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Change in Punishment for Second-Degree Murder

July 10th, 2012
By Jeff Welty

Senate Bill 105, which passed both chambers of the General Assembly overwhelmingly and appears certain to become law (either with the Governor’s signature or because of the passage of time without her veto), increases the penalty for most second-degree murders. Second-degree murder is currently a B2 felony, but for offenses committed on or after December 1, 2012, it’s going to be a B1 felony – unless malice is established based on recklessness or the murder results from drug distribution, in which case, second-degree murder will remain a B2 offense.

What follows are a couple of quick thoughts about the change, including, at the end, a couple of comments about interesting implementation issues presented by the bill.

  • Historical context. The punishment for second-degree murder has varied quite a bit over the years. Under the Fair Sentencing Act, second-degree murder was a Class C felony. It carried a possible prison term of 0 to 50 years, with a presumptive term of 15 years. Prior to Fair Sentencing, second-degree murder was an unclassified felony, punishable by two years to life in prison.
  • Longer sentences. According to Sentencing Commission data, the average sentence length for a conviction of a B2 felony in FY 2010/11 was 170 months minimum. By contrast, the average sentence length for a conviction of a B1 felony was 230 months minimum. Looking at it another way, for a defendant in prior record level III, the top of the presumptive range is 207 months minimum for a B2, but 317 months minimum for a B1. So there will be something like a 50% increase in sentence length for most second-degree murders.
  • Plea bargains? Part of the impetus behind the bill was the idea that the state would be more likely to offer plea bargains in first-degree murder cases if second-degree convictions carried longer sentences. Whether that’s true remains to be seen, but the possibility makes the ultimate effect of the bill on the prison population – and the budget – somewhat uncertain: second-degree murderers will serve longer sentences, but there may be fewer first-degree murderers serving life without parole. Some of these issues are discussed in the fiscal note on the bill.
  • Will the B2 row on the grid fade into insignificance? Second-degree murder was, for a long time, the only B2 felony, and it still accounts for the vast majority of B2 felony convictions. According to the Sentencing Commission’s list of felony offenses by class, there are now three B2 felonies: second-degree murder, second-degree fetal homicide (since 2011), and repeat felony death by vehicle (since 2006). The latter two together are dwarfed in terms of the number of cases by the first. But the B2 row on the grid won’t fall entirely into desuetude: as noted above, some second-degree murders will remain B2 felonies, and an attempt or conspiracy to commit a Class A or Class B1 offense also results in Class B2 punishment. G.S. 14-2.4 (conspiracy); G.S. 14-2.5 (attempt).
  • B1 isn’t just for sex crimes anymore. In general, B1 felonies are serious sex crimes, like first-degree rape, first-degree sexual offense, and aggravated incest. The only non-sex crimes that are B1 felonies are certain offenses related to chemical, biological, and nuclear weapons of mass destruction – offenses that are virtually never charged. Adding second-degree murder to the list of B1 felonies will change the composition of that offense class significantly.
  • Implementation. Because the type of malice involved will determine the offense class, it appears that the jury returning a verdict of second-degree murder will need to make findings regarding the theory or theories of malice at issue. This will require changes both to the jury instructions and to the verdict sheet in such cases. I don’t think that there will need to be any changes at the charging stage, though I haven’t thought very carefully about it.
  • Prior record level. Under G.S. 15A-1340.14(c), prior convictions are given points based on the current classification of the offense of conviction. Does this mean that after December 1, any defendant with a prior second-degree murder conviction who commits a new crime will have 9 prior record points for the murder (for a prior B1) rather than 6 (for a prior B2)? I doubt it. Remember that not all second-degree murders will be B1 felonies. Furthermore, it may be difficult to determine whether a defendant’s prior second-degree murder conviction involved malice based on recklessness or resulted from drug distribution. Thus, many or maybe even all defendants with prior second-degree murder convictions will be able to argue that their records are ambiguous and that any ambiguity should be resolved in their favor, i.e.,  that they should still receive only 6 prior record points.

If readers have thought of other possible implications of this bill, please chime in.

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11 Responses to “Change in Punishment for Second-Degree Murder”

  1. Guess says:

    This may be a stupid question but why does the bill have the date becoming effective as Dec 1, 2011? This article says 2012.

    Is this a new article on a bill from last year?

    • Jeff Welty says:

      The bill states that it is effective December 1, 2012. Click on the link in the first sentence of the post.

  2. Curious says:

    Murder occurred in 2009. Person was charged with 1st degree murder. Kept being postponed. Trial finally last week but plea bargain.to 2nd degree murder Was a murder of boyfriend by shooting numerous places. Torture. Based off new bill she will be sentenced from old bill so is there a chance she will only get 8yrs minus time served? The family and neighbors are really upset she may only get 8yrs based off research..

  3. Grieving Mother says:

    I live in the far most county in NC. There have been 3 murders in the county with months. This is a small town and I realize the state is short on monies to hire district attorney. I would think murder trial would be priority to the courts system and would get these serious crimes ahead of minor crimes such as traffic etc. This would untie some of the courts and would give the families of these murders some closure to the situation. Instead cases like these seem to continue for months and years. 2 of these cases were fathers killing there own sons in cold blood neither of which had weapons or intent of harming there fathers. They are guilt of the crime commited and both are out on bond. The families are outraged. Sometime you lose faith in the justice system

    • Lisa says:

      That’s a sad situation! You are right! The laws and the system in north Carolina is TERRIBLE!!! I’ve lived here all my life.and there are so many murders over the past 10-15 years that has just never been solved, never talked about, just really strange! Murders of all types of people, its like its just push in a dark corner and forgotten. And these families neveryou get any “anything “!!But if you go park in Walmart fire zone, you have got the police there in seconds, trying to ticket you. Too much ltraffic bs! Yes, I believe you shouldn’t text, speed, and common sense stuff.But, you go into the court rooms, and its absolutely crazy……the crowd. People waiting to do whatever. To me its all about that $1 bill! Just as most legal matters are.I just don’t understand! A young Guy was killed probably 7-8 years ago here in town. On the side of the road where his body was near there is flowers always up and a flyer, asking if anyone can help with his murder.As I noticed, it was on memorial day, when he was killed. Just a Guy trying to make it in this hard world. Now if its someone with the money, a big time person, oh yeah, there gonna find out …….somehow. This police and the detective’s here are a joke! 85% of them.makes me sick, because there’s NO JUSTICE ANYMORE

  4. My son was at a party. His drink drugs put into it by a fellow that started looking for him by 730pm. he was wanting to fight my son. Which he did.
    The one helping him look for my was sent out of the country to Greece because the was the witness for the ADA in Charlotte nc.
    The ADA wanted an example for underage driving.
    The lawyer that took the case , George Laughrun would not investigate the drugging at all. Said it did not matter if my son was drugged or not.
    My was on the wrong way interstate after an hour he left the party w/two people he did not know.
    I found out after the sentencing and w/the help of the Civil lawyers that there were with held statements. For ex. ALE and State Hwy Patrol, on two statements on one they said only oral. Come to find out it was the one that drugged my son and said the one that went to Greece was the one that called him to let him know that my son was at the party now.
    You can come and get him.
    The party was five minutes from the accident.The two guys in my opinion r the ones that left my son on the wrong exit.
    When two MAR were submitted by a different lawyer. The first lawyer was on the stand and said he saw no need to investigate the drugging.
    My son was so messed up and scared and was asking for help at the party.
    I found out that the ALE kept making the people writing statements made them change their wording and the ALE officer altered his also.
    The SBI stated on the State Hwy Patrol paper which I did not see but was read specifically by the patrolman Alpraxolam (Xanax). The sbi took six months to get the Bac .12 Then took 8 months to get the drugs on the SBI paper I rec’d which specified midazolam (Versed).
    My son did not rec. these meds because he was resuscitated 2X , lying face down in a puddle of gasoline.
    Unconscious, frontal lobe head trauma, lacerated liver, broken foot.
    Air flown to the hosp.
    When I was at the hosp. 1st night people came and told me Brock had been drugged and fought.
    The lawyer I went to said that did not matter Drunk wrong way they got him. My son was on the far inside on the shoulder doing 30mph.
    They say the victims were on their way home. Which would have been all the way over to the right side because the exit if that was the case was right there.
    But instead they were in the farthest left lane.
    My son was at the med. on the shoulder where the grassing median is.
    They hit passenger to passenger sides.
    The Mar were done and put off or delayed for a reason.
    The witness took a one way ticket to Greece the day b4 the that.
    The ADA was the witness which the judge said I have never heard of that but I will allow it.
    The lawyer my son had George Laughrun, did not want to discuss money or did he ask for us to sign a contract.
    This is a grey area. Everything I and other lawyers have looked at do not understand why George Laughrun did not know there were statements with held that would have had an impact on what really happened to my son.
    The only way is for people or someone who cares about the teens going to prison , and didn’t mean for this to happen is when people start reading the discoveries;
    Most were lies. The media kept my son on the news for 6 months.
    They are still writing letters for him to talk to them.
    Why so they can humiliate him more.
    The media stated he was going 65 to 70 mph down the interstate wrong way and hit and killed two people . It was malice and intentional.
    If anyone ever knew the real truth, and even I may not , but do know a lot just by getting hold of most of the papers basically from the Civil not the Criminal.
    The ADA wanted my son as an ex: for the community.
    That is what she said.
    No one talked to the ones that did the drugging and beating of my son.
    So would it matter to anyone else ? What really happened to your kid, if they were trying to do the right thing always. Even taking up for the ones that turned on him. Which he will not do anymore.
    The judge suspended the probation, but my own son’s lawyer went up to the judge. She changed her sentence. After he is in prison for 12-15 yrs,
    Five yrs. Probation, no driving , intoxilizer.
    How can anyone just let this go. Knowing there was more to it.
    Do lawyers give and rec. on their cases? You can have this if you give me this one?
    I have seen more wrong ways, shootings on purpose, etc. rec less time and no probation.
    this is a long story and hope I made myself clear in what I have written so far.
    Any advice?
    Can’t afford anymore money.
    I have been to NCpls , innocence, but Brock was told if he did not take the plea he would go to prison for eighty years.
    My son was sent to prison as soon as he was let out of the hospital ,but he was supposed to be back at the hosp. the very next morning.
    It was a media circus , 6 hwy patrol cars. The media was in our yard b/4 the law.
    They did not have the warrant in their hands it was still be processed.
    My son went to prison on TBI still fluid and bleeding on the brain. A broken foot, lacerated liver, and no understanding of what was to come.
    BTW. My son is Brock Hunter Franklin charged with sec. degree murder.
    It was not murder. It was an accident that occurred that had help from at least 22 others at the party.
    You will see him all over the place on the internet.
    Please tell me your opinion.
    I know it is to late , he has been in prison for 7 years now. But does he really deserve the 5 year probation after the lies and the way his own lawyer did not defend him?

    Sincerely, Robin Franklin

    • Lisa says:

      Im so sorry!!! I don’t know what to tell you.Sounds like he got the shitty end if the deal!!! And sending the others to Greece ……wth! I live in NC, I do not know about this situation, 1st time I’ve heard.Just goes to show WE HAVE NO JUSTICE SYSTEM!! Maybe if you was a millionare, your son would have gotten justice. I hope you do get some type of answer 1 day.may God be with you and your son!

      • robin franklin says:

        Thank you Lisa.
        I got the answer, just no one would listen, and did not care. Especially his supposed lawyer George Laughrun.
        I wish I was a millionaire.
        The media played it up big time. On TV every day for almost 6 months. I guess they rec’d big ratings. They don’t realize that a lot of people watching were saying how they over killed the story.
        It was an accident. And hopefully people will understand that.
        Thank you again for responding.

  5. robin franklin says:

    I would like for you to see the speech my son’s lawyer made to the judge the day of my son’s sentencing.
    George Laughrun was not working for us.
    He never wanted money or a contract.???? Said not to worry about any of that.
    There were two MRA’s but the judge said it was only personal.

    FOR His Client?????

    Now I would like to quote Mr. George Laugh-run’s speech to the dishonorable Judge Evans:

    Your Honor, if I may, Judge, to start with, I can tell you Judge that since this tragedy in February of last year, Mr. Rivera had something on the stand just a minute ago, maybe Mr. Bryant said, this has got to stop.
    There has been a heated and alot of enforcement in the Southeast Charlotte, South Meck, Myers Park, Providence, Country Day Latin, Charlotte Catholic, that high school circle of friends, if you will, that ALE and CMPD , Highway Patrol have really stepped up enforcement.
    And the message is getting out. I can tell the judge from the number of people that I have, that I’ve have gotten stopped, have gotten arrested, have gotten cited, it is getting out.
    It’s not a victimless crime. It is a horrific tragedy that happens when these parties go on.
    And Miss Goodenow I know herself has gone to Myers Park High School to Speak.
    I went with another memeber of the DA’s office to Charlotte Catholic High School in April to speak about this issue.
    It is not okay for parents to sanction alcohol at home. We’ll take up the keys, and we’ll have the party here, and keep everybody under control. It is not okay for that. And the message is getting out through the efforts of law enforcement.
    It fell on deaf ears in this case, Judge, because the message didn’t get out for whatever reason.

    He was only supposed to get 10 years or less, and no probation.

    George Laughrun LIED to the whole family in an office right before the sentencing.

    This was at the bench trial and the kid rec’d 12-15 &

    Also the judge suspended probation and George asked if he may approach the bench. The judge asked Laughrun: What do you expect him to do when he gets out?
    So she went along with George and added the probation of 5 years, no driving.
    This is what George Laughrun asked for , for his own client?????

    Now would some one like to say he does not throw his own clients under the bus?

    Is this the way a lawyer should treat their own clients?
    He handles football, basketball, CMPD and he also has helped people that have actually run down and killed even on sidewalks. They got nothing compared to my son.

    Is there anyone out there that knows Paul Whitfield in the profession.
    He did the MRA’s and he said he was ashamed of George Laughrun.
    My son had a TRaumatic Brain injury, but yet Laughrun took him to an interrogating room with the ALE, State Hwy Patrol, and the ADA Marsha Goodenow.
    Was this right to do. Other lawyers I have spoken to said it was not right. He should not have done that. Said you never ever take your clilent to talk to the ADA, especially with a TBI.
    These people put words into my sons mouth or said what they wanted and my son agreed. He did not comprehend.
    Please anyone that can help……

  6. Fred Sheron says:

    My father was robbed and murdered. He was defenseless and shot in the back of the head. Murderer Darrell F Lovell of Randleman was charged with 2nd Degree Murder. The DA in Asheboro promised me 30 years. Lovell pled guilty got classified as a Class C felony with a 15 year sentence and served 5 years. There was no justice to the murderer who shot my father in the back of the head. Bleeding heart liberal judge in Asheboro should have been disbarred! Can someone explain to me why this murderer’s sentence wasn’t longer?

  7. james anderson says:

    At 16 yrs. old I was charged (( 00 crs 59407 )) with 1st degree murder and conspiracy to commit, in May 2000. I plead to a “Class B-2″ felony and received 140-170 months. Im very familiar with murder cases in general and my unbiased opinion is that it should not be changed.

    Theres an aggravated, presumptive and mitigated range for the offense which is inextricably woven in the fabric of ALL crimes in this state. The murder elements elaborate what the offender is allegedly guilty of: malice
    ( whether express or implied ), malice aforethought, *mens rea and *actus reus.

    The law is clear however what should be changed is the preconceived notion of the charge. The people feel as though they are not receiving justice because they don’t understand the fine line between a cold-blooded murder vs. a death arising out of social interaction as it relates to sentencing. For example: Its not common for people to flip out and go on a killing spree or suicide revenge missions …. but people do kill people for petty things and reasons: car jackings , bar fights, infedlity, drugs, bullying, money, ect.

    In clarity, what a person does prior to and after the death of whomever determines what Class (“A,B1,B2″) they will be placed in and those acts are weighed according to three catagories :Aggrivated, Presumptive and Mitigated. And those catagories are connected to a number grid that groups the many ranges of time the offender will serve FOR WHAT HE DID.

    What should be changed is the courts ability to enter into plea negotiations. There should be a special tribunal where all murder ( and rape ) offenders are tried as in a trial setting so all the facts will be presented and the guilty will receive the time he deserves according to the law. Its called being GUILTY AS CHARGED!!

    In these days, its not typical to get charged for a crime and be punished for it. Most offenders are initially accused of one thing but are found guilty of another. Its just called ” A LESSER INCLUDED OFFENSE”

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