State v. Clifton3/4/1997
ave specifically addressed whether a trial court during sentencing may consider a pardoned offense as an aggravating factor.
This issue raises a potential conflict between the executive and judicial functions under the North Carolina Constitution. The North Carolina Constitution provides the governor with the exclusive prerogative to issue pardons. N.C. CONST. art. III, § 5(6); see State v. Lewis, 226 N.C. 249, 37 S.E.2d 691 (1946). Here the trial court took judicial notice of defendant's pardon as proof of a prior conviction in order to impose additional punishment for defendant's crime of involuntary manslaughter. In short, the issues we face are: Is the court impinging on the governor's executive power to pardon by increasing defendant's sentence for a present offense based on a prior pardoned offense and may the court properly use the governor's pardon of a prior conviction as proof of that prior conviction? There is a conflict of authority on these issues in other jurisdictions. See G. Van Ingen, Annotation, Pardon as Affecting Consideration of Earlier Conviction in Applying Habitual Criminal Statute, 31 A.L.R.2d 1181 (1953).
A number of courts have held a pardoned conviction cannot be used as a basis for increasing the punishment of a second subsequent offender. 31 A.L.R.2d at 1189; see Havens v. State, 429 N.E.2d 618 (Ind. Sup. Ct. 1981); Guastello v. Dept. of Liquor Control, 536 S.W.2d 21 (Mo. Sup. Ct. 1976); Fields v. State, 85 So. 2d 609 (Fla. Div. A 1956); Kelley v. State, 204 Ind. 612, 185 N.E. 453 (Ind. Sup. Ct. 1933); State v. Childers, 197 La. 715, 2 So. 2d 189 (La. Sup. Ct. 1941); State v. Lee, 171 La. 744, 132 So. 219 (La. Sup. Ct. 1931); State v. Martin, 59 Ohio St. 212, 52 N.E. 188 (Ohio Sup. Ct. 1898); Edwards v. Commonwealth, 78 Va. 39 (1883). Courts following this view have reasoned that the additional punishment imposed on a subsequent offense is not done because there is a subsequent offense alone, but as a consequence of the prior offense; therefore, because the prior offense was blotted out and its consequences removed by the full pardon, the pardoned prior conviction cannot be considered. Edwards, 78 Va. at 49 (1883). Also, at least one court has reasoned that because some states have expressly included pardoned offenses among those that may be considered for purposes of their habitual criminal act, and because their legislature had not, the court had to construe their legislature intended that pardoned offenses not be considered under their habitual felon statute. Kelley, 204 Ind. 612, 185 N.E. 453 (Ind. Sup. Ct. 1933).
Other states, which constitute a majority, hold that the pardon of a conviction does not preclude the underlying conviction from being considered as a prior offense under a statute increasing the punishment for a subsequent offense. Id. ; see State v. Cobb, 403 N.W.2d 329 (Minn. Ct. App. 1987); State v. Wiggins, 360 S.W.2d 716 (Mo. Sup. Ct. 1962); Murray v. Hand, 187 Kan. 308, 356 P.2d 814 (Kan. Sup. Ct. 1961); Shankle v. Woodruff, 64 N.M. 88, 324 P. 2d 1017 (N.M. Sup. Ct. 1958); Dean v Skeen, 137 W. Va. 105, 70 S.E.2d 256 (W. Va. Sup. Ct. 1952); People ex rel. Prisament v. Brophy, 287 N.E.2d 468 (N.Y. Sup. Ct. 1941); State v. Stern, 210 Minn. 107, 297 N.W. 321, 322-23 (Minn. Sup. Ct. 1941); People v. Biggs, 9 Cal. 2d 508, 71 P.2d 214 (Cal. Sup. Ct. 1937); United States v. Salas, 387 F.2d 121, 122 (2d Cir. 1967); Groseclose v. Plummer, 106 F.2d 311, 314 (9th Cir. 1939). One reason stated for this view is that "increased punishment decreed by the statute for any offender who commits a second error is not, however, further punishment for the prior offense. 'The punishment is for the new crime only, but is the heavier if he is an habitual crimina
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