The court of appeals issued opinions today. I haven’t looked at all of them, but State v. Best jumped out at me because it provides an authoritative answer to a question that I have often been asked: when a defendant is convicted of possession of a firearm by a felon, may his prior felony (the one used to establish his status as a felon) be counted when calculating his prior record level?
I have heard the argument that allowing the prior felony to contribute to the defendant’s prior record level is double counting, because it is already being used to satisfy an element of the offense, and so should not be permitted. Some support for this point of view comes from the habitual felon context, where any prior felony that is used to establish a defendant’s status as a habitual felon may not be used in determining the defendant’s prior record level. G.S. 14-7.6. Cf. also State v. Gentry, 135 N.C. App. 107 (1999) (applying the same principle to habitual DWI).
In Best, however, the court of appeals rejected that argument. The court relied in part upon State v. Harrison, 165 N.C. App. 332 (2004) (holding that a sex offender’s prior reportable conviction could be used both to establish that the offender was required to register and to contribute to his prior record level after his conviction for failing to register). It also noted that it had previously rejected a similar argument in two unpublished opinions. And finally, it drew a distinction between habitual offender laws (where the question is whether the punishment for an already unlawful act, such as DWI, can be ratcheted up twice as a result of the defendant’s prior record — once by making the DWI a habitual offense, and then again through the defendant’s prior record level) and possession of a firearm by a felony (where the act in question, possession of a gun, is not inherently unlawful, and the defendant’s prior record is used once to make the conduct unlawful and once to ratchet up the defendant’s sentence).
Sentencing is Jamie’s area, so perhaps he will have more to add about this decision. But because it is an issue that comes up so often, I wanted to get the word out immediately.