Legislative Changes to Which Prior Convictions Can Support a Habitual Felon Charge

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S.L. 2017-176 makes two important changes to which prior convictions can support a habitual felon charge. The legislation (1) clarifies the status of prior convictions from New Jersey and other states that don’t use the term “felony,” and (2) imposes a new requirement that a prior conviction from another state be for an offense that is “substantially similar” to a North Carolina felony.

Prior convictions from New Jersey. New Jersey uses the terms “crimes” and “disorderly persons offenses” in place of “felonies” and misdemeanors.” Because North Carolina’s habitual felon statute refers to “felony offenses,” see, e.g., G.S. 14-7.1, judges, lawyers, and citizens have long been unsure whether a prior conviction for a “crime” in New Jersey can be used to support a habitual felon charge. (I discussed this issue in previous blog posts here and here.) The new statute provides that a prior conviction counts as a felony if it is from “another state or sovereign that does not classify any crimes as felonies,” it is “substantially similar to an offense that is a felony in North Carolina,” and it is “punishable by imprisonment for more than a year in state prison.” That seems to cover New Jersey, and other states like Maine that don’t use the term “felony.” I don’t see obvious ambiguities or drafting problems, but if you do, please post a comment.

New substantial similarity requirement. Since the habitual felon statute was first enacted in 1967, see S.L. 1967-1241, the statute has deferred to other states’ classifications of offenses. In other words, the state has been able to use a defendant’s out-of-state felony convictions regardless of whether the convictions involved conduct that would be felonious in North Carolina. However, S.L. 2017-176 imposes a new requirement that a conviction from another state be for an offense that is “substantially similar to an offense that is a felony in North Carolina.” Obviously, this will benefit defendants who have out-of-state felony convictions for offenses that would be misdemeanors or not criminal at all in North Carolina. Strangely, the substantial similarity requirement does not apply to prior federal felony convictions – those still count regardless of similarity.

The concept of substantial similarity between North Carolina offenses and offenses in other states is potentially fairly tricky in application. Exactly how analogous must an offense be to a North Carolina crime before it is “substantially similar”? Still, it is a concept that appears in several places in our statutes, including the violent habitual felon provisions, see G.S. 14-7.7(b) (to support a violent habitual felony charge an out-of-state conviction must be substantially similar to a Class A through E offense in North Carolina), and in structured sentencing, see G.S. 15A-1340.14(e) (when determining a defendant’s prior record points, the parties may establish that an out-of-state conviction is substantially similar to a North Carolina offense). In the structured sentencing context, the appellate courts have stated that substantial similarity is to be determined by comparing elements and that “the party seeking the determination of substantial similarity must provide evidence of the applicable law,” State v. Sanders, 367 N.C. 716 (2014). The inquiry is a legal one to be considered by the court, not a jury. State v. Claxton, 225 N.C. App. 150 (2013). A defendant can stipulate to a conviction and to its felony status, but not to substantial similarity. State v. Wright, 210 N.C. App. 52 (2013). Jamie has written more about substantial similarity here.

Effective date. The above changes are effective December 1, 2017, for “any offense committed on or after that date and that is the principal felony offense for a charge of a status offense of habitual felon.” The act also states that “[p]rosecutions for offenses committed before the effective date of this section are not abated or affected by this section, and the statutes that would be applicable but for this section remain applicable to those prosecutions.” I take that to be an attempt to foreclose MARs by defendants who believe that the new substantial similarity requirement would not have been met had it been in place when their cases were being handled.

Further reading. My paper about North Carolina’s habitual felon laws provides additional information about charging, proving, and sentencing habitual felons.

One comment on “Legislative Changes to Which Prior Convictions Can Support a Habitual Felon Charge

  1. Jeff,

    Any thoughts on how this will practically impact habitual felon proceedings. I’ve always viewed the “substantial similarity” issues in sentencing questions as rightly being providence of the trial judge. The existence of a prior conviction (and what crime the prior conviction was for) is obviously an exception to Blakely and Apprendi’s requirements that facts which would increase punishment must be submitted to a jury.

    Does that hold true, when (as now, apparently) the substantial similarity requirement is an element of the habitual felon status? Does it now have to be proven to a jury? Certainly it would seem that it must be proven beyond a reasonable doubt, and yet proof beyond a reasonable doubt is generally not a standard applicable to issues of law.

    I foresee considerable litigation over these and other issues with future habitual felon prosecutions.

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