Prior Record Points for Out-of-State Convictions

Improper counting of a defendant’s prior out-of-state convictions is a common sentencing error. This post collects the law on the subject, including the many appellate cases decided over the past decade or so. I’ll admit, it’s the Atacama Desert of blog posts: long and dry. But the issue comes up often enough—and can have significant enough effect on a defendant’s ultimate sentence—that I thought it was worth a comprehensive review.

Convictions in the courts of the United States, another state, the Armed Forces of the United States, or another country qualify as prior convictions, regardless of whether the offense in question would be a crime if it occurred in the North Carolina. G.S. 15A-1340.11(7)c. A special classification rule applies to these out-of-state prior convictions for purposes of assigning prior record points. By default, a prior conviction for a crime that another jurisdiction classifies as a felony counts as a Class I felony (which carries two points) for record-level purposes in North Carolina. A prior conviction for a crime that another state classifies as a misdemeanor is classified as a Class 3 misdemeanor, and so does not factor into a defendant’s prior record level at all. G.S. 15A-1340.14(e). No special findings are required if the defendant’s prior out-of-state convictions are treated according to the default level. State v. Hinton, 196 N.C. App. 750 (2009).

The State or the defendant can attempt to depart from the default classification by presenting evidence that the offense is substantially similar to an offense in North Carolina with an offense class different from the default. If the State can prove by a preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to a North Carolina offense that is classified as a Class I felony or higher, the conviction is treated as that class of felony for prior record level purposes. If the State can prove that a misdemeanor from another jurisdiction is substantially similar to a Class A1 or Class 1 misdemeanor in North Carolina, the conviction is treated as a Class A1 or Class 1 misdemeanor for prior record purposes. Conversely, if the defendant can prove that an offense classified as a felony in another jurisdiction is substantially similar to a North Carolina misdemeanor, the conviction will be treated as that class of misdemeanor for prior record level purposes. Though not classified under Structured Sentencing, impaired driving has been deemed a Class 1 misdemeanor for purposes of applying G.S. 15A-1340.14(e), allowing out-of-state drunk driving offenses to count for one point. State v. Armstrong, 203 N.C. App. 399 (2010).

Substantial similarity is a question of law that must be determined by the trial judge, not by the jury and not by stipulation. A defendant may validly stipulate to the bare fact that an out-of-state conviction exists, and may also stipulate that the crime is felony or misdemeanor in the other jurisdiction. State v. Bohler, 198 N.C. App. 631, 637–38 (2009). Those stipulations are a sufficient basis for the court to treat an out-of-state felony at the default Class I level for prior record purposes. State. v. Hinton, 196 N.C. App. 750 (2009). The defendant may not, however, stipulate to substantial similarity. State v. Palmateer, 179 N.C. App. 579 (2006). The latest version of the Prior Record Level Worksheet, form AOC-CR-600B, includes a check-box for the court to record its determination of substantial similarity.

The General Statutes do not prescribe a particular method for determining whether an out-of-state crime is substantially similar to a North Carolina offense. The cases, however, have made clear that the trial court should compare the elements of the out-of-state offense with the elements of the purportedly similar North Carolina crime. State v. Hanton, 175 N.C. App. 250 (2006). The comparison should be based on the substantive elements of the offenses involved, not on their relative punishments. State v. Sanders, ___ N.C. App. ___, 736 S.E.2d 238 (2013).

An out-of-state crime need not be identical to a North Carolina crime in order to be substantially similar to it. State v. Sapp, 190 N.C. App. 698, 713 (2008) (noting that G.S. 15A-1340.14(e) does not require offenses to “precisely match”). In State v. Claxton, for example, New York’s crime of third degree sale of a controlled substance was deemed substantially similar to Class G sale of a schedule I or II controlled substance in North Carolina in spite of minor differences between the states’ drug schedules. __ N.C. App. __, 736 S.E.2d 603 (2013). But only minor differences are allowed. For instance, a prior burglary from Florida was not substantially similar to burglary in North Carolina when the Florida offense included buildings other a dwelling, did not require that the offense occur at night, and did not require that there be a breaking in addition to an entry. State v. Rollins, __ N.C. App. __ __, 729 S.E.2d 73 (2012).

In general, the process of determining substantial similarity should be done with the rule of lenity in mind—any ambiguities should be resolved in the defendant’s favor. For example, an Ohio conviction for “Intentional shooting, cutting, or stabbing” was not substantially similar to North Carolina’s Class E assault with a deadly weapon with intent to kill because the Ohio crime did not require an intent to kill, but could also be completed with an intent to wound or maim. State v. Phillips, __ N.C. App. __, 742 S.E.2d 338 (2013). If an out-of-state offense is similar to more than one North Carolina offense, the court should find it substantially similar to the least serious similar offense. Hanton, 175 N.C. App. at 259 (holding that the court erred by finding New York’s second-degree assault crime to be substantially similar to North Carolina’s Class A1 assault inflicting serious injury instead of Class 2 simple assault).

The proponent of the substantial similarity finding should provide the court with statutes or cases from the other jurisdiction sufficient to make the necessary comparison. See, e.g., State v. Rich, 130 N.C. App. 113 (1998) (holding that photocopies of statutes from New York and New Jersey were sufficient proof that the defendant’s crimes in those states were substantially similar to crimes in North Carolina). Providing the names of the crimes alone is not enough. State v. Cao, 175 N.C. App. 434 (2006) (holding that a computerized printout of defendant’s criminal history record from Texas, showing the names of offenses committed there but not their elements, was sufficient to prove existence of the convictions but insufficient evidence of substantial similarity to North Carolina crimes).  The submitted information should pertain to the other jurisdiction’s law as it existed at the time of the defendant’s prior conviction there. State v. Morgan, 154 N.C. App. 298, 309 (2004) (trial court erred by basing its substantial similarity determination on the 2002 version of New Jersey’s homicide law when the defendant had been convicted in 1987; the State presented no evidence that New Jersey law was unchanged between 1987 and 2002).

Finally, the burden is on the proponent to present the requisite information. Substantial similarity is not something the judge should consider on his or her own initiative. State v. Davis, __ N.C. App. __, 738 S.E.2d 417 (2013).