State v. HantonState v. Hanton
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- Before:
- Levinson
Lead Opinion
Lawrence Hanton (defendant) was convicted of second-degree murder on 24 March 1999. The State presented the trial court with a *251prior record level worksheet that included several prior convictions of defendant in the State of New York. Based on the worksheet, the trial court found that defendant had a prior record Level V. The trial court further found one aggravating factor and one mitigating factor, concluding that the aggravating factor outweighed the mitigating factor. Defendant was sentenced to an aggravated term of 353 to 433 months imprisonment. Defendant appealed to this Court. We remanded defendant’s case for resentencing, concluding that the trial court had erred in sentencing defendant as a Level V offender when the State had not shown by a preponderance of the evidence that the out-of-state convictions were substantially similar to North Carolina offenses. State v. Hanton, 140 N.C. App. 679, 690-91, 540 S.E.2d 376, 383 (2000) (hereinafter Hanton I).
Defendant was resentenced on 22 June 2004. The State presented a prior record level worksheet in which three prior convictions that occurred in New York were used to calculate defendant’s prior record level: (1) second-degree robbery, (2) third-degree robbery, and (3) attempted assault in the second-degree. The State presented the trial court with certified copies of these three felony convictions and with copies of the New York statutes for “robbery; defined,” “robbery in the third degree,” “robbery in the second degree,” and “assault in the second degree.”
*252I.
Defendant first argues that the trial court erred by sentencing defendant to 251 to 311 months in prison where the State did not prove to the jury beyond a reasonable doubt that defendant’s out-of-state convictions were substantially similar to North Carolina offenses. Specifically, defendant asserts that he is entitled to another resentencing in light of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), because the issue as to whether the out-of-state felonies were substantially similar to North Carolina offenses was not submitted to the jury and had the effect of increasing the penalty for defendant’s crime.
In Blakely, the United States Supreme Court held 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.’ ” Blakely, 542 U.S. at 296, 159 L. Ed. 2d at 409 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed, 2d 435, 455 (2000)). The United States Supreme Court further stated that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely, 542 U.S. at 303, 159 L. Ed. 2d at 413-14. In applying Blakely to our structured sentencing scheme, our Supreme Court determined that our “presumptive range” is the equivalent of “statutory maximum.” State v. Allen, 359 N.C. 425, 432, 615 S.E.2d 256, 262 (2005). Thus, the rule of Blakely, as applied to North Carolina’s structured sentencing scheme, 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.” Allen, 359 N.C. at 437, 615 S.E.2d at 265 (emphasis added).
Although defendant was not sentenced beyond the presumptive range for a Level IV offender, he argues that the trial court’s findings regarding the similarity between the New York offenses and the North Carolina offenses increased defendant’s prior record level from Level III to Level IV. Defendant asserts that “[b]ut for the trial court’s findings that the three out-of-state offenses were to be classified as two Class G felonies and a Class A1 misdemeanor, these three offenses would have been classified as three Class I felonies” under N.C.G.S.
Defendant concedes that Blakely exempts “the fact of a prior conviction” from its requirement that facts “that increase[] the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” See Blakely, 542 U.S. at 328, 159 L. Ed. 2d at 412. However, defendant does not argue that his convictions in New York for the prior offenses should have been submitted to the jury. Rather, defendant argues that “the fact that the three New York offenses were substantially similar to two Class G felonies and a Class A1 misdemeanor in North Carolina were facts that increasefd] the penalty for [the] crime beyond the statutory maximum.” Defendant accordingly argues that the question of whether the New York convictions were substantially similar to North Carolina offenses “must [have been] submitted to a jury, and proved beyond a reasonable doubt.”
Defendant supports his argument by citing language in Hanton I. In defendant’s first appeal, he argued that “the question of substantial similarity is a legal issue” that must be decided by the trial court, and that a defendant could not stipulate to whether an out-of-state offense was substantially similar to a North Carolina offense. However, our Court stated: “While we agree [with the State] that a defendant might stipulate that out-of-state offenses are substantially similar to corresponding North Carolina felony offenses, we do not agree that defendant did so here.” Hanton I, 140 N.C. App. at 690, 540 S.E.2d at 383. “Stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate.... This rule is more important in criminal cases, where the interests of the public are involved.” State v. Prevette, 39 N.C. App. 470, 472, 250 S.E.2d 682, 683 (citations omitted). Defendant argues that because our Court stated in Hanton I that a “defendant may stipulate to the question of substantial similarity between out-of-state and in-state offenses, the question must be one of fact and not of law.” Defendant further asserts that if the question of substantial similarity “were a question of law, then it would violate public policy to allow a defendant to stipulate to it.” See Prevette, 39 N.C. App. at 472, 250 S.E.2d at 683 (“The due administration of the criminal law cannot be left to the stipulations of the parties.”).
*254However, contrary to defendant’s argument, the language cited by defendant that “a defendant might stipulate that out-of-state offenses are substantially similar to corresponding North Carolina felony offenses,” see Hanton I, 140 N.C. App. at 690, 540 S.E.2d at 383, is not controlling. In Hanton I, our Court addressed defendant’s contention that the State had not met its burden under N.C.G.S.
Upon examination of the issue, we conclude that whether an out-of-state offense is substantially similar to a North Carolina offense is a question of law that must be determined by the trial court, not the jury. Determining a defendant’s prior record involves “a complicated calculation of rules and statutory applications].]” State v. Van Buren, 98 P.3d 1235, 1241 (Wash. Ct. App. 2004). “This calculation is a mixed question of law and fact. The ‘fact’ is the fact of the conviction,” id., which under Blakely is not a question for a jury. See Blakely, 542 U.S. at 301, 159 L. Ed. 2d at 412. “The law is the proper application of the law to the fact of [a] defendant’s criminal record],]” which often involves, as the present case does, comparing “the elements of a defendant’s prior convictions under the statutes of foreign jurisdictions with the elements of crimes under [North Carolina] statutes.” Van Buren, 98 P.3d at 1241. The comparison of the elements of an out-of-state criminal offense to those of a North Carolina criminal offense “does not require the resolution of disputed facts.” *255Id. Rather, it involves statutory interpretation, which is a question of law. See Dare County Bd. of Educ. v. Sakaria, 127 N.C. App. 585, 588, 492 S.E.2d 369, 371 (1997) (“Statutory interpretation presents a question of law.”).
Defendant argues that the United States Supreme Court’s recent decision in Shepard v. United States, - U.S. -, 161 L. Ed. 2d 205 (2005), supports defendant’s argument that a jury must decide the question of substantial similarity. However, our review of Shepard shows that it is inapposite to the present case. The issue before the United States Supreme Court in Shepard was the extent of what a sentencing court, in the context of the enhanced sentencing provisions of the Armed Career Criminals Act of 1986,
We conclude that the- question of whether a conviction under an out-of-state statute is substantially similar to an offense under North Carolina statutes is a question of law to be resolved by the trial court. Furthermore, the question is so related to a trial court’s calculation of a prior record that it is covered by the exception to the Blakely rule that “the fact of a prior conviction” does not need to be proven to a jury beyond a reasonable doubt. See Blakely, 542 U.S. at 301, 159 L. Ed. 2d at 412. The trial court in the present case did not err in not requiring that this issue be proven to the jury beyond a reasonable doubt, and defendant is not entitled to another resentencing in light of Blakely.
*256II.
Defendant similarly argues that the trial court erred by sentencing defendant to 251 to 311 months in prison where the State did not allege in the indictment that defendant’s out-of-state convictions were substantially similar to North Carolina offenses. Defendant asserts that our Supreme Court, in State v. Lucas, held that “any fact that increases the maximum penalty for a crime must be alleged in an indictment.” See Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001), overruled in part by Allen, 359 N.C. at 437, 615 S.E.2d at 265. However, defendant misstates the holding in Lucas, which only referred to facts that would enhance a sentence under
Moreover, the rule in Lucas cited by defendant was recently overruled by our Supreme Court. Allen, 359 N.C. at 438, 615 S.E.2d at 265 (overruling the “language of Lucas, requiring sentencing factors which might lead to a sentencing enhancement to be alleged in an indictment”). Furthermore, even before Allen, our Supreme Court, in examining short-form indictments, “recognized that the Fifth Amendment’s guarantee to indictment by a grand jury was not applicable to the states, and [that] as such, ‘all the elements or facts which might increase the maximum punishment for a crime’ do not necessarily need to be listed in an indictment.” State v. Hunt, 357 N.C. 257, 272, 582 S.E.2d 593, 603 (quoting State v. Wallace, 351 N.C. 481, 508, 528 S.E.2d 326, 343 (2000)), cert. denied, 539 U.S. 985, 156 L. Ed. 2d 702 (2003). As such, defendant’s assignment of error is overruled.
III.
Defendant next argues that the trial court erred by finding that the New York offense of second-degree assault was substantially similar to the North Carolina offense of assault inflicting serious injury, when some of the acts that constitute second-degree assault in New York would only amount to simple assault in North Carolina. At defendant’s resentencing hearing, the State presented the trial court *257with the 1993 version of the New York statute for second-degree assault. The trial court determined that the statute had not been modified since defendant had been convicted of second-degree assault in 1990. The statute provides that a person is guilty of second-degree assault when:
1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or
2. With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or
3. With intent to prevent a peace officer, police officer, a fireman, including a fireman acting as a paramedic or emergency medical technician administering first aid in the course of performance of duty as such fireman, or an emergency medical service paramedic or emergency medical service technician, from performing a lawful duty, he causes physical injury to such peace officer, police officer, fireman, paramedic or technician; or
4. He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or
5. For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical impairment or injury to another person by administering to him, without his consent, a drug, substance or preparation capable of producing the same; or
6. In the course of and in furtherance of the commission or attempted commission of a felony, other than a felony defined in article one hundred thirty which requires corroboration for conviction, or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of the participants; or
7. Having been charged with or convicted of a crime and while confined in a correctional facility, as defined in subdivision three of section forty of the correction law, pursuant to such charge or conviction, with intent to cause physical injury to another person, he causes such injury to such person or to a third person; or
8. Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly causes serious physical injury to such person.
*258NY CLS Penal § 120.05 (1993). The trial court in the present case found that the elements of New York’s second-degree assault were substantially similar to North Carolina’s assault inflicting serious injury, which is an A1 misdemeanor under
Under paragraph six of NY CLS Penal § 120.05, a defendant is guilty of second-degree assault if the defendant “causes physical injury” to a person while committing another felony or while fleeing from the commission of a felony. Because a defendant need not cause “serious injury” under this section of New York’s statute on second-degree assault, this particular act does not correspond with assault inflicting serious injury under N.C.G.S.
Defendant argues, and we agree for the reasons that follow, that because neither paragraphs six nor seven of NY CLS Penal § 120.05 require “serious injury”, the offense most substantially similar to the New York offense on this record was simple assault.
N.C.G.S.
The State argues that our Court addressed this very issue in State v. Rich, 130 N.C. App. 113, 502 S.E.2d 49 (1998), which the State argues controls the present case. The defendant in Rich argued that “his conviction of ‘assault with intent to cause serious injury,’ occurring in New York, should have been classified by the trial court as a Class A1 misdemeanor rather than a Class I felony for sentencing purposes.” Id. at 117, 502 S.E.2d at 52. However, we never reached the merits of this issue because the defendant had failed to preserve the issue for appeal pursuant to
Thus, we conclude that the trial court erred in finding New York’s second-degree assault to be substantially similar to North Carolina’s assault inflicting serious injury, which is a Class A1 misdemeanor, as opposed to simple assault, which is a Class 2 misdemeanor. See N.C.G.S.
We observe that the following issues are not presented by this appeal: whether (1) G.S.
We reverse the trial court’s order and judgment sentencing defendant to 251 to 311 months imprisonment, and grant defendant a new sentencing hearing.
Affirmed in part; reversed and remanded for resentencing.
Judge HUNTER concurs. Judge McGEE concurs in part and dissents in part.
Concurrence Opinion
concurring in part and dissenting in part.
I concur with the majority’s determination of the second and third issues, but respectfully dissent as to the first issue because I disagree with the majority’s overly broad conclusion that “whether an out-of-state offense is substantially similar to a North Carolina offense is a question of law that must be determined by the trial court, not a jury.” (emphasis added).
In the present case, it appears from the record that the trial court solely conducted a comparison of the elements of the two statutes and did not appear to undertake any type of factual analysis of the circumstances underlying defendant’s prior conviction. The trial court relied only on the statutes in making its determination, and therefore was within the bounds of Shepard. However, the majority’s conclusion that substantial similarity is a question of law that a trial court, and not a jury, must determine may lead a trial court into an inherent *261factual analysis that Shepard and Blakely require be determined by a jury. Absent guidance by
Under Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), “ ‘[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.’ ” Blakely, 542 U.S. 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)). The rule of Blakely, as applied to North Carolina’s structured sentencing scheme through State v. Allen, 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.” Allen, 359 N.C. 425, 437, 615 S.E.2d 256, 265 (2005). After Blakely, the North Carolina General Assembly enacted Session Law 2005-145 (the Blakely bill), which revised the Structured Sentencing Act to conform with the Sixth Amendment protections afforded a defendant at sentencing by Blakely. See 2005 N.C. Sess. Laws ch. 145. However, the Blakely bill did not amend N.C.G.S.
Defendant contends that a determination of substantial similarity under N.C.G.S.
In Shepard, the Supreme Court reasoned that, while the disputed fact of whether a prior conviction was violent could “be described as a fact about a prior conviction, it [was] too far removed from the conclusive significance of a prior judicial record, and too much like the *262findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorize^] a [trial court] to resolve the dispute.” Shepard v. United States, 544 U.S. -,-, 161 L. Ed. 2d 205, 217. In light of Shepard, the question for our Court is whether a finding of substantial similarity under N.C.G.S.
In deciding Shepard, the Supreme Court built upon the rationale of its earlier Sixth Amendment case, Taylor v. United States, 495 U.S. 575, 109 L. Ed. 2d 607 (1990), in which the Court interpreted ACCA to require a trial court to examine “only [] the fact of conviction and the statutory definition of the prior offense” to determine whether a defendant’s prior conviction could be characterized as a “burglary” under the enhancement statute. Taylor, 495 U.S. at 602, 109 L. Ed. 2d at 629. In so holding, the Court anticipated that allowing a broader evidentiary inquiry by a trial court might raise issues of violation of a defendant’s right to a jury trial. Id. at 601, 109 L. Ed. 2d at 629. Following this concern, the Supreme Court later imposed the rule, in Jones and Apprendi, that any fact other than a prior conviction must be found by the jury. See Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455; see also Jones, 526 U.S. 227, 243 n.6, 143 L. Ed. 2d 311, 326 n.6 (1999).
The Supreme Court in both Taylor and Shepard read the ACCA recidivism statute as a categorical approach to establishing the fact of a prior conviction. “[T]he enhancement provision always has embodied a categorical approach to the designation of predicate offenses. . . . Congress intended that the enhancement provision be triggered by crimes having certain specified elements[.]” Taylor, 495 U.S. at 588, 109 L. Ed. 2d at 620-21; see also Shepard, 544 U.S. at -, 161 L. Ed. 2d at 213-14. The Supreme Court explained that ACCA referred to predicate offenses “in terms not of prior conduct but of prior ‘convictions.’ ” Shepard, 544 U.S. at — , 161 L. Ed. 2d at 213-14 (quoting Taylor, 495 U.S. at 600-01, 109 L. Ed. 2d 607, 628). Like *263ACCA, N.C.G.S.
In State v. Poore, 172 N.C. App. 839, 616 S.E.2d 639 (2005), our Court recently decided that a determination by a trial court, rather than a jury, that all elements of a defendant’s current offense were included in a prior offense, for purposes of determining a defendant’s prior record levél, did not violate Blakely. We held that “neither Blakely nor Allen preclude the trial court from assigning a point in the calculation of one’s prior record level where ‘all the elements of the present offense are included in [a] prior offense.’ ” Poore, 172 N.C. App. at 840, 616 S.E.2d at 642 (quoting
The Fourth Circuit Court of Appeals recently considered Shepard in the case of United States v. Washington, 404 F.3d 834 (4th Cir. 2005). Although the Fourth Circuit’s decision rests on federal law rather than state law, its analysis is instructive. In Washington, the trial court concluded, after fact-finding, that the defendant’s prior conviction of breaking and entering was a “violent” offense under the federal sentencing guidelines, because the trial court found that the prior offense “ ‘otherwise involvefd] conduct that presents a serious potential risk of physical injury to another.’ ” Washington at 838 (quoting USSG § 4B1.2(a)(2)). In making its determination, the trial court relied on extra-indictment evidence, namely a memorandum prepared by the State and the questioning of counsel about the specifics of the prior offense. The Fourth Circuit held that under the line of cases following Apprendi, the trial court’s determination that the defendant’s prior conviction presented a serious potential risk of physical injury “involved more than the ‘fact of a prior conviction’ exempted by Apprendi from Sixth Amendment protection.” Washington, 404 F.3d at 841. The Fourth Circuit held that the determination was a disputed fact “ ‘about a prior conviction’ ” to which Sixth Amendment protections apply. Washington at 842 (quoting Shepard, 544 U.S. at -, 161 L. Ed. 2d at 217) (emphasis in Washington). The Fourth Circuit continued:
In these circumstances, the sentencing court relied on facts outside of the prior indictment and resolved a disputed fact “about a prior conviction,” - namely, that the prior conviction was one which “otherwise involve [d] conduct that presents a serious potential risk of physical injury to another.” These findings are “too far removed from the conclusive significance of a prior judicial record,” and “too much like the findings subject to Jones and Apprendi[] to say that Almandarez-Torres clearly authorizes a judge to resolve the dispute[.]” This process and its results thus raise the very “risk” identified in Shepard, that Sixth Amendment error occurred.
Washington, 404 F.3d at 842 (internal citations omitted).
Particularly where, as in the present case, the elements of a foreign conviction are broader than those of a North Carolina offense, a trial court may very well undertake an inherent factual inquiry into defendant’s conduct to resolve whether defendant would *265have been convicted under a similar North Carolina law. Such an inquiry is not merely a question of law, as determined by the majority opinion, and is “ ‘too far removed from the conclusive significance of a prior judicial record,’ and ‘too much like the findings subject to Jones and Apprendi[] to say that Almandarez-Torres clearly authorizes a judge to resolve the dispute[.]’ ” Id. Such an inquiry and its results thus present the risk identified in Shepard, a violation of a defendant’s Sixth Amendment right to a jury trial under Blakely, and would require the jury, not the trial court, to determine substantial similarity.