State v. JordanState v. Jordan
- Reporters:
- , ,
- Before:
- Geer
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 have granted 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
Facts
Defendant and Michael Lindley lived in the same apartment complex. On 19 October 2003, Lindley went to defendant’s apartment; both men had consumed significant quantities of alcohol. Defendant began talking about fighting and, according to Lindley, announced, “[C]an’t nobody whoop me. I’m the baddest man that ever was.” Lindley got up’ to leave, but defendant got “up right there in [his] space,” leading Lindley to strike defendant on the side of the head.
Lindley then went to a local store. Upon returning to his own apartment, Lindley saw defendant in the building stairwell with a shotgun. Lindley apologized for hitting defendant and asked him to put the gun away. Instead, defendant shot Lindley in the left arm. Lindley, as a result, spent six weeks in the hospital.
Defendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury. The jury found him guilty of assault with a deadly weapon inflicting serious injury. The trial judge determined that defendant had a prior record level of III, based on eight prior class Al or 1 misdemeanor convictions. He then sentenced defendant in the presumptive range to 34 to 50 months imprisonment.
Discussion
Prior to trial, defendant filed a motion to suppress his prior convictions under
With respect to the remaining five convictions — the most recent of which occurred in 1987 — the trial court found that defendant failed to meet his burden of proving that they were obtained in violation of his right to counsel. When these five convictions were included in the calculation, defendant had a prior record level of III rather than II.
Defendant argues that the trial court erred in finding that he failed to meet the requirements of
When a defendant has moved to suppress use of a prior conviction under the terms of subsection (a), he has the burden of prov ing by the preponderance of the evidence that the conviction was obtained in violation of his right to counsel. To prevail, he must prove that at the time of the conviction he was indigent, had no counsel, and had not waived his right to counsel. If the defendant proves that a prior conviction was obtained in violation of his right to counsel, the judge must suppress use of the conviction at trial or in any other proceeding if its use will contravene the provisions of subsection (a).
This Court has held that
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.
2
In
Rogers,
this Court held that testimony by a defendant, standing alone, “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
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.
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 lack of 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, la 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 constitu tional 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 “[tjhere 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 is several 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
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
Defendant has also filed a motion for appropriate relief based on Shepard v. United States, 544 U.S. 13, 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 “[ojther 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, 147 L. 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: 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.
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.
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, 172 N.C. App. 829, 837, 617 S.E.2d 319, 325 (2005), however, this Court held “that the trial court erred 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, 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”),
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 23, 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 25, 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 conclusive court 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).
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.
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 25, 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
Allen
that
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
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.
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.
Notes
. As an initial matter, defendant argues that this Court should remand his case to the trial court because the basis upon which the trial court denied his motion to suppress is unclear. Based upon our review of the transcript, it is apparent that the trial court denied the motion because it determined that defendant had failed to meet his burden of proving that he was improperly denied counsel in connection with the prior convictions.
. As to one of these convictions, defendant simply testified that he had “no idea” about the case, suggesting that it was not actually his conviction. Defendant does not, however, argue on appeal that the State failed to meet its burden of proving that defendant was the perpetrator with respect to each of the convictions.
. See Wissink, 172 N.C. App. at 837, 617 S.E.2d at 325 (“In this case, a fact other than a prior conviction, defendant’s probationary status, that increased defendant’s sentence was not submitted to a jury and proved beyond a reasonable doubt.”). The Court did not distinguish between facts that increased a sentence within the presumptive range and facts that caused the sentence to exceed the presumptive range.