1. Apprendi v. New Jersey, 530 U.S. 466 (2000) Defendant pled guilty to offense punishable by imprisonment between 5 and 10 years Judge at sentencing hearing found that hate crime enhancement applied –Offense motivated by racial bias Defendant sentenced to imprisonment for 12 years

2. Apprendi Ruling Other than fact of a prior conviction Any fact that increases penalty for crime Beyond prescribed statutory maximum Must be submitted to jury and proved beyond reasonable doubt –Defendant was entitled to jury trial on hate crime enhancement

3. State v. Lucas, 353 N.C. 568 (2001) Ruling –Based on Apprendi ruling –Firearm enhancement to felony sentence must be alleged in indictment and proved to jury beyond a reasonable doubt Court permitted future use of firearm enhancement without legislative revision of statute

4. State v. Hunt, 357 N.C. 257 (2003) Apprendi ruling did not require that capital aggravating circumstances must be alleged in short-form first-degree murder indictment Constructive statutory notice in G.S. 15A-2000(e) –Exclusive list of aggravating circumstances –Relatively short list –No catchall aggravating circumstances

5. Blakely v. Washington, 124 S. Ct. 2531 (24 June 2004) Defendant pled guilty to kidnapping in state court –Class B felony punishable by up to 10 years –State law provision limited sentence to “standard range” of 49 to 53 months Judge found aggravating factor of “deliberate cruelty” and imposed sentence of 90 months –Sentence exceeded standard range, but not 10- year maximum for Class B felony

6. Blakely Ruling Court restated ruling in Apprendi Court then ruled that “statutory maximum” for Apprendi purposes is –Maximum sentence judge may impose –Based solely on facts reflected in jury verdict or admitted by defendant Sentencing judge could not have imposed 90-month sentence solely based on facts admitted in defendant’s guilty plea Aggravating factor was not admitted by defendant or submitted to jury and proved beyond a reasonable doubt

7. Felony Sentencing in North Carolina Calculating defendant’s prior record level –Points for prior convictions Not subject to Blakely –Points for non-conviction matters Offense committed while defendant on probation, parole, or post-release supervision, in prison, or on escape All elements of current offense are included in prior offense that resulted in a conviction Subject to Blakely?

8. Felony Sentencing in North Carolina Determining minimum sentence –Presumptive range –Judge may depart from presumptive range and sentence defendant in Aggravated range if aggravating factors outweigh any mitigating factors, or Mitigated range if mitigating factors outweigh any aggravating factors –Aggravated range affected by Blakely –Presumptive and mitigated ranges are not affected by Blakely except when finding non- conviction points

9. Blakely Procedure for Superior Court Felonies Bifurcated trial: guilt/innocence and separate hearing for aggravating factors/non-conviction points Procedure equivalent to G.S. 15A-928 (for example, habitual DWI or habitual misdemeanor assault) Trial on all issues With defendant’s consent, may trial judge alone hear and decide aggravating factors/non- conviction points? –Mandatory jury trial under North Carolina Constitution?

10. Guilty Plea or Admission to Aggravating Factor/Non-Conviction Points Defendant must freely, voluntarily, and understandingly waive right to jury trial

11. Misdemeanor Sentencing in North Carolina For misdemeanors subject to Structured Sentencing Act, sentence is determined by defendant’s prior conviction level –Prior conviction level is determined solely by number of prior convictions –This kind of misdemeanor sentencing is not affected by Blakely There are misdemeanors not subject to Structured Sentencing Act –DWI and Commercial DWI –Other miscellaneous misdemeanors

12. Charging and Sentencing for DWI and Commercial DWI; G.S. 20-179 Charging these offenses –Short-form pleading in G.S. 20-138.1(c) and 20-138.2(c) Finding of grossly aggravating, aggravating, and mitigating factors All grossly aggravating and aggravating factors are set out in G.S. 20-179 except for catchall aggravating factor

13. Charging and Sentencing for DWI and Commercial DWI; G.S. 20-179 Sentencing in district court: affected by Blakely? Sentencing in superior court for DWI and commercial DWI is affected by Blakely as set out below Five levels of punishment –Levels one, two, and three is affected by Blakely if non-conviction aggravating factor is found –Level four is affected by Blakely except if no aggravating factor or only conviction is found –Level five is not affected by Blakely because it is equivalent to standard range

14. Blakely Procedure for Superior Court DWI Bifurcated trial: guilt/innocence and separate hearing for grossly aggravating/aggravating factors Procedure equivalent to G.S. 15A-928 (for example, habitual DWI or habitual misdemeanor assault) Trial on all issues With defendant’s consent, may trial judge alone hear and decide grossly aggravating/aggravating factors? –Mandatory jury trial under North Carolina Constitution?

15. N.C. Appellate Cases on Blakely State v. Allen, ___ N.C. App. ___ (9/7/04) –Defendant sentenced in aggravated range for felonious child abuse Judge found aggravating factor –Ruling: error under Blakely, and court will not conduct harmless error analysis –N.C. Supreme Court has granted state’s petition to review ruling

16. N.C. Appellate Cases on Blakely State v. Speight, ___ N.C. App. ___ (9/7/04) –Defendant sentenced in aggravated range for involuntary manslaughter Judge found aggravating factor –Defendant sentenced in Level Two for DWI Judge found aggravating factor of “serious injury” and another non-conviction factor –Ruling: error under Blakely, and court will not conduct harmless error analysis –N.C. Supreme Court has granted state’s petition to review ruling