Stipulations to the Classification of Prior Convictions for Possession of Drug Paraphernalia

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Prior record level calculations would be pretty straightforward—if the law never changed.

But it does. Offense classifications change. New offenses are created. And existing offenses are split into multiple offenses with different classifications. Structured Sentencing makes some effort to modernize a person’s prior criminal history by counting prior convictions for points based on their classification as of the offense date of the crime now being sentenced. G.S. 15A-1340.14(c). But it’s not always clear how that rule should be applied—even when a defendant stipulates to his or her record.

State v. Green, __ N.C. App. __ (2019), decided by the court of appeals last week, illustrates the issue. The defendant was convicted of multiple felonies in 2017. He stipulated to a prior record level worksheet showing 19 points, making him Prior Record Level VI. On appeal, the defendant challenged the classification assigned to several of his prior convictions from the 1990s, arguing that the court erred by accepting his stipulations to them.

For today I’ll focus primarily on just one of them, a 1994 conviction for possession of drug paraphernalia (PDP). The defendant argued that it should count as Class 3, not Class 1, in light of the 2014 legislation that created the new Class 3 offense of possession of marijuana paraphernalia. In State v. McNeil, __ N.C. App. __, 821 S.E.2d 862, temp. stay allowed, __ N.C. __, 820 S.E.2d 519 (2018) (discussed here), the court of appeals indeed held that a prior PDP conviction should count as Class 3 unless the State proves that it did not involve marijuana.

But Green’s case was different, the court of appeals said, because he stipulated to counting the PDP as Class 1. And that type of stipulation was upheld by the supreme court in State v. Arrington, __ N.C. __, 819 S.E.2d 329 (2018) (discussed here), in the context of a prior second-degree murder conviction that happened before the General Assembly divided the crime into Class B1 and Class B2 varieties. In Arrington, the supreme court concluded that the defendant—”the person most familiar with the facts surrounding his offense,” id. at 334—could validly stipulate to the factual basis of his prior second-degree murder, and thus what it would have been classified as under the law that existed at the time of his present offense. Applying Arrington, the court of appeals held that Green could and did stipulate to the fact that his prior PDP conviction was of the type that would count as Class 1 today. And so the classification and ensuing point was proper.

Note that McNeil is still pending before the supreme court, and we may wind up with a decision from that court directly answering the unstipulated-to prior PDP question. For now, though, the court of appeals’ discussion of the prior PDP conviction in Green indicates that stipulations to counting those priors as Class 1 are valid (in the absence of other distinguishing issues, of course).

It turns out that the trial court in Green did err by accepting stipulations to two of his other prior convictions—one because the stipulated-to version of the offense was contradicted by other evidence in the record, and the other because the stipulated-to classification was flat wrong for the identified offense. The court declined to apply Arrington in a way that would lock a defendant into stipulations that were incorrect on those bases.

2 comments on “Stipulations to the Classification of Prior Convictions for Possession of Drug Paraphernalia

  1. Did the defendant who stipulated to the class 1 pdp have a lawyer or did he stipulate on his own? (I skimmed the court opinion yet could not tell). The Court of Appeals in another recent case held a pro se defendant to the same legal knowledge as an attorney when by the defendant’s own words it was apparent that the defendant did not understand the legalese in the instructions the trial judge gave him. If the man had no lawyer, his stipulation was almost certainly not a knowing stipulation. It is unlikely that he understood to what he was saying “yes.” He probably figured he was agreeing that he had been convicted of the list of previous charges, not understanding that the previous class 1 pdp is now a class 3 pmp unless someone shows otherwise.

  2. Thanks, Jamie

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