Armed Habitual Felon

Last year, I wrote a paper about North Carolina’s habitual felon, violent habitual felon, and habitual breaking and entering laws. Around the time the paper came out, the General Assembly passed S.L. 2013-369, a broad bill concerning firearm regulations. The new law adds a new habitual offense, the offense of armed habitual felon. I’ve had a few questions about armed habitual felon recently, so this post unpacks the new law.

Armed habitual felon in a nutshell. The new law is patterned after the regular habitual felon law and is codified nearby, at G.S. 14-7.35 through G.S. 14-7.41. It is a “two strikes” law that applies to a defendant who, having already been convicted of one firearm-related felony, proceeds to commit a second. It elevates the second felony so that it is punished as a Class C felony, with a mandatory minimum of 120 months’ active time. Procedurally, an armed habitual felon case is similar to a regular habitual felon case, but there are several wrinkles discussed below.

Qualifying previous felonies. In order to be an armed habitual felon, a defendant must have a previous conviction for a “firearm-related felony,” which is defined by statute as “[a]ny felony committed by a person in which the person used or displayed a firearm while committing the felony.” G.S. 14-7.35(2). Furthermore, the previous conviction must be one “in which evidence of the person’s use, display, or threatened use or display of a firearm was needed to prove an element of the felony or was needed to establish the requirement for an enhanced or aggravated sentence.” G.S. 14-7.36.

The reference to “threatened use or display” in G.S. 14-7.36 is somewhat inconsistent with the requirement of “use[] or display[]” in G.S. 14-7.35(2). Perhaps one could argue that threatening to use or to display a gun is a way of using it, but a cautious prosecutor might choose to proceed only when the actual use or display of a gun was required in the prior case.

One possible purpose of limiting qualifying previous felonies to ones in which the use or display of a gun was necessary to establish an element or to trigger an enhancement is to avoid difficult-to-resolve factual disputes about whether, for example, a long-ago breaking or entering was committed while the defendant displayed a gun. The limitation may also help to avoid Blakely issues to the extent that it limits qualifying priors to those in which a jury has already determined that a gun was involved.

Perhaps in an effort to facilitate future armed habitual felon prosecutions, the bill that created the armed habitual felon statute also created a new requirement that “[w]hen a person is found guilty of a felony offense, the presiding judge shall determine whether the defendant used or displayed a firearm . . . [and if so] shall include that fact when entering the judgment.” G.S. 15A-1382.2. The relevant AOC forms have been amended to allow for such a finding. See, e.g., AOC-CR-601 (finding number 14). However, a finding that a gun was used may be made in more cases than those in which evidence of a gun was “needed to prove an element of the felony or was needed to establish the requirement for an enhanced or aggravated sentence.” For example, a defendant who committed an armed robbery might plea bargain his or her way into a conviction of common law robbery. The judge might check the box because a gun was in fact involved. But evidence that a gun was involved is not necessary to prove any element of common law robbery. Thus, the new finding may not be reliable as an indicator of which previous convictions may form the basis of an armed habitual felon prosecution.

Qualifying substantive felonies. A defendant may be charged with being an armed habitual felon when the defendant’s current charge is a “firearm-related felony,” as defined above. G.S. 14-7.37. In contrast to the rule regarding previous convictions, it is not required that the gun be necessary to prove an element of the current felony. Instead, G.S. 14-7.40(b) provides that “[i]f the jury finds the defendant guilty of the principal firearm-related felony, and it is found as provided in this section that (i) the person committed the felony by using, displaying, or threatening the use or display of a firearm or deadly weapon and (ii) the person actually possessed the firearm or deadly weapon about his or her person,” the case shall proceed to a habitual phase at which the jury shall determine whether the defendant’s record qualifies him or her as an armed habitual felon.

There are several things to note here:

• First, although the statute uses the passive voice – “[i]f . . . it is found” – the finding that a gun was involved in the crime should be made by the jury, not a judge, in order to avoid any Blakely/Alleyne (increasing mandatory minimum based on facts not found by a jury) problems. Presumably, the finding could be submitted to the jury as a special interrogatory.
• Second, the “threatening” language is present in this section as well, but once again, because the definition of a “firearm-related felony” requires the “use[] or display[]” of a firearm, the jury probably should be asked to decide whether a gun was used or displayed, not whether a threat of use or display took place.
• Third, although the statute refers to a jury’s finding of guilt, presumably it is also possible for a defendant to plead guilty to the substantive felony. Although the statute does not address the mechanics of such a plea, it would seem that the guilty plea could include a plea to having used or displayed a gun during the crime, or the defendant could plead guilty to the felony but ask for a jury determination regarding whether a gun was involved.
• Fourth, although G.S. 14-7.40 requires a determination whether the offense involved the use of “a firearm or deadly weapon,” the rest of the sections in the armed habitual felon article refer exclusively to firearms. The “or deadly weapon” language appears to be a drafting error that resulted from cutting and pasting language from the deadly weapon enhancement statute, G.S. 15A-1340.16A. Because the substantive felony must be a “firearm-related felony,” defined in G.S. 14-7.35 as one involving a gun, the stray language does not expand the scope of the statute.

Relationship to deadly weapon enhancement. Under G.S. 15A-1340.16A, a defendant who uses or displays a deadly weapon while committing a felony is subject to an enhanced sentence. However, a defendant who is sentenced as an armed habitual felon may not also receive the enhancement. G.S. 14-7.41(d).

Relationship to other habitual felon offenses. I have been asked several times recently about how to handle a case in which a defendant is charged both as a habitual felon and as a violent habitual felon. Should there be three phases in such a case – the substantive felony phase, the habitual phase, and the violent habitual phase – or may the recidivist determinations be made in a single phase? If there should be three phases, which habitual issue should be presented first?

The existence of the armed habitual felon statute makes it possible to imagine a case in which the jury must consider the substantive felony, habitual felon, violent habitual felon, and armed habitual felon. One might try to argue that a defendant who is an armed habitual felon can’t also be a habitual felon or a violent habitual felon, based on G.S. 14-7.41(c), which states that “[a] conviction as a status offender under this Article shall not constitute commission of a felony for the purpose of” the habitual felon and violent habitual felon provisions. But the quoted language seems to be saying only that a conviction of the status offense of being an armed habitual felon isn’t itself a felony or a violent felony that can be used as a previous conviction in a later habitual felon or violent habitual felon prosecution. It doesn’t appear to preclude the current substantive felony from forming the basis for a simultaneous prosecution as a habitual felon or as a violent habitual felon.

So, must such a case be quadfurcated? Is “quadfurcated” even a word? Unfortunately, there’s no clear rule regarding how to handle a case in which the State seeks to rely on multiple habitual offender provisions. Judges appear to have taken both approaches. Compare State v. Williams, 2011 WL 3570235 (N.C. Ct. App. Aug. 16, 2011) (unpublished) (reflecting the combination of the habitual felon and violent habitual felon determinations into a single phase: “[i]n a second phase of the trial, the jury found Defendant guilty of attaining the status of habitual felon and violent habitual felon”), with State v. Williams, 191 N.C. App. 96 (2008) (the two habitual phases appear to have been handled separately; the opinion notes that the jury returned the habitual and violent habitual verdicts on successive days; the State’s brief has a heading titled “Violent Habitual Felon and Habitual Felon Phases”; and the defendant’s brief clearly states that two distinct habitual phases were held). There’s an economy to handling it all at once, but arguably there’s less prejudice to the defendant if his or her record is revealed piecemeal as needed rather than all together. The most cautious choice may be to separate each habitual offender determination into a separate phase.

Conclusion. Sorry for the long post. As you can see, this statute presents some interesting procedural and interpretive questions. As always, I welcome others’ thoughts about the law or insights into how it is being used in practice.