Structured Sentencing has always included a provision allowing for an enhanced sentence for felonies committed by using, displaying, or threatening to use or display a firearm or deadly weapon. G.S. 15A-1340.16A. It isn’t used very often. It was used only once statewide last year, and not at all the year before that.
That may change under the amended version of the law, enacted in S.L. 2013-369 (H 937) and effective for offenses committed on or after October 1, 2013. The revised law makes several changes to the existing enhancement.
First, the enhancement is expanded so that it applies to all classes of felonies. The previous version applied only to Class A through E felonies.
Second, the law is amended so that that the number of months of the enhancement varies depending on the offense class of the underlying felony. The rules are as follows:
- Class A–E felonies: 72-month minimum sentence enhancement.
- Class F and G felonies: 36-month minimum sentence enhancement.
- Class H and I felonies: 12-month minimum sentence enhancement.
Remember that these are minimum sentence enhancements. You cannot just add the same number of months to the maximum sentence. State v. Lucas, 353 N.C. 568, 599 (2001) (“Accordingly, we believe that the General Assembly intended that the trial court add 60 months to the minimum sentence, then refer to the sentencing charts to determine the corresponding maximum sentence.”). Rather, the law instructs that the enhanced maximum is the maximum that corresponds to the inflated minimum as specified in G.S. 15A-1340.17(e) and (e1) for Class A–E felonies and by G.S. 15A-1340.17(d) for Class F–I felonies.
With that in mind, there are a couple of technical glitches in the revised law’s maximum sentence provisions.
First, the law does not instruct on how to calculate the maximum sentence for enhanced Class A–E sex crimes, for which the maximum sentence is calculated under G.S. 15A-1340.17(f), not (e) or (e1). Only the latter two subsections are referenced in new G.S. 15A-1340.16A(c)(1).
Second, the 36-month minimum sentence enhancement for Class F and G felonies enhances most minimum sentences for those offense classes beyond the minimums for which a maximum sentence is “specified” in G.S. 15A-1340.17(d). The highest minimum sentence for which G.S. 15A-1340.17(d) provides a maximum is 49 months, meaning the highest minimum that can be enhanced by 36 months and still have a proper statutory maximum sentence is 13 months. Anything higher takes you into uncharted statutory territory.
Let’s work through an example to make that second issue clearer. Suppose the new 36-month enhancement were applied to a Class G/Level II felon initially sentenced to 14–26 months. The enhanced minimum sentence would be 50 months. New G.S. 15A-1340.16A(c)(2) says that the maximum sentence is the maximum that corresponds to the enhanced minimum sentence, as specified in G.S. 15A-1340.17(d). But that statute does not specify a maximum that corresponds to a 50-month minimum; as I noted above, the statute stops at 49 months.
It’s not clear how these glitches should be addressed in the trial court. One approach would be to fill the gaps with the underlying mathematical rules that inform maximum sentences generally. If you did that with our Class G felon, the maximum sentence would be 120 percent of the minimum sentence, rounded up, plus 9 months, giving you a final sentence of 50–69 months. Another approach would be to avoid using the firearm enhancement for any Class A–E sex crime, or any Class F or G felony with a minimum sentence over 13 months—which may be the safer path in light of the law’s ambiguity.
Procedurally, the revised enhancement works just like the prior version of the law. Here is a quick review.
Charging. The facts supporting the enhancement must be set out in the indictment or information charging the underlying felony. The pleading must allege that the person committed the felony using, displaying, or threating the use or display of a firearm or deadly weapon, and that the defendant actually possessed the firearm or deadly weapon about the defendant’s person. G.S. 15A-1340.16A(d). Regarding the “actual possession” requirement, see State v. Williams, 127 N.C. App. 464 (1997) (holding the enhancement inapplicable to a defendant who threatened a victim with a cigarette lighter shaped like a gun). One pleading is sufficient for all felonies tried at a single trial.
Proof. The facts supporting the enhancement must be proved beyond a reasonable doubt during the trial on the underlying felony, unless the defendant pleads guilty or no contest to the issues. G.S. 15A-1340.16A. Some readers may recall that a prior version of the enhancement was North Carolina’s canary in the Apprendi mineshaft in this regard. Well before the Supreme Court decided Blakely v. Washington, our supreme court held in State v. Lucas, 353 N.C. 568 (2001), that the facts supporting the firearm enhancement must be submitted to a jury and proved beyond a reasonable doubt.
Facts needed to prove an element. The enhancement does not apply if the evidence of the defendant’s use, display, or threatened use or display of the firearm or deadly weapon is needed to prove an element of the underlying felony. G.S. 15A-1340.16A(e). Case law interpreting that limitation has noted that the pertinent question is not whether use of a firearm is an actual element of the underlying offense, but rather whether it is needed to prove an element of that offense. State v. Smith, 125 N.C. App. 562 (1997). Applying that rule, the appellate courts have barred the enhancement for weapon-related homicides, id. (voluntary manslaughter), but allowed it for non-homicide offenses like second-degree kidnapping, see State v. Ruff, 349 N.C. 213 (1998). This prohibition is charge specific; it does not bar application of the enhancement to an otherwise appropriate charge when the defendant is contemporaneously convicted of a firearm-related charge. State v. Guice, 141 N.C. App. 177 (2000).
Active sentences only. Finally, as under prior law, the enhancement may only apply when the defendant receives an active sentence. G.S. 15A-1340.16A(f). It cannot apply to any defendant who initially receives probation.