The Newsletter of North Carolina Prisoner Legal Services, Inc.

Special Issue - July 2004

ACCESS

NCPLS

BLAKELY V. WASHINGTON
U.S. SUPREME COURT
By Senior Attorney J. Phillip Griffin

On June 24, 2004, the United States
Supreme Court announced its decision in
Blakely v. Washington (No. 02-1632), a
case that will have far-reaching implications for the way criminal defendants are
sentenced in North Carolina. This article
will review the facts and ruling in that
decision, explore its application to North
Carolina sentencing law, and speculate on
how it will be applied in this state.

Court, written by Justice Scalia and joined
by Justices Stevens, Souter, Thomas, and
Ginsburg, held that a defendant is entitled
to a sentence authorized under the law no
longer than is supported by the facts he
either admitted or that were found by a
jury to be true beyond a reasonable doubt.

The Blakely Case
Ralph Blakely was originally charged with
first degree kidnapping. He entered into a
plea bargain in which he pled guilty to
second degree kidnapping involving
domestic violence and the use of a firearm.
The plea bargain left the sentence up to the
judge.
Under Washington law, second degree kidnapping is a class B felony with a maximum sentence of ten years. However, the
sentencing law further provided that the
“standard range” for sentencing for second
degree kidnapping with a firearm is 49-53
months. The judge may impose a longer
sentence only upon finding additional,
aggravating factors. In Blakely’s case,
following a hearing, the judge found the
aggravating factor of deliberate cruelty,
and imposed a sentence of 90 months.
Blakely appealed his sentence, arguing
that the judge increased his sentence based
upon facts Blakely had not admitted and
which had not been found by a jury. This,
Blakely argued, violated his right under
the Sixth Amendment to a trial by jury.
The Washington State appellate courts
upheld the trial court decision and Blakely
petitioned the United States Supreme
Court for review.
By a five to four vote, the Supreme Court
agreed with Blakely. The opinion for the

Without a plea of guilty or a jury finding
of the additional aggravating facts, only a
sentence within the standard range was
authorized by law. The aggravated
sentence violated Blakely’s right to a jury
trial.
North Carolina Sentencing Law
Justice O’Connor dissented. She pointed
out that sentencing enhancements based
upon facts found by the judge in a sentencing hearing have long been standard
practice in a number of jurisdictions, such
as the federal system and as well as
those of several states, including North
Carolina. In fact, the North Carolina
structured sentencing process depends

upon the very features condemned by the
Court in Blakely. Under North Carolina’s
Structured Sentencing Act, there are nine
classes of felonies. For the only A-class
felony, murder in the first degree, the
sentence is either life without parole or
death. The determination of which sentence will be imposed rests with the jury,
which determines whether there are
aggravating factors that require imposition
of the death sentence. For each of the
remaining classes of felonies, there are
three ranges of sentences for each of six
prior record levels. NC Gen. Stat. 15A1340.17(c). The Blakely ruling does not
require the fact of prior convictions to be
determined by a jury, so that aspect of
North Carolina’s sentencing scheme is not
affected by the case. But the North Carolina statute allows the sentencing judge in
her discretion to depart from the presumptive range (called the “standard range” in
Washington State) if she finds that the
presence of additional facts justify a mitigated or aggravated sentence. N.C. Gen.
Stat. 15A-1340.16(d)) lists 19 specific
aggravating factors, with a twentieth
“catch-all:” “Any other aggravating factor
reasonably related to the purposes of
sentencing.” Aggravating factors are to be
argued to the judge and proven by the state
“by a preponderance of the evidence.” NC
Gen. Stat. 15A-1340.16(a).
It is readily apparent that, since the
Blakely decision, a North Carolina defendant may not receive an aggravated sentence without either a trial by jury for the
presence of an aggravating factor beyond
a reasonable doubt, or the defendant’s
specific waiver of the right to the jury
finding. The terms of a plea bargain may
include either an admission of aggravating factors or an agreement that the judge
(Continued on Page 2)

NCPLS ACCESS

Page 2
ACCESS is a publication of North
Carolina Prisoner Legal Services,
Inc. Established in 1978, NCPLS is a
non-profit, public service organization.
The program is governed by a Board
of Directors who are designated by
various organizations and institutions,
including the North Carolina Bar
Association, the North Carolina
Association of Black Lawyers, the
North Carolina Association of Women
Attorneys, and law school deans at
UNC, Duke, NCCU, Wake Forest and
Campbell.
NCPLS serves a population of more
than 33,500 prisoners and 14,000 pretrial detainees, providing information
and advice concerning legal rights and
responsibilities, discouraging frivolous
litigation, working toward administrative resolutions of legitimate problems,
and providing representation in all
State and federal courts to ensure
humane conditions of confinement and
to challenge illegal convictions and
sentences.

Board of Directors
President, Gary Presnell
Jim Blackburn
Representative Alice L. Bordsen
James A. Crouch, Esq.
Barry Nakell, Esq.
Susan Olive, Esq.
Professor Grady Jessup
Marilyn G. Ozer, Esq.
Professor Michelle Robertson
Lou Ann Vincent, C.P.A.
Fred Williams, Esq.
Professor Ronald F. Wright
Executive Director
Michael S. Hamden, Esq.
Editor
Patricia Sanders, CLA
PLEASE NOTE: ACCESS is published

four (4) times a year.

Articles, ideas and suggestions are
welcome: tsanders@ncpls.org

Special Issue, July 2004

BLAKELY V. WASHINGTON

(Continued from Page 1)

(CONTINUED)

may find such factors following a hearing.
If there is no such agreement, then the
maximum sentence the court may impose
is the maximum sentence in the presumptive range for the offense charged.
Where there is no plea bargain and the
felony proceeds to trial, the application of
Blakely is more complicated. In capital
trials, juries now receive evidence on
aggravating and mitigating factors in a
proceeding following a verdict of guilt.
There is no provision under current law
for the jury to find aggravating factors in a
non-capital trial. Holding such bifurcated
trials in every felony case would be expensive and time consuming. It is possible
that the guilt/innocence and sentencing
issues could be tried together, but it is
difficult to envision how the trial could
be structured to comply with the Rules
of Evidence and keep jurors from being
confused or distracted by the complexities
of their task. Reconciling the Structured
Sentencing Act with Blakey will be challenging for prosecutors, defense lawyers,
and judges alike.
Prospective or Retroactive Application
Generally, new interpretations of constitutional requirements cannot be applied in
cases that have already been decided. In
state court motions for appropriate relief,
and in federal court petitions for habeas
corpus, changes in federal Constitutional
rules announced after the conviction
became final are not ordinarily applied in
the defendant’s favor. State v. Zuniga, 336
N.C. 508 (1994); Teague v. Lane, 489 U.S.
288 (1989). A conviction is final when the
time for further direct review has expired.
Griffith v. Kentucky, 479 U.S. 314 (1987).
If a conviction is not appealed, it is final
when the fourteen day period allowed for
the filing a notice of appeal expires. Rule
4(a)(2) N.C. Rules of Appellate Procedure.
If a conviction is appealed and the Court
of Appeals affirms the conviction, it is
final at the expiration of the fifteen day
period for filing a notice of appeal or petition in the North Carolina Supreme Court.

Rules 14(a), 15(b), N.C. Rules of Appellate Procedure. If the North Carolina
Supreme Court either denies review or
affirms the Court of Appeals, the conviction is final at the expiration of the ninety
day period for filing a petition in the
United States Supreme Court. Rule 13.1,
United States Supreme Court Rules.
If your conviction is final, Blakely probably will not provide grounds for challenging your sentence. There are a few narrow
exceptions to the prohibition against
applying new rules to final convictions.
Teague v. Lane, 489 U.S. 288 (1989).
But it is very unlikely that the Blakely
rule will be applied retroactively. On the
same day the Court announced its opinion
in Blakely, it also issued an opinion in
Schriro v. Summerlin, (No. 03-526) which
held that the rule announced in Ring v.
Arizona, 536 U.S. 584 (2003) would not
apply retroactively. The rule announced in
Ring was that, in capital trials, the jury
must find the aggravating factors that
support a death sentence. The Court was
unwilling to apply the Ring decision to a
capital defendant whose conviction was
final when Ring was decided. The decision in Schriro would almost certainly
foreclose application of the Blakely decision to sentences that have become final.
However, in all pending criminal cases,
including those where direct review is still
available, Blakely does apply. Defendants
who have received aggravated sentences
(sentences in excess of the presumptive
range), but who did not either admit the
aggravators or waive a jury determination,
are entitled to re-sentencing.
Conclusion
This article can only provide general
information. Moreover, the Blakely
decision will have ramifications that are
not presently known. If you have questions about how Blakely affects your case,
you should consult your attorney. If you
do not have an attorney, you may write to
NCPLS.

Special Issue, July 2004

NCPLS ACCESS

STATE V. JONES - N.C. SUPREME COURT:
SIMPLE POSSESSION OF COCAINE IS A FELONY

Page 3

By Staff Attorney Ken Butler

On June 25, 2004, the N.C. Supreme
Court completed its review of two recent
Court of Appeals decisions regarding the
status of the crime of simple possession of
cocaine. In State v. Jones, 161 N.C. App.
60, 588 S.E.2d 5 (2003), and State v.
Sneed, 161 N.C. App. 331, 588 S.E.2d 5
Sneed
(2003), the Court of Appeals had held that
the crime of possession of cocaine was a
misdemeanor. The Supreme Court has
now reversed those decisions. State v.
Jones, No. 591PA03, 2004 N.C. Lexis 671
(N.C., June 25, 2004); State v. Sneed
Sneed, No.
601PA03 (N.C., June 25, 2004).
In Jones, the defendant pled guilty to
possession with intent to sell and deliver
cocaine, and to being an habitual felon.
Mr. Jones entered this plea conditionally,
with the understanding that he could
appeal three issues, including the court’s
denial of a motion to suppress evidence.
The N.C. Court of Appeals determined
that, under the statutes and rules governing a criminal defendant’s right to appeal,
it only had jurisdiction to consider the
appeal of the motion to suppress. Since
the defendant had bargained for appellate
consideration of three motions and the
court could only address one motion, the
defendant could not have received the
benefit of his plea bargain. However,
before sending the case back to the lower
court, the Court of Appeals also addressed
the issue of jurisdiction concerning the
habitual felon indictment.
Defendant had argued his habitual felon
indictment was invalid because one of the
three convictions used to classify him as
an habitual felon was a conviction for possession of cocaine. According to the law
as it existed at the time of the crime:
“any person who violates G.S. 9095(a)(3) [possession of a controlled
substance] with respect to: . . .[a] controlled substance classified in Schedule
II, III, or IV shall be guilty of a misdemeanor. . ..” N.C. Gen. Stat. 90-95
(d)(2) (1991). According to N.C. Gen.
Stat. 90-90(a) 4., cocaine is a Schedule
II controlled substance. N.C. Gen. Stat.

90-90(a) 4, (1991).
State v. Jones, 2003 N.C. App. LEXIS
1984 *12. Thus, the defendant argued that
possession of cocaine was a misdemeanor
and could not be used as a predicate
offense for an habitual felon indictment.
The State, on the other hand, noted that
N.C. Gen. Stat. 90-95(d)(2) provided that
possession of cocaine “shall be punishable
as a Class I felony,” and argued that this
meant that possession of cocaine was a
felony. After reviewing general principles
of statutory construction, including the
principle that criminal statutes are to be
“strictly construed against the State,” the
Court of Appeals held that possession of
cocaine was a misdemeanor and the
defendant’s indictment as an habitual felon
was defective.
The N.C. Supreme Court granted discretionary review of these cases shortly after
their decision in the Court of Appeals,
and issued orders staying the effect of the
decisions. The Court heard oral arguments
on these cases in February and filed its
opinion on June 25, 2004.
In addressing how to view the statutes
creating the offense and punishments for
possession of a Schedule II substance, the
Supreme Court stated that:
When interpreting statutes, our principal goal is to effectuate the purpose
of the legislature. When the language
of a statute is clear and unambiguous,
there is no room for judicial construction, and the courts must give it its
plain and definite meaning. But where
a statute is ambiguous, judicial construction must be used to ascertain the
legislative will. Furthermore, where a
literal interpretation of the language of
a statute will contravene the manifest
purpose of the Legislature, as otherwise expressed, the reason and purpose
of the law shall control and the strict
letter thereof shall be disregarded.
State v. Jones, 2004 N.C. Lexis 671, *9
(internal citations and quotations omitted).

The Court reviewed the legislative history
of North Carolina’s controlled substance
and sentencing laws, going back to 1971,
in order to find the General Assembly’s
intent. It was observed that, prior to the
1971 Controlled Substances Act (CSA),
possession of cocaine had been a misdemeanor. However, the original language
of the CSA suggested that this crime was
changed to a felony. Subsequent amendments in 1973 and 1974 provided that
possession of a Schedule II substance
would be a misdemeanor, unless the quantity exceeded a specified amount. In the
case of cocaine, the triggering amount was
one gram. Where such quantities were
present, “the violation shall be a felony
punishable by a term of imprisonment of
not more than five years, or a fine of not
more than five thousand dollars ($5000),
or both in the discretion of the court.”
State v. Jones, 2004 N.C. Lexis 671, *15.
The 1979 enactment of the Fair Sentencing Act resulted in changes to both North
Carolina’s general sentencing statutes
and specific criminal laws. One change
was to N.C. Gen. Stat. 90-95(d)(2), which
eliminated the language concerning the
specific punishments for felony possession of Schedule II substances but simply
asserted that such an offense would be
“punishable as” a Class I felony. Later
amendments removed the one gram limit,
which made possession of any amount of
cocaine a felony. The Jones Court further
observed that:
The relevant session law was entitled
“An Act to Make the Possession of
Any Amount of Cocaine or Phenclyclidine a Felony.” Id. (emphasis
added). The act’s title, making no
distinction between a classification
for conviction purposes and for sentencing purposes, is further persuasive
evidence that the General Assembly
intended to classify possession of
cocaine as a felony for all purposes.
2004 N.C. Lexis 671, *19.
(Continued on Page 4)

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STATE V. JONES
(CONTINUED)

(Continued from Page 3)

The Court also took into consideration the
fact that it has been the universal practice
in North Carolina for nearly 25 years to
treat the possession of cocaine as a felony.
Despite the fact that controlled substances
and sentencing laws have been frequently
amended during this period, the General
Assembly never acted to demonstrate that
this interpretation of the law was incorect.
Had the Legislature felt the courts and
prosecutors were misinterpreting the statute, the laws could have been amended to
make it clearer that possession of a schedule II substance was a misdemeanor.
Nor was the Court swayed by the fact that
the N.C. Gen. Stat. 90-95(d)(2) uses the
phrase that possession of a Schedule II
is “punishable as” a felony. It noted that
“[t]he General Assembly routinely uses
the phrases ‘punished as’ or ‘punishable
as’ a ‘felony’ or ‘felon’ to classify certain
crimes as felonies.” State v. Jones, 2004
N.C. Lexis 671, *25-26. Furthermore,
there are other statutes that use language

similar to 90-95(d)(2), classifying an
offense generally as a misdemeanor but
allowing for elevation to a felony upon the
existence of special circumstances. 2004
N.C. Lexis 671, *27-28 (citing N.C. Gen.
Stat. 14-56.1 (2003) (providing that anyone who breaks into or forcibly opens a
coin- or currency-operated machine “shall
be guilty of a Class 1 misdemeanor, but if
such person has previously been convicted
of violating this section, such person shall
be punished as a Class I felon.”))

stated that “[i]n so doing, the two panels
ignored a well-established rule of appellate law: ‘Where a panel of the Court of
Appeals has decided the same issue, albeit
in a different case, a subsequent panel of
the same court is bound by that precedent,
unless it has been overturned by a higher
court.’” State v. Jones, 2004 N.C. Lexis
671, *31 (citing In re Appeal from Civil
Penalty Assessed for Violations of Sedimentation Pollution Control Act, 324 N.C.
373, 384, 379 S.E.2d 30, 37 (1989)).

Finally, the Court observed that the Jones
and Sneed opinions reached an opposite
decision from another panel of the Court
of Appeals which had previously held that
possession of cocaine is a felony. See
State v. Chavis, 134 N.C. App. 546, 555,
518 S.E.2d 241, 248 (1999) (concluding
that N.C. Gen. Stat. 90-95(d)(2) “clearly
states that the possession of any amount
of cocaine is a felony”), appeal dismissed
and disc. rev. denied
denied, 351 N.C. 362, 542
S.E.2d 220 (2000). The Supreme Court

Since the initial decisions by the Court of
Appeals last year, many North Carolina
prisoners have written to NCPLS about
the Jones and Sneed cases. There was
a prospect that these decisions might
provide some basis for challenging
convictions or sentences, particularly in
the case of people convicted as habitual
felons where cocaine possession was used
as a predicate offense. That prospect has
been extinguished by the North Carolina
Supreme Court’s interpretation of the law.