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Level Four Sentences Not Presumptive in DWI Cases

Earlier this year, the North Carolina Court of Appeals held that Level Four sentences are not presumptive in the DWI case, State v. Geisslercrain. The defendant argued that the trial judge’s (instead of the jury’s) finding of an aggravating factor which led to the imposition of a Level Four sentence enhanced the defendant’s sentence beyond the prescribed maximum penalty. The court of appeals agreed with the defendant, holding that the Level Four sentence was not similar to the presumptive range of sentencing under Structured Sentencing.

In Geisslercrain, the defendant was involved in a single vehicle accident, during which her truck ran off the road and rolled several times, causing about $7,000 in damage. After the accident, she was taken to the hospital. At the hospital, the defendant told the trooper investigating the accident that she had taken medications the day of and the day before the accident. These medications included Methadone, Clonazepam, and Adderall. She also told the trooper that she had been drinking alcohol. The defendant was arrested for DWI.

At trial, the jury found the defendant guilty of DWI. However, there were no aggravating factors submitted to the jury for consideration. Instead, the trial court determined that an aggravating factor existed, which was “[t]he negligent driving of [D]efendant led to an accident causing property damage of $1,000.00 or more[.]” The trial court also determined that a mitigating factor (the defendant’s safe driving record) existed. The trial court finally determined that the aggravating factor substantially counterbalanced the mitigating factor and therefore imposed a Level Four sentence. The judge then went on to sentence the defendant to 12 months imprisonment, which he suspended, although the maximum term of imprisonment under a Level Four sentence is 120 days.

On appeal, the defendant argued that the trial court erred in determining itself the existence of an aggravating factor. In Blakely v. Washington (2004), the U.S. Supreme Court applied the rule that that “‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed maximum must be submitted to the jury and proved beyond a reasonable doubt’ – to aggravating factors.”

The court began its analysis by reviewing the DWI sentencing scheme in G.S. 20-179, which contains six levels of sentencing. Just like the Structured Sentencing Act, the defendant’s sentencing range “is determined by the existence and balancing of aggravating and mitigating factors.” However, unlike the Structured Sentencing Act, “the trial court is afforded much less discretion in sentencing under” G.S. 20-179 than under the Structured Sentencing Act.

The three most severe levels of sentencing ranges are imposed only when a “grossly aggravating factor” is found to exist. If there is no grossly aggravating factor, the defendant must be sentenced at Level Three, Level Four, or Level Five.

In Geisslercain, there were were no grossly aggravating factors so the court had to determine whether which of the three remaining levels was appropriate. G.S. 20-179(f)(1) requires that if “[t]he aggravating factors substantially outweigh any mitigating factors,” the trial court must impose a Level Three sentence. G.S. 20-179(f)(3) requires that if “[t]he mitigating factors substantially outweigh any aggravating factors,” the trial court must impose a Level Five sentence. And G.S. 20-179(f)(2) requires that “[i]f there are no aggravating or mitigating factors present or, alternatively, if the aggravating and mitigating factors are ‘substantially counterbalanced,’ then the trial court must impose a Level Four punishment.”

Here, the trial court determined that the single aggravating factor substantially counterbalanced the single mitigating factor, although the existence of the aggravating factor was never submitted to the jury. The court of appeals reasoned that if the trial court had not determined the existence of the aggravating factor, it would have been left with only a mitigating factor and would have been required to impose a Level Five punishment. “Accordingly, the aggravating factor in this case, which was improperly found by the judge, ‘increase[d] the penalty for [the] crime beyond the prescribed maximum,’ and Defendant’s Level Four punishment must be vacated.”

The court of appeals distinguished the Structured Sentencing Act because under that act, “the trial court has the discretion to sentence a defendant within the presumptive range even where only mitigating factors are properly found.” However, under G.S. 20-179, “the trial court does not have the discretion to sentence a defendant to a Level Four punishment where only mitigating factors are properly found, but rather, it is required to sentence the defendant to a Level Five punishment.”

The court of appeals also distinguished its earlier decision in State v. Green (2011) in which the defendant was sentenced to a Level Four punishment based on the existence of two aggravating factors and two mitigating factors. The defendant argued that the trial court erroneously determined the existence of one of the two aggravating factors instead of submitting the issue to the jury. In Green, the court of appeals held that the “level four punishment imposed by the trial court [under G.S. § 20-179] was tantamount to a sentence within the presumptive range [in a structured sentencing case], so that the trial court did not enhance defendant’s sentence even after finding aggravating factors [and, therefore,] Blakely is not implicated.”

The Geisslercain court distinguished Green by reasoning that even without the erroneously found aggravating factor there still existed one aggravating factor and two mitigating factors. In that situation, “the trial court still has the discretion to sentence the defendant to a Level Four punishment since it could have determined, within its discretion, that the one aggravating factor ‘substantially counterbalanced’ the two mitigating factors.” However, in Geisslercain, “without any aggravating factors properly found, the trial court had no discretion but to sentence Defendant to a Level Five punishment.”

Therefore, the court of appeals remanded the case with direction to sentence the defendant to Level Five punishment.

If you have been charged with DWI, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.

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