Nonstatutory Aggravating Factors

By special request, this post recaps the law of nonstatutory aggravating factors. Under G.S. 15A-1340.16(d), the State may, in addition to the 25 statutory aggravating factors set out in that subsection, attempt to prove "any other aggravating factor reasonably related to the purposes of sentencing." There's no universal agreement on the "purposes of sentencing," but in North Carolina, the General Assembly has set out the primary purposes in G.S. 15A-1340.12. Unlike statutory aggravating factors, which need not be pled in a charging document,  G.S. 15A-924(a)(7) requires that a criminal pleading must include a plain and concise factual statement of any nonstatutory aggravating factors the State intends to use. Nonstatutory factors are, of course, still subject to the rules applicable to any aggravating factor: evidence necessary to prove an element of the conviction offense may not be used to prove a factor in aggravation; the same item of evidence may not be used to prove more than one aggravating factor; and a defendant's exercise of the right to a jury trial may not be an aggravating factor. Because Fair Sentencing also allowed for nonstatutory aggravating factors, a substantial body of case law has developed over the years. The following list (by no means a full treatment of the subject) touches on some of the factors that have been approved, some that have been deemed improper, and the general themes that run through the cases. Note that our courts have said that to be reasonably related to the purposes of sentencing, a nonstatutory aggravating factor must also be reasonably related to the crime of conviction. State v. Borders, 164 N.C. App. 120 (2004). So, a court's acceptance of a nonstatutory factor in one case should not be read as a blanket approval of the factor. Some of these factors may also be hard to prove in a post-Blakely world. Proper Factors The defendant is dangerous to others as a result of social and emotional problems. State v. Ahearn, 307 N.C. 584 (1983). But see State v. Todd, 313 N.C. 110 (1985) (standing alone, a finding that a defendant has a mental or emotional disorder is not a proper nonstatutory aggravating factor, but it may be used as evidence of dangerousness). The defendant could have been charged with additional or more serious crimes but was not. State v. Byrd, 164 N.C. App. 522 (2004); State v. Turner, 103 N.C. App. 331 (1991). The crime was part of a pattern or course of violent conduct by the defendant. State v. Avery, 315 N.C. 1 (1985). The course of conduct may be proved by prior convictions, even when those convictions are also used to elevate the defendant's prior record level. Borders, 164 N.C. App. at 125-26. The defendant left a badly injured victim without making any effort to help him. State v. Applewhite, 127 N.C. App. 677 (1997) (defendant shot the victim, who was seriously injured); State v. Reeb, 331 N.C. 159 (1992). But see State v. Baldwin, 139 N.C. App. 65 (2000) (error to find nonstatutory aggravating factor that a defendant, convicted of second-degree murder, left the victim without rendering aid because it required evidence necessary to prove malice). The offense was premeditated and deliberate, or involved an unusual degree of planning. State v. Ruff, 127 N.C. App. 575 (1997), rev'd in part on other grounds, 349 N.C. 213 (1998). As you can imagine, this factor gets complicated in homicide cases. State v. Melton, 307 N.C. 370 (1983) (proper when defendant pled guilty to second-degree murder); State v. Marley, 321 N.C. 415 (1988) (improper when defendant was tried for first-degree murder but jury convicted him of second-degree murder); State v. Easter, 101 N.C. App. 36 (1990) (proper when defendant pled guilty to voluntary manslaughter). The defendant lacked remorse. State v. Hargrove, 104 N.C. App. 194 (1991) (after beating his father to death with a crowbar, defendant visited a bar and had a beer; four hours later he told police his father "got what he deserved"); State v. Parker, 315 N.C. 249 (1985). The defendant gave alcohol to the victims. State v. Bowers, 146 N.C. App. 270 (2001) (defendant convicted of taking indecent liberties with children). The victim was attacked while asleep, with the defendant knowing the victim's husband was away. State v. Davis, 124 N.C. App. 93 (1996); see also State v. Davy, 100 N.C. App. 551 (1990) (husband away); State v. Thompson, 328 N.C. 477 (1991) (victim asleep). The victim's medical expenses were excessive and surpassed those normally incurred from an assault of its type. State v. Pender, 176 N.C. App. 688 (2006) Defendant joined with one other person in committing the offense and was not charged with conspiracy. State v. Hurt, 359 N.C. 840 (2005) (notwithstanding the existence of the statutory aggravating factor that a defendant joined with more than one person). Defendant's conduct was intended to show disrespect to law enforcement in a manner calculated to be highly publicized. State v. Sammartino, 120 N.C. App. 597 (1995). Improper Factors The courts have consistently rejected as a nonstatutory aggravating factor that a "lesser sentence would unduly deprecate the seriousness of the crime," e.g., State v. Harris, 67 N.C. App. 725 (1984), or that a longer sentence is necessary for deterrence purposes, e.g., State v. Partridge, 66 N.C. App. 427 (1984). Subjecting a victim to degradation and undue humiliation. State v. Robertson, 149 N.C. App. 563 (2002) (masturbating in front of a rape and kidnapping victim, deemed unrelated to the purposes of sentencing). The contraband involved in the defendant's crime was especially dangerous to the community. State v. Coffey, 65 N.C. App. 751 (1984) (noting that the level of dangerousness is built into structure of the Controlled Substances Act). A defendant's refusal to accept responsibility or to cooperate with law enforcement is not a proper aggravating factor, as it would infringe on the defendant's privilege against self-incrimination and the right to plead not guilty. State v. Rollins, 131 N.C. App. 601 (1998); State v. Blackwood, 60 N.C. App. 150 (1982). Of course, a failure to cooperate with law enforcement is not the same as affirmative misconduct directed toward law enforcement, which can support a nonstatutory aggravating factor. See United States v. Ruminer, 786 F.2d 381 (10th Cir. 1986) (giving false leads to investigators, cited in Rollins); State v. Harrington, 118 N.C. App. 306 (1995) (giving false alibi and false name to police); State v. Miller, 142 N.C. App. 435 (2001) (refusal to participate in court proceedings; fleeing the courthouse). A nonstatutory aggravating factor stating that "defendant is a predator" was deemed improper in light of the statutory procedure for declaring someone a sexually violent predator in G.S. 14-208.20. State v. Harris, 166 N.C. App. 386 (2004), rev'd in part on other grounds, 360 N.C. 145 (2005). If there's interest, I'd be happy to address nonstatutory mitigating factors in another post. Let me know!