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Criminal Practice – Constitutional – Sentencing – Egregiously Aggravated – Judge’s Discretion – Apprendi & Blakely – Sexual Offense with a Child

State v. Singletary (Lawyers Weekly No. 011-154-16, 38 pp.) (John Tyson, J.) Appealed from Guilford County Superior Court (Richard Gottlieb, J.) N.C. App.

Holding: The sentencing procedure required by G.S. § 14-27.4A(c) (now codified at G.S. § 14-27.28(c)) unconstitutionally gives the trial court discretion to increase a defendant’s sentence based on the court’s – not a jury’s – finding of “egregious aggravation.”

The sentencing procedure set out in G.S. § 14-27.4A(c)/14-27.28(c) is unconstitutional on its face. We uphold defendant’s conviction of two counts of sexual offense with a child; adult offender, but we vacate the judgment and remand for a new sentencing hearing.

Where a prosecution expert’s fee was paid with funds originating from a state agency, the trial court erred in sustaining the state’s objection to defendant’s questioning regarding the expert’s fee. The source and amount of a fee paid to an expert witness is a permissible topic for cross-examination, as it allows the opposing party to probe the witness’s partiality, if any, towards the party by whom the expert was called. Any partiality established by cross-examination goes directly to the witness’s credibility and is properly for the jury to weigh and consider.

Nevertheless, given the state’s other overwhelming evidence of defendant’s guilt, the error did not prejudice defendant.

Despite defense counsel’s arguments that G.S. § 14-27.4A(c) was unconstitutional, the trial court followed the statutory procedure. The court found that “this crime was of such a brutality and severity and scope and degree that it warrants a sentence above the [300-month] minimum.” The court imposed two consecutive sentences of 420 to 504 months’ imprisonment.

Defendant argues the trial court violated his Sixth Amendment right to a trial by jury when the court sentenced him to an “egregiously aggravated” sentence without prior notice of the state’s intent to seek, or the court’s intent to find and impose, aggravating factors without their submission to the jury to find their existence beyond a reasonable doubt.

In a reversal from its position in the trial court, the state now concedes the trial court erred by failing to give prior notice of its intent to find “egregious aggravation” factors, failing to submit aggravating factors to the jury, and failing to have the factors proven beyond a reasonable doubt. The state’s concession, however, does not change the fact that the statute does not require a defendant to be provided advance notice of “egregious aggravation” factors, does not require aggravating factors to be submitted to the jury, and does not require the factors to be proven to a jury beyond a reasonable doubt before § 14-27.4A(c) may be applied to impose an “egregiously aggravated” sentence.

In sentencing defendant, the trial court followed all procedures mandated by the statute. The state’s concession of error as an attempt to avoid addressing the constitutional validity of § 14-27.4A(c) does not resolve the inherent and unavoidable defects contained in the statute and applied to defendant in this case.

Because circumstances in aggravation are found by the judge, not the jury, and because the statute does not require that any “egregious aggravation” factors be found beyond a reasonable doubt, § 14-27.4A(c) violates the bright-line rule set out in Apprendi v. New Jersey, 530 U.S. 466 (2000): Except for a 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.

The state also argues that the trial court may properly submit “egregious aggravation” factors to a jury through the use of a special verdict. We reject this contention, also.

Section 14-27.4A(c) 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. Furthermore, the state’s proposed solution would require the jury to undertake an inherently judicial function: compiling a list of prior cases, considering the facts and circumstances of those cases, and determining whether the facts and circumstances of the present case are more egregious than what is present in the “heartland” of child sexual abuse cases. The state’s contention is overruled.

Because both the statutory text and the inherently judicial nature of the tasks required of the trial court under § 14-27.4A(c) do not allow for submission of “egregious aggravation” factors to the jury to be found beyond a reasonable doubt, and because such submission is a federal constitutional requirement, no set of circumstances exists under which § 14-27.4A(c) is valid.

The inherently judicial nature of the tasks the statute requires the court to undertake in sentencing a defendant pursuant to § 14-27.4A(c) renders any harmless error analysis inapposite. The Apprendi and Blakely v. Washington, 542 U.S. 296 (2004), errors created by the trial court’s adherence to § 14-27.4A(c) were not harmless.

We find no prejudicial error at trial, but the judgment is vacated and remanded for a new sentencing hearing.

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