Habitual Breaking and Entering

I wrote recently about how the Justice Reinvestment Act changes North Carolina’s existing habitual felon law (you can read that post here). This post examines a new recidivist offender statute created by the act: the status offense of habitual breaking and entering.

Under the new law, set out in G.S. 14-7.25 through -7.31, a person can be charged, convicted, and sentenced as a habitual breaking and entering status offender upon his or her second conviction of “breaking and entering.” “Breaking and entering” is defined in new G.S. 14-7.25 to include the following felonies:

  • First degree burglary (G.S. 14‑51);
  • Second degree burglary (G.S. 14‑51);
  • Breaking out of dwelling house burglary (G.S. 14‑53);
  • Breaking or entering buildings generally (G.S. 14‑54(a));
  • Breaking or entering a building that is a place of religious worship (G.S. 14‑54.1);
  • Any repealed or superseded offense substantially equivalent to any of the offenses listed above;
  • Any offense committed in another jurisdiction substantially similar to any of the offenses above.

The habitual B & E status offense is similar operationally to the habitual felon law. Like being a habitual felon, it is a status, not a crime—a person cannot be prosecuted simply for having a prior covered felony. There must be a conviction for a new principal felony, to which the status offender sentencing provisions then attach. The key differences between the new habitual B & E status offense and the existing habitual felon law are that that the former applies to a much smaller universe of qualifying offenses (those listed above, as opposed to all felonies), and that it can kick in upon a person’s second “strike” instead of his or her fourth.

A person convicted and sentenced as a habitual B & E status offender gets sentenced as a Class E felon. How steep of a punishment enhancement that is depends upon the principal breaking and entering crime for which the defendant has been convicted. For routine felony breaking or entering buildings, a Class H felony, getting sentenced as a Class E felon is a three-class enhancement that roughly triples the defendant’s punishment. If the principal felony is a Class G second-degree burglary or breaking or entering a place of worship, the new law approximately doubles the sentence. First-degree burglary and breaking out of a dwelling house burglary are already Class D offenses, so getting sentenced as a habitual B & E status offender would actually decrease the defendant’s punishment. Those offenses were obviously included in the law for use as qualifying prior felonies, not as principal felonies. Any conviction used to establish a person’s status as a habitual B & E status offender does not count toward the person’s prior record level.

Sentences imposed under the new habitual B & E law must run consecutively with any sentence being served by the defendant. In other statutes (discussed in this prior post), including the regular habitual felon and drug trafficking laws, that language has been interpreted to allow concurrent sentences for convictions sentenced at the same time. I can’t think of a reason this law would be interpreted differently. Some habitual B & E status offenders—those in Prior Record Level I and II—will be eligible for probation. As I mentioned last week in the context of the new habitual felon law, it’s not clear how the law’s requirement for consecutive sentences works when applied to a suspended sentence.

Using language borrowed from the existing habitual felon law, the new law says that “felony offenses of breaking and entering committed before the person is 18 years of age shall not constitute more than one felony of breaking and entering.” G.S. 14-7.26. Given that only one prior felony (not three) is necessary to qualify a defendant as a B & E status offender, the practical effect of that rule is simply that a person’s principal B & E felony must be committed after his or her eighteenth birthday. A defendant’s second breaking and entering felony only qualifies for habitualization if it is committed after the conviction of the first felony breaking and entering offense. In that regard, the new law is a bit clearer than the existing habitual felon law, which prohibits overlapping first, second, and third prior felonies, but never explicitly says that a fourth or subsequent felony must occur after conviction of the third.

The new habitual B & E law is pretty similar to the existing habitual felon law in terms of procedure. The new law clearly requires the habitual status offense charge to be brought in an indictment separate from that charting the principal B & E crime. The statute thus avoids the longstanding inconsistency in G.S. 14-7.3 that appears in the same breath to require a single and separate charging documents (see p. 7–8 of Jeff Welty’s bulletin on North Carolina’s habitual felon laws). [Editor’s note: Although new G.S. 14-7.28(a) requires that the indictment for the habitual offense “shall be separate” from the indictment for the principal offense, the provision of G.S. 15A-928(b) allowing the habitual offense to be charged “in the principal indictment as a separate count” may apply.] The required contents of the B & E status offender indictment are the same as a regular habitual felon indictment, and the defendant is similarly entitled to a twenty-day waiting period before going to trial on the charge. Other provisions regarding evidence of prior convictions and trial procedure likewise mirror the existing habitual felon law.

New G.S. 14-7.31(c) provides that a “conviction as a status offender under this Article shall not constitute commission of a felony for the purpose of either Article 2A or Article 2B of Chapter 14 of the General Statutes.” Article 2A and 2B are the habitual felon and violent habitual felon laws, respectively. The exact meaning of that provision isn’t clear. It may just be an offshoot of the rule that being a habitual B & E offender is a status, not a crime, and that a person’s conviction as a status offender is not itself a qualifying strike under the other recidivist status provisions, but other readings are also possible.

As you can imagine, a one-strike habitual status like this carries a cost. The fiscal note accompanying the Justice Reinvestment Act projected the law could create the need for over 1,000 additional prison beds in the next five years and increased prison costs of over $30 million. It’s hard, though, to predict exactly how the law will be used in practice—or what savings it might achieve as a deterrent to persistent property crime.

The law is effective for principal breaking and entering felonies committed on or after December 1, 2011.