with respect to the amount of restitution; that decision thus “clearly resolved and foreclosed any consideration” of the originally entered restitution award.
On remand, the trial court properly conducted a de novo sentencing hearing.
The court rejected the defendant’s argument that the trial court did not appreciate that a resentencing hearing must be de novo.
On remand for resentencing, the trial court did not violate the law of the case doctrine. The resentencing was de novo and the trial court properly considered the State’s evidence of an additional prior felony conviction when calculating prior record level.
(1) The trial court properly conducted a de novo review on resentencing, even though the defendant was sentenced to the same term that he received at the original sentencing hearing. (2) At a resentencing during which new evidence was presented, the trial court did not err by failing to find a mitigating factor of limited mental capacity, a factor that had been found at the first sentencing hearing.
Reversing the court of appeals, the court held that the defendant, who was in the class of inmates whose life sentence was deemed to be a sentence of 80 years, was not entitled to immediate release. The defendant argued that various credits he accumulated during his incarceration (good time, gain time, and merit time) must be applied to reduce his sentence of life imprisonment, thereby entitling him to immediate and unconditional release. The DOC has applied these credits towards privileges like obtaining a lower custody grade or earlier parole eligibility, but not towards the calculation of an unconditional release date. The court found the case indistinguishable from its prior decision in Jones v. Keller, 364 N.C. 249, 254 (2010).
In a per curiam decision, the court reversed the court of appeals for the reasons stated in the dissenting opinion. In the opinion below, Lovette v. North Carolina Department of Correction, 222 N.C. App. 452 (2012), the court of appeals, over a dissent, affirmed a trial court order holding that the petitioners had fully served their life sentences after credits had been applied to their unconditional release dates. Both petitioners were sentenced to life imprisonment under former G.S. 14-2, which provided that a life sentence should be considered as imprisonment for eighty years. They filed habeas petitions alleging that based on credits for “gain time,” “good time,” and “meritorious service” and days actually served, they had served their entire sentences and were entitled to be discharged from incarceration. The trial court distinguished Jones v. Keller, 364 N.C. 249 (2010) (in light of the compelling State interest in maintaining public safety, regulations do not require that the DOC apply time credits for purposes of unconditional release to those who committed first-degree murder during the 8 Apr. 1974 through 30 June 1978 time frame and were sentenced to life imprisonment), on grounds that the petitioners in the case at hand were not convicted of first-degree murder (one was convicted of second-degree murder; the other was convicted for second-degree burglary). The trial court went on to grant the petitioners relief. The State appealed. The court of appeals held that the trial court did not err by distinguishing the case from Jones. The court also rejected the State’s argument that the trial court’s order changed the petitioners’ sentences and violated separation of powers. Judge Ervin dissented, concluding that the trial court's order should be reversed. According to Judge Ervin, the Jones applied and required the conclusion that the petitioners were not entitled to have their earned time credits applied against their sentences for purposes of calculating their unconditional release date.
For the reasons stated in Jones (discussed above), the court held that the trial court erred by granting the petitioner habeas corpus relief from incarceration on the grounds that she had accumulated various credits against her life sentence.
The trial court erred by granting the petitioner habeas corpus relief from incarceration on the grounds that he had accumulated various credits against his life sentence, imposed on September 27, 1976. The petitioner had argued that when his good time, gain time, and merit time were credited to his life sentence, which was statutorily defined as a sentence of 80 years, he was entitled to unconditional release. The court rejected that argument, concluding that DOC allowed credits to the petitioner’s sentence only for limited purposes that did not include calculating an unconditional release date. DOC had asserted that it recorded gain and merit time for the petitioner in the event that his sentence was commuted, at which time they would be applied to calculate a release date; DOC asserted that good time was awarded solely to allow him to move to the least restrictive custody grade and to calculate a parole eligibility date. The court found that the limitations imposed by DOC on these credits were statutorily and constitutionally permissible and that, therefore, the petitioner’s detention was lawful. The court also rejected the petitioner’s ex post facto and equal protection arguments.
The court reversed State v. Moore, 209 N.C. App. 551 (Feb. 15, 2011) (holding that the evidence was insufficient to support an award of restitution of $39,332.49), and held that while there was some evidence to support the restitution award the evidence did not adequately support the particular amount awarded. The case involved a conviction for obtaining property by false pretenses; specifically, the defendant rented premised owned by the victim to others without the victim’s permission. The defendant collected rent on the property and the “tenants” caused damage to it. At trial, a witness testified that a repair person estimated that repairs would cost “[t]hirty-something thousand dollars.” There was also testimony that the defendant received $1,500 in rent. Although the court rejected the State’s argument that testimony about costs of “thirty-something thousand dollars” is sufficient to support an award “anywhere between $30,000.01 and $39,999.99,” it concluded that the testimony was not too vague to support any award. The court remanded to the trial court to calculate the correct amount of restitution.
The court reversed State v. Mumford, 201 N.C. App. 594 (Jan. 5, 2010) (trial court erred in its order requiring the defendant to pay restitution; vacating that portion of the trial court’s order), and held that although the trial court erred by ordering the defendant to pay restitution when the defendant did not stipulate or otherwise unequivocally agree to the amount of restitution ordered, the error was not prejudicial. As to prejudice, the court reasoned: “[A]t the time the judgment is collected, defendant cannot be made to pay more than what is actually owed, that is, the amount actually due to the various entities that provided medical treatment to defendant’s victims. Because defendant will pay the lesser of the actual amount owed or the amount ordered by the trial court, there is no prejudice to defendant.”
In this Buncombe County case, defendant argued error by the trial court when ordering that she pay restitution of $11,000. The Court of Appeals found no error and affirmed the judgment.
The current opinion represents the second time this matter came before the Court of Appeals; previously defendant appealed her convictions of possession of a stolen motor vehicle and attempted identify theft after pleading guilty, arguing mistakes in calculating her prior record level and error in ordering a civil judgment for attorney’s fees without permitting defendant to be heard. In State v. Black, 276 N.C. App. 15 (2021), the court found error by the trial court on both issues, and remanded for resentencing while vacating the attorney’s fees. After the trial court’s hearing on remand, defendant brought the current appeal, arguing that the trial court erred because it did not hear from her or consider her ability to pay before ordering the $11,000 restitution.
The Court of Appeals disagreed with defendant, noting that defendant did not present evidence of her inability to pay the restitution, and the burden of proof was on her to demonstrate an inability to pay. The applicable statute, G.S. 15A-1340.36(a), requires the trial court to consider the defendant’s ability to pay restitution, but does not require any specific testimony or disclosures from defendant. Looking at the record, the court found no abuse of discretion by the trial court, explaining that defendant even conceded “she previously stipulated to the $11,000 restitution amount set out in the May 2019 Restitution Worksheet.” Slip Op. at 6.
The defendant was charged with and convicted of dogfighting and related offenses in Orange County. (1) He argued the evidence was insufficient to establish his specific intent to keep the dogs for purposes of fighting. The court disagreed. When the county Animal Services officials visited the property, they found equipment used in the strength training of dogs, at-home medications used to treat animal wounds, and an apparent dogfighting pit, as well as notes on preparing dogs for fights and dogfighting magazines. There was also evidence that many of the dogs had medical conditions commonly associated with dogfighting. This was sufficient evidence of the defendant’s specific intent, and the trial court properly denied the motion to dismiss for insufficient evidence.
(2) During direct examination of its expert witness, the State asked a leading question about the defendant’s intent. The defendant did not object at trial but complained on appeal that the question amounted to plain error. The court disagreed, noting that trial courts have the discretion to allow leading questions concerning evidence previously admitted without objection, as was the case here. The court further observed that plain error review is not available for discretionary decisions of the trial court, and the case “did not remotely approach” the circumstances where invocation of Rule 2 of the Rules of Appellate Procedure was warranted to obtain review. Even assuming plain error review was available, the court found there was no error—plain or otherwise—and rejected this argument.
(3) The trial court ordered the defendant to pay Animal Services restitution in the amount of $70,000 for its care and keep of the animals and immediately converted the award to a civil judgment (presumably based on the 60-month minimum active portion of the sentence imposed in the case). Thirty dogs were seized from the defendant’s property, but he was only convicted of offenses relating to 17 of the animals. According to the defendant, the restitution award should have therefore been proportionally reduced. The court disagreed, observing that “[t]he trial court may impose restitution for ‘any injuries or damages arising directly and proximately out of the offense committed by the defendant,’” pointing to G.S. 15A-1340.34(c). Crew Slip op. at 9. Because the defendant’s crimes resulted in the removal of all the animals, he could properly be held responsible for the cost of caring for the animals.
The defendant also argued that the trial court erred in failing to consider his ability to pay before ordering restitution. While the trial court need not make express findings on the issue, G.S. 15A-1340.36(a) requires the judge to consider the defendant’s ability to pay among several other factors when deciding restitution. Here, there was evidence in the record concerning the defendant’s income, the price of a “good puppy,” and of the defendant’s living arrangements. “Based on this evidence, the trial court’s determination that the defendant had the ability to pay was within the court’s sound discretion and certainly not manifestly arbitrary or outside the realm of reason.” Crew Slip op. at 10-11.
Finally, the defendant argued the trial court improperly converted the restitution award to a civil judgment. The court agreed. The restitution statutes distinguish between offenses subject to the Crime Victim’s Rights Act (“VRA”) and offenses exempt from that law. G.S. 15A-1340.38 expressly authorizes a trial court to convert an award of restitution to a civil judgment in VRA cases. No similar statutory authorization exists for non-VRA cases. While some other offenses have separate statutory provisions permitting conversion of a restitution award to a civil judgment (see, e.g., G.S. 15-8 for larceny offenses), no such statute applied to the crimes of conviction here. The court noted that G.S. 19A-70 authorizes animal services agencies to seek reimbursement from a defendant for the expenses of seized animals and observed that the agency failed to pursue that form of relief. The court rejected the State’s argument that the trial court’s action fell within its inherent authority. The civil judgments were therefore vacated. The convictions and sentence were otherwise undisturbed.
Upon trial de novo in superior court, the defendant in this case was convicted of misdemeanor injury to personal property for throwing a balloon filled with black ink onto a painting during a protest at an arts event in Asheville. The defendant received a suspended 30-day sentence and was ordered to pay $4,425 in restitution. On appeal, the defendant argued that her motion to dismiss the injury to personal property charge should have been granted due to a fatal variance, and argued that the restitution amount was improperly based on speculative value. The appellate court rejected both arguments.
The charging document alleged that the defendant had damaged the personal property of the artist, Jonas Gerard, but the evidence at trial indicated that the painting was the property of the artist’s corporation, Jonas Gerard Fine Arts, Inc., an S corporation held in revocable trust, where Jonas Gerard was listed as both an employee and the sole owner. Although this evidence established that the artist and the corporation were separate legal entities, each capable of owning property, the court held that the state’s evidence sufficiently demonstrated that the artist named in the pleading was nevertheless a person who had a “special interest” in the property and was therefore properly named in the charging instrument. The painting was not yet complete, it was still in the artist’s possession at the time it was damaged, and the artist regarded himself and the corporation as functionally “one and the same” and he “certainly held out the paintings as his own.” Finding the facts of this case analogous to State v. Carr, 21 N.C. App. 470 (1974), the appellate court held that the charging document was “sufficient to notify Defendant of the particular piece of personal property which she was alleged to have damaged,” and the trial court did not err in denying the motion to dismiss for a fatal variance.
The restitution amount was also supported by competent evidence. A witness for the state testified that a potential buyer at the show asked what the painting would cost when completed and was told $8,850, which was the gallery’s standard price for paintings of that size by this artist. The artist also testified that the canvas was now completely destroyed, and the black ink could not be painted over. The trial court ordered the defendant to pay half that amount as restitution. The appellate court held that the fact that the painting “had not yet been purchased by a buyer does not mean that the market value assigned by the trial court for restitution was speculative.” The evidence presented at trial was sufficient to establish a fair market value for the painting prior to it being damaged, and the trial court’s restitution order would not be disturbed on appeal.
In this embezzlement case, the trial court did not err by ordering the defendant to pay restitution. On 13 February 2017, the defendant and the victim entered into a settlement agreement resolving civil claims arising from the defendant’s conduct. The agreement obligated the defendant to pay the victim $13,500 and contained a release cause. Subsequently, the defendant was charged by information with embezzlement. She subsequently entered an Alford plea. As part of a plea arrangement, the State agreed, in part, to a probationary sentence to allow the defendant to make restitution payments. Both parties agreed that the trial court would hold a hearing to determine the amount of restitution. At the restitution hearing, the defendant asserted that she did not owe restitution because the release clause in the civil settlement agreement discharged her obligation. The trial court determined $41,204.85 was owed. The trial court credited the defendant for paying $13,500 under the civil agreement and set the balance of restitution at the difference. The defendant appealed, arguing that the trial court erred by ordering her to pay criminal restitution where the settlement agreement contained a binding release cause. Noting that the issue was one of first impression, the court held that the release clause in the civil settlement agreement does not bar imposition of criminal restitution.
The trial court improperly ordered the defendant to pay restitution for pecuniary losses arising from his alleged perpetration of charges in three indictments dismissed by the State pursuant to a plea agreement. The defendant appealed judgments entered upon his guilty pleas to seven counts of felony breaking and entering into seven different residences on different dates, and a civil judgment ordering he pay $23,113.00 in restitution to fourteen alleged victims identified in the State’s restitution worksheet. In return for the defendant’s pleas and his stipulation to restitution as provided in the State’s restitution worksheet, the State dismissed thirteen indictments against him, three of which contained the only charges linked to losses suffered by four of the fourteen alleged victims to whom the trial court ordered he pay restitution. The court concluded that “[b]ecause a trial court is only statutorily authorized to order restitution for losses attributable to a defendant’s perpetration of crimes for which he or she is convicted, . . . the trial court invalidly ordered defendant to pay restitution for pecuniary losses arising from his alleged perpetration of the charges in the three indictments the State dismissed pursuant to the plea agreement.” The court vacated the restitution order and remanded for resentencing on the issue of restitution.
In this assault case, no evidence was adduced at trial or sentencing to support the trial court’s restitution award of $1,962.80.
In this homicide case there was insufficient evidence to support restitution in the amount of $3,360.00 in funeral expenses to the victim’s family. No documentary or testimonial evidence supported the amount of restitution ordered. The record contains only the restitution worksheet, which is insufficient to support the restitution order.
In this animal cruelty case, the trial court did not err by imposing a restitution award in the amount of $10,693.43. There was sufficient competent evidence to support the amount of restitution ordered. The State provided written victim impact statements to the trial court during the sentencing hearing and the trial court heard oral victim impact statements and received an itemized worksheet of expenses as well as supporting documentation, including veterinary bills and receipts. These materials constitute sufficient competent evidence to support the restitution award. The trial court properly considered the defendant’s financial circumstances and found the award to be within his ability to pay. Specifically, the defendant testified regarding his employment history and other matters.
The trial court erred by ordering the defendant to pay $200 in restitution where no evidence was offered to support the amount of restitution ordered.
The trial court erred by ordering the defendant to pay $5,000 in restitution where no evidence supported that award. Only an unsworn statement by the prosecutor was offered in support of the restitution award.
The trial court’s restitution award of $5,000 was not supported by competent evidence.
In this injury to real property case, the trial court did not err by ordering the defendant to pay $7,408.91 in restitution. A repair invoice provided sufficient evidence to support the award of restitution and the restitution award properly accounted for all damage directly and proximately caused by the defendant’s injury to the property.
In the face of the State’s concession that there was no evidence supporting a restitution award, the court vacated the trial court’s restitution order and remanded for a rehearing on the issue.
In the face of the State’s concession that there was no evidence supporting a restitution award, the court vacated the trial court’s restitution order and remanded for a rehearing on the issue. The court noted: “In the interest of judicial economy, we urge prosecutors and trial judges to ensure that this minimal evidentiary threshold is met before entering restitution awards.”
The trial court did not err by requiring the defendant to pay $5,000 in restitution where trial evidence supported the restitution award and the trial court properly considered the defendant’s resources.
The trial court erred by ordering the defendant to pay restitution when the State failed to present any evidence to support the restitution order. The State conceded the error.
There was sufficient evidence to support a restitution order for $730. The victim testified that before being robbed he had “two sets of keys, snuff, a pocket knife, a bandana, [his] money clip,” and approximately $680 in cash. He later confirmed that $730 represented the money and the items taken during the crime.
The evidence supports the trial court’s restitution award for the value of a Honda Accord automobile. The prosecutor introduced documentation that the car was titled in the name of Moses Blunt and that the robbery victim paid $3,790 to Blunt to purchase the car. The prosecutor submitted both the title registration of the car, as well as a copy of the purchase receipt. Additionally, the victim testified at trial that he had paid $3,790 for the car but due to insurance issues, the car was still titled in his roommate’s name. Although the victim did not identify his roommate, the prosecutor’s introduction of the actual title registration supports the fact that Blunt was the title owner and that the car was worth $3,790 at the time of the transaction, which occurred shortly before the robbery.
In a drug case, the trial court erred by ordering the defendant to pay $1,200.00 as restitution for fees from a private lab (NarTest) that tested the controlled substances at issue. Under G.S. 7A-304(a)(7), the trial court "shall" order restitution in the amount of $600.00 for analysis of a controlled substance by the SBI. G.S. 7A-304(a)(8) allows the same restitution if a "crime laboratory facility operated by a local government" performs such an analysis as long as the "work performed at the local government's laboratory is the equivalent of the same kind of work performed by the [SBI]." The statute does not authorize restitution for analysis performed by an unlicensed private lab such as NarTest.
The trial court erred by ordering restitution when the defendant did not stipulate to the amounts requested and no evidence was presented to support the restitution worksheet.
The trial court erred by ordering the defendant to pay restitution in connection with a conviction for possessing a weapon of mass death and destruction where the State conceded that the restitution had no connection to that conviction.
The trial court committed plain error by ordering the defendant to pay restitution when no evidence supported the amount ordered. The court noted that no objection is required to preserve for appellate review issues concerning restitution. It held that the prosecutor’s unsworn statements and the State’s restitution worksheet were not competent evidence to support the restitution ordered. The court rejected the notion that the defendant's silence or lack of objection to the restitution amount constituted a stipulation.
The restitution order was not supported by evidence presented at trial or sentencing. The prosecutor’s unsworn statement regarding the amount of restitution was insufficient to support the order.
The trial court committed reversible error by ordering the defendant to pay restitution when the State presented no evidence to support the award. Although there was evidence that the victim’s home was damaged during the breaking and entering, there was no evidence as to the cost of the damage.
Because no evidence was presented in support of restitution and the defendant did not stipulate to the amount, the trial court erred by ordering restitution. During sentencing, the prosecutor presented a restitution worksheet requesting restitution for the victim to compensate for stolen items. The victim did not testify, no additional documentation was submitted, and there was no stipulation to the worksheet.
The evidence was insufficient to support a restitution award. The State conceded that it did not introduce evidence to support the restitution request. However, it argued that the defendant stipulated to the amount of restitution when she stipulated to the factual basis for the plea and that the specific amounts of restitution owed were incorporated into the stipulated factual basis by reference to the restitution worksheets submitted to the court. The court rejected these arguments, concluding that a restitution worksheet, unsupported by testimony or documentation, cannot support a restitution order and that the defendant did not stipulate to the amounts awarded.
In a larceny of motor vehicle case, the restitution award was not supported by competent evidence. Restitution must be supported by evidence adduced at trial or at sentencing; the unsworn statement of the prosecutor is insufficient to support restitution. In this case, the trial court ordered the defendant to pay $8,277.00 in restitution based on an unverified worksheet submitted by the State. However, the evidence at trial showed that the value of the stolen items was $1,200.00 - $1,400.00.
The trial court erred by ordering restitution where no evidence was presented supporting the restitution worksheet. The defendant’s silence when the trial court orally entered judgment cannot constitute a stipulation to restitution.
Restitution of $510 was not supported by the evidence. The prosecutor had presented a restitution worksheet stating that the victim sought $510 in restitution. The worksheet was not supported by documentation, the victim did not testify, and the defendant did not stipulate to the amount. The prosecutor’s statement that the amount represented “additional repairs and medical expenses” was insufficient to support the award.
The trial court erred in ordering restitution to the murder victims’ families when there was no direct and proximate causal link between the defendant’s actions and harm caused to those families. The defendant was convicted as an accessory after the fact to murder and none of the defendant’s actions obstructed the murder investigation or assisted the principals in evading detection, arrest, or punishment.
(1) When the defendant was convicted of drug trafficking, the sentence initially announced by the trial judge was “a mandatory 70 months” of active imprisonment. The following Monday (five days later), without the defendant being present, the court entered an amended judgment stating both the minimum and maximum sentence: 70 to 93 months. The defendant argued on appeal that the trial court lacked jurisdiction to amend the sentence when it did because the defendant had already appealed by that point. The Court of Appeals disagreed, concluding that, under G.S. 15A-1448(a)(3), the jurisdiction of the trial court is divested when notice of appeal has been given and the time for giving notice of appeal has expired. For an appeal to the appellate division, that time period is 14 days. N.C. R. App. P. 4(a)(2). Because only 5 days had passed at the time of change, the time for appeal had not expired, and the trial court therefore retained jurisdiction.
(2) The defendant argued in the alternative that amending the judgment in her absence deprived her of her right to be present at sentencing. The appellate court again disagreed, concluding that the amended judgment did not amount to a “substantive change” to the original sentence. Because the 93-month maximum that accompanies a 70-month minimum is statutorily required under G.S. 90-95(h)(4), it was not the product of judicial discretion. The record showed that the trial court understood from the outset that the sentence was statutorily mandatory, and the amendment was therefore clerical in nature and not a substantive change.
Because the trial court resentenced the defendant to a longer prison sentence without him being present, the court vacated and remanded for resentencing. After the defendant was sentenced, the Division of Adult Correction notified the court that the maximum prison term imposed did not correspond to the minimum prison term under Structured Sentencing. The trial court issued an amended judgment in response to this notice, resentencing the defendant, without being present, to a correct term that included a longer maximum sentence.
The trial court improperly sentenced the defendant in his absence. The trial court orally sentenced the defendant to 35 to 42 months in prison, a sentence which improperly correlated the minimum and maximum terms. The trial court’s written judgment sentenced the defendant to 35 to 51 months, a statutorily proper sentence. Because the defendant was not present when the trial court corrected the sentence, the court determined that a resentencing is required and remanded accordingly.
The trial court violated the defendant’s right to be present during sentencing by entering a written judgment imposing a longer prison term than that which the trial court announced in his presence during the sentencing hearing. In the presence of the defendant, the trial court sentenced him to a minimum term of 114 months and a maximum term of 146 months imprisonment. Subsequently, the trial court entered written judgment reflecting a sentence of 114 to 149 months active prison time. The court concluded: “Given that there is no indication in the record that defendant was present at the time the written judgment was entered, the sentence must be vacated and this matter remanded for the entry of a new sentencing judgment.”
The defendant’s right to be present when sentence is pronounced was not violated when the trial judge included in the judgment court costs and fees for community service that had not been mentioned in open court. The change in the judgment was not substantive. “[E]ach of the conditions imposed . . . was a non-discretionary byproduct of the sentence that was imposed in open court.” Further, the court noted, payment of costs does not constitute punishment and, therefore, the imposition of costs on the defendant outside of his presence did not infringe upon his right to be present when sentence is pronounced.
(1) Excluding the defendant from an in-chambers conference held prior to the sentencing hearing was harmless beyond a reasonable doubt. The in-chambers conference was recorded, the defendant was represented by counsel and given an opportunity to be heard and to make objections at the sentencing hearing, and the trial court reported the class level for each offense and any aggravating or mitigating factors on the record in open court. (2) Evidence of two awards from the Crime Victim’s Compensation Commission properly supported the trial court’s restitution award. However, because restitution exceeded the amounts stated in these awards, the court remanded for the trial court to amend the order accordingly.
In this second-degree murder case where the defendant’s girlfriend was fatally shot in the eye with a pistol, the trial court did not err by omitting a jury instruction on the defense of accident or by sentencing the defendant as a Class B1 felon. The trial court did not err by omitting an instruction on the defense of accident because the defendant testified that he did not commit the shooting or witness it and that he was unsure how it happened. The defendant’s testimony “flatly contradicted” the evidence suggesting he was involved in an arguably accidental shooting. The Court explained that the defendant could not “simultaneously deny that he committed the shooting and claim that he accidentally committed the shooting.”
As to the sentencing issue, while a general verdict of guilty for second-degree murder is ambiguous for sentencing purposes where there is evidence supporting either a Class B2 offense based on depraved-heart malice or a Class B1 offense based on another malice theory, the court concluded that there was no evidence in support of depraved-heart malice in this case. Neither the defendant’s testimony, which asserted that he left the unloaded pistol unattended, or other testimony suggesting that the victim grabbed the pistol as the defendant held it while arguing with her, was sufficient to show that the defendant committed an inherently dangerous act in a manner indicating a depraved heart. The trial court therefore did not err by sentencing the defendant as a Class B1 felon and also did not err by omitting an instruction to the jury on the definition of depraved-heart malice.
The defendant fired a gun from his car toward a park where over a dozen people were playing basketball and hanging out. He was later found asleep in his car in a ditch by a Highway Patrol officer, who arrested him for driving while impaired. He was convicted by a jury of second-degree murder and assault with a deadly weapon. The defendant argued that the trial court erred by admitting three phone calls the defendant made from the jail because they contained hearsay and violated the defendant’s confrontation rights. (1) As to the hearsay argument, the court of appeals concluded that any error was harmless in light of the overwhelming evidence of the defendant’s guilt. (2) As to the alleged violation of the Confrontation Clause, the court adopted the reasoning of a case from the Fourth Circuit, United States v. Jones, 716 F.3d 851 (4th Cir. 2013), and concluded that, despite automated warnings indicating that the calls were being recorded and monitored, the statements made by the woman the defendant was talking to on the jail phone were not intended to bear witness against him, and were therefore not testimonial. Because the statements were not testimonial, their admission did not violate the Confrontation Clause. (3) Next, the court declined to consider whether the trial court committed plain error by admitting, without objection, video interviews in which the defendant discussed prior assault and rape charges with the police. Again, in light of the overwhelming evidence of the defendant’s guilt, the defendant failed to show how the admission of the evidence resulted in a miscarriage of justice or an unfair trial. (4) At sentencing, the trial court did not err by sentencing the defendant as a Class B1 felon upon jury’s general verdict of guilty of second-degree murder when no evidence or jury instruction supported the depraved-heart malice that makes the crime a Class B2 felony. As in State v. Lail, 251 N.C. App. 463 (2017), it was readily apparent from the evidence here that the jury found the defendant guilty of a Class B1 second-degree murder. (5) Finally, the court of appeals rejected the defendant’s argument that his stipulation to a prior conviction identified as “M-PUBLIC DISTURBANCE” as a Class 1 misdemeanor was ambiguous in light of the multiple potential classifications of disorderly conduct. To the contrary, under State v. Arrington, 371 N.C. 518 (2018), when a defendant stipulates to a prior conviction of a particular offense classification, he or she also stipulates to the facts underlying that conviction. The trial court has no duty to enquire further in the absence of clear record evidence suggesting the defendant stipulated to an incorrect classification, and there was no such evidence here.
In this second-degree murder case, the trial court erred by sentencing the defendant as a Class BI felon. The jury unanimously convicted the defendant of second-degree murder. The verdict however was silent as to whether the second-degree murder was a Class BI or B2 offense. The court held that the jury’s general verdict of guilty of second-degree murder was ambiguous for sentencing purposes because, in this case, there was evidence of depraved-heart malice to support a verdict of guilty of a Class B2 second-degree murder. Specifically, there was evidence of the defendant’s reckless use of a rifle. The court distinguished the case from State v. Lail, ___ N.C. App. ___, 795 S.E.2d 401 (2016). And it went on to state:
In order to avoid such ambiguity in the future, we recommend two actions. First, the second degree murder instructions contained as a lesser included offense in N.C.P.I.--Crim. 206.13 should be expanded to explain all the theories of malice that can support a verdict of second degree murder, as set forth in N.C.P.I.--Crim. 206.30A. Secondly, when there is evidence to support more than one theory of malice for second degree murder, the trial court should present a special verdict form that requires the jury to specify the theory of malice found to support a second degree murder conviction.
In this second-degree murder case, the trial court did not err by sentencing the defendant as a Class B1 felon. The defendant argued that the trial court erred because the jury returned a general verdict that failed to specify whether he had been found guilty of a Class B1 or B2 felony. The State proceeded under a deadly weapon implied malice theory rising from the defendant’s alleged use of a butcher knife to slash the victim’s throat. The trial judge instructed the jury on the definitions of express malice and deadly weapon implied malice (B1 second-degree murder) but not on depraved heart malice (B2 second-degree murder). The jury returned a general verdict second-degree murder. The court held that since the jury was not presented with evidence supporting a finding of depraved heart malice, its general verdict was unambiguous and the B1 sentence was proper. It noted however that where the jury is presented with both B2 depraved heart malice and a B1 malice theory a general verdict would be ambiguous. It stated: “in this situation, trial judges . . . should frame a special verdict requiring the jury to specify which malice theory supported it second-degree murder verdict.” In the course of its ruling the court also noted that depraved heart malice is not limited to driving while intoxicated homicide cases.
The trial court abused its discretion by summarily denying the defendant’s motion under G.S. 15A-980 for suppression, in connection with sentencing, of a prior conviction which the defendant alleged was obtained in violation of her right to counsel. The trial court dismissed the motion as an impermissible collateral attack on a prior conviction that only could be raised by motion for appropriate relief. Relying on a prior unpublished opinion, the court held that although the defendant “could not seek to overturn her prior conviction” on this basis, G.S. 15A-980 gave her “the right to move to suppress that conviction’s use in this case.”
In this Haywood County case, defendant appealed his convictions for multiple felony and misdemeanor child abuse offenses, arguing a range of issues related to sentencing and errors by the trial court, as well as possible ineffective assistance of counsel. The Court of Appeals agreed with defendant’s sentencing arguments and remanded for resentencing, but found no prejudicial or plain error. The court dismissed defendant’s ineffective assistance of counsel claim without prejudice to allow him to file a motion for appropriate relief with the trial court.
Defendant came to trial in October of 2017 for abusing the children of his wife over the course of several years. Abuse included paddling one child victim so hard she suffered permanent injuries and required medical treatment. At trial, the jury found defendant guilty of all charges against him except for rape, and also found an aggravating factor that defendant took advantage of a position of trust or confidence. The trial court sentenced defendant to higher classifications of intentional child abuse inflicting serious bodily injury (“ICAISBI”) and intentional child abuse inflicting serious physical injury (“ICAISPI”) due to the aggravating factor.
The Court of Appeals first identified defendant’s meritorious issues, explaining that under applicable law, the evidence necessary to prove an element of the offense cannot be used as an aggravating factor. Here, “both misdemeanor and felony child abuse require showing the defendant is a ‘parent . . . or . . . other person providing care to or supervision of [a] child,’” meaning the aggravating factor could not be applied to defendant. Slip Op. at 10, quoting GS §§ 14-318.2 & -318.4. The state conceded this error, and the court remanded all convictions for resentencing.
The court next considered defendant’s argument that his ICAISPI and ICAISBI convictions were ambiguous due to a change in the felony classifications on December 1, 2013. Because the abuse in question occurred between January 2009 and March 2014, and the jury did not perform a specific finding of the date of the offenses, the court found that the verdict was ambiguous. Noting that this seemed to be a matter of first impression, the court explained:
[W]e have not found, and the parties have not provided, a published case resolving whether a general verdict is rendered ambiguous by evidence showing the completed offense may have been committed on either temporal side of a statutory reclassification of the crime. . . . [W]e hold that the general verdict is ambiguous under these circumstances and a defendant, absent a determination by the jury by special verdict form as to the specific date of or date range of offense sufficient to determine which sentencing regime is applicable, must be sentenced under whichever statutory classification is lower.
Id. at 12. The court remanded for resentencing the ICAISPI and ICAISBI offenses at their lower pre-elevation levels because the court could not engage in speculation about which dates supported the jury’s decision to convict defendant.
The court did not find merit in defendant’s argument that the scarring one victim suffered from paddling could not support a finding of serious bodily injury. Instead, the court drew a distinction between cases with “superficial” or “aesthetic” injuries with the more serious, permanent injuries suffered by the victim in this matter. Likewise, the court rejected defendant’s argument that the jury verdict sheet for ICAISBI represented error, as it asked the jury to determine if defendant was guilty of “inflicting permanent scarring to the buttocks and/or legs” of the victim. Id. at 23. The court explained that the indictment and jury instructions given by the trial court adequately explained all elements of the offense.
The court also rejected defendant’s arguments regarding lesser included offenses. The court considered and rejected defendant’s argument regarding lawful corporal punishment, explaining that overwhelming evidence showed the acts were not within the bounds of lawful punishment. Finally, the court rejected defendant’s argument the trial court erred by preventing the disclosure of juvenile records.
For defendant’s ineffective assistance of counsel claim, the court explained that the record was insufficient to determine whether defense counsel made certain strategic decisions, and “[w]hen the record is silent on that question of fact—as in this case—the appropriate action is to allow an evidentiary hearing by MAR.” Id. at 35.
The defendant was charged with two counts of third-degree sexual exploitation of a minor, a Class H felony offense, and attaining the status of a habitual felon. The defendant entered an Alford plea to the sexual-exploitation charges and stipulated to having attained habitual-felon status. The plea arrangement provided that the charges would be consolidated into one Class H felony judgment, and that the defendant, as a habitual felon and a prior record level III offender, would receive an enhanced, Class D-level sentence of 67 to 93 months’ imprisonment, pursuant to G.S. 14-7.6.
However, before accepting the plea and entering judgment, the trial court determined that the maximum sentence should be increased from 93 months to 141 months pursuant to the sentencing enhancement provided in G.S. 15A-1340.17(f) for certain “reportable convictions” that require enrollment in the sex-offender registry. The Court of Appeals allowed the defendant’s petition for writ of certiorari.
On appeal, the defendant argued that the trial court erred by increasing his maximum sentence from 93 months to 141 months pursuant to G.S. 15A-1340.17(f)’s sentencing-enhancement provision, which he argued does not apply to Class F through I felony reportable convictions enhanced with habitual-felon status. The Court of Appeals agreed, concluding that the defendant’s contemporaneous conviction of being a habitual felon did not reclassify his Class H felony convictions to a Class D felony conviction. Slip op. at ¶ 20. The Court rationalized that the plain language of G.S. 15A-1340.17(f) suggests that the sentencing enhancement only applies to those convicted of certain Class B1 through E felonies, rather than those convicted of lower-level felonies but punished at the higher level of Class B1 through E due to the application of some other sentencing enhancement. The Court thus held that the trial court erred by applying the 15A-1340.17(f) sentencing enhancement in the defendant’s case.
The defendant was convicted of indecent liberties with a child and felony child abuse by sexual act based on crimes committed against his daughter and stepdaughter. The court of appeals held that the trial court properly determined the defendant’s maximum term of imprisonment for felony child abuse by sexual act, a Class D felony, based upon the minimum term it had selected (64 months) rather than the minimum term permitted by statute (51 months). G.S. 15A-1340.17(f) provides that, for offenders sentenced for reportable convictions that are Class B1 through E felonies, the maximum term of imprisonment “shall be equal to the minimum term of imprisonment and twenty percent (20%) of the minimum term of imprisonment, rounded to the next highest month, plus 60 additional months.” Once the trial court set the defendant’s minimum term of imprisonment at 64 months (the top of the presumptive range), it properly added 64 plus 13 (20 percent of 64, 12.8, rounded to the next highest month) plus 60, totaling 137 months.
The trial judge had discretion whether to run two drug trafficking sentences imposed at the same time concurrently or consecutively. G.S. 90-95(h) provides that, “[s]entences imposed pursuant to this subsection shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced hereunder.” This means that if the defendant is already serving a sentence, the new sentence must run consecutively to that sentence. It does not mean that when a defendant is convicted of multiple trafficking offenses at a term of court that those sentences, as a matter of law, must run consecutively to each other.
A trial court is required to enter a commitment order at the time of judgment and sentencing. While awaiting sentencing on federal charges, on 18 May 2009 the defendant pleaded guilty to state charges. The trial court held a sentencing hearing that day and, pursuant to the plea, sentenced the defendant to prison. On 19 May 2009, the trial court entered its Judgment, ordering the defendant to be imprisoned in the custody of “N.C. DOC.” The trial court left unchecked a box on the Judgment form indicating that the sentence was to be consecutive to any other imposed sentences. It also left unchecked a box ordering the sheriff or other officer to cause the defendant to be delivered to the custody of the agency named in the judgment to serve the sentence imposed. On 12 November 2009, judgment was entered against the defendant in his federal case, sentencing him to concurrent sentences in the custody of the United States Bureau of Prisons, and the defendant began service of his federal sentence. On 30 March 2016 the North Carolina Department of Public Safety lodged a detainer in the federal system. After learning of the detainer, on 20 July 2016 the defendant filed an MAR requesting that he be adjudged to have served all of his North Carolina time. The trial court denied the MAR and the defendant appealed. The court held that the trial court erred by denying the defendant’s request for entry of a commitment order nunc pro tunc consistent with the judgment. Under G.S. 15A-1353, when a sentence includes a term of imprisonment, the court must include an order of commitment. Unless otherwise specified in the order of commitment, the date of the order is the date service of the sentence is to begin. Here, the trial court entered its Judgment imposing a term of imprisonment but failed to enter an order of commitment for N.C. DOC to take custody of the defendant for service of that term. Thus, the defendant is entitled to entry of a commitment order nunc pro tunc 19 May 2009. The court went on to reject the defendant’s argument that his sentence began on that date. Here, the very terms of the Judgment require the defendant to spend at least 80 months in the custody of N.C. DOC, and such a term necessarily cannot begin to run until he actually is remitted into the agency’s custody. Because the defendant was never remitted into the custody of N.C. DOC, and his sentence cannot begin to run consistent with the Judgment until he is so remitted, the defendant’s sentence for the state charges had not begun to run at the time of the MAR hearing. The court remanded for entry of an order of commitment specifying that the defendant’s sentence is to begin when he is released from federal custody.
Because the defendant was sentenced in the presumptive range, he was not entitled to an appeal as a matter of right on the issue whether his sentence was supported by the evidence. Furthermore, the defendant did not petition for review by way of a writ of certiorari.