blank

G.S. 15A-928: One crime, two charges, one judgment?

linkedin
Share on Google+
Share on Reddit
Share on Tumblr
Download PDF

Whenever a prior offense “raises an offense of lower grade to one of higher grade and thereby becomes an element” of the current offense (e.g., habitual larceny, habitual misdemeanor assault, habitual DWI, and second or subsequent charges for certain other offenses such as stalking, shoplifting, or carrying a concealed firearm), the state must plead and try the case in compliance with G.S. 15A-928. In short, this statute requires that: (i) an “improvised” name for the alleged offense must be used to avoid referring to any prior convictions; (ii) any prior offenses must be alleged in a separate indictment (or at least as a separate count within the indictment); (iii) the defendant must be separately arraigned on the alleged priors outside the presence of the jury; and (iv) if the defendant admits to the prior convictions, then that element has been proved and the state may not present evidence on it, nor will it be submitted to the jury.

Shea Denning has previously posted about G.S. 15A-928 and some of the key cases interpreting its requirements here and here, but last week I received an interesting procedural question on this topic.

When the state complies with these pleading rules, the result will be two separate indictments (or counts) pending in court, but of course there is really only one criminal offense being charged, and the defendant may only receive one punishment for it. What is the recommended procedure for how the charge(s?) and sentence(s?) should be reflected in the plea transcript or verdict form, and how should the court structure its judgment? This post offers a few thoughts and suggestions.

First things first – let’s talk about the indictment

It seems to be a fairly common practice to charge the new substantive offense as a misdemeanor in Count #1, and leave it to Count #2 to allege that the conduct was actually a felony based on the prior convictions.

For example, in an habitual larceny case, Count #1 might only allege that “on or about August 14, 2018, Donnie Defendant unlawfully and willfully did steal, take, and carry away one widget, the personal property of Valerie Victim, such property having a value of $38, in violation of G.S. 14-72(a).” Then Count #2 alleges that “the offense in Count #1, above, was committed after the defendant had been convicted of at least four previous larceny offenses, to wit: (list offense date, conviction date, name of court and case number for each), all in violation of G.S. 14-72(b)(6).”

Our state Supreme Court has held that the two primary purposes served by G.S. 15A-928 are to “insure that defendants are informed of the prior convictions they are charged with and are given a fair opportunity to either admit or deny them before the State’s evidence is concluded.” State v. Brice, 370 N.C. 244 (2017), quoting State v. Ford, 71 N.C. App. 452 (1984).

Taken as a whole, the example above achieves both of those goals, so I’m not saying it’s wrong… but it could be better. The sample indictment form for habitual misdemeanor larceny (available here at p.19) recommends charging in Count #1 that the defendant “unlawfully, willfully, and feloniously did steal take and carry away” the $38 widget. I would go further and recommend that the statutory reference at the end of Count #1 include both G.S. 14-72(a) and 72(b)(6), to avoid any possible argument that the defendant was not put on notice that the substantive charge in Count #1 is alleged to be a felony.

But the new substantive charge in Count #1 isn’t a felony – it’s just a misdemeanor, right?

Sort of, yes. But more accurately, no, not really. This is an important (and sometimes confusing) distinction between these types of offenses and other “status offenses” such as habitual felon or habitual breaking and entering prosecutions. With status offenses, the new substantive crime is generally charged the exact same way it would normally be charged, and the defendant’s status is alleged in a separate indictment. If the defendant is convicted of both, then he or she receives a higher level of punishment for the underlying offense. See generally G.S. Chapter 14, Article 2A (Habitual Felons); G.S. Chapter 14, Article 2D (Habitual Breaking and Entering Status Offense).

By contrast, even though we describe offenses implicating G.S. 15A-928 in similar terms, such as “habitual misdemeanor larceny” or “habitual misdemeanor assault,” the prior convictions in these cases are considered an element of the felony offense itself, rather than a separate status that results in a higher sentence for the lesser offense. See, e.g., State v. Priddy, 115 N.C.App. 547, (1994) (“the offense of habitual impaired driving as defined by G.S. § 20–138.5 constitutes a separate substantive felony offense”).

Returning to the example above, there is only one offense being charged: “felony larceny pursuant to G.S. 14-72.6(b).” The various elements comprising that felony charge are just being broken up into two separate counts or indictments: (i) the new criminal conduct, and (ii) the qualifying prior convictions. If the defendant goes to trial on the full habitual larceny charge, the entire matter will be presented to the jury for deliberation and verdict as one felony offense (with nine separate elements to be found, including the prior convictions). See N.C.P.I. – Crim 216.08.

The result: one verdict covering two charges for one offense…. How should the court enter judgment?

This is the question that originally prompted this post, and I’ll start by saying what I don’t recommend. In a case that was charged much like the original example above, the clerk had indexed Count #1 as “misdemeanor larceny” and Count #2 as “felony larceny.” When the defendant entered a guilty plea to “felony larceny,” the resulting judgment was only entered on Count #2, and the prosecutor was asked to file a dismissal on Count #1 to “close out the file.”

That’s not an ideal solution, because the conviction and judgment will only be supported in the record by half of the criminal offense. In fact, without Count #1 for context, one could argue that the “felony” charge in Count #2, standing alone, fails to allege anything except that the defendant has some prior convictions. That’s loosely analogous to pleading a defendant guilty to an habitual felon indictment without including an underlying substantive criminal offense, which our appellate courts have consistently rejected. See State v. Allen, 292 N.C. 431 (1977) (noting the “procedural similarities” between Habitual Felons Act and G.S. 15A-928); State v. Priddy, 115 N.C. App. 547, disc. review denied, 337 N.C. 805 (1994) (“[B]eing an habitual felon is not a crime and cannot support, standing alone, a criminal sentence.”).

The better option in G.S. 15A-928 cases is to have the plea transcript and judgment reflect a finding of guilty as to both counts (or indictments), and then have the court arrest judgment on one of them. The court should state that it is doing so in order to avoid double jeopardy (i.e., imposing two punishments for a single offense), and only enter judgment on one of the two counts. See, e.g., State v. Pendergraft, 238 N.C. App. 516 (2014) (judgment may be arrested as to one count “for the purpose of addressing double jeopardy or other concerns” and “the underlying guilty verdict remains intact”).

Alternatively, it should also be permissible for the court to enter one consolidated judgment that applies to both counts, but I have not yet seen an appellate case that directly analyzes this issue in relation to G.S. 15A-928. See G.S. 15A-1340.15(b) (“Consolidation of Sentences”); cf. State v. Bailey, 157 N.C. App. 80 (2003) (in an habitual felon case, the “Class C felony conviction and defendant’s two Class H felony convictions were consolidated for judgment as part of a plea agreement,” but since the two underlying stolen property felonies were both based on the same offense, “defendant was properly adjudicated as an habitual felon, but erroneously convicted twice for possession of the same stolen property”).

If the norms in your district for handling pleadings and judgments involving G.S. 15A-928 cases are different from what I’ve covered here, please let me know about it in the comments.

 

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.