In United States v. Smith, 939 F.3d 612 (4th Cir. 2019), the Fourth Circuit held that a defendant who received a conditional discharge for a prior felony was not “convicted” of that crime within the meaning of the federal felon-in-possession statute. He was therefore not a felon under that law, and thus not barred from possessing a firearm under it. The appellate court reversed his conviction. The case gives us an opportunity to review what we know (and don’t know) about the subsequent effect of conditional discharges and PJCs.
Phil Dixon covered the facts of Smith in his Fourth Circuit case summaries here. In 2016 the defendant pled guilty to larceny by employee. On joint motion of the State and the defendant, the judge placed him on conditional discharge probation under G.S. 15A-1341(a4). He was twice caught with pistols during his probation, but before those violations were heard in state court he was indicted federally for being a felon in possession of a firearm under 18 U.S.C. 922(g). He was convicted in federal court and appealed.
The Fourth Circuit reversed his conviction, holding that a defendant with a prior conditionally discharged felony for which judgment hasn’t been entered has not been “convicted” within the meaning of 18 U.S.C. § 922(g). The court made that determination by considering whether a conditional discharge is a conviction as a matter of state law, as required under 18 U.S.C. § 921(a)(20)(B) (“What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.”). And that, the court said, was unclear, because North Carolina has no “single, general-use definition of conviction.” Smith, 939 F.3d at 615.
Lacking a clear definition, the court considered whether a conditional discharge would count as a conviction for purposes of North Carolina’s state felon-in-possession law, G.S. 14-415.1, a question our state courts have never expressly resolved. The Fourth Circuit concluded that it would not. Our felon-in-possession law defines a “conviction” as “a final judgment” in any case in which felony punishment is authorized—and by definition, a conditional discharge is done “without entering a judgment of guilt.” G.S. 15A-1341(a4). The court distinguished G.S. 15A-1331(b), which says that a person has been convicted when he has been adjudged guilty or has entered a plea of guilty or no contest. A conditional-discharge probationer has necessarily pled guilty or been adjudged guilty, but G.S. 15A-1331(b) defines conviction “[f]or the purpose of imposing sentence,” not for the purpose at issue here.
The court also distinguished the conditional discharge at issue in Smith from a PJC, which the North Carolina Court of Appeals deemed to be a conviction barring issuance of a firearm permit in Friend v. North Carolina, 169 N.C. App. 99 (2005). First of all, the court found Friend inconsistent with prior case law from the Supreme Court of North Carolina. Second, conditional discharges are different from PJCs in the sense that the statute governing conditional discharges expressly says they are not a judgment. With these differences in mind, the Smith court concluded that, if the issue were to come before the Supreme Court of North Carolina, that court would not treat a conditional discharge as a conviction.
Smith surprised me a little. In State v. Hasty, 133 N.C. App. 563 (1999), the Court of Appeals applied the G.S. 15A-1331(b) rule to a conditional discharge under G.S. 90-96, concluding that it qualified as a prior conviction for purposes of calculating a defendant’s prior record level for a subsequent offense. I had generally viewed that case as a possible indication that our courts would deem the plea or adjudication of guilt that necessarily precedes a conditional discharge to be a conviction for most purposes, unless the context involved a statute that clearly indicated otherwise.
On the other hand, I have had trouble squaring Friend with the more recent case of Walters v. Cooper, 366 N.C. 583 (2013). In Walters, the Supreme Court affirmed the Court of Appeals’ ruling (226 N.C. App. 166 (2013)) that a PJC was not a conviction within the meaning of the sex offender registration laws, because those laws apply only to defendants with a “final conviction” for a reportable crime. If North Carolina’s felon-in-possession similarly defines a qualifying conviction as a “final judgment,” it’s fair to wonder in light of Walters whether today’s Supreme Court might see things differently than the Court of Appeals did in Friend.
And if our appellate courts viewed a PJC as something other than a final conviction for the purpose of North Carolina’s felon-in-possession law, it’s not a stretch to think they would reach the same conclusion for a conditional discharge. After all, PJCs (at least dispositional PJCs) are typically understood to be the last act in a case, whereas conditional discharges are expected to come back to court one way other another—either to enter judgment if the defendant fails on probation, or to dismiss the matter if the defendant succeeds. In other words, if PJCs aren’t final enough to be convictions, conditional discharges arguably aren’t either.
Prosecutors and defendants alike should be aware of Smith as they consider the ramifications (federal and state) of the various diversionary agreements into which they enter. Though the case is not binding on North Carolina’s courts, it adds yet another wrinkle to our convoluted caselaw—including Friend and Walters—on what does and does not count as a conviction for certain purposes. See, e.g., State v. Hatcher, 136 N.C. App. 524 (2000) (no contest plea for which prayer for judgment was continued a conviction for prior record level purposes); State v. Canellas, 164 N.C. App. 775 (2004) (PJC after guilty plea to assault on a female a conviction for prior record level purposes); State v. Sidberry, 337 N.C. 779 (1994) (a PJC is a conviction for Rule 609 impeachment purposes). It may also inform future interpretations of the recently enacted rule that a juvenile who has previously been “convicted” for a felony or misdemeanor in adult court must be prosecuted as an adult for any subsequent criminal offense. G.S. 7B-1604(b).