320.1Conducting the Sentencing Hearing
Key Concepts
- The sentencing hearing will usually be held right after the entry of a guilty plea or a verdict of guilty is returned, but it may be continued for good cause and may also be conducted by a judge other than the one who presided over the arraignment or trial.
- The defendant has a right to be present at sentencing. In certain types of cases, the victim has the right to be present and to present evidence of the impact of the crime.
- The rules of evidence do not apply to sentencing hearings.
- The court can order a presentence investigation (or, in some cases, a more detailed “diagnostic study”) to obtain additional information that may be relevant to sentencing.
Non-capital sentencing
This entry addresses sentencing hearings for typical, non-capital felony and misdemeanor cases. Capital sentencing proceedings in first degree murder cases are governed by their own set of statutes, found principally at G.S. 15A-2000 through 15A-2005. For more information about capital sentencing, refer to the Capital Case Law Handbook, available in paper format here.
Timing, Continuance, & Different Judges
In most cases, the court will move directly into sentencing after entry of a guilty plea or upon return of a guilty verdict by the jury; however, the court may continue sentencing until a later date upon motion of either party for good cause. See G.S. 15A-1334(a). An order continuing sentencing to a later specified date may be referred to as a prayer for judgment. If the sentencing is continued to a specified date, but does not occur on that date, the court does not lose jurisdiction to impose a sentence at a later date – unless the delay is unreasonable or the defendant was prejudiced by the delay. See State v. Absher, 335 N.C. 155 (1993); State v. Degree, 110 N.C. App. 638 (1993).
In some cases, the entry of a “prayer for judgment continued” or “PJC” may be intended to serve as the final judgment in the case – for more information on this type of disposition, see the related entry regarding Prayer for Judgment Continued.
If sentencing is continued but the original judge is unavailable to conduct the hearing due to illness, death, retirement, rotation out of the district, or if the sentencing hearing simply lands before a different judge due to calendaring and scheduling issues, a different judge may impose sentence and conclude the case. See State v. Sauls, 291 N.C. 253 (1976); State v. Degree, 110 N.C. App. 638 (1993) (“it is not material that a trial judge different from the judge who presided over the taking of the guilty plea entered the sentence”); see also G.S. 15A-1224(b) (substitution of judge due to death or disability during trial).
Switching judges?
Although not statutorily required, the judge who accepted the plea or presided over the trial typically will be the one to sentence the defendant. This is usually beneficial, since the trial judge will already be familiar with the evidence supporting the conviction. If a different judge presides over sentencing, the prosecutor should be prepared to summarize the important facts of the case, and may also introduce exhibits or call witnesses, if necessary, to support the requested sentence.
Presence of Defendant and Victim
As a general rule, the defendant must be present for a sentence to be imposed. See State v. Stockton, 13 N.C. App. 287 (1971) (collecting cases in which sentences entered in defendant’s absence were held defective). Defendants ordinarily may not be sentenced in absentia, except for a limited exception when the punishment is only the payment of fine and costs. State v. Pope, 257 N.C. 326 (1962); State v. Brooks, 211 N.C. 702 (1937); State v. Cherry, 154 N.C. 624 (1911); State v. Crumbley, 135 N.C. App. 59 (1999); State v. Bonds, 43 N.C. App. 467 (1979); State v. Stockton, 13 N.C. App. 287 (1971).
However, in State v. Miller, 142 N.C. App. 435 (2001), the North Carolina Court of Appeals did hold that a trial court did not err by conducting the sentencing hearing in defendant’s absence when the defendant had absconded before the jury returned its verdict. Nevertheless, to avoid any issues on appeal, the better practice is to simply continue the sentencing hearing for good cause until the absconding defendant is apprehended and brought to court for sentencing. For more information, see the related Trial entry on Defendant's Right to Be Present (Section C, Sentencing).
In many cases, the victim also has a right to be present at sentencing. G.S. 15A-832(f) provides that before the disposition of a case, the district attorney’s office must offer the victim of an offense subject to the Victims’ Rights Act (see definitions in G.S. 15A-830) the opportunity to consult with the prosecutor to share his or her views about dismissal, plea or negotiations, sentencing, and any pretrial diversion programs. G.S. 15A-833 provides that a victim of an offense subject to the Victims’ Rights Act has the right to offer admissible evidence of the impact of the crime, which the court or jury must consider in sentencing the defendant. The evidence may include (1) a description of the nature or extent of any injury; (2) an explanation of any economic or property loss suffered by the victim; and (3) a request for restitution and an indication of whether the victim has applied for or received compensation under the Crime Victims Compensation Act (Chapter 15B of the General Statutes). G.S. 15A-834 and G.S. 15A-1340.34(b) provide that a victim of an offense subject to the Victims’ Rights Act has the right to receive restitution as ordered by the court. Form AOC-CR-611, Restitution Worksheet - Notice and Order, should be used for this purpose. (The same form may also be used to apply for restitution for a qualifying victim who is not subject to the Victims’ Rights Act.) For more information, see the related Pretrial entry on Victims' Rights.
No Rules of Evidence
The rules of evidence do not apply at sentencing hearings. See G.S. 8C-1, Rule 1101(b)(3) (evidence rules, other than privilege, “do not apply” to sentencing); G.S. 15A-1334(b) (formal rules of evidence do not apply at sentencing; state and defendant may call and cross-examine witnesses; defendant allowed to make a statement); State v. Sings, 182 N.C. App. 162 (2007) (hearsay is admissible – no confrontation clause violation at sentencing hearing in non-capital cases).
Presentence Investigation and Report
In any case, the court may order the probation officer to conduct a presentence investigation of the defendant. G.S. 15A-1332(b). Ordinarily such an investigation may only be ordered after conviction, but the defendant may ask the court to order it earlier. Id. If an investigation is ordered, the probation officer must “promptly investigate all circumstances relevant to sentencing” and submit a written or oral report of his or her findings. Id. A written report prepared by the probation officer is not a public record, and may only be viewed by the defense, the prosecution, and the court. See G.S. 15A-1333(a), (b). Since it may take some time to complete the investigation and report, the judge who ordered the presentence investigation may direct that the sentencing hearing be held before him or her in another district or that it be held after the session in which the defendant was convicted. G.S. 15A-1334(c). When a person has been convicted of an offense involving impaired driving, the trial judge may request a presentence investigation to determine whether the person convicted would benefit from treatment for habitual use of alcohol or drugs. G.S. 20-179.1. If the person objects, no presentence investigation may be ordered under G.S. 20-179.1, but the judge still may require that the defendant obtain treatment as a condition of probation. Id.
If the court wants more detailed information than a presentence investigation and report can provide, a defendant convicted of a felony or a Class 1 or A1 misdemeanor may be committed to prison for up to 90 days for a “diagnostic study” – but only if the defendant consents. See G.S. 15A-1332(c); see also AOC-CR-232 (Order for Presentence Commitment for Study). Upon a person’s commitment for a diagnostic study, the Division of Adult Corrections (DAC) must conduct a “complete study” of the defendant, inquiring into matters such as the defendant’s criminal history, social background, capabilities, mental and physical health, and the availability of resources and programs appropriate to the defendant. Upon completion of the study or at the end of the 90 days, whichever occurs first, DAC must release the defendant to the sheriff of the county in which his case is docketed. DAC must forward the study and its recommendations to the clerk of court.
