Court of Appeals Rejects Habitual Felon Sentence Based on Enhanced Sentence for Misdemeanor Possession of Marijuana

Suppose a person is convicted of the misdemeanor of possessing more than 1/2 ounce but no more than 1 1/2 ounces of marijuana, a Class 1 misdemeanor under G.S. 90-95(d)(4). Suppose further that the person was convicted previously for an offense under North Carolina’s Controlled Substances Act. Based on this prior conviction, the person may be “punished as a Class I felon” under G.S. 90-95(e)(3). May the State also use that felony punishment as the current felony for the purpose of prosecuting the person as a habitual felon? If so, the punishment would increase four more classes—from a Class I to a Class E felony—under the habitual felon sentencing scheme in G.S. 14-7.6.

The Court of Appeals said no in its recent decision in State v. Howell, ___ N.C. App. ___, 792 S.E.2d 898 (Dec. 6, 2016), temp. stay allowed, ___ N.C. ___, 794 S.E.2d 345 (Dec. 20, 2016). As in the above scenario, the defendant in Howell was convicted of Class 1 misdemeanor possession of marijuana. The State alleged that he had a prior conviction under North Carolina’s Controlled Substance Act, making the punishment for the marijuana offense a Class I felony. The felony punishment, in turn, was used as the current felony for the purpose of imposing a Class E, habitual felon punishment. The Court of Appeals reversed the Class E sentence and remanded for resentencing.

The court focused on the language of G.S. 90-95(e)(3), which provides that a person “shall be punished as a Class I felon” if he or she commits a Class 1 misdemeanor and has a prior conviction in violation of the Controlled Substances Act. The court found that the General Assembly intended by this language to create a “sentence enhancement,” not a separate felony offense. Slip Op. at 7–8. It held that although the defendant could be punished as a Class I felon because of his prior conviction, “the substantive offense remains a Class 1 misdemeanor.” Id. at 8. Therefore, the offense did not support the imposition of a higher, habitual felon sentence.

Previous decisions have addressed whether circumstances raising an offense to a higher class create a separate offense or act as a sentencing enhancement for purposes of habitual felon prosecutions. Howell seems to be a refinement of the approach in those decisions, not a departure.

Statutes using the term “offense.” Some statutes explicitly state that when the statutory circumstances are present, the defendant commits a higher “offense.” Decisions have found that this language indicates that the General Assembly intended to create a separate offense. For example, G.S. 14-33.2 states that the defendant commits the “offense” of habitual misdemeanor assault if he or she commits a misdemeanor assault and has two or more prior assault convictions within the past 15 years. Interpreting an earlier version of the statute, the Court of Appeals held that the statute created a substantive offense, which could serve as the basis for a habitual felon prosecution. See State v. Smith, 139 N.C. App. 209 (2000); see also State v. Shaw, 224 N.C. App. 209 (2012) (recognizing that statute was amended to preclude use of habitual misdemeanor assault conviction as prior felony conviction for habitual felon purposes, but that offense of habitual misdemeanor assault could still be used as current felony for habitual felon prosecution). Similarly, G.S. 20-138.5 states that the defendant commits the “offense” of habitual impaired driving if he or she drives while impaired and has been convicted of three or more impaired driving offenses within the past 10 years. The court likewise held that this statute created a substantive offense, which could be used as the basis for a habitual felon prosecution. See State v. Priddy, 115 N.C. App. 547 (1994).

The same logic may apply to statutes making a person “guilty” of a higher class of offense. For example, G.S. 14-277.3A states that a person who commits the offense of stalking after having previously been convicted of a stalking offense is “guilty” of a Class F felony. Under the approach in Smith and Priddy, this language may denote a separate offense.

Statutes raising the “punishment” based on circumstances related to the commission of the offense. Some statutes state that when the statutory circumstances are present, the offense is “punishable” or the defendant is “punished” at a higher class. Whether the language creates a separate offense or a sentencing enhancement depends again on the General Assembly’s intent. A key factor appears to be whether the circumstance at issue relates to the commission of the offense.

For example, in State v. Jones, 358 N.C. 473 (2004), the court addressed the punishment for possession of cocaine. Under G.S. 90-95(d)(2), possession of a Schedule II controlled substance is a Class 1 misdemeanor but, if the substance is cocaine, possession is “punishable as a Class I felony.” Based on this language, the defendant argued that his prior conviction for cocaine possession was a misdemeanor, punished as a felony, and not a separate felony offense. Therefore, it could not be used as a prior felony conviction in support of a habitual felon prosecution. The North Carolina Supreme Court rejected the argument. The court acknowledged that the terminology may have created some ambiguity but concluded that the General Assembly intended to create a separate offense: “[T]he phrase ‘punishable as a Class I felony’ does not simply denote a sentencing classification, but rather, dictates that a conviction for possession of the substances listed therein, including cocaine, is elevated to a felony classification for all purposes.” 358 N.C. at 478.

Drug offense punishments based on weight or amount may follow the same logic. For example, G.S. 90-95(h) states that conviction of drug trafficking is a felony and that a person violating the statute is “punished” at a higher class depending on the weight or amount—for example, a person is punished as a Class H felon for marijuana trafficking of more than 10 but less than 50 pounds and as high as a Class D felon for 10,000 pounds or more. Under the reasoning of Jones, the term “punished” may not simply denote a sentencing classification but rather may indicate that the violation is the class of offense associated with the particular weight or amount.

Toward the end of its opinion in Jones, the court cited several statutes illustrating that the General Assembly has sometimes used the term “punished” or “punishable” to describe higher offenses. 358 N.C. at 484–85. Some of the statutes include recidivist provisions. See, e.g., G.S. 14-56.1 (providing that breaking into a coin or currency operated machine is a Class 1 misdemeanor but that a person is “punished” as a Class I felon for a subsequent offense). This dicta could be read as indicating that these and similarly-worded statutes create separate offenses, but ultimately the court did not decide the impact of the statutes.

Recidivist “punishment” provisions. Smith and Priddy indicate that a recidivist provision can create a separate offense if the General Assembly uses offense-related language to describe the effect of prior convictions—for example, by stating that the matter constitutes an “offense.” Jones indicates that language associated with sentencing, such as the terms “punish” or “punishable,” can also signify a separate offense if the circumstances in question relate to commission of the offense, such as the type of drug or its weight or amount.

Howell seems different than either situation. Distinguishing Smith and Priddy, the court recognized that the statute in Howell uses punishment, not offense, language. The court did not specifically address Jones (although the parties discussed the decision in their briefs), but the statute in Howell seems distinguishable because it involves prior convictions, not offense-related conduct. The courts have traditionally viewed prior convictions as sentencing enhancements because “recidivism does not relate to the commission of the offense itself.” See Apprendi v. New Jersey, 530 U.S. 466, 496 (2000) (relying, in part, on this principle in holding that constitution does not require that prior convictions be submitted to jury and found beyond reasonable doubt). Further, the combination of recidivist and habitual offender provisions may impose significantly greater punishment than intended—in this instance, the combination would raise misdemeanor marijuana possession to the lowest level felony, then to a Class E felony. Applying the statute’s “punish” language to the statute’s prior conviction circumstance, the Howell court concluded that the General Assembly intended for the statute to act as a sentencing enhancement only and not to create a separate felony offense on which a greater, habitual felon sentence could be imposed.