Misdemeanor Prior Conviction Level

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For felony sentencing, a defendant’s criminal history is scored as a “prior record level.” The analogous measure for misdemeanor sentencing is “prior conviction level.” There are important differences between the two measures.

There are three misdemeanor prior conviction levels. If a defendant has no prior convictions, he or she is Level I. Defendants with 1 to 4 prior convictions are Level II. And Defendants with five or more prior convictions are Level III. G.S. 15A-1340.21. Convictions are tallied as of the day judgment is entered for the crime being sentenced. G.S. 15A-1340.11(7).

All prior felonies and misdemeanors count, and they all count equally. Unlike felony prior record level, misdemeanor prior conviction level does not give greater weight to a person’s more serious prior convictions. For misdemeanor sentencing purposes, a prior murder counts the same as a prior trespass: one prior conviction. Another difference from felony prior record level is that for misdemeanor sentencing, prior Class 2 and 3 misdemeanors are not excluded from a person’s record. They count.

There is no exception for traffic offenses. Prior traffic convictions count toward misdemeanor prior conviction level. That’s different from felony prior record level, where only “nontraffic misdemeanor offense[s]” count (plus impaired driving, commercial impaired driving, and misdemeanor death by vehicle). G.S. 15A-1340.14(5). The “nontraffic” language in the felony sentencing law is expressly limited to its subsection, meaning it applies only to the definition of a prior misdemeanor for felony sentencing purposes. There is no such rule for prior misdemeanors for misdemeanor sentencing purposes, and so they count toward misdemeanor prior conviction level.

Multiple prior convictions from the same session or week. As with felony prior record level, you count only one prior conviction from each session (day, generally) of district court or each week of superior court. G.S. 15A-1340.21(d). It doesn’t matter which prior conviction you count, because they all count the same.

Out-of-state convictions. Out-of-state convictions count. G.S. 15A-1340.11(7). There is no need to conduct a “substantial similarity” analysis because offenses count regardless of whether they would be crimes in North Carolina, and felonies and misdemeanors count the same. If the defendant has multiple convictions from the same week of court in another jurisdiction, count only one of them. G.S. 15A-1340.21(d).

Convictions on appeal. Prior superior court convictions count regardless of whether they might be on appeal to the appellate division. G.S. 15A-1340.11(7). Prior district court convictions that are either on appeal or for which the time for appeal to superior court has not expired do not count. Id.

Infractions and juveniles adjudications do not count as prior convictions. Ever. Neither does criminal contempt. State v. Reaves, 142 N.C. App. 629 (2001).

Prior convictions that have changed classification over time. You evaluate whether a prior conviction counts as a “conviction” as of the offense date of the crime now being sentenced. G.S. 15A-1340.21(b). Suppose, for example, that a person has a prior conviction for an offense that was a Class 3 misdemeanor when he committed it, but that has since been downgraded to an infraction. If the downgrade happened before the defendant committed a new offense, then the prior offense would not count toward the prior conviction level.

PJCs and conditional discharges count. Convictions for which prayer for judgment is continued count toward prior conviction level. State v. Canellas, 164 N.C. App. 775 (2004). Similarly, convictions that are conditionally discharged under a law like G.S. 90-96 or G.S. 15A-1341(a4) count unless and until the defendant has succeeded on the conditional discharge probation and the court has dismissed the conviction. State v. Hasty, 133 N.C. App. 563 (1999). When it comes to prior convictions, the important thing for sentencing purposes is the adjudication of guilt, not the entry of judgment. G.S. 15A-1331(b).

Bonus points. There are no bonus points for misdemeanor prior conviction level. The defendant doesn’t get an additional point for committing a crime while on probation, or when all the elements of the present offense are included in a prior offense. Those extra points apply only in felony sentencing land.

Burden. As with felony prior record level, the burden of proving a defendant’s misdemeanor prior conviction level is on the State, which must prove them to the court by a preponderance of the evidence. For reasons discussed here, I think it is improper for the record to come directly from the clerk to the judge without being offered by the State.

Feasible efforts, and ethics. The felony prior record level statute requires the prosecutor to “make all feasible efforts to obtain and present to the court the offender’s full record.” G.S. 15A-1340.14(f). There is no similar provision in the misdemeanor prior conviction level statute. That omission was no accident. It was made with the knowledge that the pace of district court doesn’t allow for a searching review of every defendant’s full record in every case. That said, a prosecutor has an ethical obligation to report all the prior convictions he or she knows about. 2003 Formal Ethics Op. 5.

3 comments on “Misdemeanor Prior Conviction Level

  1. So regarding the prior convictions that have changed the classification over time, if you pled guilty to an offense in the past that would not have counted as a prior record point and it is subsequently changed into an offense that would count, and if you then got a new conviction the first conviction you pled guilty to would then count as a point even though it would not have counted when you agreed to accept the plea, correct?

    • Yes.

  2. Jamie, I think you are wrong about District Court PJCs counting as prior convictions although you are right about Superior Court PJCs counting as prior convictions. In the Canellas case the Court of Appeals quoted the part of N.C.G.S. section 15A-1340.11(7) which applies to Superior Court prior convictions and did not reference the part that distinguishes District Court convictions. The statute says that a District Court conviction does not count as a prior conviction unless “the person has not given notice of appeal and the time for appeal has expired.” The time for appeal is ten days after entry of judgment. With a PJC, the entry of judgment has not yet occurred, so the ten days has not yet started, let alone expired, therefore a District Court PJC by statute is not a prior conviction. The Canellas opinion and the statute are harmonized by assuming that Canellas’ received his PJC in Superior Court rather than District Court on the assault on a female conviction. The Court of Appeals in their opinion did not specify whether the PJC was given in Superior or District Court. Had the Court of Appeals meant to legislate an exception to the statutory definition of prior conviction they should have plainly said so. Since they quoted the part of the statute that applies to Superior Court PJCs and did not quote the part that distinguishes District Court PJCs we should assume that they did not mean to alter the statute in any way.
    If that argument fails to persuade you, try this: defendants do not get juries in District Court. If convicted in District Court, defendants have a constitutional right to appeal that conviction in order to exercise their right to a jury trial. The District Court trial is a screening trial to take the workload off of Superior Court. It’s sort of a cross between mediation and a real jury trial. A defendant has a right to appeal his District Court conviction in order to exercise his right to a jury trial. PJCs cannot be appealed. Defendants are not allowed to appeal a PJC, so they are not allowed to have jury trials on charges for which a District Court judge gives a PJC. That’s fine if the PJC does not count as a prior conviction of a crime, but if we start counting District Court PJCs as prior convictions of crimes we will be depriving defendants of their right to trials by jury.
    Doesn’t it make more sense to treat the PJC in the Canellas case as a Superior Court PJC rather than a District Court PJC? The Court of Appeals did not address the District Court issue. Probably it was actually a District Court PJC, but since the Court of Appeals did not specify whether District or Superior Court, we should assume the Court of Appeals meant to make the ruling that does not create a conflict with both statutory and constitutional law rather than the ruling which does create that conflict.
    By the way, I have made this argument and lost, however my clients were always sentenced as if the PJC did not count as a prior conviction.

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