North Carolina’s sentencing policy, under which a judge determines whether aggravating factors exist when sentencing a criminal, has been found to be unconstitutional. In a ruling July 1, the N.C. Supreme Court held that the state’s sentencing system runs afoul of a defendant’s right to trial by jury.

The Sixth Amendment of the U.S. Constitution provides for trial by jury. In a recent series of rulings, the U.S. Supreme Court clarified exactly what this right entails. In a 2000 case, Apprendi v. New Jersey, the court 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.”

In a 2004 case, Blakely v. Washington, the high court examined the meaning of “prescribed statutory maximum.” Ralph Blakely pled guilty in a plea bargain to second-degree kidnapping involving a firearm. Washington State law ordinarily provided for a sentence of 49 to 53 months in prison for this crime for someone with Blakely’s criminal background. At sentencing, the judge, however, invoked a different law, unilaterally finding that Blakely had acted with “deliberate cruelty” and sentenced him to 90 months.

The U.S. Supreme Court overturned this longer sentence. “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, ” Justice Anton Scalia wrote for the court.

Individual states are free to design their own criminal justice systems subject to the provisions of the U.S. Constitution. As a result of this flexibility, the impact of Apprendi and Blakely will vary by state. North Carolina law provides for three sentencing ranges: a presumptive (default) range, a mitigated range, and an aggravated range. The mitigated range and aggravated range are 25 percent shorter and longer, respectively, than the presumptive range. A judge determines by a preponderance of the evidence at sentencing if aggravating or mitigating factors exist. If the judge finds that these aggravating factors outweigh any mitigating factors, he may impose a sentence in the aggravated range.

Like the N.C. Court of Appeals, the N.C. Supreme Court found that the state’s existing system runs afoul of Blakely.

“After Blakely, it is clear that the ‘statutory maximum’ to which Apprendi applies is not the maximum sentence authorized by statute; rather, for Apprendi purposes, ‘statutory maximum’ means the maximum sentence authorized by the jury verdict or the defendant’s admissions,” Scalia wrote.
“Applied to North Carolina’s structured sentencing scheme, the rule of Apprendi and Blakely is: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt.”

The court also noted that Blakely does not impact judges’ ability to find mitigating factors or to balance aggravating factors found by a jury and mitigating factors to determine the appropriate sentencing range.

While all seven N.C. Supreme Court justices agreed that the state’s sentencing system violated Blakely, a far more controversial question was how to rectify the violation for those serving aggravating sentences. A bare majority of justices (Parker, Wainwright, Edmunds, and Brady) held that Blakely violations amount to “structural error,” a “‘defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.’ Such errors “deprive defendants of ‘basic protections,’ without which . . . ‘no criminal punishment may be regarded as fundamentally fair.’” The majority agreed with the N.C. Court of Appeals and the Washington Supreme Court that defendants were entitled to a new hearing before a jury to determine whether aggravating factors existed.

Justices Lake, Newby, and Martin thought that Blakely violations did not rise to the level of structural error and could be reviewed under “harmless error” rules. Under the harmless-error doctrine, a conviction or sentence can be upheld if a judge determines that the error had no impact on the ultimate outcome—here, that a jury would have found beyond that the same aggravating factors existed as found by the judge. Only if a judge were unsure that a jury would have found the same aggravating factors, a new sentencing hearing would be required.

“Although, undoubtedly, judicial fact-finding of aggravating factors violates the federal constitutional rule enunciated in Blakely v. Washington, United States Supreme Court precedent also compels application of the harmless-error doctrine to Blakely violations,” wrote Justice Mark Martin. “I have no doubt that my colleagues in the majority are motivated by the noblest of intentions. Nevertheless, the majority’s invocation of ‘structural error’ to Blakely violations is erroneous under federal constitutional principles which govern Blakely violations.

“Moreover, the public record reflects that 75 ‘Blakely cases’ are now pending for disposition in our 15-member intermediate appellate court, the North Carolina Court of Appeals. To put this in perspective, the Court of Appeals has issued a total of 738 opinions so far in 2005. And the burden on our legal and judicial system does not end there. Each improvident ‘Blakely remand’ to the trial court, in North Carolina and every other state, necessarily entails the application of additional prosecutorial, legal, and other ‘justice system’ resources. Where the Blakely error in any such case is ‘harmless beyond a reasonable doubt,’ these resources are, in turn, potentially unavailable to redress prejudicial legal error.”
The General Assembly has passed legislation to bring the state’s sentencing procedures into compliance with Blakely.
The case is State v. Levar Jamel Allen (485PA04).
http://www.aoc.state.nc.us/www/public/sc/opinions/2005/485-04-1.htm

Apprendi link: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=530&invol=466&pageno=490

Blakely link: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=02-1632

Michael Lowrey is associate editor of Carolina Journal.