STATE OF NORTH CAROLINA
v
.
Caldwell County
No. 05 CRS 1922
JERRY LEE HOLLAR
Attorney General Roy A. Cooper, III, by Special Counsel Isaac
T. Avery, III, for the State.
Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for
defendant-appellant.
JACKSON, Judge.
As a result of a traffic accident on 19 March 2005, Jerry Lee
Hollar (“defendant”) was charged with driving while impaired
(“DWI”). Following a trial in District Court, defendant was found
guilty of DWI on 18 July 2005, which he appealed to the Superior
Court. On 27 February 2006, defendant was tried before a jury in
Caldwell County Superior Court, and subsequently was found guilty
of DWI. During defendant's sentencing hearing, the State presented
evidence showing that defendant had a prior conviction for DWI on
24 July 2003, and that at the time of the instant accident,
defendant's drivers license had been revoked indefinitely as a
result of a previous impaired driving conviction. The trial judge
found as two grossly aggravating factors that: 1) defendant “hasbeen convicted of a prior offense involving impaired driving which
conviction occurred within seven years (7) . . . before the date of
this offense[;]” and 2) he “drove, at the time of the current
offense, while the defendant's drivers license was revoked under
G.S. 20-28 and the revocation was an impaired driving revocation
under G.S. 20-28.2(a).” Defendant was then sentenced under Level
One punishment to a term of six months imprisonment.
On appeal, defendant presents arguments for two of his eight
assignments of error, thus the remaining assignments of error for
which no argument has been presented are deemed abandoned. N.C. R.
App. P. 28(b)(6) (2006).
Defendant's sole argument on appeal is that the trial court
erred in finding the existence of two grossly aggravating factors
pursuant to North Carolina General Statutes, section 20-179, and in
subsequently sentencing defendant under a Level One punishment.
Defendant contends the trial court's unilateral finding of the two
grossly aggravating factors violated the Supreme Court's holding in
Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, reh'g
denied, 542 U.S. 961, 159 L. Ed. 2d 851 (2004), and his
Constitutional right to a jury trial.
In Blakely, the United States Supreme Court reiterated that a
trial court violates a defendant's Sixth Amendment right to jury
trial if it finds any fact, other than the fact of a prior
conviction, which “increases the penalty for a crime beyond the
prescribed statutory maximum.” Id. at 301, 159 L. Ed. 2d at 412.
Thus, “'[o]ther than the fact of a prior conviction, any fact thatincreases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.'” Id. at 301, 159 L. Ed. 2d at 412 (quoting Apprendi v. New
Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000)). Our
state's Supreme Court has held that “[t]he dispositive question for
Blakely purposes is whether the 'jury's verdict alone . . .
authorize[d] the sentence.' Put differently, could the trial court
have pronounced the same sentence without the judicial finding?”
State v. Norris, 360 N.C. 507, 514, 630 S.E.2d 915, 919 (quoting
Blakely, 542 U.S. at 305, 159 L. Ed. 2d at 414), cert. denied, __
U.S. __, 166 L. Ed. 2d 535 (2006). Under Blakely, a trial judge
“does not 'exceed his proper authority' until he 'inflicts
[enhanced] punishment . . . the jury's verdict alone does not
allow.'” Id. (quoting Blakely, 542 U.S. at 304, 159 L. Ed. 2d at
414).
Our precedents . . . have interpreted Blakely
. . . to mean judicial fact-finding does not
trigger the Sixth Amendment right to jury
trial so long as trial courts sentence inside
the presumptive or, a fortiori, the mitigated
range. Here, the court inflicted punishment
within the presumptive range, and consequently
its finding of an aggravating factor did not
implicate the Sixth Amendment.
Id. at 516, 630 S.E.2d at 920.
The trial court's finding that defendant had a prior DWI
conviction within the last seven years was the equivalent of
determining his prior record level, thus the trial court's finding
of this grossly aggravating factor was proper, and did not
constitute error under Blakely. The finding of this one grosslyaggravating factor alone was sufficient for defendant to be
sentenced under a Level Two punishment. See N.C. Gen. Stat. § 20-
179(c) (2005). On appeal, defendant concedes that his prior
conviction for DWI is not subject to the requirements of Blakely,
and thus sentencing under a Level Two punishment would have been
proper based upon his prior conviction for DWI in 2003.
North Carolina General Statutes, section 20-179 provides that
the Level One and Level Two punishment for an individual convicted
of impaired driving shall be:
(g) Level One Punishment. -- A defendant
subject to Level One punishment may be fined
up to four thousand dollars ($4,000) and shall
be sentenced to a term of imprisonment that
includes a minimum term of not less than 30
days and a maximum term of not more than 24
months. The term of imprisonment may be
suspended only if a condition of special
probation is imposed to require the defendant
to serve a term of imprisonment of at least 30
days. If the defendant is placed on
probation, the judge shall impose a
requirement that the defendant obtain a
substance abuse assessment and the education
or treatment required by G.S. 20-17.6 for the
restoration of a drivers license and as a
condition of probation. The judge may impose
any other lawful condition of probation.
(h) Level Two Punishment. -- A defendant
subject to Level Two punishment may be fined
up to two thousand dollars ($2,000) and shall
be sentenced to a term of imprisonment that
includes a minimum term of not less than seven
days and a maximum term of not more than 12
months. The term of imprisonment may be
suspended only if a condition of special
probation is imposed to require the defendant
to serve a term of imprisonment of at least
seven days. If the defendant is placed on
probation, the judge shall impose a
requirement that the defendant obtain a
substance abuse assessment and the education
or treatment required by G.S. 20-17.6 for therestoration of a drivers license and as a
condition of probation. The judge may impose
any other lawful condition of probation.
N.C. Gen. Stat. § 20-179(g), (h) (2005).
In the instant case, defendant was sentenced to an active term
of six months imprisonment with the North Carolina Department of
Correction. His sentence to a term of only six months imprisonment
is one which is permitted under both the Level One and Level Two
sentencing guidelines. As the trial court had the authority to
review defendant's prior convictions, and determine his prior
record level, the trial court did not err in finding the grossly
aggravating factor that defendant had been convicted of a prior
offense involving impaired driving within seven years of the date
of the instant offense. As this finding alone is sufficient to
require the imposition of a Level Two punishment, we hold
defendant's sentence is proper with respect to the finding of this
first grossly aggravating factor.
In State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006),
cert. denied, __ U.S. __, __ L. Ed. 2d __ (May 14, 2007), the
Supreme Court recently held that based upon Washington v. Recuenco,
__ U.S. __, 165 L. Ed. 2d 466 (2006), the failure to submit a
sentencing factor to the jury is subject to harmless error review.
Blackwell, 361 N.C. at 49, 638 S.E.2d at 458. Pursuant to
Blackwell, in conducting the harmless error review, the appellate
court must “weigh the evidence supporting the aggravating factor
and determine whether the evidence was so 'overwhelming' and
'uncontroverted' as to render any error harmless.” Id. at 46, 638S.E.2d at 456 (citing Neder v. United States, 527 U.S. 1, 9, 144 L.
Ed. 2d 35, 47 (1999)). To the extent that there was no evidence
presented during defendant's trial that his license was revoked at
the time of the incident, or that he had any prior DWI conviction
for which his license had been revoked, we cannot say that the
trial court's finding of the second grossly aggravating factor was
harmless error under the Blakely/Recuenco analysis.
However, we still must hold that defendant's Sixth Amendment
right to a jury trial was not violated, based upon the fact that
the sentence he was given is within what is permitted for a Level
Two punishment.
Our General Assembly has created a sentencing structure which
provides the trial court with great discretion when imposing a
sentence upon a defendant. Norris, 360 N.C. at 512, 630 S.E.2d at
918. Under our state's Structured Sentencing Act, a trial court
determines a criminal defendant's minimum sentence based upon a
sentencing chart, which takes into consideration the offense class
of the felony and the defendant's prior record level. N.C. Gen.
Stat. § 15A-1340.17(c) (2005). “The range of potential sentences
for some combinations of offense class and prior record level is
quite large.” Norris, 360 N.C. at 512, 630 S.E.2d at 918.
While sentencing for impaired driving offenses is not imposed
pursuant to the Structured Sentencing Act, the trial judges
imposing sentences for these offenses also are given discretion in
the actual sentences imposed. North Carolina General Statutes,
section 20-179 sets forth the sentencing procedure following aconviction for impaired driving. As with the Structured Sentencing
Act, a defendant's prior convictions for impaired driving and
certain other serious traffic offenses are taken into
consideration. See N.C. Gen. Stat. § 20-179(c)(1), (d)(5)-(8)
(2005). Also, as with a defendant's prior record level under the
Structured Sentencing Act, an impaired driving defendant's prior
convictions for similar traffic offenses will increase the level of
punishment the defendant faces. N.C. Gen. Stat. § 20-179(c), (f)
(2005). The sentencing framework for impaired driving convictions
allows for the trial judge to impose a range of punishment based
upon which of the five levels of punishment into which a defendant
falls. N.C. Gen. Stat. § 20-179(g)-(k) (2005). As noted
previously, a defendant facing a Level One punishment
shall be sentenced to a term of imprisonment
that includes a minimum term of not less than
30 days and a maximum term of not more than 24
months. The term of imprisonment may be
suspended only if a condition of special
probation is imposed to require the defendant
to serve a term of imprisonment of at least 30
days.
N.C. Gen. Stat. § 20-179(g) (2005) (emphasis added). A defendant
facing a Level Two punishment
shall be sentenced to a term of imprisonment
that includes a minimum term of not less than
seven days and a maximum term of not more than
12 months. The term of imprisonment may be
suspended only if a condition of special
probation is imposed to require the defendant
to serve a term of imprisonment of at least
seven days.
N.C. Gen. Stat. § 20-179(h) (emphasis added). Under each of the
two levels of punishment, the trial court has discretion in the
amount of actual prison time a defendant is ordered to serve.
This court has held that when a “[d]efendant's punishment
falls within the presumptive range, our Supreme Court has made it
clear that no factors need be presented to the jury.” State v.
Garcia, 174 N.C. App. 498, 506, 621 S.E.2d 292, 298 (2005) (holding
that since defendant was sentenced within the presumptive range,
the trial court's finding of aggravating factors not admitted by
defendant or submitted to the jury did not violate Blakely). While
the sentencing framework for impaired driving convictions does not
contain a “presumptive range” as found in the Structured Sentencing
Act, the discretion granted to the trial courts in imposing a
sentence within one of the five appropriate levels of punishment is
analogous. Thus, as defendant was given a sentence which is
permissible under either a Level One or Two punishment level, and
he has conceded that based upon his prior impaired driving
convictions he is subject to a Level Two punishment level, we hold
defendant's Sixth Amendment right to a jury trial was not violated,
and his sentence does not constitute error under Blakely. See
Norris, 360 N.C. at 516, 630 S.E.2d at 920; Garcia, 174 N.C. App.
at 506, 621 S.E.2d at 298.
No error.
Judges McGEE and LEVINSON concur.
Report per Rule 30(e).
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