Under G.S. 14-7.6, when a defendant is sentenced as a habitual felon, his sentence “shall run consecutively with and shall commence at the expiration of any sentence being served” by the defendant. This language sometimes leads lawyers and judges to think that when a defendant is sentenced as a habitual felon for more than one offense, the sentences for each offense must run consecutively. That’s not right, as a recent court of appeals case helps illustrate.
The reason it isn’t right is that the consecutive sentencing mandate applies only to a “sentence being served” by the defendant. So if a defendant is already serving a sentence for a drug offense, then commits a felonious assault while in prison, and is ultimately convicted of the assault and sentenced as a habitual felon, his sentence for the assault must run consecutively with his sentence for the drug offense. The sentence for the drug offense is a “sentence being served” at the time the defendant is sentenced as a habitual felon for the assault.
By contrast, consider a defendant who isn’t already serving a sentence, but who is charged with, and convicted as a habitual felon of, three counts of obtaining property by false pretenses. The judge may impose concurrent sentences, because none of the sentences are “being served” yet. I suppose one could try to argue that as soon as the first one is imposed, it is “being served,” but that argument’s awfully technical, and similar statutory language in other contexts has been read to allow concurrent sentencing. See, e.g., State v. Walston, 193 N.C. App. 134 (2008) (drug trafficking statute); State v. Thomas, 85 N.C. App. 319 (1987) (former armed robbery statute).
Based on the reasoning and cases above, I stated in my Administration of Justice Bulletin on the habitual felon laws that “a habitual felon sentence may run concurrent with other sentences imposed at the same time, including other habitual felon sentences.” (Page 19 n.16.)
This conclusion was bolstered by the court of appeals this week, when it decided a closely related issue in State v. Haymond. The judge in that case imposed ten consecutive sentences on the defendant, a habitual felon. In the course of holding that the sentence appeared to have been imposed in part to punish the defendant for exercising his right to a jury trial — an aspect of the case about which my colleague Jamie Markham or I may write later — the court made the point that the judge could have imposed a less severe sentence. Specifically, the court held that the judge could have consolidated the ten convictions and imposed a single sentence. It may not quite follow automatically that the judge could have imposed concurrent sentences, but it doesn’t take much of a leap. If this issue wasn’t settled before — and I thought it was — it surely is now.
How does the statute work with probationary sentences? What if the defendant is on probation for an unrelated charge when he gets sentenced as a habitual felon. (Assuming his probation is not revoked for whatever reason.) Does the defendant finish out his probationary sentence before serving his active sentence as a habitual offender?
It looks like this case also applies to Trafficking offenses, and Habitual DWI, since both those two statutes have almost the exact same language.
An example I have right now is a case where the defendant has two unrelated drug offenses pending. One of those offenses is a trafficking charge. Defendant goes to trial on the non-trafficking charge, gets convicted, and judge sentences to probation. We then try the trafficking case second, defendant gets convicted of that. Does the judge sentence the defendant to an active sentence to begin at the expiration of the probationary sentence?
Prosecutor: I think that situation is covered by G.S. 15A-1346(a), which would require that the period of probation and the active sentence run concurrently–which, as a practical matter, means the defendant would go to prison right away.
I have a question, not a comment.
My son was convicted 12/08 for drug related charges and as a result was charged as a habitual felon. His total sentence was 22 1/2 years – 28 1/2 years. My son started getting in trouble when he was 17-18 for things like forgery/uttering, B&E in a motor vehicle. All those charges were from 1989-1993. He tried to turn his life around with going to treatment centers/going to church etc. He fell off the wagon again in 2003 (15 years later) and had 2 charges of B&E a motor vehicle. He went to treatment then and was put on probation. He messed up again in 08 and was charged with kidnapping and sexual assualt (can explain). The DA would not reason with us and told him if he didn’t accept this plea each sentence was 18 years each. Family was involved so he accepted the plea. His sentences are running consecutively. We all feel since his priors were 15 years before that the sentences were to harsh. Do we have anyway to fight this and try to get the sentences to run concurrent?
Thanks for any input you can give.
Brenda
I have a son that just been locked up for habitual felon, they set his bond at $75,000. He has 3 felons and pending one that has not went to court yet. Could he also fall under the GS 14-7.6 law? Also, I am trying to understand how can they issue a warrant and set a bond if habitual felon is not a crime. Please help me understand this process.
Confused Mom
Habitual Felon is a “status” and not a crime. So NO they are not suppose to give a bond when charged with Habitual Felon.
I am trying to find out if Concurrent Sentencing applies to non habitual
felons. My son was sentenced to two consecutive sentences for
Felony Serious Injury by Vehicle. 15 to 18 month each. One injury was
a broken arm. Would they have considered him a habitual felon if he
had a I felony when he was 18( 28 years ago)? They did use this to sentence him.
My nephew was sentenced to 6 months in prison for a probation violation that was neither a crv or revocation. The next month he went to court for his new charges and took a plea deal that allowed his Habitual B/E sentence to run concurrent with his violation that he was already serving. The DOC isn’t showing it as running concurrent. Should he have not been sentence that way?