About seven years ago, I wrote this post about habitualized sex crimes. The issue I explored there was how to sentence a person convicted of a Class F through I sex crime when he or she has also attained habitual felon status. The question is whether the defendant, who is now sentenced as a Class B1 through E felon due to the habitual felon law’s four-class enhancement, is subject to the elevated maximum sentence applicable to Class B1 through E sex offenders under G.S. 15A-1340.17(f). When I wrote that post there was no appellate case answering the question. There is now.
Recently, I was teaching a class about the habitual felon laws when a participant asked a question that I had never considered. We know that a defendant convicted of drug trafficking may be convicted as a habitual felon, and when that happens, the defendant’s term of imprisonment is determined under Structured Sentencing based on the elevated offense class set forth in the habitual felon statutes, not based on the mandatory term of imprisonment set forth in the trafficking statute. But what about the mandatory minimum fine listed in the trafficking statute? Must that be imposed, or is the defendant “habitualized out” of all the sentencing-related provisions of the trafficking laws? Apparently, this issue comes up regularly in practice.
A person who has previously been convicted of three non-overlapping felonies who commits a new felony in North Carolina may be indicted for the new felony and may be separately indicted for obtaining habitual felon status. If the person is convicted of the new felony and of obtaining habitual felon status, the person is subject to more severe punishment for the new felony.
In State v. Waycaster, __ N.C. App. ___ (2018), the court of appeals considered whether the State could prove a prior conviction underlying the defendant’s habitual felon status by offering a printout from the state’s Automated Criminal/Infraction System (“ACIS”) into evidence.
Whenever a prior offense “raises an offense of lower grade to one of higher grade and thereby becomes an element” of the current offense (e.g., habitual larceny, habitual misdemeanor assault, habitual DWI, and second or subsequent charges for certain other offenses such as stalking, shoplifting, or carrying a concealed firearm), the state must plead and try the case in compliance with G.S. 15A-928. In short, this statute requires that: (i) an “improvised” name for the alleged offense must be used to avoid referring to any prior convictions; (ii) any prior offenses must be alleged in a separate indictment (or at least as a separate count within the indictment); (iii) the defendant must be separately arraigned on the alleged priors outside the presence of the jury; and (iv) if the defendant admits to the prior convictions, then that element has been proved and the state may not present evidence on it, nor will it be submitted to the jury.
When the state complies with these pleading rules, the result will be two separate indictments (or counts) pending in court, but of course there is really only one criminal offense being charged, and the defendant may only receive one punishment for it. What is the recommended procedure for how the charge(s?) and sentence(s?) should be reflected in the plea transcript or verdict form, and how should the court structure its judgment? This post offers a few thoughts and suggestions.
S.L. 2017-176 makes two important changes to which prior convictions can support a habitual felon charge. The legislation (1) clarifies the status of prior convictions from New Jersey and other states that don’t use the term “felony,” and (2) imposes a new requirement that a prior conviction from another state be for an offense that is “substantially similar” to a North Carolina felony.
Suppose a defendant is convicted of a Class F–I felony that requires registration as a sex offender. He is also convicted as a habitual felon. When sentencing the defendant as a habitual felon, the court obviously will select a minimum sentence appropriate for an offense that is four classes higher than the underlying felony. But what maximum sentence should the court impose? Should it use the regular maximum sentence from G.S. 15A-1340.17(e), or the elevated sex offender maximum from subsection (f)?
North Carolina has a lot of habitual offender laws: habitual felon, violent habitual felon, armed habitual felon, habitual breaking and entering, habitual impaired driving, and habitual misdemeanor assault. A question that comes up is the extent to which these laws may permissibly interact with one another. Today’s post considers a few of the combinations I get asked about from time to time.
A recent conversation reminded me about a question I’ve received several times over the years: On a habitual felon indictment, what should be listed as the offense date? The two main choices are (1) the date of the substantive felony with which the defendant is charged, and (2) the date of the last of the defendant’s previous convictions, i.e., the date that the defendant became a habitual felon.
In North Carolina we have a fair number of habitual and repeat offender punishment provisions—laws that increase a defendant’s punishment because of crimes he or she has committed in the past. Today’s post considers how the prior convictions needed to establish those enhancements factor into the defendant’s prior conviction level.
Last month, the court of appeals decided State v. Hogan, __ N.C. App. __, 758 S.E.2d 465 (2014), a case about the use of a defendant’s prior convictions from New Jersey in determining the defendant’s prior record level. It’s an interesting case and one that has implications for the use of such convictions in the … Read more