Recently, I was teaching a class about the habitual felon laws when a participant asked a question that I had never considered. We know that a defendant convicted of drug trafficking may be convicted as a habitual felon, and when that happens, the defendant’s term of imprisonment is determined under Structured Sentencing based on the elevated offense class set forth in the habitual felon statutes, not based on the mandatory term of imprisonment set forth in the trafficking statute. But what about the mandatory minimum fine listed in the trafficking statute? Must that be imposed, or is the defendant “habitualized out” of all the sentencing-related provisions of the trafficking laws? Apparently, this issue comes up regularly in practice.
More detail. When a defendant is convicted of drug trafficking, he or she normally is sentenced under the trafficking-specific provisions contained in G.S. 90-95(h). The trafficking laws contain both mandatory prison sentences and mandatory minimum fines for various trafficking offenses. For example, trafficking in 10,000 pounds or more of marijuana is a Class D felony that requires a prison sentence of “a minimum term of 175 months and a maximum term of 222 months,” plus a fine of “not less than $200,000.” When a trafficking defendant is also convicted of being a habitual felon, his or her term of imprisonment is determined under Structured Sentencing, not under the trafficking statutes. See State v. Eaton, 210 N.C. App. 142 (2011) (so holding). The defendant is sentenced “at a felony class level that is four classes higher than the principal felony for which the person was convicted,” up to a maximum of Class C. G.S. 14-7.6. Sometimes this results in a longer sentence than the defendant would otherwise have received, but not always. For example, a defendant convicted as a habitual felon of Class D trafficking in marijuana would be sentenced as a Class C felon, almost certainly to a shorter term than the 175 to 222 months listed in the trafficking statutes.
There is no specific provision regarding fines in the habitual felon statutes, and the general sentencing provisions regarding fines mostly leave them to the discretion of the court. See G.S. 15A-1361 (stating that a defendant “may be required to pay a fine as provided by law”). So when sentencing a trafficking defendant who has been convicted as a habitual felon, do the trafficking fine requirements apply or not?
The argument that the fine provisions don’t apply. When a drug trafficking defendant is convicted as a habitual felon, one could think of him or her as being “habitualized out of the trafficking statutes.” Indeed, sometimes the whole reason for charging a drug trafficking defendant as a habitual felon is to mitigate the defendant’s sentence by getting the defendant out from under the trafficking provisions. If the whole point of the habitual charge is to avoid the strictures of the trafficking statutes, perhaps the mandatory fine ought to fall by the wayside when the mandatory prison sentence does and the whole sentence ought to be imposed under the regular provisions applicable to Structured Sentencing.
The argument that the fine provisions do apply. On the other hand, there is language in Eaton – the most significant case on the interaction between the drug trafficking laws and the habitual felon laws – suggesting that the two sets of provisions are complementary and should be read together to increase the severity of the defendant’s sentence. For example, the court stated that “it is reasonable to assume that the legislature intended to further enhance the sentences of drug traffickers who are also habitual felons.” If that’s right, then “further enhancing” a defendant’s sentence means applying the mandatory minimum fine, not ignoring it.
More generally, because the habitual felon laws don’t directly address fines at all, one could argue that there is no conflict between the habitual felon sentencing provisions and the trafficking fines and a court should try to give effect to both statutes as much as possible. See generally State v. Hutson, 10 N.C. App. 653 (1971) (“[A]lthough in apparent conflict or containing apparent inconsistencies, [statutes] should, as far as reasonably possible, be construed in harmony with each other so as to give force and effect to each.”).
No case. There is no appellate case that directly addresses the question, so ultimately it is unsettled. There are several unpublished cases suggesting that some trial judges may view the trafficking fines as mandatory even when a defendant is convicted as a habitual felon. See, e.g., State v. Pigford, 221 N.C. App. 435 (2012) (unpublished) (a defendant was convicted of trafficking in marijuana and “stipulated” to being a habitual felon; the opinion notes that the judge imposed a prison term and “ordered Defendant to pay a statutorily mandated fine of $5,000”; the propriety of the fine was not at issue on appeal).
The work-around. If the parties agree that they don’t want the mandatory minimum fine to apply but the judge thinks that it does, there are solutions. For example, under G.S. 90-98, attempted trafficking is the same class as the completed offense, but is punished under regular Structured Sentencing rules so the mandatory fines don’t apply. Accordingly, a plea to attempted trafficking as a habitual felon would allow the same sentence of imprisonment as a plea to trafficking as a habitual felon, but there would be no mandatory fine.
As always, comments and questions are welcome. I should note that when I started examining this question, I did what any thinking person would do: I consulted my colleague Jamie Markham, the School of Government’s expert on sentencing and corrections. Everything in this post grew out of that conversation, and I shamelessly plagiarized some phrases directly from our email exchanges. I’m extremely grateful for Jamie’s assistance and expertise, and any errors in the discussion above are mine.