Special Rules for Pleading and Trying Habitual Offenses

Author’s Note: The North Carolina Supreme Court reversed the court of appeals decision in State v. Brice, which is discussed in the body of this post.  You can read about the state supreme court’s ruling here.  

Everyone knows that having a criminal history is bad. John wrote earlier this week about C-CAT, an on-line, searchable database that helps folks identify many of the non-criminal consequences of a conviction—like losing a professional license. The criminal consequences of an earlier conviction are, in contrast, much easier to figure out. A criminal record generally results in greater punishment for new crimes. For a handful of North Carolina crimes, a prior conviction for a similar offense increases the grade of the new offense – sometimes converting what would otherwise be a misdemeanor to a felony. Special rules govern the charging, arraignment, and trial for such offenses. The failure to follow them is the subject of considerable case law from our state’s appellate courts, including two recent opinions from the North Carolina Court of Appeals.

The rules. G.S. 15A-928 sets forth the procedures the prosecutor and superior court judge must follow “when the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter.” These are the rules that govern pleading, arraignment and trial for substantive recidivist offenses such as habitual larceny, habitual misdemeanor assault, and habitual impaired driving. Different procedures govern the prosecution of habitual felons and other habitual status offenders charged pursuant to Article 2A, 2B, 2D, or 2E of Chapter 14.

Pleading. The first rule is that the charge that the defendant was previously convicted of a specified offense must be alleged in a separate count of the indictment or in a special indictment or information filed with the principal pleading.

The State failed to comply with that rule in State v. Brice, __ N.C. App. ___, 786 S.E.2d 812, review allowed, writ allowed, __ N.C. __, 793 S.E.2d 686 (2016), when it proceeded to trial on this indictment:


The court of appeals held that the alleging of the theft and the prior convictions in a single count violated G.S. 15A-928, and that the violation deprived the superior court of jurisdiction to enter judgment against Brice for habitual misdemeanor larceny. The court vacated the defendant’s conviction and remanded the case to the trial court for entry of judgment and sentencing on misdemeanor larceny. The State appealed, and the North Carolina Supreme Court has granted review and has issued a temporary stay.

Change the title. G.S. 15A-928(a) further instructs that if the statutory name or title of the offense includes a reference to a previous conviction, the name or title may not be used in the indictment or information. Instead, an improvised name or title must be used that labels and distinguishes the offense without referring to a prior conviction. Jeff Welty advises in Arrest Warrant and Indictment Forms (2013 update) that habitual misdemeanor larceny, for example, be captioned “‘larceny pursuant to G.S. 14-72(b)(6)’ or something similar.”

Arraignment. The second rule for habitual offenses requires that “after commencement of the trial and before the close of the State’s case,” the judge, outside of the jury’s presence, arraign the defendant on the special indictment or information and advise the defendant that he or she may admit the previous conviction alleged, deny it, or remain silent. G.S. 15A-928(c).

Trial. If the defendant admits the previous conviction, that element of the habitual offense is established and the State may not introduce evidence to prove its existence. The case must be submitted to the jury without reference to its habitual nature.

If the defendant denies the previous conviction or remains silent, the State may prove that element of the offense as part of its case.

But . . . . Formal arraignment is routinely skipped when a defendant, through his or her attorney, stipulates to the existence of the prior conviction(s). The court of appeals explained in State v. Jernigan, 118 N.C. App. 240 (1995), that the “purpose of section 15A-928 is to insure that the defendant is informed of the previous convictions the State intends to use and is given a fair opportunity to either admit or deny them or remain silent.” Id. at 244. The court went on to hold that when there is “no doubt” that the defendant was “fully aware of the charges against him and was in no way prejudiced by the omission of the arraignment required by section 15A-928(c), the trial court’s failure to arraign the defendant is not reversible error.” Id.

The Jernigan court rejected the defendant’s argument that the stipulation was ineffective because it was made by his attorney without the court having advised the defendant of his rights, stating that “it is clear that a defendant’s attorney may stipulate to an element of the charged crime,” and there is “no requirement that the record show that the defendant personally stipulated to the element or that the defendant knowingly, voluntarily, and understandingly consented to the stipulation.” Id. at 245.

The court of appeals decided the bookend to Jernigan this week in State v. Silva, __ N.C. App. ___, ___ S.E.2d ___ (2017). The Silva court held that the trial court’s failure to arraign the defendant, who was charged with habitual impaired driving, on charges that he had three prior impaired driving convictions was not reversible error because defendant’s attorney told the court before trial that the defendant would not stipulate to the prior convictions. The fact that defense counsel refused to stipulate to the prior convictions (rather than admitting them) and the fact that the defendant primarily spoke Spanish did not, in the view of the Silva court, meaningfully distinguish the case from Jernigan. The court noted there was no indication that the defendant was confused about the charges or that his attorney was acting against his wishes.

There is also a rule for misdemeanors. Some misdemeanor offenses, such as writing a worthless check after having three previous worthless check convictions, incorporate a prior conviction as an element that enhances punishment to a higher level misdemeanor. See G.S. 14-107.1(d)(1). When a misdemeanor of this nature is tried de novo in superior court, the State must issue a superseding statement of charges that separately alleges the substantive offense and the fact of the prior conviction. G.S. 15A-928(d). Any jury trial on such charges must be conducted pursuant to the procedures set out above for habitual felonies.

Have questions?  Know of other rules or wrinkles this post doesn’t address?  Please use the comment feature to let me know.

4 thoughts on “Special Rules for Pleading and Trying Habitual Offenses”

  1. Can you speak a bit about properly alleging misdemeanor enhancements in district court?

    For instance second and third convictions of unlawful concealment (within 3 and 5 years) under 14-72.1(e).

    Many thanks.

  2. Is G.S. 15A-928(d) not in conflict with State v. Wall and G.S. 15A-922 which states that the State can file a misdemeanor statement of charges “at any time prior to arraignment in district court” or is it that 15A-928(d) controls because it specifies? Also, assuming State v. Turner stands, could there not be issues with changing a charge pursuant to 15A-928 when a case is appealed to superior de novo within the two year statute of limitations but a filing is not done until after the two year mark?


Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.