Citations
- 654 F. Supp. 1367
Full opinion text
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. 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. 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.”
If only one grossly aggravating factor is found to be present, as in the case at bar, then Level Two punishment must be imposed. 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. Ill, § 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 our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States____
“... It is doubtless true that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision and should not be subject to the Fourteenth Amendment jury trial requirement here applied to the States. Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses. But the penalty authorized for a particular crime is of major relevance in determining whether it is serious or not and may in itself, if severe enough, subject the trial to the mandates of the Sixth Amendment____ The penalty authorized by the law of the locality may be taken ‘as a gauge of its social and ethical judgments/ ... of the crime in question. In Clawans [District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937)] the defendant was jailed for 60 days, but it was the 90-day authorized punishment on which the Court focused in determining that the offense was not one for which the Constitution assured trial by jury. In the case before us the Legislature of Louisiana has made simple battery a criminal offense punishable by imprisonment for up to two years and a fine. The question, then, is whether a crime carrying such a penalty is an offense which Louisiana may insist on trying without a jury.
“We think not. So-called petty offenses were tried without juries both in England and in the Colonies and have always been held to be exempt from the otherwise comprehensive language of the Sixth Amendment’s jury trial provisions. There is no substantial evidence that the Framers intended to depart from this established commonlaw practice, and the possible consequences to defendants from convictions for petty offenses have been thought insufficient to outweigh the benefits to efficient law enforcement and simplified judicial administration resulting from the availability of speedy and inexpensive nonjury adjudications. These same considerations compel the same result under the Fourteenth Amendment. Of course the boundaries of the petty offense category have also been ill-defined, if not ambulatory. In the absence of an explicit constitutional provision, the definitional task necessarily falls on the courts, which must either pass upon the validity of legislative attempts to identify those petty offenses which are exempt from jury trial or, where the legislature has not addressed itself to the problem, themselves face the question in the first instance. In either case, it is necessary to draw a line in the spectrum of crime, separating petty from serious infractions. This process, although essential, cannot be wholly satisfactory, for it requires attaching different consequences to events which, when they lie near the line, actually differ very little.
“In determining whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial, we are counseled ... to refer to objective criteria, chiefly the existing laws and practices in the Nation____ We need not, however, settle in this case the exact location of the line between petty offenses and serious crimes. It is sufficient for our purposes to hold that a crime punishable by two years in prison is, based on past and contemporary standards in this country, a serious crime and not a petty offense. Consequently, appellant was entitled to a jury trial and it was error to deny it.”
Duncan 391 U.S. at 151-162, 88 S.Ct. at 1448-1454 (citations and footnotes omitted).
The foregoing opinion establishes, inter alia, that it is the punishment to which a criminal defendant is exposed (as opposed to his actual sentence) which, among other considerations, determines if the crime is one which entitles him to a jury trial in the state court under the sixth and fourteenth amendments. Field applies this criteria, in and of itself, to a Level Two punishment under N.C.Gen.Stat. § 20-179, and concludes that he, being subject to imprisonment up to one year, was entitled to a jury trial on all factual issues which could have been the predicate for imposition of such sentence, including the existence of a grossly aggravating factor (in the instant case, serious injury to person resulting from impaired driving). Field concedes that without the existence of the grossly aggravating factor, the potential punishment remains within the bounds of petty offenses “... exempt from the otherwise comprehensive language of the Sixth Amendment’s jury trial provisions.” Duncan, 391 U.S. at 160, 88 S.Ct. at 1453.
Field, therefore, argues that N.C.Gen. Stat. § 20-179 is not merely a sentencing proceeding, but creates an additional substantive element of the underlying conviction, and that all procedural safeguards surrounding a formal trial thereby must be afforded the defendant. In so arguing, Field notes that upon judicial determination of the existence of a grossly aggravating factor, the increase in the permissible penalty is mandatory, as is a minimum 7 day jail sentence, as opposed to an enhancement resulting from judicial discretion. Field argues that such is not an aggravating factor, in that it fails to provide for a discretionary increase in sentencing penalties within the range legislatively prescribed for the offense in question. Rather, Field maintains that such is an aggravating element of an offense, requiring trial by jury, in that it provides for increased punishment over and above that which otherwise could be imposed for the basic offense in question.
Turning to the gravamen of petitioner’s complaint, as delineated above, the court notes the following:
While the due process clause protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged, In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), where a state links punishment to “the presence or absence of an identified fact” the state need not prove, necessarily, that fact beyond a reasonable doubt. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).
In the recent case of McMillan v. Pennsylvania, — U.S.-, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), the U.S. Supreme Court upheld a statutory scheme that divests a judge of his discretion in sentencing individuals found guilty of felonies involving firearms, despite attacks based upon the fourteenth amendment’s due process clause and the sixth amendment’s guarantee of a jury trial. Under the Pennsylvania Mandatory Minimum Sentencing Act, a defendant convicted of certain felonies must be given a five year minimum prison sentence if the sentencing judge finds, by a preponderance of the evidence, that the defendant “visibly possessed a firearm” while committing the crime. The defendants argued that visible possession of a firearm was an element of the crime and therefore must be proved beyond a reasonable doubt under In re Winship, supra, and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).
In a 5 to 4 decision, however, the Court pointed out that the state legislature specifically had made gun possession a sentencing factor rather than an element of the offense. The court thereby regarded Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), as controlling, acknowledging that the state’s choice in such matters is ordinarily given deference, and held that the state properly could treat visible possession of a firearm as a sentencing consideration rather than an element of a particular offense that must be proved beyond a reasonable doubt. McMillan, — U.S. at-, 106 S.Ct. at 2416. In discussing the dichotomy between Patterson and Winship/Mullaney, however, the Court noted that there are constitutional limits beyond which a state may not go in this regard. Id. Whereas the McMillan court found that these limits had not been exceeded, this court finds such limits to have been exceeded in the case at bar for the following reasons:
First, the McMillan opinion contains the following language:
Section 9712 [of Pennsylvania’s Mandatory Minimum Sentencing Act] neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. Section 9712 “ups the ante” for the defendant only by raising to five years the minimum sentence which may be imposed within the statutory plan. The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense. Petitioner’s claim that visible possession under the Pennsylvania statute is “really” an element of the offenses for which they are being punished — that Pennsylvania has in effect defined a new set of upgraded felonies — would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, cf. 18 U.S.C. § 2113(d) (providing separate and greater punishment for bank robberies accomplished through “use of a dangerous weapon or device”), but it does not.
— U.S. at -, 106 S.Ct. at 2417-2418 (footnotes omitted) (emphasis added). The court finds support for Fields’ contention in this quoted language, in that in the instant case the finding of resultant serious injury in fact exposed Field to a greater punishment.
Second, in McMillan, the elements of the enumerated offenses were established in 1972 in essentially their present form, well before the enactment of the Pennsylvania Mandatory Minimum Sentencing Act in 1982. The McMillan court regarded this fact as negating “the specter ... of [the] state[] restructuring existing crimes in order to “evade” the command[ ] of Win-ship ...” that the state must prove, beyond a reasonable doubt, every element of the crime charged. — U.S. at-, 106 S.Ct. at 2418. The history of the North Carolina legislation does not infer similar negation. N.C.Gen.Stat. § 20-138.1, defining the crime of driving while impaired, and N.C.Gen.Stat. § 20-179, allowing expansion of the range of the permissible sentence upon the finding of a grossly aggravating factor, were enacted simultaneously and pursuant to an integrated plan for dealing with driving impaired by alcohol or drugs, in legislation known as the Safe Roads Act, enacted in 1983.
Third, the risk of error in the context of a N.C.Gen.Stat. § 20-179 proceeding is comparatively extensive — “serious injury” not being defined and to some degree being undefinable,. and the proximate cause thereof being frequently problematical. The delineation of injury from serious injury (as with beauty) undoubtedly will vary with the eye of the beholder. Proximate causation includes the attendant issues of contributory negligence, comparative negligence, independent contributing causation (e.g. lack of crashworthiness of a vehicle,) etc. The determination thereof, at least in any case where reasonable men might differ, is historically a function of the jury. In contrast to the risk of error attendant to a determination of serious injury caused by impaired driving, the risk of error in McMillan was “comparatively slight” — the word firearm being defined by statute, — U.S. at-n. 1, 106 S.Ct. at 2414, n. 1, and its visible possession being a simple straightforward issue susceptible of objective proof. Id. at-, 106 S.Ct. at 2414.
Fourth, in the McMillan case, the state gave notice, as required by the Act, that at sentencing it would seek to proceed under the Pennsylvania Mandatory Minimum Sentencing Act. Id. at-n. 1, 106 S.Ct. at 2414 n. 1. In the instant case, there is no suggestion that Field similarly was forewarned of the potential derogation of his liberty interest as a result of a court adjudicated fact, nor is there any requirement in the North Carolina statutory scheme requiring that such notice be given.
Fifth, the mandatory jail sentence under Level Two punishment is one of an aggregate of factors which this court finds entitles Field to a jury trial. In reaching this conclusion, the court is mindful that the mandated period of imprisonment (seven days), per se, is less than that which constitutionally can be imposed for a petty offense not required to be tried by a jury. In short, the length of such sentence alone is not of such constitutional dimensions as to require trial by a jury herein. See Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970).
Furthermore, the court is aware that, in McMillan, the Supreme Court approved a mandatory five year prison sentence predicated upon a court adjudicated fact, and as to the McMillan decision, this court has the following comment:
There is no doubt that the legislature can establish a minimum sentence for a particular offense, see, McMillan, supra., and in so doing, prescribe punishment without regard to the circumstances of the offense and hence without regard to mitigating factors. In such event, the right to a jury trial affords a Defendant protection in that the jury (although without knowledge of the applicable range of punishment available to the sentencing Judge) may find application of the statute to the Defendant’s conduct, although permissible in law, unwarranted by the facts of the case. The pragmatic protection thus afforded by a jury trial would seem to be significant. For this reason, where a mandatory penalty is predicated upon a court adjudicated fact relating to the seriousness of the offense (as opposed to the character of the defendant), and the sentence under the statute exceeds six months, this court, were it writing upon a clean slate, would find such to be in derogation of a Defendant’s liberty interest so as to mandate, if requested, the protection afforded by jury trial against rigid application of law to the facts.
Notwithstanding the views of this court, it is now settled law (by virtue of McMillan) that the length of a minimum sentence predicated upon a court adjudicated fact does not, per se, entitle a defendant to a jury trial. It is not the length of the mandatory sentence under Level Two punishment per se, however, that this court perceives to weigh in favor of a right to jury trial. Rather, while the length of sentence is of some import, one must also consider the stigma which an active sentence places upon a defendant’s name, a stigma not lightly accepted nor easily borne by many. Indeed, such stigma may contribute significantly to a general deterrent of impaired driving, which, in turn, may be the reason for the inclusion of an active sentence in the sentencing scheme.
Although the court does not regard McMillan as controlling in the case sub judice, it recognizes that three facts in the instant case are similar to those existent in McMillan, to-wit:
(a) The North Carolina Legislature expressly has separated the elements of driving while impaired from the sentencing provisions applicable thereto.
(b) The North Carolina legislation creates no presumption of the sort condemned in McFarland v. American Sugar Refining Co., 241 U.S. 79, 36 S.Ct. 498, 60 L.Ed. 899 (1916) (presumption from price paid for sugar that refiner was a party to a monopoly), or Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943) (presumption that convicted felon who possessed a weapon obtained it in interstate commerce). See McMillan, — U.S. at -, 106 S.Ct. at 2417.
(c) The state is not relieved of its burden of proving beyond a reasonable doubt the elements of the crime of driving while impaired.
The foregoing are not determinative, however, as the Supreme Court has never attempted to define precisely the constitutional limits in Patterson, i.e., the extent to which due process forbids the reallocation or reduction of burdens of proof in criminal cases. Id. at-, 106 S.Ct. at 2417. This court has considered the close division of opinion in McMillan, and is persuaded by factors 1 through 5 enumerated hereinbefore, supra, at pages 1373-75, not existent in McMillan, that N.C.Gen. Stat. § 20-179 does exceed those limits.
In reaching this conclusion, the court is aware of the decision of the North Carolina Supreme Court in the case of State v. Denning, supra, filed May 6, 1986, wherein it was held that the trial judge’s consideration of a separate enumerated grossly aggravating factor — conviction of a similar offense within seven years (an aggravating factor calling for Level Two punishment)— was not susceptible to constitutional challenge. The Denning court, however, did not have before it the benefit of the McMillan opinion, which was not decided until June 19, 1986. Additionally, the Denning case is inapposite in that the grossly aggravating factor before the Denning court — a prior conviction — was one not easily subject to dispute, and one to which the defendant already had been accorded his right to a jury trial. In this regard it is noted that N.C.Gen.Stat. §§ 20-138.1 and 179 embody a two-tiered sentencing scheme based in part upon three grossly aggravating factors. The first two grossly aggravating factors are directed to the character of the defendant in that they are predicated upon the fact that the defendant is a recidivist who has been convicted of a specified number of previous crimes. Such convictions, as the possession of a firearm in McMillan, are within the knowledge of the defendant. Furthermore, prior convictions are generally readily ascertainable as matters of record, and inherently involve prior adjudications of guilt or criminal tendencies, separate from the determination of the predicate offense the sentencing for which they will affect. Decisions, such as Denning, upholding two-tiered sentencing schemes predicated upon recidivistic factors (i.e., the need to tailor a sentence to the criminal rather than the crime) are in-apposite to the instant case because:
(a) The serious injury to the person caused by impaired driving is unrelated to the character of the defendant, a traditional sentencing consideration. Rather, such is a measure of the seriousness of the offense.
(b) Serious injury to person and the cause thereof is not peculiarly within the knowledge of an impaired driver. Indeed, for many varied reasons, such a driver may be totally ignorant of the cause of such injury or the fact thereof.
(c) Serious injury and the cause thereof are not readily ascertainable as matters of record, as are (generally) prior convictions.
(d) Serious injury and the causation thereof have not been the subject of any prior adjudication.
The foregoing distinctions argue against the relaxation of trial standards as related to the subject “sentencing” factor, for the chance of its erroneous determination and consequent deprivation of a defendant’s liberty is much greater than in the case of the determination of recidivistic factors, as in Denning. The facts relating to the existence of “serious injury ... caused by ... impaired driving” are relevant to determining the severity of criminal conduct violative of the Safe Roads Act, and therefore are more appropriately weighed by the jury. In the last analysis, the aggregate factors of the subject offense and concomitant sentencing scheme must afford a defendant protection against unfounded criminal charges maliciously brought, against judges too responsive to the voice of higher authority, against arbitrary action, against the corrupt or overzealous prosecutor, and against the compliant, biased or eccentric judge. See, Duncan v. Louisiana, supra.
In determining whether such protection is afforded, the question of whether a particular fact is an element of a criminal offense is one which must be decided within constitutional parameters, and is a decision which cannot be abdicated to the states. In the instant case, a judicial finding that the defendant’s impaired driving caused serious injury to persons, places a greater stigma upon the defendant’s name than simply a finding that he drove while impaired. Such finding automatically subjected Field to a mandatory active jail sentence and a range of permissible punishment that is twice as severe as the maximum punishment to which he otherwise was subject. A specific component of a prohibited transaction which gives rise to both a special stigma and to an enhanced permissible punishment must be treated as a fact necessary to constitute the crime. For the foregoing reasons, the court believes inadequate protection was afforded the defendant under the offense and sentencing scheme of N.C.Gen.Stat. §§ 20-138.1 and 20-179, and that the defendant has been deprived of his fourteenth amendment guarantee of due process, and his sixth amendment guarantee of trial by jury. Petitioner’s application for writ of habeas corpus is hereby GRANTED, and it is therefore ORDERED that he be retried, or in the alternative, resentenced, within sixty (60) days of the date hereof in accordance with the views herein expressed.
SO ORDERED.
ON MOTION FOR RECONSIDERATION, NEW TRIAL AND RELIEF FROM JUDGMENT
On August 1, 1986, this court granted petitioner’s application for writ of habeas corpus finding that inadequate protection was afforded petitioner as a defendant under the offense and sentencing scheme of N.C.GemStat. §§ 20-138.1 and 179, and that petitioner had been deprived of his fourteenth amendment guarantee of due process and his sixth amendment guarantee of trial by jury. The court ordered that petitioner be retried, or in the alternative, resentenced, within sixty (60) days thereof. This action is back before the court on respondents’ Motion for Reconsideration, A New Trial, and Relief From Judgment, filed August 11, 1986.
Although this is not strictly a civil action, the Federal Rules of Civil Procedure are applied when consistent with the spirit of the habeas corpus statutes. Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). Consequently, the court will address respondents’ motion pursuant to Rule 59 of the Federal Rules of Civil Procedure.
The court, in considering the instant motion, does not wish merely to repeat its August 1 order; however, respondents contest all of the reasons and conclusions thereof. Therefore, the court knows of no way other than to address respondents’ contentions seriatim, which parallel the August 1 order. Prior to addressing respondents’ contentions, a brief review of Field’s petition and the order of this court granting such petition is appropriate.
In his petition, Field contended that his constitutional right to a trial by jury was denied by N.C.GemStat. §§ 20-138.1 and 179, in that the trial judge was permitted to find the grossly aggravating factor of serious injury to another person caused by Field’s impaired driving. Such a finding thereby decreased the discretion of the sentencing judge and increased the maximum permissible sentence for Field’s conviction. Respondents contended, however, that the grossly aggravating factor before the sentencing judge 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.
Essentially Field argued that N.C.Gen. Stat. § 20-179 is not merely a sentencing proceeding, but creates an additional substantive element of the underlying conviction and that all procedural safeguards surrounding a formal trial thereby must be afforded him. In so arguing, Field noted that upon judicial determination of the existence of a grossly aggravating factor, the increase in the permissible penalty to one year is mandatory as is a minimum seven day jail sentence, as opposed to an enhancement resulting from judicial discretion. Field argued that such is not an aggravating factor, in that it fails to provide for a discretionary increase in sentencing penalties within the range legislatively prescribed for the offense in question. Rather, Field maintained, such is an aggravating element of the offense, requiring trial by jury, in that it provides for an increased punishment over and above that which otherwise could be imposed for the basic offense in question.
In the August 1 order, the court discussed the recent case of McMillan v. Pennsylvania, — U.S. -, 106 S.Ct. 2411, 91 L.E.2d 67 (1986), wherein the Supreme Court upheld the Pennsylvania Mandatory Minimum Sentencing Act mandating that a defendant, convicted of certain specified felonies, be given a five year minimum prison sentence if the sentencing judge found, by a preponderance of the evidence, that the defendant “visibly possessed a firearm” while committing the crime. Order at 1373-76. In discussing the dichotomy between Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) and In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)/Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Court noted that there are constitutional limits beyond which a state may not go in defining what constitutes a criminal offense.
This court, with guidance from the 5-4 decision in McMillan, found that such constitutional limits had been exceeded by North Carolina and held that Field was entitled to have a jury determine the existence vel non of the grossly aggravating factor of serious injury to another person caused by the defendant’s impaired driving for the following reasons:
1. The judicial determination of “serious injury to another person caused by the defendant’s impaired driving” exposes the defendant to greater punishment than otherwise allowable;
2. The Safe Roads Act of 1983 repealed the offenses of driving under the influence of alcohol, (N.C.Gen.Stat. § 20-138), and driving under the influence of drugs, (N.C.Gen.Stat. § 20-139), and created the single, new offense of driving while impaired (N.C.Gen.Stat. § 20-138.1);
3. The risk of error in the context of a N.C.Gen.Stat. § 20-179 proceeding is comparatively extensive — “serious injury” not being defined and to some degree being undefinable, and the proximate cause thereof being frequently problematical;
4. The provisions of N.C.Gen.Stat. § 20-179 do not require notice be given a defendant that the state will attempt to establish a grossly aggravating factor; and
5. The mandatory minimum sentence, which increases pursuant to the judicial determination, imposes a stigma upon a defendant so that the jury should be the finder of such fact.
Respondents advance two reasons why this court’s order of August 1 is erroneous thus, justifying a new trial and a new judgment. First, respondents contend that the Supreme Court’s decision in McMillan v. Pennsylvania, supra, controls the instant petition as the statute construed therein is identical to the statute at issue herein and thus mandates the petition’s dismissal. Second, respondents contend that the North Carolina Supreme Court dealt with the same issues presented in the case at bar in State v. Denning, 316 N.C. 523, 342 S.E.2d 855 (1986) and reached the opposite conclusion which this court should now adopt. While the court will consider respondents’ second argument more fully infra, the fact that respondents propound such an argument causes the court some concern.
The Denning court had before it a constitutional challenge to N.C.Gen.Stat. § 20-179(c)(1) — the grossly aggravating factor of conviction of a similar offense within seven years. On the other hand, the instant petition brings into question the constitutionality of N.C.Gen.Stat. § 20-179(c)(