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Tag Archives: sentencing

Criminal Practice – Possession of Stolen Goods – Defendant’s Knowledge – Sentencing – On Probation – Counsel’s Stipulation (access required)

State v. Cannon Where the state showed only that (1) the stolen four-wheeler had undergone cosmetic changes, its decals and stickers having been pulled off and a different decal having been affixed to it; (2) defendant twice drove to his cousin’s house on the four-wheeler, which a deputy had towed away after defendant’s arrest; and (3) the sheriff’s department later learned that the four-wheeler had been stolen from Halifax County, and where there is no evidence in the record as to how defendant gained possession of the four-wheeler, the state failed to prove that defendant knew or should reasonably have known that the four-wheeler was stolen. The trial court should have granted defendant’s motion to dismiss the charge of possession of stolen goods.

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Criminal Practice – Sentencing – Firearm Possession – Prior Assault Conviction (access required)

U.S. v. Donell In sentencing defendant for possession of a firearm as a convicted felon, a district court could not use an unincorporated “statement of probable cause” to establish a prior assault conviction as a “crime of violence” in order to enhance defendant’s firearm sentence, and the 4th Circuit vacates the 78-month sentence and remands for resentencing.

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Criminal Practice – Drug Possession – NarTest – Cocaine — Visual ID – Marijuana – Sentencing – Trial by Jury – Restitution – Private Lab (access required)

State v. Jones Law enforcement identified the substances seized from defendant using the NarTest NTX 2000, and the state presented that evidence at trial. Neither the officer who used the NarTest nor the NarTest chemist who explained the machine showed that the NarTest was sufficiently reliable as an area for expert testimony. However, the state may prove that a substance is marijuana based on visual inspection.

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Criminal Practice – Possession of Stolen Goods – Defendant’s Knowledge – Sentencing – On Probation – Counsel’s Stipulation (access required)

State v. Cannon Where the state showed only that (1) the stolen four-wheeler had undergone cosmetic changes, its decals and stickers having been pulled off and a different decal having been affixed to it; (2) defendant twice drove to his cousin’s house on the four-wheeler, which a deputy had towed away after defendant’s arrest; and (3) the sheriff’s department later learned that the four-wheeler had been stolen from Halifax County, and where there is no evidence in the record as to how defendant gained possession of the four-wheeler, the state failed to prove that defendant knew or should reasonably have known that the four-wheeler was stolen. The trial court should have granted defendant’s motion to dismiss the charge of possession of stolen goods.

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Criminal Practice – Second-Degree Murder – Jury Instructions – Felony Murder – Child Abuse – Sentencing – Aggravating Factor (access required)

State v. Barrow Since the state’s evidence would have permitted the jury to find that defendant did not use a deadly weapon but still killed the five-month-old victim with malice, the trial court properly instructed the jury on the offense of second-degree murder. We find no error in defendant’s conviction of second-degree murder, but we remand for re-sentencing.

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Criminal Practice – Sentencing – ACCA – Plea Colloquy (access required)

U.S. v. Taylor Although a defendant says he did not personally affirm a prosecutor’s account of defendant’s encounter with police officers when he pleaded guilty to an earlier assault charge, the district court, in sentencing defendant on a later firearm charge, can find the assault was a “violent felony” and sentence defendant to a mandatory minimum 15-year sentence under the ACCA on the firearm offense, the 4th Circuit says; also, the 4th Circuit joins its sister circuits to hold a second defendant’s sentence can be enhanced for possession of a stolen gun, even though defendant claims he did not know the gun was stolen.

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Criminal Practice – Sentencing – Habitual Felon – Habitual Misdemeanor Assault (access required)

State v. HollowayDefendant was indicted and convicted on two counts of habitual misdemeanor assault, a substantive crime and a class H felony. Defendant was also indicted and convicted on two counts of attaining habitual felon status as defined in G.S. § 14-7.1. Therefore, defendant was properly sentenced as a class C felon. We affirm defendant’s two consecutive sentences of 108 to 139 months.

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Criminal Practice – Attempted Murder – Constitutional – Confrontation Clause – Unavailable Witness – Probable Cause Hearing Testimony – Intent to Kill – Serious Injury – Sentencing – Aggravating Factors (access required)

State v. Ross At the probable cause hearing, defendant was represented by counsel (who was one of his trial counsel), he had the same motive to cross-examine victim Besies as at trial, and his counsel did in fact cross-examine Besies; therefore, defendant had an adequate opportunity to cross-examine Besies. Since Besies was unavailable to testify at trial, the trial court did not violate defendant’s right to confront the witnesses against him when the court admitted Besies’ testimony from the probable cause hearing into evidence.

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Criminal Practice – Attorneys – Proceeding Pro Se – Colloquy with Judge – Sentencing – Federal Conviction (access required)

State v. Watlington Despite defendant’s dissatisfaction with his prior counsel and his clearly stated desire to proceed pro se, the trial court erred by failing to conduct the inquiry required by G.S. § 15A-1242. Therefore, defendant is entitled to a new trial on his indictment for habitual felon status.

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Criminal Practice – Sentencing – ACCA – Indecent Liberties — Vacated (access required)

U.S. v. Vann The en banc 4th Circuit vacates a 15-year sentence under the Armed Career Criminal Act, imposed on a defendant who pleaded guilty to handgun possession, as the per curiam majority finds it cannot determine from state court charging documents that defendant was convicted under subsection (a)(2) of North Carolina’s Indecent Liberties Statute.

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