Prior Record for Recidivist (and Recidivist-ish) Crimes

I am frequently asked about what convictions may count toward a defendant’s prior record level in prosecutions under the habitual felon law and other similar laws, like habitual impaired driving.

For habitual felon prosecutions, the answer is pretty clear—G.S. 14-7.6 says convictions used to establish a person’s status as an habitual felon may not also be counted for prior record points. There are wrinkles (explored in greater detail here [UPDATED]), like if the State happens to allege four prior felonies in the habitual felon indictment, none of them may count for prior record points, even though only three of them were necessary to habitualize the defendant. State v. Lee, 150 N.C. App. 701 (2003). But the bottom-line rule is straightforward enough.

As for habitual DWI, though the relevant statute (G.S. 20-138.5) is silent on the issue of whether the misdemeanor DWI convictions underlying a felony habitual DWI charge may count for prior record points in the habitual DWI prosecution, the Court of Appeals has told us they may not. In State v. Gentry, 135 N.C. App. 107 (1999), the court grafted the G.S. 14-7.6 rule onto G.S. 20-138.5, noting the “basic unfairness and constitutional restrictions” on using the same convictions both to elevate a defendant’s sentencing status and to increase his or her prior record level. [Note, however, that a felony habitual DWI and the misdemeanor DWIs underlying it may all count for prior record points if the defendant is later prosecuted for another offense—like involuntary manslaughter, as was the case in State v. Hyden, 175 N.C. App. 576 (2006).]

It’s been 10 years since Gentry, so that rule is pretty well known around the state. More recently, however, the Court of Appeals addressed the Gentry argument as applied to two additional laws with a recidivist-like flavor: possession of firearm by a felon and failure to register as a sex offender.

In State v. Harrison, 165 N.C. App. 332 (2004), the court held that a defendant’s prior conviction for second-degree rape could count for prior record points in his later prosecution for failure to register as a sex offender. In State v. Goodwin, 661 S.E.2d 46 (2008), the court concluded that the defendant’s conviction for possession of a firearm by a felon as well as the felony drug conviction that had cost him his guns could both count for points when he was later sentenced for murder.

In both cases, the defendants argued that the underlying crimes (the rape that got Mr. Harrison on the sex offender registry and the felony that cost Mr. Goodwin his guns) ought to be excluded from their prior records, just as they are in the sort-of analogous “habitual” offense contexts described above. In both cases, however, the court disagreed, reasoning that failure to register and felon in possession are separate substantive offenses—not a “sentencing status” like habitual felon. Of course, habitual DWI is also a separate substantive offense (something the state pointed out in arguing Gentry), but in any event, we know for now that the Gentry rule stops with habitual DWI.