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)? Continue reading
Tag Archives: habitual felon
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. Continue reading →
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. Continue reading →
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. Continue reading →
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 habitual felon context, an issue I previously discussed here. (The comments to that prior post are unusually substantive and anyone who reads the post should also read the comments.)
Superior court proceedings. The defendant in Hogan pled guilty to assault by strangulation after choking his girlfriend. In the course of calculating the defendant’s prior record level, the superior court judge counted as a felony a prior conviction of “third degree theft” that the defendant incurred in New Jersey. According to the defendant’s brief, that decision moved the defendant from prior record level IV to V.
Defendant’s argument: New Jersey doesn’t have “felonies.” The defendant appealed, arguing in part that the judge erred in counting the New Jersey conviction as a felony. The court of appeals summarized his argument as follows: “[B]ecause New Jersey does not use the term ‘felony’ to classify its offenses, the trial court could not properly determine that third degree theft is a felony for sentencing purposes.” This argument links into G.S. 15A-1340.14(e), which states that for prior record level purposes, an out-of-state conviction normally “is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony” (emphasis supplied). The defendant argued, and the court of appeals acknowledged, that New Jersey “does not use the term ‘felony.’” Instead, it has four degrees of “crimes,” plus a set of less serious offenses called “disorderly persons offenses.”
Court’s ruling: “crimes” are felonies. The court of appeals found, however, that a third degree crime was punishable by three to five years in prison, and that New Jersey’s own courts had recognized that such a crime is comparable to a common law felony. In other words, “New Jersey courts have clearly recognized that their third-degree crimes are felonies by a different name.” Thus, the court rejected the defendant’s argument and affirmed his sentence.
Relationship to habitual felon. The court noted that in previous cases, it had been skeptical of the use of New Jersey convictions as previous convictions supporting a habitual felon charge. It declined to apply the reasoning of those cases in the Structured Sentencing context, stating that “[t]here is no suggestion in the sentencing statutes that the Legislature intended to single out New Jersey convictions for such unfavorable treatment.”
Importantly, the court also stated that even if it were to apply the habitual felon cases in the prior record level context, “this case is distinguishable in that the State presented a ‘certification’ that third degree theft is considered a felony in New Jersey,” which is precisely what previous cases like State v. Lindsey, 118 N.C. App. 549 (1995), suggested might be needed to allow New Jersey convictions to be used to support a habitual felon allegation. The State apparently introduced a criminal history printout from a New Jersey computer system that contained a statement certifying the record as accurate and described the theft conviction as a “felony.”
A few important points. There are a couple of takeaways here:
- First, the defendant has asked the state supreme court to review the case. The supreme court hasn’t yet ruled on whether it will do so, but has issued a temporary stay. If it does review the case, its ruling might impact the habitual felon cases as well as the prior record level cases, depending on the court’s result and reasoning.
- Second, the discussion of the certification from New Jersey is a road map for prosecutors trying to use a New Jersey conviction to support a habitual felon charge. The court of appeals’ previous opinions in the habitual felon context haven’t been clear about what sort of certification was required before a New Jersey conviction could be used, so Hogan is the best place to look. A possible defense response would be that the discussion in Hogan about the certification is dicta.
- Finally, first and second degree crimes, which are more serious than the offense at issue in Hogan, also appear to be felonies under the court’s analysis. But it is not as clear that fourth degree crimes, which are punishable by up to 18 months imprisonment, count as felonies. The trial judge in Hogan apparently didn’t think so, as he declined to treat the defendant’s other New Jersey prior – a fourth degree crime – as a felony. I tend to think otherwise, for the reasons given in my prior blog post, but I don’t think that Hogan is conclusive one way or the other.
As always, comments are welcome if folks think the analysis above is incorrect or incomplete. (Or exceptionally incisive, of course, though I don’t seem to get too many comments in that vein!)
I recently finished an Administration of Justice Bulletin about the habitual felon, violent habitual felon, and habitual breaking and entering laws. It’s a substantial expansion and revision of a paper I wrote in 2008. I creatively named it North Carolina’s Habitual Felon, Violent Habitual Felon, and Habitual Breaking and Entering Laws. It’s available here, for free, in PDF format. I hope it’s useful. As always, I welcome comments and feedback of any kind about the paper. It doesn’t address the brand-new armed habitual felon law, created by S.L. 2013-369, effective October 1, 2013, but that law is patterned after the habitual felon law so many of the interpretive issues will be the same.
The General Assembly has passed H 937, which awaits the Governor’s signature. It is an omnibus gun bill, following rather closely on the heels of the omnibus firearms bill enacted in 2011, which I covered in part here. Assuming that it becomes law – and I am not aware of any prospect of a veto [update: it has been signed by the Governor] – at least two of its provisions will have a substantial effect on the criminal justice system. The bill:
- Creates the new status offense of armed habitual felon, which generally provides that a person who has been convicted of one “firearm-related felony,” and commits a second, shall be sentenced as a Class C felon with a minimum 120 month prison term.
- Expands the gun enhancement in G.S. 15A-1340.16A to apply to all felonies, rather than just Class A through Class E felonies. The enhancement now adds 72 months, rather than 60, to prison terms for Class A through Class E felonies; 36 months to Class F and Class G felonies; and 12 months to Class H and Class I felonies.
The bill makes a number of other changes, generally designed to expand the rights of gun owners, particularly concealed handgun permit holders. It:
- Amends G.S. 14-269 and G.S. 14-269.2 to allow concealed handgun permit holders to bring firearms onto school grounds and into parking lots for state government facilities so long the firearms are “in a closed compartment or container within the person’s locked vehicle.”
- Amends G.S. 14-269.3 to allow concealed handgun permit holders to bring firearms into “establishment[s] in which alcoholic beverages are sold and consumed,” such as bars and restaurants, and into “assembl[ies] where a fee has been charged for admission.”
- Amends G.S. 14-415.23 to remove local governments’ authority to prohibit concealed handguns at playgrounds and on greenways, and clarifies the extent of local governments’ authority to prohibit concealed handguns at certain other recreational facilities such as athletic fields and swimming pools.
- Imposes a 48-hour time limit on clerks of court to report to the NICS system certain mental-health related court determinations, such as involuntary commitment orders or findings of insanity or incompetence.
- Amends G.S. 14-415.17 to provide that “the list of [concealed carry] permit holders and the information collected by the sheriff to process an application for a permit are confidential and are not a public record.” The bill also provides that gun dealers’ records are not public records.
- Amends G.S. 14-277.2 to allow concealed carry permit holders to carry concealed handguns at parades and other gatherings.
- Retains, unlike earlier versions of the bill, G.S. 14-402 through 14-405, the statutes that require a person to obtain a handgun purchase permit from the sheriff before buying or receiving a handgun. The bill reduces the amount of time within which a sheriff must decide whether to issue a permit from 30 days to 14 days; gives a sheriff the authority to revoke a permit after issuance under certain circumstances; and makes most records related to such permits exempt from the public records law.
- Clarifies and further expands the rights of certain judicial officials to carry concealed handguns.
Many of the foregoing changes will be effective October 1, 2013.
When a defendant pleads guilty, the judge is required to “inform him of the maximum possible sentence” associated with his offense. G.S. 15A-1022(a)(6). When a defendant pleads guilty to being a habitual felon, he must be informed of the maximum sentence he faces as a habitual felon, because the enhanced sentence is a “direct consequence of [the defendant’s] plea.” State v. McNeill, 158 N.C. App. 96 (2003). See also State v. Bailey, 157 N.C. App. 80 (2003) (“[A] trial court may not accept a defendant’s plea of guilty as an habitual felon without first addressing the defendant personally and making the . . . inquiries of that defendant as required by” G.S. 15A-1022, including regarding the maximum possible sentence). A failure to advise the defendant properly may violate the constitutional principles outlined in Boykin v. Alabama, 395 U.S. 238 (1969), in addition to contravening the statute.
But what exactly is the “maximum possible sentence”? Should it be adjusted for the defendant’s prior record level? Based on any provisions in his plea agreement, if there is one? In a case in which the state is not pursuing any aggravating factors, should it be the top of the aggravated range or the top of the presumptive? Jessie Smith explored some of these issues outside the habitual felon context in this prior post. The most common (and probably safest) practice under current law is for the judge to inform the defendant of the maximum sentence that corresponds to the highest minimum sentence in the aggravated range of prior record level VI for the enhanced offense class. (Recall that under prior law, habitual felons were always sentenced as Class C offenders, but for substantive felonies committed on or after December 1, 2011, the Justice Reinvestment Act provides that they should be sentenced “four classes higher” than their natural class, capped at Class C. G.S. 14-7.6.) See State v. Hayes, 2005 WL 1669612 (N.C. Ct. App. July 19, 2005) (unpublished) (the defendant pled guilty to several substantive felonies and to being a habitual felon; during the plea colloquy, the trial judge advised the defendant that he could be sentenced to as little as 44 months [the minimum term at the bottom of the mitigated range for Class C, prior record level I] or as many as 261 months [the maximum term corresponding to the minimum term at the top of the aggravated range for Class C, prior record level VI]; this was proper).
What if the judge doesn’t do that? In some cases, the appellate courts have been quite exacting about the information a trial judge must provide to a defendant. For example, in State v. Reynolds, __ N.C. App. __, 721 S.E.2d 333 (2012), the defendant pled guilty to felony breaking and entering and felony larceny, and to being a habitual felon. His plea agreement provided specifically for a minimum term of 135 months, and the trial judge advised him that he would receive a minimum of 135 months and a maximum term of 168 months. In fact, the maximum term that corresponded to a 135 month minimum term was 171 months, and that was what the written judgment reflected. The court of appeals found that the trial judge had failed to advise the defendant properly of the maximum sentence he faced and that the error was not harmless. Cf. State v. Smith, 2012 WL 4878878 (N.C. Ct. App. Oct. 16, 2012) (unpublished) (the trial judge did not conduct a full plea colloquy, instead allowing the defendant to “stipulate” to being a habitual felon; among the defects in this procedure was that the judge “neglected to explain the maximum and minimum sentence for the underlying offense that would apply with [the defendant’s] conviction for attaining habitual felon status”).
However, the appellate courts are not always so particular. They have repeatedly affirmed cases in which the trial judge gave rather cursory explanations of the maximum possible sentence. For example:
- State v. Szucs, 207 N.C. App. 694 (2010) (trial court advised defendant that pleading guilty to being a habitual felon would expose him to a “much higher” sentence than would otherwise apply and that he would be sentenced as a Class C offender; following Williams, infra, the court of appeals ruled that this was sufficient compliance with G.S. 15A-1022(a)(6))
- State v. Pope, 2008 WL 4911803 (N.C. Ct. App. Nov. 18, 2008) (unpublished) (during defendant’s guilty plea to being a habitual felon, the trial court simply asked him whether he understood “what habitual felon status means . . . [i]nsofar as the sentence,” and received an affirmative response; although this did not comply with G.S. 15A-1022(a), it was harmless error as the plea overall appeared to be knowing and voluntary)
- State v. Handy, 2007 WL 2034111 (N.C. Ct. App. July 17, 2007) (unpublished) (defendant was convicted at trial of possession of cocaine and pled guilty to being a habitual felon; following Williams, infra, the court of appeals found that the trial judge sufficiently advised the defendant that he would be “punished as a Class C felon” based on his guilty plea)
- State v. Williams, 133 N.C. App. 326 (1999) (defendant was sufficiently made “aware of the direct consequences of her guilty plea” where the trial court advised her that she would be sentenced as a Class C felon under the habitual felon statutes rather than as a Class G felon; the judge did not specify how many months of imprisonment could be imposed)
It seems to me that the judge in Reynolds came much closer to complying with G.S. 15A-1022(a)(6) than the judge in Pope, yet the former was reversed while the latter was not. Maybe that’s just an anomaly, or maybe the appellate courts view providing inaccurate information – even if only slightly inaccurate – as inherently more troubling than providing too little information.
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”).
I don’t mean to cast aspersions on the Garden State, but it seems like there are a lot of people here in North Carolina with criminal records from New Jersey. Some of those folks are repeat offenders, but an unusual aspect of New Jersey law calls into question the applicability of North Carolina’s habitual felon law to defendants with previous New Jersey convictions.
New Jersey’s Classification of Offenses. The issue arises from the fact that New Jersey’s statutory scheme does not divide crimes into felonies and misdemeanors, as most states do, but rather into “crimes” and “disorderly persons offenses.” N.J. Stat. 2C:1-4. There are four degrees of “crimes” under New Jersey law. N.J. Stat. 2C:43-1 (creating crimes of the first degree, second degree, third degree, and fourth degree). Confusingly, New Jersey sometimes uses the term “misdemeanor” to mean a “crime of the fourth degree” and the term “high misdemeanor” to mean a “crime of the third degree.” N.J. Stat. 2C:43-1. Yet it is clear that even New Jersey’s third- and fourth-degree “crimes” are akin to what we call felonies, not to what we call misdemeanors. Indeed, although N.J. Stat. 2C:1-4 states that “crimes” broadly include offenses punishable by more than six months imprisonment, by statute, defendants convicted of “crimes” face maximum punishments based on the degree of the offense, as follows:
- First degree: 10 years to 20 years imprisonment (ordinarily), 20 years to life imprisonment (exceptional cases)
- Second degree: 5 years to 10 years imprisonment (ordinarily), 10 years to 20 years imprisonment (exceptional cases)
- Third degree: 3 years to 5 years imprisonment (ordinarily); 5 years to 10 years imprisonment (exceptional cases).
- Fourth degree: up to 18 months imprisonment (ordinarily), 3 years to 5 years imprisonment (exceptional cases).
N.J. Stat. 2C:43-6 (ordinary punishment); N.J. Stat. 2C:43-7 (exceptional punishment).
The New Jersey concept of “disorderly persons offenses,” which carry maximum punishments of 30 days or 6 months of incarceration, depending on the offense, N.J. Stat. 2C:43-8, are similar to what other states call misdemeanors.
New Jersey Isn’t Alone. New Jersey is not completely alone in using a classification other than felonies and misdemeanors. Jones v. State, 23 A.3d 880 (Md. 2011) (“[S]ome states do not employ the ‘felony-misdemeanor’ dichotomy at all. Maine, for instance, classifies crimes in a ‘class’ system, ranking each individual offense as class A, B, C, D, or E. See Me. Rev. Stat. Ann. tit. 17–A, § 4(1) (2006).”). But we don’t seem to have many repeat offenders from Maine in these parts.
North Carolina’s Habitual Felon Statute. Under our habitual felon law, G.S. 14-7.1, a conviction may be used to support a charge of being a habitual felon if the offense of conviction is “defined as an offense which is a felony under the laws of the State or other sovereign” where the conviction took place. This focus on how an offense is classified in the jurisdiction where it occurred differs from, for example, the approach in Structured Sentencing, where either the state or the defendant may prove that an out-of-state offense is substantially similar to a North Carolina offense, in which case, the conviction is classified as it would be under North Carolina law. G.S. 15A-1340.14(e).
Can Convictions from New Jersey Be Used? One could argue that the habitual felon statute applies only to offenses defined as felonies, and that New Jersey does not have any such offenses, so it simply is not possible to use New Jersey convictions to support a habitual felon charge. But barring the use of New Jersey convictions would create a windfall for defendants who happen to have committed their prior crimes in New Jersey, and would undermine the purpose of the habitual felon law. Furthermore, New Jersey courts themselves recognize that New Jersey “crimes” are the functional equivalent of felonies. See, e.g., State v. Doyle, 200 A.2d 606 (N.J. 1964) (“Misdemeanors under the crimes act which are punishable by imprisonment for more than a year in state prison . . . are sufficiently equatable with common law felony to justify arrest by a peace officer without a warrant when he has reasonable ground to believe that an offense of that grade is being or has been committed by the person to be apprehended.”); In re Rettschlag, 2008 WL 1787466 (N.J. Super. Ct. App. Div. Apr. 22, 2008) (unpublished) (prior conviction of fourth degree crime was listed in New Jersey computer system as a “felony” conviction; because that was a barrier to employment, the defendant sought to have it re-described as a “misdemeanor” consistent with New Jersey’s statutory classification scheme; the court rejected the defendant’s argument, stating that “[a] fourth degree crime is punishable by a term of imprisonment not to exceed eighteen months,” and that “[o]ffenses that are punishable by imprisonment for more than one year are considered common law felonies,” so the defendant’s “Criminal History Record accurately designates his fourth degree conviction as equivalent to a common law felony”); Zaborowski v. New Jersey Div. of State Police, 2007 WL 935603 (N.J. Super. Ct. App. Div. Mar. 30, 2007) (unpublished) (similarly recognizing that “our fourth-degree crimes, which are punishable in State prison for a term of up to eighteen months, are equivalent to common law felonies”).
Therefore, convictions for New Jersey “crimes” probably should count as previous convictions under North Carolina’s habitual felon law. Other jurisdictions have recognized that New Jersey crimes are equivalent to felonies. United States v. Brown, 937 F.2d 68 (2nd Cir. 1991) (finding that defendant’s prior New Jersey conviction, though a “high misdemeanor” under the state’s statutory scheme, was a “common-law felon[y]” under New Jersey case law); State v. Gillison, 2009 WL 606230 (Iowa Ct. App. 2009) (unpublished) (describing New Jersey law, noting New Jersey’s own recognition that “crimes” are akin to felonies, and ruling that the defendant’s prior convictions should count as felonies under an Iowa habitual offender statute that applies to defendants who have “twice before been convicted of any felony in a court of this or any other state”).
Procedure. If previous convictions from New Jersey can, in fact, be used to support a habitual felon charge, what must the state do to prove that a defendant’s previous New Jersey conviction is for a felony? In theory, it seems that it would be enough to establish:
- That the defendant was convicted of crime X in New Jersey, as reflected in the New Jersey judgment;
- That crime X was classified as a “crime” by New Jersey when the defendant committed it, using the relevant New Jersey statute; and
- That a “crime” under New Jersey law is the equivalent of a felony, using the case law cited above.
However, in State v. Carpenter, 155 N.C. App. 35 (2002), the court of appeals considered a case in which the state seems to have offered proof along those lines, and found it insufficient because “there was no certification from any official that the two offenses [in question] were felonies in New Jersey.” Id. (citing State v. Lindsey, 118 N.C. App. 549 (1995)). The court did not describe the nature of the needed certification, nor did it elaborate on the type of official from who it should be sought.
Practical Advice. In light of Carpenter, what’s a prosecutor to do? First, when it is possible, a prosecutor may choose to use convictions from somewhere other than New Jersey to support a habitual felon charge. Second, a prosecutor may seek a stipulation from the defendant that his prior New Jersey conviction is a felony. This appears to be permissible under State v. Bohler, 198 N.C. App. 631 (2009) (holding that, while a trial judge may not accept a stipulation that a particular out-of-state offense is substantially similar to a particular North Carolina offense, “it may accept a stipulation that the defendant in question has been convicted of a particular out-of-state offense and that this offense is either a felony or a misdemeanor under the law of that jurisdiction”). Third, a prosecutor may seek to obtain a “certification” from a New Jersey official – perhaps a New Jersey prosecutor – confirming that the defendant’s prior conviction is equivalent to a felony. Finally, a prosecutor might try to distinguish Carpenter by making a more comprehensive exposition of New Jersey’s classification scheme than the state made in that case.
Sorry for the long post, but this has been the subject of many questions over the years so I thought it would be good to lay out everything that I know about the subject.