This post discusses what may be the single most common error in habitual felon proceedings: having a defendant stipulate, rather than plead guilty, to being a habitual felon.
Must plead guilty, not just stipulate. “Being an habitual felon is not a crime but is a status.” State v. Allen, 292 N.C. 431 (1977). Yet a defendant who wishes to admit being a habitual felon must plead guilty, not merely “stipulate to his . . . status” or to his previous convictions. State v. Gilmore, 142 N.C. App. 465 (2001). The court in Gilmore reasoned that, by statute, “the proceedings [on a habitual felon allegation] shall be as if the issue . . . were a principal charge.” G.S. 14-7.5. Thus, an admission by the defendant must include a full plea colloquy under G.S. 15A-1022. See also State v. Edwards, 150 N.C. App. 544 (2002) (following Gilmore notwithstanding the state’s argument, citing Allen, that “that the charge of habitual felon is not an independent crime subject to the requirements of Chapter 15A”).
Frequent reversals. Habitual felon convictions are regularly reversed because a defendant merely stipulated to being a habitual felon. I suspect that this is the most common error in habitual felon proceedings. A few minutes on Westlaw disclosed the following cases on point, including one just last week, and I’m sure that there are others that I missed:
- State v. Wilkins, __ N.C. App. __, __ S.E.2d __, 2013 WL 427194 (N.C. Ct. App. Feb. 5, 2013)
- State v. Wilson, 2013 WL 151128 (N.C. Ct. App. Jan. 15, 2013) (unpublished)
- State v. Smith, 2012 WL 4878878 (N.C. Ct. App. Oct. 16, 2012) (unpublished)
- State v. Snipes, 2011 WL 378798 (N.C. Ct. App. Feb. 1, 2011) (unpublished)
- State v. Gaddy, 2010 WL 522704 (N.C. Ct. App. Feb. 16, 2010 (unpublished) (no factual basis)
- State v. Walker, 2009 WL 2929521 (N.C. Ct. App. Sept. 15, 2009 (unpublished)
- State v. Stone, 2008 WL 4635434 (N.C. Ct. App. Oct. 21, 2008) (unpublished)
- State v. Ford, 2006 WL 1825021 (N.C. Ct. App. July 5, 2006) (unpublished)
- State v. Cloninger, 2006 WL 1320037 (N.C. Ct. App. May 17, 2006 (unpublished)
- State v. Artis, 174 N.C. App. 668 (2005) (in this case, the defendant didn’t even offer a stipulation; when asked about the habitual felon charge, he simply stated, “what I say doesn’t matter in this courthouse”)
- State v. George, 2005 WL 1431675 (N.C. Ct. App. June 21, 2005) (unpublished)
- State v. Ponds, 2005 WL 89102 (N.C. Ct. App. Jan. 18, 2005) (unpublished)
- State v. Delk, 2004 WL 2340224 (N.C. Ct. App. Oct. 29, 2004) (unpublished)
- State v. Giles, 2004 WL 292000 (N.C. Ct. App. Feb. 17, 2004) (unpublished)
- State v. Strickland, 2003 WL 21791625 (N.C. Ct. App. Aug. 5, 2003) (unpublished)
- State v. Ballard, 2003 WL 21497485 (N.C. Ct. App. July 1, 2003) (unpublished)
- State v. Smith, 2002 WL 31461485 (N.C. Ct. App. Nov. 11, 2002) (unpublished)
- State v. Edwards, 150 N.C. App. 544 (2002)
- State v. Gilmore, 142 N.C. App. 465 (2001)
Remedy. When the court of appeals finds that a habitual felon conviction must be reversed because of a lack of a guilty plea, it most often says something along the lines of what it said in Edwards, where it “reverse[d] [the] defendant’s conviction of being an habitual felon and remand[ed] for a new habitual felon hearing.” But the court occasionally says something similar to what it said in Wilkins, where it simply stated that the defendant’s habitual felon conviction was “vacated,” with no mention of a remand. See also Stone, supra (stating that the defendant’s habitual felon “conviction in this respect is reversed and the underlying conviction is remanded for resentencing”).