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ECU FINA 2244 - Aggravating and Mitigating Factors

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§ 15A-1340.16. Aggravated and mitigated sentences. (d) Aggravating Factors. – The following are aggravating factors:(1) The defendant induced others to participate in the commission of the offenseor occupied a position of leadership or dominance of other participants.(2) The defendant joined with more than one other person in committing theoffense and was not charged with committing a conspiracy.(2a) The offense was committed for the benefit of, or at the direction of, anycriminal street gang, with the specific intent to promote, further, or assist inany criminal conduct by gang members, and the defendant was not chargedwith committing a conspiracy. A "criminal street gang" means any ongoingorganization, association, or group of three or more persons, whether formalor informal, having as one of its primary activities the commission of felonyor violent misdemeanor offenses, or delinquent acts that would be felonies orviolent misdemeanors if committed by an adult, and having a common nameor common identifying sign, colors, or symbols.(3) The offense was committed for the purpose of avoiding or preventing a lawfularrest or effecting an escape from custody.(4) The defendant was hired or paid to commit the offense.(5) The offense was committed to disrupt or hinder the lawful exercise of anygovernmental function or the enforcement of laws.(6) The offense was committed against or proximately caused serious injury to apresent or former law enforcement officer, employee of the Department ofCorrection, jailer, fireman, emergency medical technician, ambulanceattendant, social worker, justice or judge, clerk or assistant or deputy clerk ofcourt, magistrate, prosecutor, juror, or witness against the defendant, whileengaged in the performance of that person's official duties or because of theexercise of that person's official duties.(6a) The offense was committed against or proximately caused serious harm asdefined in G.S. 14-163.1 or death to a law enforcement agency animal, anassistance animal, or a search and rescue animal as defined in G.S. 14-163.1,while engaged in the performance of the animal's official duties.(7) The offense was especially heinous, atrocious, or cruel.(8) The defendant knowingly created a great risk of death to more than oneperson by means of a weapon or device which would normally be hazardousto the lives of more than one person.(9) The defendant held public office at the time of the offense and the offenserelated to the conduct of the office.(10) The defendant was armed with or used a deadly weapon at the time of thecrime.(11) The victim was very young, or very old, or mentally or physically infirm, orhandicapped.(12) The defendant committed the offense while on pretrial release on anothercharge.(12a) The defendant has, during the 10-year period prior to the commission of theoffense for which the defendant is being sentenced, been found by a court ofthis State to be in willful violation of the conditions of probation imposedpursuant to a suspended sentence or been found by the Post-ReleaseSupervision and Parole Commission to be in willful violation of a condition ofparole or post-release supervision imposed pursuant to release fromincarceration.(13) The defendant involved a person under the age of 16 in the commission of thecrime.(14) The offense involved an attempted or actual taking of property of greatmonetary value or damage causing great monetary loss, or the offenseinvolved an unusually large quantity of contraband.(15) The defendant took advantage of a position of trust or confidence, including adomestic relationship, to commit the offense.(16) The offense involved the sale or delivery of a controlled substance to a minor.(16a) The offense is the manufacture of methamphetamine and was committedwhere a person under the age of 18 lives, was present, or was otherwiseendangered by exposure to the drug, its ingredients, its by-products, or itswaste.(16b) The offense is the manufacture of methamphetamine and was committed in adwelling that is one of four or more contiguous dwellings.(17) The offense for which the defendant stands convicted was committed againsta victim because of the victim's race, color, religion, nationality, or country oforigin.(18) The defendant does not support the defendant's family.(18a) The defendant has previously been adjudicated delinquent for an offense thatwould be a Class A, B1, B2, C, D, or E felony if committed by an adult.(19) The serious injury inflicted upon the victim is permanent and debilitating.(20) Any other aggravating factor reasonably related to the purposes of sentencing.Evidence necessary to prove an element of the offense shall not be used to prove any factorin aggravation, and the same item of evidence shall not be used to prove more than one factor inaggravation. Evidence necessary to establish that an enhanced sentence is required under G.S.15A-1340.16A may not be used to prove any factor in aggravation.The judge shall not consider as an aggravating factor the fact that the defendant exercised theright to a jury trial.Notwithstanding the provisions of subsection (a1) of this section, the determination that anaggravating factor under G.S. 15A-1340.16(d)(18a) is present in a case shall be made by thecourt, and not by the jury. That determination shall be made in the sentencing hearing.(e) Mitigating Factors. – The following are mitigating factors:(1) The defendant committed the offense under duress, coercion, threat, orcompulsion that was insufficient to constitute a defense but significantlyreduced the defendant's culpability.(2) The defendant was a passive participant or played a minor role in thecommission of the offense.(3) The defendant was suffering from a mental or physical condition that wasinsufficient to constitute a defense but significantly reduced the defendant'sculpability for the offense.(4) The defendant's age, immaturity, or limited mental capacity at the time ofcommission of the offense significantly reduced the defendant's culpability forthe offense.(5) The defendant has made substantial or full


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