1. Sentencing_prior convictions_indigency_insufficient evidence
A defendant being sentenced failed to meet his burden of proving that he was indigent at the
time of challenged prior convictions. N.C.G.S. § 15A-980.
2. Sentencing_prior convictions_presumption of regularity_right to counsel
Prior convictions were entitled to a presumption of regularity in a sentencing proceeding
where the convictions were 20 years old and the records had been routinely destroyed. The trial
court did not err by placing the burden of proof on defendant, who offered no reason that the
presumption of regularity should not apply.
3. Sentencing_prior convictions_jury findings_not required
Jury findings were not required where a defendant sentenced within the presumptive range
challenged his prior convictions. The State met its burden by presenting certified records, and the
trial court was entitled to sentence defendant in the presumptive range without further proof.
4. Indictment and Information_sentencing factors_ not required
Sentencing factors are not required to be alleged in the indictment.
Appeal by defendant from judgment entered 19 May 2004 by Judge
Kenneth C. Titus in Alamance County Superior Court. Heard in the
Court of Appeals 17 August 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Marc X. Sneed, for the State.
Bruce T. Cunningham, Jr. for defendant-appellant.
GEER, Judge.
Defendant Ernest Keith Jordan appeals from his conviction and
sentence for assault with a deadly weapon inflicting serious
injury. He challenges only the trial court's calculation of his
prior record level, contending (1) that the court should havegranted his motion to suppress use of certain prior convictions on
the grounds that they were obtained in violation of his right to
counsel and (2) that a jury rather than the trial judge should have
determined defendant's prior record level. We hold that the Sixth
Amendment did not require that a jury determine defendant's prior
record level. Further, the trial court properly applied N.C. Gen.
Stat. § 15A-980 (2003) in determining that defendant failed to meet
his burden of proving that prior convictions were obtained in
violation of his right to counsel.
This Court has held that N.C. Gen. Stat. § 15A-980(c) requires that
a defendant prove all three of the following facts: (1) he was
indigent, (2) he had no counsel, and (3) he did not waive his right
to counsel. State v. Rogers, 153 N.C. App. 203, 216, 569 S.E.2d
657, 666 (2002), disc. review denied, 357 N.C. 168, 581 S.E.2d 442
(2003).
The only evidence offered by defendant to meet his burden was
his own testimony that he did not have an attorney for each
conviction and that he was not able to afford one at that time.
(See footnote 2)
In Rogers, this Court held that testimony by a defendant, standingalone, "that he could not afford an attorney at the time of a prior
conviction does not prove by a preponderance of the evidence that
the defendant was indigent, as required under N.C.G.S. § 15A-980."
Id. at 217, 569 S.E.2d at 666. The Court then held: "Having
concluded defendant failed to prove by a preponderance of the
evidence that he was indigent at the time of the prior convictions,
we need not consider whether defendant had waived his right to
counsel." Id. See also State v. Brown, 87 N.C. App. 13, 22-24,
359 S.E.2d 265, 270-71 (1987) (upholding denial of motion to
suppress when the sole evidence of indigency was the defendant's
testimony that he could not afford an attorney).
Here, defendant contends that a finding of indigency is
supported not only by his own testimony, but also by the trial
court's finding in this case that defendant was indigent both at
the trial and at the appellate level. The fact that defendant may
presently be indigent is not, however, relevant to whether
defendant was indigent when convicted during the period 1981
through 1987, the time frame of the prior convictions at issue.
Rogers and Brown, therefore, establish that the trial court did not
err in determining that defendant failed to meet his burden of
proving that he was indigent at the time of the prior convictions.
[2] Defendant next argues that by placing the burden of proof
on defendant, the trial court violated Boykin v. Alabama, 395 U.S.
238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969). Defendant states in
his brief that he "strenuously contends that under Boykin the
burden is on the state to show the presence of an attorney or lackof indigency, rather [than] the burden being on the Defendant to
show the absence of an attorney or the fact of indigency."
Defendant notes that the trial court expressed concerns about
Boykin in light of the fact that because of the age of defendant's
prior convictions, most of the documentation regarding those
convictions had been destroyed.
In Boykin, the United States Supreme Court found reversible
error when a trial judge accepted a defendant's guilty plea without
creating a record affirmatively showing that the plea was knowing
and voluntary. Id. at 242, 23 L. Ed. 2d at 279, 89 S. Ct. at 1711.
The Court held that a waiver of rights resulting from a guilty plea
will not be inferred "from a silent record." Id. Defendant also
points to language in Boykin stating that "'[t]he record must show,
or there must be an allegation and evidence which show, that an
accused was offered counsel but intelligently and understandingly
rejected the offer. Anything less is not waiver.'" Id. (quoting
Carnley v. Cochran, 369 U.S. 506, 516, 8 L. Ed. 2d 70, 77, 82 S.
Ct. 884, 890 (1962)).
In Parke v. Raley, 506 U.S. 20, 22-23, 121 L. Ed. 2d 391, 399,
113 S. Ct. 517, 519 (1992), however, the Supreme Court revisited
and clarified Boykin. In Raley, the Court considered Kentucky's
recidivist sentencing statute. Id. at 23, 121 L. Ed. 2d at 400,
113 S. Ct. at 520. As defendant does here, the defendant in Raley
challenged the constitutionality of the Kentucky statute under
Boykin on the grounds that it did not require the prosecution to
bear the burden of proving the validity of prior convictions. Id.at 22-23, 121 L. Ed. 2d at 400, 113 S. Ct. at 520. In rejecting
the defendant's argument, the Court explained:
We see no tension between the Kentucky
scheme and Boykin. Boykin involved direct
review of a conviction allegedly based upon an
uninformed guilty plea. Respondent, however,
never appealed his earlier convictions. They
became final years ago, and he now seeks to
revisit the question of their validity in a
separate recidivism proceeding. To import
Boykin's presumption of invalidity into this
very different context would, in our view,
improperly ignore another presumption deeply
rooted in our jurisprudence: the "presumption
of regularity" that attaches to final
judgments, even when the question is waiver of
constitutional rights. Although we are
perhaps most familiar with this principle in
habeas corpus actions, it has long been
applied equally to other forms of collateral
attack. Respondent, by definition,
collaterally attacked his previous
convictions; he sought to deprive them of
their normal force and effect in a proceeding
that had an independent purpose other than to
overturn the prior judgments.
Id. at 29-30, 121 L. Ed. 2d at 403-04, 113 S. Ct. at 523 (internal
citations omitted).
The Court then observed that "[t]here is no good reason to
suspend the presumption of regularity" when a defendant
collaterally attacks a prior conviction being used to enhance a
sentence. Id. at 30, 121 L. Ed. 2d at 404, 113 S. Ct. at 523. The
Court wrote:
This is not a case in which an extant
transcript is suspiciously "silent" on the
question whether the defendant waived
constitutional rights. Evidently, no
transcripts or other records of the earlier
plea colloquies exist at all. . . . The
circumstance of a missing or nonexistent
record is, we suspect, not atypical,
particularly when the prior conviction isseveral years old. But Boykin colloquies have
been required for nearly a quarter century.
On collateral review, we think it defies logic
to presume from the mere unavailability of a
transcript (assuming no allegation that the
unavailability is due to governmental
misconduct) that the defendant was not advised
of his rights. In this situation, Boykin does
not prohibit a state court from presuming, at
least initially, that a final judgment of
conviction offered for purposes of sentence
enhancement was validly obtained.
Id., 113 S. Ct. at 524. The Court then concluded: "Our precedents
make clear . . . that even when a collateral attack on a final
conviction rests on constitutional grounds, the presumption of
regularity that attaches to final judgments makes it appropriate to
assign a proof burden to the defendant." Id. at 31, 121 L. Ed. 2d
at 405, 113 S. Ct. at 524.
In this case, defendant is collaterally attacking his prior
convictions on the ground that they were obtained in violation of
his constitutional right to counsel. Under Raley, those prior
convictions are entitled to a "presumption of regularity."
Defendant offers no reason why that presumption should not apply to
challenges under N.C. Gen. Stat. § 15A-980; indeed, defendant fails
to acknowledge Raley at all. Like Raley, the record in this case
is not suspiciously silent; the 20-year-old records had been,
according to the parties, routinely destroyed. Also as in Raley,
at the time of the prior convictions, defendant's right to counsel
had been long recognized. We can perceive no reasoned basis upon
which to distinguish Raley. Based on Raley, we hold that
defendant's argument that Boykin precluded placing the burden of
proof on defendant is without merit. [3] Defendant has also filed a motion for appropriate relief
based on Shepard v. United States, 544 U.S. __, 161 L. Ed. 2d 205,
125 S. Ct. 1254 (2005), which was decided after defendant filed his
brief on appeal. Defendant contends that Shepard requires that a
jury decide whether his prior convictions were obtained in
violation of his constitutional right to counsel.
We first note that defendant's argument is actually based on
Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct.
2348 (2000) and _ although unmentioned in defendant's brief _ on
Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct.
2531 (2004), in which the Supreme Court held that the principles of
Apprendi applied with respect to sentencing. Defendant's counsel
was aware of Blakely, as indicated by defendant's abandoned fifth
assignment of error, which states that the trial court erred under
Blakely in failing to find a specified mitigating factor. At the
time of the filing of his initial brief, defendant was in a
position to make the arguments raised in his motion for appropriate
relief, but failed to do so. Nevertheless, because this Court
previously allowed defendant's request to file a supplemental brief
addressing Shepard, we exercise our discretion to consider
defendant's arguments.
In Apprendi, the United States Supreme Court held that the
Sixth Amendment requires that "[o]ther than the fact of 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." Apprendi, 530 U.S. at 490, 147L. Ed. 2d at 455, 120 S. Ct. at 2362-63. Subsequently, our Supreme
Court held that the "statutory maximum" in North Carolina is the
top of the presumptive range:
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.
State v. Allen, 359 N.C. 425, 437, 615 S.E.2d 256, 264-65 (2005).
As set out in Allen, therefore, the Apprendi and Blakely
requirement of a jury applies in sentencing when (1) the fact
results in a sentence in excess of the presumptive range, and (2)
the fact is other than that of a prior conviction.
We first note that defendant was sentenced within the
presumptive range. The trial court's findings regarding
defendant's prior convictions did not increase the penalty imposed
on defendant beyond the presumptive range. Accordingly, Allen
suggests that neither Apprendi nor Blakely should apply. See also
Allen, 359 N.C. at 439, 615 S.E.2d at 266 ("We emphasize that
Blakely, which is grounded in the Sixth Amendment right to jury
trial, affects only those portions of the Structured Sentencing Act
which require the sentencing judge to consider the existence of
aggravating factors not admitted to by a defendant or found by a
jury and which permit the judge to impose an aggravated sentence
after finding such aggravating factors by a preponderance of the
evidence."). In State v. Wissink, __ N.C. App. __, __, 617 S.E.2d
319, 325 (2005), however, this Court held "that the trial courterred by adding a point to defendant's prior record level [because
the crime was committed while the defendant was on probation]
without first submitting the issue to a jury to find beyond a
reasonable doubt." Although the Court did not address the
requirement in Allen that the fact at issue must cause the
defendant's sentence to be increased above the presumptive range,
(See footnote 3)
we are not free to revisit the decision in Wissink. In re Civil
Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
The parties debate whether this case involves the other
predicate set out in Allen and Apprendi: that the disputed fact be
other than the fact of a prior conviction. While the State
contends that the issues involved fall squarely within the
exception to Apprendi, defendant urges that a jury must resolve all
factual disputes relating to a prior conviction.
In Shepard, the United States Supreme Court considered the
ability of a trial judge to resolve disputed factual issues about
a prior conviction. Shepard involved the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e) (2000), which mandates a 15-year
minimum prison sentence for anyone possessing a firearm after three
prior convictions for serious drug offenses or violent felonies.
Shepard, 544 U.S. at __, 161 L. Ed. 2d at 211, 125 S. Ct. at 1257.
ACCA considers burglary a violent felony if committed in a buildingor enclosed space, but not if committed in a boat or motor vehicle.
Id. Because the Shepard defendant's prior state convictions were
obtained under a statute that did not limit burglary in that
manner, the question arose regarding what information a trial court
could consider in deciding whether the state convictions fell
within the scope of ACCA. In deciding to enhance the defendant's
sentence, the trial court considered police reports and complaint
applications that contained details suggesting the defendant's
prior burglaries were committed within a building or enclosed
space. Id. at __, 161 L. Ed. 2d at 212, 125 S. Ct. at 1258.
While the Supreme Court did not question the trial court's
ability to resolve this factual dispute without a jury, the Court
limited the scope of material that the trial court could consider
under ACCA to "records of the convicting court approaching the
certainty of the record of conviction." Id. at __, 161 L. Ed. 2d
at 216, 125 S. Ct. at 1261. The plurality concluded that this
limitation was necessary to avoid the Sixth Amendment concerns
underlying Apprendi. Id. at __, 161 L. Ed. 2d at 217, 125 S. Ct.
at 1262.
The Fourth Circuit has recently succinctly summarized the
Supreme Court's analysis and conclusion in Shepard:
[The Supreme Court] prohibited judges from
resolving a "disputed fact . . . about a prior
conviction," id. at 1262, if doing so required
data _ like that found in police reports _
that was not inherent in that prior
conviction. At the same time, however,
Shepard explicitly affirmed that the prior
conviction exception remained good law. Id.
at 1262. To this end, the Court authorized
judges to rely on a variety of conclusivecourt documents when determining the nature of
a prior conviction. Approved sources include,
for instance, the prior court's jury
instructions or the "charging documents filed
in the court of conviction." Id. at 1259.
When there was no jury in the prior case,
judges may use not only charging documents but
"a bench-trial judge's formal rulings of law
and findings of fact." Id. For prior guilty
pleas, "the terms of the charging document,
the terms of a plea agreement or transcript of
colloquy between judge and defendant in which
the factual basis for the plea was confirmed
by the defendant, or [] some comparable
judicial record of this information," are all
also available for use. Id. at 1263 n.3.
United States v. Thompson, 421 F.3d 278, 281-82 (4th Cir. 2005)
(alteration in original).
With respect to the application of the Shepard analysis to
this case, the parties have overlooked a fundamental distinction.
The Shepard Court recognized that "the Sixth and Fourteenth
Amendments guarantee a jury standing between a defendant and the
power of the state, and they guarantee a jury's finding of any
disputed fact essential to increase the ceiling of a potential
sentence." Shepard, 544 U.S. at __, 161 L. Ed. 2d at 217, 125 S.
Ct. at 1262 (emphasis added). In Shepard, the trial court could
not impose the sentence unless the prosecution proved that the
defendant was previously convicted of a violent felony. It
squarely fell within Apprendi and Blakely because it required proof
by the Government of facts beyond those found by the jury. See
Blakely, 542 U.S. at __, 159 L. Ed. 2d at 413, 124 S. Ct. at 2537
(holding that a jury must find any facts necessary to impose a
sentence greater than that which "a judge may impose solely on thebasis of the facts reflected in the jury verdict or admitted by the
defendant" (emphasis omitted)).
In this case, however, the trial court was entitled to impose
the sentence at issue based on the jury's findings and the State's
proof of defendant's prior convictions. The State met its burden
of proving the prior convictions by presenting a certified Division
of Criminal Information printout and a certified Division of Motor
Vehicles driving history. N.C. Gen. Stat. § 15A-1340.14(f) (2003)
(allowing proof of prior convictions by a copy of records
maintained by the Division of Criminal Information, the Division of
Motor Vehicles, or of the Administrative Office of the Courts).
Defendant does not argue that the State failed to meet the
requirements of N.C. Gen. Stat. § 15A-1340.14. As explained above,
the State had no further burden and the trial court was entitled to
sentence defendant to the presumptive range sentence without proof
of any further facts. Apprendi and Blakely are, therefore, not
implicated.
Defendant's argument regarding the validity of his prior
convictions _ an issue upon which he bore the burden of proof _ is
an effort to decrease the sentence that he would otherwise receive.
Thus, the disputed fact is not "essential to increase the ceiling
of a potential sentence," Shepard, 544 U.S. at __, 161 L. Ed.2d at
217, 125 S. Ct. at 1262, but rather is essential to decrease the
potential sentence. Defendant's collateral attack on his prior
convictions is analogous to a defendant's seeking to prove
mitigating circumstances. Our Supreme Court confirmed in Allenthat Blakely does not require that a jury make findings with
respect to mitigating factors. Allen, 359 N.C. at 439, 615 S.E.2d
at 266 ("Those portions of N.C.G.S. § 15A-1340.16 which govern a
sentencing judge's finding of mitigating factors and which permit
the judge to balance aggravating and mitigating factors otherwise
found to exist are not implicated by Blakely . . . .").
We have found no authority in any jurisdiction suggesting that
a jury must decide issues _ upon which a defendant has the burden
of proof _ that would decrease a defendant's sentence. The Fourth
Circuit has, however, held in an unpublished opinion that neither
Blakely nor Shepard required reversal when a trial court rejected
the defendant's contention that one of the convictions used in
determining his sentence was obtained in violation of his right to
counsel. United States v. Jones, Nos. 04-4179, 04-4183, 2005 U.S.
App. LEXIS 21484, at *4-5 (4th Cir. Oct. 4, 2005) (per curiam). We
similarly hold that the trial judge did not err in resolving the
factual issues underlying defendant's motion to suppress his prior
convictions.
[4] Finally, defendant's motion for appropriate relief also
argues that under State v. Lucas, 353 N.C. 568, 548 S.E.2d 712
(2001), the trial court was without jurisdiction to impose a
sentence above a prior record level I because defendant's prior
convictions were not alleged in his indictment. Our Supreme Court
has, however, recently overruled Lucas to the extent it required
that sentencing factors be alleged in an indictment. Allen, 359 N.C. at 438, 615 S.E.2d at 265. We, therefore, affirm the sentence
imposed by the trial court.
No error.
Judges CALABRIA and ELMORE concur.
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