Habitual Habituals

North Carolina has a lot of habitual offender laws: habitual felon, violent habitual felon, armed habitual felon, habitual breaking and entering, habitual impaired driving, and habitual misdemeanor assault. A question that comes up is the extent to which these laws may permissibly interact with one another. Today’s post considers a few of the combinations I get asked about from time to time.

Habitual breaking and entering + habitual felon. When a defendant gets charged and convicted as a habitual breaking and entering status offender, certain defined “breaking and entering” offenses (most of them Class H felonies, like breaking or entering buildings) get sentenced as Class E felonies. G.S. 14-7.31. May they be further enhanced from Class E to Class C under the regular habitual felon law, G.S. 14-7.6? (If the habitual felon law alone were applied to a Class H felony, the defendant would be sentenced as a Class D felon, because the regular habitual felon law is a four-class enhancement.)

The habitual breaking and entering law says that a conviction as a habitual breaking and entering status offender “shall not constitute commission of a felony for the purpose of either Article 2A [Habitual Felons] or Article 2B [Violent Habitual Felons] of Chapter 14 of the General Statutes.” G.S. 14-7.31. The exact meaning of that provision is unclear, but I think it probably means that an offense enhanced under the habitual breaking and entering law should not be combined with the listed habitual offender laws. On the other hand, it could simply mean that a conviction of having attained habitual B&E status does not itself count as a prior or present conviction in a habitual felon or violent habitual felon proceeding. But that seems unnecessary; we already know from many earlier cases on the habitual felon law that a status conviction is not a substantive offense. See State v. Allen, 292 N.C. 431 (1977).

Habitual DWI + habitual felon. Unlike habitual breaking and entering, habitual impaired driving under G.S. 20-138.5 is “substantive felony offense,” not a status. State v. Priddy, 115 N.C. App. 547 (1994). With that in mind, a prior habitual DWI may serve as one of a defendant’s three prior felony convictions in a habitual felon indictment, State v. Baldwin, 117 N.C. App. 713 (1995), and a present habitual DWI may itself be enhanced from Class F to Class C under the habitual felon law, State v. Misenheimer, 123 N.C. App. 156 (1996). Those rules can be combined to result in a lengthy sentence for the repetitively repetitive drunk driver: two of the three prior felonies used to habitualize the habitual DWI defendant in Misenheimer were—you guessed it—habitual DWIs. If there’s any silver lining for the habitualized habitual DWI defendant, it’s that the three prior misdemeanor DWIs needed to support the habitual DWI conviction probably still do not count for points toward his or her prior record level. That is the rule for habitual DWI generally, State v. Gentry, 135 N.C. App. 107 (1999), and I don’t see why the habitual felon overlay would allow them to be unmasked.

Habitual misdemeanor assault + habitual felon. Habitual misdemeanor assault under G.S. 14-33.2 is, like habitual DWI, a substantive offense. State v. Smith, 139 N.C. App. 209 (2000). As a result, a sentence for habitual misdemeanor assault may be enhanced under the regular habitual felon law. Id. at 214. That would raise the crime from a Class H to Class D felony under today’s four-class habitual felon enhancement.

Unlike habitual DWI, a conviction for habitual misdemeanor assault may not be used as a prior conviction in a habitual felon indictment. That’s not because of any complicated constitutional analysis, but rather because the statute says so, G.S. 14-33.2 (“A conviction under this section shall not be used as a prior conviction for any other habitual offense statute.”), and has since 2004, see State v. Shaw, 224 N.C. App. 209 (discussing the effective date of the 2004 amendment).