Among the core rights guaranteed by the Constitution is the right to trial by jury. The exact definition of this right has been the focus of much recent litigation. The most recent case to reach the N.C. Court of Appeals hinges on whether judges or juries must decide for sentencing purposes what North Carolina crimes defendants’ out-of-state convictions are similar to.

The Sixth Amendment of the U.S. Constitution provides for trial by jury. This critical right has been at the center of two important recent U.S. Supreme Court rulings.

In a 2000 case, Apprendi v. New Jersey, the court’s ruling said, “Other than the fact of prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Four years later, in Blakely v. Washington, the U.S. Supreme Court clarified its ruling in Apprendi. “The relevant statutory maximum for Apprendi purposes is the maximum a judge may impose based solely on the facts reflected in the jury verdict or admitted by the defendant.”

North Carolina law establishes a presumptive sentencing range based upon the seriousness of the crime and a defendant’s previous criminal activity. Previous convictions are assigned points based upon their seriousness. The higher a defendant’s point total, the longer the sentence he receives at sentencing.

Lawrence Hanton was convicted of second-degree murder in 1999. At his sentencing, a key issue was how to assess Hanton’s previous criminal history. Hanton had never been convicted of a crime in North Carolina. He had, however, been convicted in New York of second-degree robbery, third-degree robbery, and attempted assault in the second-degree.

Over Hanton’s objection, Superior Court Judge Richard Boner determined that the three New York offenses were substantially similar to specific North Carolina crimes. Based upon the resulting criminal history score, Boner sentenced Hanton as a Level IV offender to 251 to 311 months in prison.

Before the N.C. Court of Appeals, Hanton argued under the mandate of Blakely, a jury, and not the judge, should have determined whether his convictions in New York were substantially similar to criminal offenses in North Carolina. A majority of a three-judge panel of the N.C. Court of Appeals did not agree.

“We conclude that the question of whether a conviction under an out-of-state statute is substantially similar to an offense under North Carolina statutes is a question of law to be resolved by the trial court,“ Judge Eric Levinson wrote for the appeals court.

“Furthermore, the question is so related to a trial court’s calculation of a prior record that it is covered by the exception to the Blakely rule that ’the fact of a prior conviction’ does not need to be proven to a jury beyond a reasonable doubt.”

Judge Linda McGee dissented from the majority holding. She noted that determining what crime a defendant would have been convicted of in North Carolina for behavior that resulted in a conviction in another state can be a fact-driven analysis. And Blakely made clear that it is the role of jurors, not judges, to determine facts.

“Particularly where, as in the present case, the elements of a foreign conviction are broader than those of a North Carolina offense, a trial court may very well undertake an inherent factual inquiry into defendant’s conduct to resolve whether defendant would have been convicted under a similar North Carolina law. Such an inquiry is not merely a question of law, as determined by the majority opinion… Such an inquiry and its results thus present the risk identified in Shepard, a violation of a defendant’s Sixth Amendment right to a jury trial under Blakely, and would require the jury, not the trial court, to determine substantial similarity.”

She also noted that the U.S. Fourth Circuit Court of Appeals had concluded that a Sixth Amendment violation existed in a case where a federal judge heard evidence to determine whether a defendant’s prior conviction had been “violent.”

Because of McGee’s dissent, the N.C. Supreme Court must hear the case if Hanton further appeals.

All three N.C. Court of Appeals judges did agree that one of Hanton’s convictions had been miscategorized as a matter of law; as a result he should have been sentenced as a Level III offender to no more than 220 to 273 months in prison.

The case is State v. Hanton, (04-1279).

http://www.aoc.state.nc.us/www/public/coa/opinions/2006/041279-1.htm

Michael Lowrey is associate editor of Carolina Journal.