Field v. Sheriff of Wake County, NC, 86-18-HC.

• Decision Date: 23 September 1986
• Docket Number: No. 86-18-HC.,86-18-HC.
• Citation: 654 F. Supp. 1367
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Peter Jones FIELD, Petitioner, v. SHERIFF OF WAKE COUNTY, NORTH CAROLINA, and Wake County Probation Office, Respondents.

654 F. Supp. 1367

Peter Jones FIELD, Petitioner, v. SHERIFF OF WAKE COUNTY, NORTH CAROLINA, and Wake County Probation Office, Respondents.

No. 86-18-HC.

United States District Court, E.D. North Carolina, Raleigh Division.

August 1, 1986.

On Motion for Reconsideration September 23, 1986.

Gary Lester Presnell, Raleigh, N.C., for petitioner.

Ike Avery, Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N.C., for respondents.

ORDER

JAMES C. FOX, District Judge.

This matter is before the court on the petition of Peter Jones Field, a person in state custody, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The undisputed facts of the case are as follows:

Upon his plea of guilty in the Wake County Superior Court on August 21, 1984, Field was convicted of driving while impaired in violation of N.C.Gen.Stat. § 20-138.1.¹ While so driving, Field was involved in an accident resulting in injury to two persons. One victim suffered injuries which included a fractured left knee, torn ligaments and tendon damage requiring surgery and resulting in permanent partial disability, as well as a cut requiring 29 stitches to close. The other victim sustained a blow to the head and a broken nose. The broken nose required surgery to straighten the septum, during which time the doctors found a hole in the membrane and were required to perform grafts to close it.

The trial judge, authorized by N.C.Gen. Stat. § 20-179 to impose five levels of punishment depending upon statutorily enumerated aggravating and mitigating factors, found one grossly aggravating factor — that serious injury to another person had been caused by Field's impaired driving — and imposed Level Two punishment.² Field was sentenced to one year imprisonment. Execution of sentence was suspended for three years and Field was placed on probation. A special condition of probation required Field to serve seven days in jail, as mandated by N.C.Gen.Stat. § 20-179. Field is currently "in custody of the State" by virtue of the fact that he is subject to supervised probation.

Field contends his rights were violated by the sentencing scheme of N.C.Gen.Stat. § 20-179. Specifically, Field contends that he has a right under the sixth and fourteenth amendments to the Constitution of the United States to a jury trial on the sentencing factor of "serious personal injury." Field presented this contention in his direct appeals to the North Carolina Court of Appeals and the North Carolina Supreme Court. He therefore has exhausted his state remedies as required by 28 U.S.C. § 2254. Respondents have moved to dismiss Field's petition, and the matter is now ripe for disposition.

A preliminary discussion of the North Carolina statutes pursuant to which Field was convicted and sentenced is necessary to understand the respective contentions of the parties. N.C.Gen.Stat. § 20-138.1 defines the offense of driving while impaired (DWI) and provides two methods of proof of the offense as follows: (1) driving a vehicle; (2) upon any highway, street, or public vehicular area within the State; (3) while under the influence of an impairing substance, N.C.Gen.Stat. § 20-138.1(a)(1); or, (1) driving a vehicle; (2) upon a highway, street, or public vehicular area; (3) after having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.10 or more, N.C.Gen.Stat. § 20-138.1(a)(2). State v. Shuping, 312 N.C. 421, 323 S.E.2d 350 (1984). The jury is responsible for finding facts which support the conclusion that these elements have been proven beyond a reasonable doubt by the State. Once the offense is so proved, the jury has no further responsibility; it does not find aggravating or mitigating circumstances, or the existence of grossly aggravating factors. The jury only determines guilt or innocence of DWI. N.C.Gen.Stat. § 20-138.1.

Once guilt is determined by the jury, the jury is discharged. The judge then is required to hold a sentencing hearing pursuant to N.C.Gen.Stat. § 20-179(a). At this sentencing hearing the prosecutor "must" present all grossly aggravating and aggravating factors of which he is aware. N.C. Gen.Stat. § 20-179(a). The judge "must first determine" whether there are any grossly aggravating factors in the case. N.C.Gen.Stat. § 20-179(c). The grossly aggravating factors include:

"(1) A single conviction for an offense involving impaired driving, if the conviction occurred within seven years of the date of the offense for which the defendant is being sentenced.

(2) Driving by the defendant while his driver's license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).

(3) Serious injury to another person caused by the defendant's impaired driving."³

If only one grossly aggravating factor is found to be present, as in the case at bar, then Level Two punishment must be imposed.⁴ As previously stated, a Level Two punishment requires not less than 7 days and not more than 12 months in jail and a fine of up to $1,000.00. N.C.Gen.Stat. § 20-179(h).

As previously indicated, defendant Field contends that his constitutional right to a trial by jury was denied by N.C.Gen.Stat. §§ 20-138.1 and 179, in that the trial judge was permitted to consider as an aggravating factor serious injury to another person allegedly caused by Field's impaired driving. Respondents contend that the aggravating factor before the trial judge in determining the sentence was not an element of the offense, its consideration for purposes of sentencing being a function for the judge and therefore not susceptible to constitutional challenge based upon the sixth amendment right to a jury trial. Indeed, the North Carolina Supreme Court in the case of State v. Denning, 316 N.C. 523, 342 S.E.2d 855 (1986), has held that the trial judge's consideration of a separate enumerated aggravating factor — conviction for a similar offense within seven years (an aggravating factor calling for Level Two punishment) — was not susceptible to constitutional challenge. It is upon the foregoing contentions that the legal issues in this petition are presented.

It is settled law that the fourteenth amendment guarantees a right of jury trial in all state criminal cases which, were they tried in a federal court, would come within the sixth amendment's guarantee of trial by jury, and that the penalty authorized for a particular crime is of major relevance in determining whether it is a serious one subject to the mandates of the sixth amendment. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968). The facts and opinion in Duncan are instructive in the instant case. In Duncan, the defendant was convicted of simple battery, a misdemeanor under Louisiana law punishable by a maximum of two years imprisonment and a $300 fine. Upon conviction, Duncan was sentenced to 60 days in prison and fined the sum of $150. Although Duncan had requested a jury trial, such was denied him because the Louisiana Constitution granted jury trial only in cases where capital punishment or imprisonment at hard labor could be imposed. 391 U.S. at 146, 88 S.Ct. at 1445. In holding that the sixth and fourteenth amendments secured to Duncan the right of a jury trial in the state criminal prosecution, the Court commented on the right to jury trial; such comments this court now finds appropriate to republish:

"The history of trial by jury in criminal cases has been frequently told. It is sufficient for present purposes to say that by the time our Constitution was written, jury trial in criminal cases had been in existence in England for several centuries and carried impressive credentials traced by many to Magna Carta. Its preservation and proper operation as a protection against arbitrary rule were among the major objectives of the Declaration and Bill of Rights of 1689....

"Jury trial came to America with English colonists, and received strong support from them. Royal interference with the jury trial was deeply resented.... The Declaration of Independence stated solemn objections to the King's making `Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries,' to his `depriving us in many cases, of the benefits of Trial by Jury,' and to his `transporting us beyond Seas to be tried for pretended offenses.' The Constitution itself, in Art. III, § 2, commanded:

"`The Trial of all Crimes, except in Cases of Impeachment, shall be by jury; and such Trial shall be held in the State where the said Crimes shall have been committed.'"

Objections to the Constitution because of the absence of a bill of rights were met by the immediate submission and adoption of the Bill of Rights. Included was the Sixth Amendment which, among other things, provided:

"`In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.'"

"The constitutions adopted by the original States guaranteed jury trial. Also, the constitution of every State entering the Union thereafter in one form or another protected the right to jury trial in criminal cases.

"Even such skeletal history is impressive support for considering the right to jury trial in criminal cases to be fundamental to our system of justice, an importance frequently recognized in the opinions of this Court....

"Jury trial continues to receive strong support. The laws of every State guarantee a right to jury trial in serious criminal cases; no State has dispensed with it; nor are there significant movements underway to do so....

"The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote...