FYI

by SCOTT MOONEYHAM, Associated Press Writer

http://www.newsday.com/ap/regional/ap590.htm

RALEIGH (AP) – The state Court of Appeals on Friday ruled
unconstitutional a law allowing judges to impose harsher
sentences for criminals who use guns while committing a
felony, citing a U.S. Supreme Court decision involving a New
Jersey hate crime statute.

The decision overturns a seven-year prison sentence given to
a Charlotte man convicted of kidnapping and assaulting his former
girlfriend at gunpoint.

The court ordered that Eric Earl Guice be resentenced and that
the five-year term added to his prison term for using a gun being
dropped.

Guice was convicted in 1999 of forcing his way into the home of
former girlfriend Kris Wall, chasing her to a neighbor’s home and
then holding her and the neighbor at gunpoint.

In his appeal, Guice’s lawyers cited the case of New Jersey man
Charles C. Apprendi, who was sentenced to 12 years in prison for
firing bullets at the home of a black family in 1994.

The nation’s high court threw out Apprendi’s prison sentence in June,
saying judges should not decide whether criminal defendants are
guilty of a crime that can be used to increase their prison sentences.

The court said the Constitution requires that juries make that
determination. Guice’s lawyers argued that the North Carolina felony
gun law is essentially no different than the New Jersey hate crime
statute, giving judges discretion to impose tougher sentences without
a finding by a jury that a gun was involved in the crime.

The appeals court agreed, saying in a 3-0 decision that the North
Carolina law clearly allows a judge, not a jury, to make a ”factual
determination.”

”The statute thus deprives defendants of their liberty while
categorically denying them the attendant historical safeguards:
The right to have facts subjecting them to an increased penalty
submitted to an impartial jury and proved beyond a reasonable
doubt,” Judge James Wynn wrote for the court.

Officials at the Attorney General’s Office said it was too early to say
whether they would seek an appeal before the state Supreme Court.

”The state will be evaluating the decision by the Court of Appeals to
determine whether we will be petitioning the Supreme Court,” Attorney
General spokesman Ruffin Poole said.

Chris Fialko, a lawyer who represented Guice, said he was not
surprised by the decision. ”I felt confident after reading Apprendi
that the way North Carolina gun enhancement is written that it is
clearly unconstitutional. It (the appeals court decision) just followed
the precedent set in Apprendi,” Fialko said.

The Apprendi decision has resulted in a spate of appeals in state
and federal courts across the country.

Defendants are using the ruling to challenge drug laws that allow
judges to decide the amounts illegal drugs sold, fraud convictions
in which judges determined amounts lost and gun cases similar
to Guice’s.

AP-ES-12-29-00 1906EST