Under G.S. 15A-1340.14(b)(6), an additional sentencing point applies “[i]f all the elements of the present offense are included in any prior offense for which the offender was convicted, whether or not the prior offense or offenses were used in determining prior record level.” It’s just one point. But if it’s the point that pushes a defendant into the next record level column, it can make a substantial difference in the permissible sentence. In recent teaching, I have encountered some frequently asked questions about this additional point, so I thought I would try to address those today. It's also been a while since I last wrote about it; some kids born around the time I wrote this prior post just started high school.
Before I get into my customary weeds, I’ll pause to ask a question. Why do we have this additional point? After all, prior convictions are already counted for prior record points and factored into the level. I can see several arguments. One is that the point doles out an extra dose of specific deterrence for someone who has identified themselves as an offense-specific repeat offender—and for whom the prior intervention apparently didn't move the dial. Another, from a retributive standpoint, is that the present conduct is more blameworthy because, based on the similar prior conviction, the defendant was specifically on notice that the present conduct was wrong and did it anyway. That’s more culpable than general recidivism because it shows defiance of a warning stemming from this exact conduct.
If I had to guess, I’d say the retributive rationale is probably the clearest underpinning. The point applies regardless of what sentence the person received for this behavior the first time around, and I don’t think anyone has carefully measured whether defendants to whom the point is applied are appreciably deterred or rehabilitated. If the goal is punitive, any measurement of recidivism impact is beside the point.
A refresher on the basics. This point applies when all the elements of the present offense are included in a prior offense. It is often triggered by a perfect match between the present and prior convictions, but it can also apply when the present offense is a lesser included offense of a prior conviction. But remember that the prior offense must be identical to or broader than the present offense, and it doesn’t work the other way around. For example, a present armed robbery does not get the additional point based on a prior common law robbery, because the present offense would include an element that the prior offense does not. The statute does not require that the prior conviction be from North Carolina, but the element mapping would be more difficult when comparing a present North Carolina conviction to a prior out-of-state conviction.
For the point to apply, all the elements of the present offense must actually be included in the elements of the prior conviction. It’s not a “substantially similar” test, where a partial overlap might do the trick. For example, the trial court erred by applying the point to the defendant’s sentence for possession of a stolen vehicle based on prior convictions for larceny of a motor vehicle and possession of stolen property. State v. Eury, 245 N.C. App. 328 (2016) (“Although defendant's prior convictions, larceny of a motor vehicle and possession of stolen property, are similar to the present offense, possession of a stolen vehicle, neither contains ‘all the elements of the present offense.’”).
Though the elements of the present offense must be included in a prior conviction, the specific facts proving those elements need not be identical. For instance, a defendant being sentenced now for delivery of a Schedule II controlled substance (cocaine) qualifies for the point based on his prior conviction for delivery of a Schedule VI controlled substance (marijuana). State v. Williams, 200 N.C. App. 767 (2009) (“While delivery of a Schedule II controlled substance is punishable under N.C. Gen. Stat. § 90–95(b)(1) and delivery of a Schedule VI controlled substance is punishable under N.C. Gen. Stat. § 90–95(b)(2) . . . the statutory provision for punishing delivery of cocaine differently from delivery of marijuana does not change the nature of the crime; the elements of proof remain the same.”) (citation modified). Likewise, a defendant being sentenced for attempted felony larceny qualifies based on his prior felony larceny conviction, even if the two offenses were elevated from misdemeanors to felonies on different bases under G.S. 14-72. State v. Ford, 195 N.C. App. 321, 323 (2009) (“Thus, for purposes of N.C. Gen. Stat. § 15A–1340.14(b)(6), it matters not under what provision of N.C. Gen. Stat. § 14–72 Defendant's prior felony larceny convictions were established.”) (citation modified).
The statute goes on to say that the point applies “whether or not the prior offense or offenses were used in determining prior record level.” That clause has two implications—neither of which is great for the defendant. First, it means a single prior conviction can do double duty, counting for points itself and also qualifying the defendant for the bonus point if it includes the elements of the offense being sentenced. Second, it means the bonus point also applies when the prior conviction in question does not otherwise factor into the defendant’s record level. For instance, a prior conviction can be used to establish the bonus point even when it is otherwise masked from the defendant’s prior record level because it was used to habitualize him, State v. Bethea, 122 N.C. App. 623 (1996), or because it was not the defendant’s most serious prior offense from a single week of superior court.
If a defendant is convicted and sentenced for multiple things now, the point might apply in some cases but not others. By design, the point is offense-specific. And that means a person’s record level might not be the same for all the things they are being sentenced for today. (That can be true for reasons beyond the same-elements point, including, for instance, whether or not the defendant was on probation on different offense dates.) So, if a person with a lone prior conviction for obtaining property by false pretenses is convicted now for obtaining property by false pretenses and possession of firearm by felon, the point would apply to the sentencing for the OPFP conviction but not for the firearm offense. With that in mind, the State may need to prepare a worksheet for each offense being sentenced. Alternatively, “[w]here a trial court uses the same felony prior record level worksheet to determine a defendant's prior record level for two or more sentences, the worksheet must accurately reflect the defendant's prior record level for each sentence.” State v. Posner, 277 N.C. App. 117, 122 (2021).
Be especially careful with consolidated sentences. When convictions are consolidated for judgment, the single resulting judgment “shall contain a sentence disposition specified for the class of offense and prior record level of the most serious offense.” G.S. 15A-1340.15(b). The appellate courts have interpreted that language to mean that whether or not the additional point applies is determined exclusively by reference to the most serious offense—that is, the lead offense in the consolidated judgment. For example, the point should not apply to a defendant who received a consolidated judgment for a Class B1 sexual offense and a Class F indecent liberties conviction when his only prior conviction was for indecent liberties. The Class B1 was the lead offense, and no prior offense included all the elements of it. State v. Prush, 185 N.C. App. 472 (2007). If habitualized convictions are consolidated for judgment, which one is the “most serious offense” is gauged by the seriousness of the substantive offenses. So, if a Class G and a Class E are both enhanced to Class C for sentencing under the habitual felon law and then consolidated for judgment, the Class E is still the “most serious offense,” and the point should not apply based on a prior conviction for the same Class G felony. State v. Gardner, 225 N.C. App. 161 (2013).
Speaking of habitual felon, notice that it does not insulate a current conviction from the additional point. Suppose the defendant’s current offense is breaking or entering a motor vehicle, and that conviction is sentenced under the habitual felon law as a Class E felony. If the defendant has a prior unhabitualized conviction for breaking or entering a motor vehicle, does it trigger the additional point? Yes. The applicability of the point is determined by the elements of the substantive offense of conviction. The habitual felon overlay should not be viewed as adding additional “elements” to the present offense that must also be included in the prior offense. See State v. Thomas, 389 N.C. 105, 110 (2026).
No stipulations. The same elements finding is a question of law that must be determined by the court. There is no requirement of notice to the defendant, and no facts to prove to a jury. (That’s why this point, unlike the “under supervision point,” is not referenced on the Transcript of Plea form.) Because it is not a question of fact, the defendant cannot validly stipulate to it, even if he or she stipulates to the existence of the prior conviction. State v. Prush, 185 N.C. App. 472 (2007). Even when the comparison is straightforward, the court should memorialize its finding “that all of the elements of the present offense are included in a prior offense” on the Prior Record Level Worksheet.
