Last month, the court of appeals decided State v. Hogan, __ N.C. App. __, 758 S.E.2d 465 (2014), a case about the use of a defendant’s prior convictions from New Jersey in determining the defendant’s prior record level. It’s an interesting case and one that has implications for the use of such convictions in the habitual felon context, an issue I previously discussed here. (The comments to that prior post are unusually substantive and anyone who reads the post should also read the comments.)
Superior court proceedings. The defendant in Hogan pled guilty to assault by strangulation after choking his girlfriend. In the course of calculating the defendant’s prior record level, the superior court judge counted as a felony a prior conviction of “third degree theft” that the defendant incurred in New Jersey. According to the defendant’s brief, that decision moved the defendant from prior record level IV to V.
Defendant’s argument: New Jersey doesn’t have “felonies.” The defendant appealed, arguing in part that the judge erred in counting the New Jersey conviction as a felony. The court of appeals summarized his argument as follows: “[B]ecause New Jersey does not use the term ‘felony’ to classify its offenses, the trial court could not properly determine that third degree theft is a felony for sentencing purposes.” This argument links into G.S. 15A-1340.14(e), which states that for prior record level purposes, an out-of-state conviction normally “is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony” (emphasis supplied). The defendant argued, and the court of appeals acknowledged, that New Jersey “does not use the term ‘felony.’” Instead, it has four degrees of “crimes,” plus a set of less serious offenses called “disorderly persons offenses.”
Court’s ruling: “crimes” are felonies. The court of appeals found, however, that a third degree crime was punishable by three to five years in prison, and that New Jersey’s own courts had recognized that such a crime is comparable to a common law felony. In other words, “New Jersey courts have clearly recognized that their third-degree crimes are felonies by a different name.” Thus, the court rejected the defendant’s argument and affirmed his sentence.
Relationship to habitual felon. The court noted that in previous cases, it had been skeptical of the use of New Jersey convictions as previous convictions supporting a habitual felon charge. It declined to apply the reasoning of those cases in the Structured Sentencing context, stating that “[t]here is no suggestion in the sentencing statutes that the Legislature intended to single out New Jersey convictions for such unfavorable treatment.”
Importantly, the court also stated that even if it were to apply the habitual felon cases in the prior record level context, “this case is distinguishable in that the State presented a ‘certification’ that third degree theft is considered a felony in New Jersey,” which is precisely what previous cases like State v. Lindsey, 118 N.C. App. 549 (1995), suggested might be needed to allow New Jersey convictions to be used to support a habitual felon allegation. The State apparently introduced a criminal history printout from a New Jersey computer system that contained a statement certifying the record as accurate and described the theft conviction as a “felony.”
A few important points. There are a couple of takeaways here:
- First, the defendant has asked the state supreme court to review the case. The supreme court hasn’t yet ruled on whether it will do so, but has issued a temporary stay. If it does review the case, its ruling might impact the habitual felon cases as well as the prior record level cases, depending on the court’s result and reasoning.
- Second, the discussion of the certification from New Jersey is a road map for prosecutors trying to use a New Jersey conviction to support a habitual felon charge. The court of appeals’ previous opinions in the habitual felon context haven’t been clear about what sort of certification was required before a New Jersey conviction could be used, so Hogan is the best place to look. A possible defense response would be that the discussion in Hogan about the certification is dicta.
- Finally, first and second degree crimes, which are more serious than the offense at issue in Hogan, also appear to be felonies under the court’s analysis. But it is not as clear that fourth degree crimes, which are punishable by up to 18 months imprisonment, count as felonies. The trial judge in Hogan apparently didn’t think so, as he declined to treat the defendant’s other New Jersey prior – a fourth degree crime – as a felony. I tend to think otherwise, for the reasons given in my prior blog post, but I don’t think that Hogan is conclusive one way or the other.
As always, comments are welcome if folks think the analysis above is incorrect or incomplete. (Or exceptionally incisive, of course, though I don’t seem to get too many comments in that vein!)