Advising a Defendant of the Maximum Possible Sentence During a Habitual Felon Plea

When a defendant pleads guilty, the judge is required to “inform[] him of the maximum possible sentence” associated with his offense. G.S. 15A-1022(a)(6). When a defendant pleads guilty to being a habitual felon, he must be informed of the maximum sentence he faces as a habitual felon, because the enhanced sentence is a “direct consequence of [the defendant’s] plea.” State v. McNeill, 158 N.C. App. 96 (2003). See also State v. Bailey, 157 N.C. App. 80 (2003) (“[A] trial court may not accept a defendant’s plea of guilty as an habitual felon without first addressing the defendant personally and making the . . . inquiries of that defendant as required by” G.S. 15A-1022, including regarding the maximum possible sentence). A failure to advise the defendant properly may violate the constitutional principles outlined in Boykin v. Alabama, 395 U.S. 238 (1969), in addition to contravening the statute.

But what exactly is the “maximum possible sentence”? Should it be adjusted for the defendant’s prior record level? Based on any provisions in his plea agreement, if there is one? In a case in which the state is not pursuing any aggravating factors, should it be the top of the aggravated range or the top of the presumptive? Jessie Smith explored some of these issues outside the habitual felon context in this prior post. The most common (and probably safest) practice under current law is for the judge to inform the defendant of the maximum sentence that corresponds to the highest minimum sentence in the aggravated range of prior record level VI for the enhanced offense class. (Recall that under prior law, habitual felons were always sentenced as Class C offenders, but for substantive felonies committed on or after December 1, 2011, the Justice Reinvestment Act provides that they should be sentenced “four classes higher” than their natural class, capped at Class C. G.S. 14-7.6.) See State v. Hayes, 2005 WL 1669612 (N.C. Ct. App. July 19, 2005) (unpublished) (the defendant pled guilty to several substantive felonies and to being a habitual felon; during the plea colloquy, the trial judge advised the defendant that he could be sentenced to as little as 44 months [the minimum term at the bottom of the mitigated range for Class C, prior record level I] or as many as 261 months [the maximum term corresponding to the minimum term at the top of the aggravated range for Class C, prior record level VI]; this was proper).

What if the judge doesn’t do that? In some cases, the appellate courts have been quite exacting about the information a trial judge must provide to a defendant. For example, in State v. Reynolds, __ N.C. App. __, 721 S.E.2d 333 (2012), the defendant pled guilty to felony breaking and entering and felony larceny, and to being a habitual felon. His plea agreement provided specifically for a minimum term of 135 months, and the trial judge advised him that he would receive a minimum of 135 months and a maximum term of 168 months. In fact, the maximum term that corresponded to a 135 month minimum term was 171 months, and that was what the written judgment reflected. The court of appeals found that the trial judge had failed to advise the defendant properly of the maximum sentence he faced and that the error was not harmless. Cf. State v. Smith, 2012 WL 4878878 (N.C. Ct. App. Oct. 16, 2012) (unpublished) (the trial judge did not conduct a full plea colloquy, instead allowing the defendant to “stipulate” to being a habitual felon; among the defects in this procedure was that the judge “neglected to explain the maximum and minimum sentence for the underlying offense that would apply with [the defendant’s] conviction for attaining habitual felon status”).

However, the appellate courts are not always so particular. They have repeatedly affirmed cases in which the trial judge gave rather cursory explanations of the maximum possible sentence. For example:

• State v. Szucs, 207 N.C. App. 694 (2010) (trial court advised defendant that pleading guilty to being a habitual felon would expose him to a “much higher” sentence than would otherwise apply and that he would be sentenced as a Class C offender; following Williams, infra, the court of appeals ruled that this was sufficient compliance with G.S. 15A-1022(a)(6))
• State v. Pope, 2008 WL 4911803 (N.C. Ct. App. Nov. 18, 2008) (unpublished) (during defendant’s guilty plea to being a habitual felon, the trial court simply asked him whether he understood “what habitual felon status means . . . [i]nsofar as the sentence,” and received an affirmative response; although this did not comply with G.S. 15A-1022(a), it was harmless error as the plea overall appeared to be knowing and voluntary)
• State v. Handy, 2007 WL 2034111 (N.C. Ct. App. July 17, 2007) (unpublished) (defendant was convicted at trial of possession of cocaine and pled guilty to being a habitual felon; following Williams, infra, the court of appeals found that the trial judge sufficiently advised the defendant that he would be “punished as a Class C felon” based on his guilty plea)
• State v. Williams, 133 N.C. App. 326 (1999) (defendant was sufficiently made “aware of the direct consequences of her guilty plea” where the trial court advised her that she would be sentenced as a Class C felon under the habitual felon statutes rather than as a Class G felon; the judge did not specify how many months of imprisonment could be imposed)

It seems to me that the judge in Reynolds came much closer to complying with G.S. 15A-1022(a)(6) than the judge in Pope, yet the former was reversed while the latter was not. Maybe that’s just an anomaly, or maybe the appellate courts view providing inaccurate information – even if only slightly inaccurate – as inherently more troubling than providing too little information.