§ 15A‑1340.16. Aggravated and mitigated sentences.
(a) Generally, Burdenof Proof. The court shall consider evidence of aggravating or mitigatingfactors present in the offense that make an aggravated or mitigated sentenceappropriate, but the decision to depart from the presumptive range is in thediscretion of the court. The State bears the burden of proving beyond areasonable doubt that an aggravating factor exists, and the offender bears theburden of proving by a preponderance of the evidence that a mitigating factorexists.
(a1) Jury to DetermineAggravating Factors; Jury Procedure if Trial Bifurcated. The defendant mayadmit to the existence of an aggravating factor, and the factor so admittedshall be treated as though it were found by a jury pursuant to the proceduresin this subsection. Admissions of the existence of an aggravating factor mustbe consistent with the provisions of G.S. 15A‑1022.1. If the defendantdoes not so admit, only a jury may determine if an aggravating factor ispresent in an offense. The jury impaneled for the trial of the felony may, inthe same trial, also determine if one or more aggravating factors is present,unless the court determines that the interests of justice require that aseparate sentencing proceeding be used to make that determination. If the courtdetermines that a separate proceeding is required, the proceeding shall beconducted by the trial judge before the trial jury as soon as practicable afterthe guilty verdict is returned. If prior to the time that the trial jury beginsits deliberations on the issue of whether one or more aggravating factorsexist, any juror dies, becomes incapacitated or disqualified, or is dischargedfor any reason, an alternate juror shall become a part of the jury and serve inall respects as those selected on the regular trial panel. An alternate jurorshall become a part of the jury in the order in which the juror was selected.If the trial jury is unable to reconvene for a hearing on the issue of whetherone or more aggravating factors exist after having determined the guilt of theaccused, the trial judge shall impanel a new jury to determine the issue. Ajury selected to determine whether one or more aggravating factors exist shallbe selected in the same manner as juries are selected for the trial of criminalcases.
(a2) Procedure ifDefendant Admits Aggravating Factor Only. If the defendant admits that anaggravating factor exists, but pleads not guilty to the underlying felony, ajury shall be impaneled to dispose of the felony charge. In that case, evidencethat relates solely to the establishment of an aggravating factor shall not beadmitted in the felony trial.
(a3) Procedure ifDefendant Pleads Guilty to the Felony Only. If the defendant pleads guilty tothe felony, but contests the existence of one or more aggravating factors, ajury shall be impaneled to determine if the aggravating factor or factorsexist.
(a4) Pleading ofAggravating Factors. Aggravating factors set forth in subsection (d) of thissection need not be included in an indictment or other charging instrument. Anyaggravating factor alleged under subdivision (d)(20) of this section shall beincluded in an indictment or other charging instrument, as specified in G.S.15A‑924.
(a5) Procedure to DeterminePrior Record Level Points Not Involving Prior Convictions. If the State seeksto establish the existence of a prior record level point under G.S. 15A‑1340.14(b)(7),the jury shall determine whether the point should be assessed using theprocedures specified in subsections (a1) through (a3) of this section. TheState need not allege in an indictment or other pleading that it intends toestablish the point.
(a6) Notice of Intent toUse Aggravating Factors or Prior Record Level Points. The State must providea defendant with written notice of its intent to prove the existence of one ormore aggravating factors under subsection (d) of this section or a prior recordlevel point under G.S. 15A‑1340.14(b)(7) at least 30 days before trial orthe entry of a guilty or no contest plea. A defendant may waive the right toreceive such notice. The notice shall list all the aggravating factors theState seeks to establish.
(b) When Aggravated orMitigated Sentence Allowed. If the jury, or with respect to an aggravatingfactor under G.S. 15A‑1340.16(d)(12a) or (18a), the court, finds thataggravating factors exist or the court finds that mitigating factors exist, thecourt may depart from the presumptive range of sentences specified in G.S. 15A‑1340.17(c)(2).If aggravating factors are present and the court determines they are sufficientto outweigh any mitigating factors that are present, it may impose a sentencethat is permitted by the aggravated range described in G.S. 15A‑1340.17(c)(4).If the court finds that mitigating factors are present and are sufficient tooutweigh any aggravating factors that are present, it may impose a sentencethat is permitted by the mitigated range described in G.S. 15A‑1340.17(c)(3).
(c) Written Findings;When Required. The court shall make findings of the aggravating andmitigating factors present in the offense only if, in its discretion, itdeparts from the presumptive range of sentences specified in G.S. 15A‑1340.17(c)(2).If the jury finds factors in aggravation, the court shall ensure that thosefindings are entered in the court's determination of sentencing factors form orany comparable document used to record the findings of sentencing factors.Findings shall be in writing. The requirement to make findings in order to departfrom the presumptive range applies regardless of whether the sentence ofimprisonment is activated or suspended.
(d) AggravatingFactors. The following are aggravating factors:
(1) The defendantinduced others to participate in the commission of the offense or occupied aposition of leadership or dominance of other participants.
(2) The defendant joinedwith more than one other person in committing the offense and was not chargedwith committing a conspiracy.
(2a) The offense wascommitted for the benefit of, or at the direction of, any criminal street gang,with the specific intent to promote, further, or assist in any criminal conductby gang members, and the defendant was not charged with committing aconspiracy. A "criminal street gang" means any ongoing organization,association, or group of three or more persons, whether formal or informal,having as one of its primary activities the commission of felony or violentmisdemeanor offenses, or delinquent acts that would be felonies or violentmisdemeanors if committed by an adult, and having a common name or commonidentifying sign, colors, or symbols.
(3) The offense wascommitted for the purpose of avoiding or preventing a lawful arrest oreffecting an escape from custody.
(4) The defendant washired or paid to commit the offense.
(5) The offense wascommitted to disrupt or hinder the lawful exercise of any governmental functionor the enforcement of laws.
(6) The offense wascommitted against or proximately caused serious injury to a present or former lawenforcement officer, employee of the Department of Correction, jailer, fireman,emergency medical technician, ambulance attendant, social worker, justice orjudge, clerk or assistant or deputy clerk of court, magistrate, prosecutor,juror, or witness against the defendant, while engaged in the performance ofthat person's official duties or because of the exercise of that person'sofficial duties.
(6a) The offense wascommitted against or proximately caused serious harm as defined in G.S. 14‑163.1or death to a law enforcement agency animal, an assistance animal, or a searchand rescue animal as defined in G.S. 14‑163.1, while engaged in theperformance of the animal's official duties.
(7) The offense wasespecially heinous, atrocious, or cruel.
(8) The defendantknowingly created a great risk of death to more than one person by means of aweapon or device which would normally be hazardous to the lives of more thanone person.
(9) The defendant heldpublic office at the time of the offense and the offense related to the conductof the office.
(10) The defendant wasarmed with or used a deadly weapon at the time of the crime.
(11) The victim was veryyoung, or very old, or mentally or physically infirm, or handicapped.
(12) The defendantcommitted the offense while on pretrial release on another charge.
(12a) The defendant has,during the 10‑year period prior to the commission of the offense forwhich the defendant is being sentenced, been found by a court of this State tobe in willful violation of the conditions of probation imposed pursuant to asuspended sentence or been found by the Post‑Release Supervision andParole Commission to be in willful violation of a condition of parole or post‑releasesupervision imposed pursuant to release from incarceration.
(13) The defendantinvolved a person under the age of 16 in the commission of the crime.
(14) The offense involvedan attempted or actual taking of property of great monetary value or damagecausing great monetary loss, or the offense involved an unusually largequantity of contraband.
(15) The defendant tookadvantage of a position of trust or confidence, including a domesticrelationship, to commit the offense.
(16) The offense involvedthe sale or delivery of a controlled substance to a minor.
(16a) The offense is themanufacture of methamphetamine and was committed where a person under the ageof 18 lives, was present, or was otherwise endangered by exposure to the drug,its ingredients, its by‑products, or its waste.
(16b) The offense is themanufacture of methamphetamine and was committed in a dwelling that is one offour or more contiguous dwellings.
(17) The offense for whichthe defendant stands convicted was committed against a victim because of thevictim's race, color, religion, nationality, or country of origin.
(18) The defendant doesnot support the defendant's family.
(18a) The defendant haspreviously been adjudicated delinquent for an offense that would be a Class A,B1, B2, C, D, or E felony if committed by an adult.
(19) The serious injuryinflicted upon the victim is permanent and debilitating.
(20) Any other aggravatingfactor reasonably related to the purposes of sentencing.
Evidence necessary to prove anelement of the offense shall not be used to prove any factor in aggravation,and the same item of evidence shall not be used to prove more than one factorin aggravation. Evidence necessary to establish that an enhanced sentence isrequired under G.S. 15A‑1340.16A may not be used to prove any factor inaggravation.
The judge shall not consideras an aggravating factor the fact that the defendant exercised the right to ajury trial.
Notwithstanding the provisionsof subsection (a1) of this section, the determination that an aggravatingfactor under G.S. 15A‑1340.16(d)(18a) is present in a case shall be madeby the court, and not by the jury. That determination shall be made in thesentencing hearing.
(e) Mitigating Factors. The following are mitigating factors:
(1) The defendantcommitted the offense under duress, coercion, threat, or compulsion that wasinsufficient to constitute a defense but significantly reduced the defendant'sculpability.
(2) The defendant was apassive participant or played a minor role in the commission of the offense.
(3) The defendant wassuffering from a mental or physical condition that was insufficient toconstitute a defense but significantly reduced the defendant's culpability forthe offense.
(4) The defendant's age,immaturity, or limited mental capacity at the time of commission of the offensesignificantly reduced the defendant's culpability for the offense.
(5) The defendant hasmade substantial or full restitution to the victim.
(6) The victim was morethan 16 years of age and was a voluntary participant in the defendant's conductor consented to it.
(7) The defendant aidedin the apprehension of another felon or testified truthfully on behalf of theprosecution in another prosecution of a felony.
(8) The defendant actedunder strong provocation, or the relationship between the defendant and thevictim was otherwise extenuating.
(9) The defendant couldnot reasonably foresee that the defendant's conduct would cause or threatenserious bodily harm or fear, or the defendant exercised caution to avoid suchconsequences.
(10) The defendantreasonably believed that the defendant's conduct was legal.
(11) Prior to arrest or atan early stage of the criminal process, the defendant voluntarily acknowledgedwrongdoing in connection with the offense to a law enforcement officer.
(12) The defendant hasbeen a person of good character or has had a good reputation in the communityin which the defendant lives.
(13) The defendant is aminor and has reliable supervision available.
(14) The defendant hasbeen honorably discharged from the United States armed services.
(15) The defendant hasaccepted responsibility for the defendant's criminal conduct.
(16) The defendant hasentered and is currently involved in or has successfully completed a drugtreatment program or an alcohol treatment program subsequent to arrest and priorto trial.
(17) The defendantsupports the defendant's family.
(18) The defendant has asupport system in the community.
(19) The defendant has apositive employment history or is gainfully employed.
(20) The defendant has agood treatment prognosis, and a workable treatment plan is available.
(21) Any other mitigatingfactor reasonably related to the purposes of sentences. (1993, c. 538, s. 1; 1994,Ex. Sess., c. 7, s. 6; c. 22, s. 22; c. 24, s. 14(b); 1995, c. 509, s. 13; 1997‑443,ss. 19.25(w), 19.25(ee); 2003‑378, s. 6; 2004‑178, s. 2; 2004‑186,s. 8.1; 2005‑101, s. 1; 2005‑145, s. 1; 2005‑434, s. 4; 2007‑80,s. 2; 2008‑129, ss. 1, 2; 2009‑460, s. 2.)
§ 15A‑1340.16. Aggravated and mitigated sentences.
(a) Generally, Burdenof Proof. The court shall consider evidence of aggravating or mitigatingfactors present in the offense that make an aggravated or mitigated sentenceappropriate, but the decision to depart from the presumptive range is in thediscretion of the court. The State bears the burden of proving beyond areasonable doubt that an aggravating factor exists, and the offender bears theburden of proving by a preponderance of the evidence that a mitigating factorexists.
(a1) Jury to DetermineAggravating Factors; Jury Procedure if Trial Bifurcated. The defendant mayadmit to the existence of an aggravating factor, and the factor so admittedshall be treated as though it were found by a jury pursuant to the proceduresin this subsection. Admissions of the existence of an aggravating factor mustbe consistent with the provisions of G.S. 15A‑1022.1. If the defendantdoes not so admit, only a jury may determine if an aggravating factor ispresent in an offense. The jury impaneled for the trial of the felony may, inthe same trial, also determine if one or more aggravating factors is present,unless the court determines that the interests of justice require that aseparate sentencing proceeding be used to make that determination. If the courtdetermines that a separate proceeding is required, the proceeding shall beconducted by the trial judge before the trial jury as soon as practicable afterthe guilty verdict is returned. If prior to the time that the trial jury beginsits deliberations on the issue of whether one or more aggravating factorsexist, any juror dies, becomes incapacitated or disqualified, or is dischargedfor any reason, an alternate juror shall become a part of the jury and serve inall respects as those selected on the regular trial panel. An alternate jurorshall become a part of the jury in the order in which the juror was selected.If the trial jury is unable to reconvene for a hearing on the issue of whetherone or more aggravating factors exist after having determined the guilt of theaccused, the trial judge shall impanel a new jury to determine the issue. Ajury selected to determine whether one or more aggravating factors exist shallbe selected in the same manner as juries are selected for the trial of criminalcases.
(a2) Procedure ifDefendant Admits Aggravating Factor Only. If the defendant admits that anaggravating factor exists, but pleads not guilty to the underlying felony, ajury shall be impaneled to dispose of the felony charge. In that case, evidencethat relates solely to the establishment of an aggravating factor shall not beadmitted in the felony trial.
(a3) Procedure ifDefendant Pleads Guilty to the Felony Only. If the defendant pleads guilty tothe felony, but contests the existence of one or more aggravating factors, ajury shall be impaneled to determine if the aggravating factor or factorsexist.
(a4) Pleading ofAggravating Factors. Aggravating factors set forth in subsection (d) of thissection need not be included in an indictment or other charging instrument. Anyaggravating factor alleged under subdivision (d)(20) of this section shall beincluded in an indictment or other charging instrument, as specified in G.S.15A‑924.
(a5) Procedure to DeterminePrior Record Level Points Not Involving Prior Convictions. If the State seeksto establish the existence of a prior record level point under G.S. 15A‑1340.14(b)(7),the jury shall determine whether the point should be assessed using theprocedures specified in subsections (a1) through (a3) of this section. TheState need not allege in an indictment or other pleading that it intends toestablish the point.
(a6) Notice of Intent toUse Aggravating Factors or Prior Record Level Points. The State must providea defendant with written notice of its intent to prove the existence of one ormore aggravating factors under subsection (d) of this section or a prior recordlevel point under G.S. 15A‑1340.14(b)(7) at least 30 days before trial orthe entry of a guilty or no contest plea. A defendant may waive the right toreceive such notice. The notice shall list all the aggravating factors theState seeks to establish.
(b) When Aggravated orMitigated Sentence Allowed. If the jury, or with respect to an aggravatingfactor under G.S. 15A‑1340.16(d)(12a) or (18a), the court, finds thataggravating factors exist or the court finds that mitigating factors exist, thecourt may depart from the presumptive range of sentences specified in G.S. 15A‑1340.17(c)(2).If aggravating factors are present and the court determines they are sufficientto outweigh any mitigating factors that are present, it may impose a sentencethat is permitted by the aggravated range described in G.S. 15A‑1340.17(c)(4).If the court finds that mitigating factors are present and are sufficient tooutweigh any aggravating factors that are present, it may impose a sentencethat is permitted by the mitigated range described in G.S. 15A‑1340.17(c)(3).
(c) Written Findings;When Required. The court shall make findings of the aggravating andmitigating factors present in the offense only if, in its discretion, itdeparts from the presumptive range of sentences specified in G.S. 15A‑1340.17(c)(2).If the jury finds factors in aggravation, the court shall ensure that thosefindings are entered in the court's determination of sentencing factors form orany comparable document used to record the findings of sentencing factors.Findings shall be in writing. The requirement to make findings in order to departfrom the presumptive range applies regardless of whether the sentence ofimprisonment is activated or suspended.
(d) AggravatingFactors. The following are aggravating factors:
(1) The defendantinduced others to participate in the commission of the offense or occupied aposition of leadership or dominance of other participants.
(2) The defendant joinedwith more than one other person in committing the offense and was not chargedwith committing a conspiracy.
(2a) The offense wascommitted for the benefit of, or at the direction of, any criminal street gang,with the specific intent to promote, further, or assist in any criminal conductby gang members, and the defendant was not charged with committing aconspiracy. A "criminal street gang" means any ongoing organization,association, or group of three or more persons, whether formal or informal,having as one of its primary activities the commission of felony or violentmisdemeanor offenses, or delinquent acts that would be felonies or violentmisdemeanors if committed by an adult, and having a common name or commonidentifying sign, colors, or symbols.
(3) The offense wascommitted for the purpose of avoiding or preventing a lawful arrest oreffecting an escape from custody.
(4) The defendant washired or paid to commit the offense.
(5) The offense wascommitted to disrupt or hinder the lawful exercise of any governmental functionor the enforcement of laws.
(6) The offense wascommitted against or proximately caused serious injury to a present or former lawenforcement officer, employee of the Department of Correction, jailer, fireman,emergency medical technician, ambulance attendant, social worker, justice orjudge, clerk or assistant or deputy clerk of court, magistrate, prosecutor,juror, or witness against the defendant, while engaged in the performance ofthat person's official duties or because of the exercise of that person'sofficial duties.
(6a) The offense wascommitted against or proximately caused serious harm as defined in G.S. 14‑163.1or death to a law enforcement agency animal, an assistance animal, or a searchand rescue animal as defined in G.S. 14‑163.1, while engaged in theperformance of the animal's official duties.
(7) The offense wasespecially heinous, atrocious, or cruel.
(8) The defendantknowingly created a great risk of death to more than one person by means of aweapon or device which would normally be hazardous to the lives of more thanone person.
(9) The defendant heldpublic office at the time of the offense and the offense related to the conductof the office.
(10) The defendant wasarmed with or used a deadly weapon at the time of the crime.
(11) The victim was veryyoung, or very old, or mentally or physically infirm, or handicapped.
(12) The defendantcommitted the offense while on pretrial release on another charge.
(12a) The defendant has,during the 10‑year period prior to the commission of the offense forwhich the defendant is being sentenced, been found by a court of this State tobe in willful violation of the conditions of probation imposed pursuant to asuspended sentence or been found by the Post‑Release Supervision andParole Commission to be in willful violation of a condition of parole or post‑releasesupervision imposed pursuant to release from incarceration.
(13) The defendantinvolved a person under the age of 16 in the commission of the crime.
(14) The offense involvedan attempted or actual taking of property of great monetary value or damagecausing great monetary loss, or the offense involved an unusually largequantity of contraband.
(15) The defendant tookadvantage of a position of trust or confidence, including a domesticrelationship, to commit the offense.
(16) The offense involvedthe sale or delivery of a controlled substance to a minor.
(16a) The offense is themanufacture of methamphetamine and was committed where a person under the ageof 18 lives, was present, or was otherwise endangered by exposure to the drug,its ingredients, its by‑products, or its waste.
(16b) The offense is themanufacture of methamphetamine and was committed in a dwelling that is one offour or more contiguous dwellings.
(17) The offense for whichthe defendant stands convicted was committed against a victim because of thevictim's race, color, religion, nationality, or country of origin.
(18) The defendant doesnot support the defendant's family.
(18a) The defendant haspreviously been adjudicated delinquent for an offense that would be a Class A,B1, B2, C, D, or E felony if committed by an adult.
(19) The serious injuryinflicted upon the victim is permanent and debilitating.
(20) Any other aggravatingfactor reasonably related to the purposes of sentencing.
Evidence necessary to prove anelement of the offense shall not be used to prove any factor in aggravation,and the same item of evidence shall not be used to prove more than one factorin aggravation. Evidence necessary to establish that an enhanced sentence isrequired under G.S. 15A‑1340.16A may not be used to prove any factor inaggravation.
The judge shall not consideras an aggravating factor the fact that the defendant exercised the right to ajury trial.
Notwithstanding the provisionsof subsection (a1) of this section, the determination that an aggravatingfactor under G.S. 15A‑1340.16(d)(18a) is present in a case shall be madeby the court, and not by the jury. That determination shall be made in thesentencing hearing.
(e) Mitigating Factors. The following are mitigating factors:
(1) The defendantcommitted the offense under duress, coercion, threat, or compulsion that wasinsufficient to constitute a defense but significantly reduced the defendant'sculpability.
(2) The defendant was apassive participant or played a minor role in the commission of the offense.
(3) The defendant wassuffering from a mental or physical condition that was insufficient toconstitute a defense but significantly reduced the defendant's culpability forthe offense.
(4) The defendant's age,immaturity, or limited mental capacity at the time of commission of the offensesignificantly reduced the defendant's culpability for the offense.
(5) The defendant hasmade substantial or full restitution to the victim.
(6) The victim was morethan 16 years of age and was a voluntary participant in the defendant's conductor consented to it.
(7) The defendant aidedin the apprehension of another felon or testified truthfully on behalf of theprosecution in another prosecution of a felony.
(8) The defendant actedunder strong provocation, or the relationship between the defendant and thevictim was otherwise extenuating.
(9) The defendant couldnot reasonably foresee that the defendant's conduct would cause or threatenserious bodily harm or fear, or the defendant exercised caution to avoid suchconsequences.
(10) The defendantreasonably believed that the defendant's conduct was legal.
(11) Prior to arrest or atan early stage of the criminal process, the defendant voluntarily acknowledgedwrongdoing in connection with the offense to a law enforcement officer.
(12) The defendant hasbeen a person of good character or has had a good reputation in the communityin which the defendant lives.
(13) The defendant is aminor and has reliable supervision available.
(14) The defendant hasbeen honorably discharged from the United States armed services.
(15) The defendant hasaccepted responsibility for the defendant's criminal conduct.
(16) The defendant hasentered and is currently involved in or has successfully completed a drugtreatment program or an alcohol treatment program subsequent to arrest and priorto trial.
(17) The defendantsupports the defendant's family.
(18) The defendant has asupport system in the community.
(19) The defendant has apositive employment history or is gainfully employed.
(20) The defendant has agood treatment prognosis, and a workable treatment plan is available.
(21) Any other mitigatingfactor reasonably related to the purposes of sentences. (1993, c. 538, s. 1; 1994,Ex. Sess., c. 7, s. 6; c. 22, s. 22; c. 24, s. 14(b); 1995, c. 509, s. 13; 1997‑443,ss. 19.25(w), 19.25(ee); 2003‑378, s. 6; 2004‑178, s. 2; 2004‑186,s. 8.1; 2005‑101, s. 1; 2005‑145, s. 1; 2005‑434, s. 4; 2007‑80,s. 2; 2008‑129, ss. 1, 2; 2009‑460, s. 2.)
§ 15A‑1340.16. Aggravated and mitigated sentences.
(a) Generally, Burdenof Proof. The court shall consider evidence of aggravating or mitigatingfactors present in the offense that make an aggravated or mitigated sentenceappropriate, but the decision to depart from the presumptive range is in thediscretion of the court. The State bears the burden of proving beyond areasonable doubt that an aggravating factor exists, and the offender bears theburden of proving by a preponderance of the evidence that a mitigating factorexists.
(a1) Jury to DetermineAggravating Factors; Jury Procedure if Trial Bifurcated. The defendant mayadmit to the existence of an aggravating factor, and the factor so admittedshall be treated as though it were found by a jury pursuant to the proceduresin this subsection. Admissions of the existence of an aggravating factor mustbe consistent with the provisions of G.S. 15A‑1022.1. If the defendantdoes not so admit, only a jury may determine if an aggravating factor ispresent in an offense. The jury impaneled for the trial of the felony may, inthe same trial, also determine if one or more aggravating factors is present,unless the court determines that the interests of justice require that aseparate sentencing proceeding be used to make that determination. If the courtdetermines that a separate proceeding is required, the proceeding shall beconducted by the trial judge before the trial jury as soon as practicable afterthe guilty verdict is returned. If prior to the time that the trial jury beginsits deliberations on the issue of whether one or more aggravating factorsexist, any juror dies, becomes incapacitated or disqualified, or is dischargedfor any reason, an alternate juror shall become a part of the jury and serve inall respects as those selected on the regular trial panel. An alternate jurorshall become a part of the jury in the order in which the juror was selected.If the trial jury is unable to reconvene for a hearing on the issue of whetherone or more aggravating factors exist after having determined the guilt of theaccused, the trial judge shall impanel a new jury to determine the issue. Ajury selected to determine whether one or more aggravating factors exist shallbe selected in the same manner as juries are selected for the trial of criminalcases.
(a2) Procedure ifDefendant Admits Aggravating Factor Only. If the defendant admits that anaggravating factor exists, but pleads not guilty to the underlying felony, ajury shall be impaneled to dispose of the felony charge. In that case, evidencethat relates solely to the establishment of an aggravating factor shall not beadmitted in the felony trial.
(a3) Procedure ifDefendant Pleads Guilty to the Felony Only. If the defendant pleads guilty tothe felony, but contests the existence of one or more aggravating factors, ajury shall be impaneled to determine if the aggravating factor or factorsexist.
(a4) Pleading ofAggravating Factors. Aggravating factors set forth in subsection (d) of thissection need not be included in an indictment or other charging instrument. Anyaggravating factor alleged under subdivision (d)(20) of this section shall beincluded in an indictment or other charging instrument, as specified in G.S.15A‑924.
(a5) Procedure to DeterminePrior Record Level Points Not Involving Prior Convictions. If the State seeksto establish the existence of a prior record level point under G.S. 15A‑1340.14(b)(7),the jury shall determine whether the point should be assessed using theprocedures specified in subsections (a1) through (a3) of this section. TheState need not allege in an indictment or other pleading that it intends toestablish the point.
(a6) Notice of Intent toUse Aggravating Factors or Prior Record Level Points. The State must providea defendant with written notice of its intent to prove the existence of one ormore aggravating factors under subsection (d) of this section or a prior recordlevel point under G.S. 15A‑1340.14(b)(7) at least 30 days before trial orthe entry of a guilty or no contest plea. A defendant may waive the right toreceive such notice. The notice shall list all the aggravating factors theState seeks to establish.
(b) When Aggravated orMitigated Sentence Allowed. If the jury, or with respect to an aggravatingfactor under G.S. 15A‑1340.16(d)(12a) or (18a), the court, finds thataggravating factors exist or the court finds that mitigating factors exist, thecourt may depart from the presumptive range of sentences specified in G.S. 15A‑1340.17(c)(2).If aggravating factors are present and the court determines they are sufficientto outweigh any mitigating factors that are present, it may impose a sentencethat is permitted by the aggravated range described in G.S. 15A‑1340.17(c)(4).If the court finds that mitigating factors are present and are sufficient tooutweigh any aggravating factors that are present, it may impose a sentencethat is permitted by the mitigated range described in G.S. 15A‑1340.17(c)(3).
(c) Written Findings;When Required. The court shall make findings of the aggravating andmitigating factors present in the offense only if, in its discretion, itdeparts from the presumptive range of sentences specified in G.S. 15A‑1340.17(c)(2).If the jury finds factors in aggravation, the court shall ensure that thosefindings are entered in the court's determination of sentencing factors form orany comparable document used to record the findings of sentencing factors.Findings shall be in writing. The requirement to make findings in order to departfrom the presumptive range applies regardless of whether the sentence ofimprisonment is activated or suspended.
(d) AggravatingFactors. The following are aggravating factors:
(1) The defendantinduced others to participate in the commission of the offense or occupied aposition of leadership or dominance of other participants.
(2) The defendant joinedwith more than one other person in committing the offense and was not chargedwith committing a conspiracy.
(2a) The offense wascommitted for the benefit of, or at the direction of, any criminal street gang,with the specific intent to promote, further, or assist in any criminal conductby gang members, and the defendant was not charged with committing aconspiracy. A "criminal street gang" means any ongoing organization,association, or group of three or more persons, whether formal or informal,having as one of its primary activities the commission of felony or violentmisdemeanor offenses, or delinquent acts that would be felonies or violentmisdemeanors if committed by an adult, and having a common name or commonidentifying sign, colors, or symbols.
(3) The offense wascommitted for the purpose of avoiding or preventing a lawful arrest oreffecting an escape from custody.
(4) The defendant washired or paid to commit the offense.
(5) The offense wascommitted to disrupt or hinder the lawful exercise of any governmental functionor the enforcement of laws.
(6) The offense wascommitted against or proximately caused serious injury to a present or former lawenforcement officer, employee of the Department of Correction, jailer, fireman,emergency medical technician, ambulance attendant, social worker, justice orjudge, clerk or assistant or deputy clerk of court, magistrate, prosecutor,juror, or witness against the defendant, while engaged in the performance ofthat person's official duties or because of the exercise of that person'sofficial duties.
(6a) The offense wascommitted against or proximately caused serious harm as defined in G.S. 14‑163.1or death to a law enforcement agency animal, an assistance animal, or a searchand rescue animal as defined in G.S. 14‑163.1, while engaged in theperformance of the animal's official duties.
(7) The offense wasespecially heinous, atrocious, or cruel.
(8) The defendantknowingly created a great risk of death to more than one person by means of aweapon or device which would normally be hazardous to the lives of more thanone person.
(9) The defendant heldpublic office at the time of the offense and the offense related to the conductof the office.
(10) The defendant wasarmed with or used a deadly weapon at the time of the crime.
(11) The victim was veryyoung, or very old, or mentally or physically infirm, or handicapped.
(12) The defendantcommitted the offense while on pretrial release on another charge.
(12a) The defendant has,during the 10‑year period prior to the commission of the offense forwhich the defendant is being sentenced, been found by a court of this State tobe in willful violation of the conditions of probation imposed pursuant to asuspended sentence or been found by the Post‑Release Supervision andParole Commission to be in willful violation of a condition of parole or post‑releasesupervision imposed pursuant to release from incarceration.
(13) The defendantinvolved a person under the age of 16 in the commission of the crime.
(14) The offense involvedan attempted or actual taking of property of great monetary value or damagecausing great monetary loss, or the offense involved an unusually largequantity of contraband.
(15) The defendant tookadvantage of a position of trust or confidence, including a domesticrelationship, to commit the offense.
(16) The offense involvedthe sale or delivery of a controlled substance to a minor.
(16a) The offense is themanufacture of methamphetamine and was committed where a person under the ageof 18 lives, was present, or was otherwise endangered by exposure to the drug,its ingredients, its by‑products, or its waste.
(16b) The offense is themanufacture of methamphetamine and was committed in a dwelling that is one offour or more contiguous dwellings.
(17) The offense for whichthe defendant stands convicted was committed against a victim because of thevictim's race, color, religion, nationality, or country of origin.
(18) The defendant doesnot support the defendant's family.
(18a) The defendant haspreviously been adjudicated delinquent for an offense that would be a Class A,B1, B2, C, D, or E felony if committed by an adult.
(19) The serious injuryinflicted upon the victim is permanent and debilitating.
(20) Any other aggravatingfactor reasonably related to the purposes of sentencing.
Evidence necessary to prove anelement of the offense shall not be used to prove any factor in aggravation,and the same item of evidence shall not be used to prove more than one factorin aggravation. Evidence necessary to establish that an enhanced sentence isrequired under G.S. 15A‑1340.16A may not be used to prove any factor inaggravation.
The judge shall not consideras an aggravating factor the fact that the defendant exercised the right to ajury trial.
Notwithstanding the provisionsof subsection (a1) of this section, the determination that an aggravatingfactor under G.S. 15A‑1340.16(d)(18a) is present in a case shall be madeby the court, and not by the jury. That determination shall be made in thesentencing hearing.
(e) Mitigating Factors. The following are mitigating factors:
(1) The defendantcommitted the offense under duress, coercion, threat, or compulsion that wasinsufficient to constitute a defense but significantly reduced the defendant'sculpability.
(2) The defendant was apassive participant or played a minor role in the commission of the offense.
(3) The defendant wassuffering from a mental or physical condition that was insufficient toconstitute a defense but significantly reduced the defendant's culpability forthe offense.
(4) The defendant's age,immaturity, or limited mental capacity at the time of commission of the offensesignificantly reduced the defendant's culpability for the offense.
(5) The defendant hasmade substantial or full restitution to the victim.
(6) The victim was morethan 16 years of age and was a voluntary participant in the defendant's conductor consented to it.
(7) The defendant aidedin the apprehension of another felon or testified truthfully on behalf of theprosecution in another prosecution of a felony.
(8) The defendant actedunder strong provocation, or the relationship between the defendant and thevictim was otherwise extenuating.
(9) The defendant couldnot reasonably foresee that the defendant's conduct would cause or threatenserious bodily harm or fear, or the defendant exercised caution to avoid suchconsequences.
(10) The defendantreasonably believed that the defendant's conduct was legal.
(11) Prior to arrest or atan early stage of the criminal process, the defendant voluntarily acknowledgedwrongdoing in connection with the offense to a law enforcement officer.
(12) The defendant hasbeen a person of good character or has had a good reputation in the communityin which the defendant lives.
(13) The defendant is aminor and has reliable supervision available.
(14) The defendant hasbeen honorably discharged from the United States armed services.
(15) The defendant hasaccepted responsibility for the defendant's criminal conduct.
(16) The defendant hasentered and is currently involved in or has successfully completed a drugtreatment program or an alcohol treatment program subsequent to arrest and priorto trial.
(17) The defendantsupports the defendant's family.
(18) The defendant has asupport system in the community.
(19) The defendant has apositive employment history or is gainfully employed.
(20) The defendant has agood treatment prognosis, and a workable treatment plan is available.
(21) Any other mitigatingfactor reasonably related to the purposes of sentences. (1993, c. 538, s. 1; 1994,Ex. Sess., c. 7, s. 6; c. 22, s. 22; c. 24, s. 14(b); 1995, c. 509, s. 13; 1997‑443,ss. 19.25(w), 19.25(ee); 2003‑378, s. 6; 2004‑178, s. 2; 2004‑186,s. 8.1; 2005‑101, s. 1; 2005‑145, s. 1; 2005‑434, s. 4; 2007‑80,s. 2; 2008‑129, ss. 1, 2; 2009‑460, s. 2.)
