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North Carolina v. Denning5/6/1986
-> "That the judge rather than the jury makes the crucial factual determinations upon which the ultimate sentence is based does not contravene either state or federal constitutional guarantees of a jury trial in criminal cases." Id., 249 S.E.2d at 719-20.
The 1979 amendments to the kidnapping statute effected a critical change in the statutory role of those mitigating circumstances. They were converted from being mere mitigating factors for purposes of sentencing to factors that determined whether the
offense was to be punishable as a first degree kidnapping, a Class D felony, or as a second degree kidnapping, a Class C felony. In State v. Jerrett, 309 N.C. 239, 307 S.E.2d 339 (1983), this Court held that because of these modifications, "the language of G.S. 14-39(b) states essential elements of the offense of first-degree kidnapping and does not relate to matters in mitigation of punishment." Id. at 261, 307 S.E.2d at 351.
Because the current driving-while-impaired provisions are structurally analogous to the kidnapping statute in effect at the time of Williams rather than that in effect when Jerrett was issued, the opposite result obtains in the case before us: the factors listed in N.C.G.S. § 20-179 relate only to matters of punishment and do not state essential elements of the offense of driving while impaired. This comparison of the significance of recent amendments to the kidnapping and driving-while-impaired statutes supports our holding that the sentencing procedure of N.C.G.S. § 20-179, like the procedure considered in Williams, contravenes neither state nor federal constitutional guarantees of a jury trial in criminal cases.
Objections on sixth amendment grounds to the use of prior convictions as an aggravating factor in sentencing have also been answered by courts reviewing certain recidivist statutes. A federal statute providing for increased sentences for defendants of "dangerous special offender status," 18 U.S.C. 3575(b), provides that the court, sitting without a jury, determine whether the defendant is "dangerous" or a "special offender." The Fourth, Fifth, and Sixth Circuits have all held that this statute "does not create a new and distinct criminal charge. Rather, the dangerous special offender criteria provide for an increase in the penalty for the offense itself." United States v. Williamson, 567 F.2d 610, 614 (4th Cir. 1977); United States v. Bowdach, 561 F.2d 1160, reh'g denied, 565 F.2d 163 (5th Cir. 1977); United States v. Stewart, 531 F.2d 326 (6th Cir.), cert. denied, 426 U.S. 922 (1976).
Defendant also argued before the Court of Appeals and before this Court that N.C.G.S. §§ 20-138.1(a)(2) and 20-4.01(33a) (defining as "relevant" " ny time after the driving in which the driver still has in his body alcohol consumed before or during the driving") are unconstitutionally vague. The Court of Appeals notes, as we do, that these challenges were answered in State v. Rose, 312 N.C. 441, 323 S.E.2d 339 (1984), and State v. Howren, 312 N.C. 454, 323 S.E.2d 335 (1984). We reaffirm these decisions.
We hold that N.C.G.S. §§ 20-138.1 and -179 do not violate the constitutional rights of a defendant to trial by jury.
The decision of the Court of Appeals is accordingly
Modified and affirmed.
Disposition
Modified and affirmed.
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