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There is no such thing as a non-statutory aggravating factor. I repeat: There is no such thing as a non-statutory aggravating factor. All together now: There is no such thing as a non-statutory aggravating factor.

NCGS 20-179(d)(9): “Any other factor that aggravates the seriousness of the crime.” This is the catch-all under the DWI sentencing statute. This innocuous-looking language at the bottom of the list of all the specific grossly aggravating and aggravating factors is in fact a hugely dangerous piece of legislation and horribly unconstitutional.

It is dangerous because it allows the prosecutor to make up aggravating factors and it allows a judge to find made-up aggravating factors. More on this later.

In his concurring opinion in Ring v. Arizona, 536 U.S. 584 (2002), Justice Scalia writes: “I believe that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to the imposition of the level of punishment that the defendant receives – whether the statute calls them elements of the offense, sentencing factors, or Mary Jane – must be found by a jury beyond a reasonable doubt.” Ring at ____. Throughout Scalia’s opinion in Blakely v. Washington, 542 U.S. 296 (2004), and his concurring opinions in Ring and Apprendi v. New Jersey, 530 U.S. 466 (2000), as well as Justice Ginsburg’s opinion, in which Scalia joined, in Cunningham v. California, 549 U.S. ____ (2007), the Supreme Court unflinchingly, unwaveringly and repeatedly reminds us that there is no difference between an element of a crime and an aggravating factor.

In Blakely, Scalia responds to Justice O’Connor’s dissent thus: “It bears repeating that the issue between us is not whether the Constitution limits States’ authority to reclassify elements as sentencing factors (we all agree it does)…” Blakely at ___. He goes onto speculate about the absurd consequences that would result in allowing elements to be found by a jury and factors to be found by a judge: “The jury need only find whatever facts the legislature chooses to label elements of the crime, and those it labels sentencing factors – no matter how much they increase the punishment – may be found by a judge. This would mean, for example, that a judge could sentence a man for committing a murder even if the jury convicted him of only illegally possessing the firearm used to commit it – or of making an illegal lane-change while fleeing the death scene.” Blakely at ___.

Justice Scalia’s “greater offense” theory is, in essence, that aggravating factors are simply elements of a greater offense. Throughout Blakely, Scalia refers to “facts legally essential” to the punishment: “Every fact which is legally essential to the punishment must be charged in the indictment and proceed to the jury.” Blakely at ___. In other words, facts that are presented to the judge, post-trial, and the finding of which cause an enhancement of the punishment, are not “legally essential to the punishment” for the crime the defendant has just been convicted of, but become “legally essential” facts to the greater offense of the crime that the defendant has not just been convicted of but which the State seeks to punish the defendant for. Blakely prohibits a jury trial for a lesser offense followed by a bench trial for the greater offense: “The jury could not function as circuitbreaker in the State’s machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong a mere preliminary to a judicial inquisition into facts of the crime the State actually seeks to punish.” Blakely at ___.

Apprendi and Blakely seem to suggest that in order for the State to punish a defendant for a greater offense, it will have to include the aggravating factors in the indictment and prove them to a jury beyond a reasonable doubt. Cunningham allows for the State to indict the defendant on the lesser offense and punish the defendant for the greater offense so long as the State puts the defendant on notice of its intent to use aggravating factors (or elements of the greater offense) to aggravate the lesser offense. This notice requirement eliminates the need to include the aggravating factors in the indictment and allows for a bifurcated hearing; however, the State must still prove to a jury the aggravating factors beyond a reasonable doubt. So a defendant could plead guilty to the lesser offense that he is charged with in the indictment and require a jury to be empaneled to determine whether the elements of the greater offense he has been given notice of are proven beyond beyond a reasonable doubt.

North Carolina has, for the most part, modified its behavior to comply with the Apprendi/Blakely/Ring/Cunningham rule. Other than in District Court (which I disagree with), the State must put the Defendant on notice of its intent to aggravate a DWI; and the Defendant has the right for a jury to decide whether the aggravating factors (elements of the greater offense, or Mary Jane) are proven beyond a reasonable doubt.

Back to non-statutory aggravating factors. None of the Apprendi cases deals with non-statutory aggravating factors. In each case, the factors are known and described by statute. The issue is: whether, when and how those aggravating factors can be used against a defendant. Non-statutory aggravating factors are unconstitutional because they are non-statutory. Since we know aggravating factors are elements of a greater offense, just as no one can create elements of an offense out of thin air, neither can aggravating factors be created out of nothing Only the legislature has the authority to create crimes and their elements; only the legislature has the authority to create aggravating factors – they are the same thing. If elements of a crime (whether it be the lesser offense or the greater offense) are unknown and cannot be found in a statute book, how on earth are people to be expected to know what behavior is allowed and what behavior is disallowed. If, suddenly, behavior a person engaged in is considered an element of a crime yet it exists in no statute, how could any of us ever know if we’re gong to be punished for it? That’s worse than ex post facto. Also, a prosecutor coming up with some “factor that aggravates the seriousness of the offense” permits the executive branch of government to invade the function of the legislative branch, and clearly violates the principle of separation of powers.

There is no such thing as a non-statutory aggravating factor. Just as there is no such thing as a non-statutory element of a crime (elements and factors are the same thing). If an element of a crime doesn’t exist in a statute book, it just doesn’t exist; it can’t be just made up – and certainly not by either the lone employee of the State standing at the prosecutor table or the lone employee of the State sitting on the bench. Do not allow a prosecutor to convince a judge to find non-statutory aggravating factors; they simply don’t exist; they are unconstitutional.

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