NC:Gun law comes under scrutiny again

Josey1

Gun law comes under scrutiny again SCOTT MOONEYHAM Associated Press Writer RALEIGH, N.C. (AP) -- The state Court of Appeals on Tuesday overturned the prison sentence of a man who received more time behind bars because he used a gun while committing the crime.The case marked the second time the state's appellate courts have questioned North Carolina's felony gun law, which allows judges to impose harsher sentences when a firearm is used.It also marked the second time the appeals court considered the prison sentence of Phillip Eugene Boyd. The Court of Appeals threw out the sentence after a state Supreme Court decision more tightly construed the gun statute.Boyd was convicted in 1999 of kidnapping two women in Durham County and beating one of them with a rolling pin while threatening to kill her and holding the woman at gunpoint.He received a minimum prison term of 21 years, with five of the years added by Superior Court Judge Orlando Hudson because a gun was used in the crime.The additional time was imposed under the gun enhancement provision of the Structured Sentencing Act, in which judges consider the use of a gun an aggravating factor which can lead to more prison time. The sentence cannot be lengthened if the use of the gun is an underlying part of crime, such as someone charged with shooting into a home or shooting another person.In Boyd's case, both the lower court judge and the appeals court ruled that he didn't need the gun to commit the crime, therefore it was not an underlying part of the felony.However, the appeals court did find the provision in the Structured Sentencing Act could not be applied, citing a U.S. Supreme Court case in which a New Jersey man's sentence was overturned.The nation's high court ruled more than a year ago that Charles Apprendi's prison sentence should be overturned, 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.Apprendi was convicted of shooting into the home of black family in 1994 and his prison term lengthened by a judge under New Jersey's hate crime law.Boyd's attorney, Daniel Shatz, said the decision was expected after the state Supreme Court weighed in on the issue last year."I'm pleased. It's not really a surprise. Based on the North Carolina Supreme Court decision, there really weren't many other outcomes," Shatz said.The state Supreme Court looked at both the Boyd case and a similar case involving a Charlotte man, Eric Earl Guice, also convicted of kidnapping.The Court of Appeals had essentially found the gun enhancement statute unconstitutional when it ruled in the Guice case.When the decision was appealed by the state, the N.C. Supreme Court ruled the law could continue to be applied but only under limit circumstances. The decision said the use of a gun must be laid out in an indictment and proven to a jury.Shatz said he believes only a handful of other sentences in North Carolina might be overturned because of the ruling.However, across the country, the Apprendi decision has resulted in a spate of appeals in state and federal courts.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 Boyd and Guice. http://www.newsobserver.com/ncwire/news/Story/903863p-902910c.html