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.
Tag Archives: habitual felon
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.
The court of appeals issued a new batch of opinions today. They’re available in full here, and Jessie just sent summaries out to the listserv. (If you haven’t joined the listserv for case summaries, you can do so here.) The thing that jumped out at me about today’s cases was that the court found several fatal indictment errors. At the end of this post, I’ll mention a new resource for avoiding such errors.
The defendant in State v. Herman was charged with being a sex offender unlawfully on a premises in violation of G.S. 14-208.18(a)(2). The defendant challenged the constitutionality of the statute, arguing that it was vague and abridged his rights to the free exercise of religion and to the freedom of association. The trial judge agreed and dismissed the charges. The state appealed. The court of appeals did not reach the merits of the issue, instead choosing to dispose of the case based on the insufficiency of the indictment, an issue not raised by the defendant. Essentially, the indictment charged that the defendant was willfully and unlawfully present on premises that were within 300 feet of a location intended primarily for the use of minors, in violation of G.S. 14-208.18(a)(2). What the indictment didn’t do was allege that the defendant was a person required to register under Article 27A of Chapter 14 who had committed an offense in Article 7A of Chapter 14 or an offense with a victim under 16. Citing State v. Harris, discussed here, which held that an indictment for a violation of G.S. 14-208.18 must include allegations concerning the registration obligation and prior offense of the defendant, the court of appeals ruled that the indictment in Herman was fatally defective, and that dismissal was proper.
Meanwhile, in State v. Ross, the court considered the following facts:
- Sept. 2008 – Defendant charged with possession of a firearm by a felon (I’m guessing at this date, but nothing turns on it)
- Sept. 2008 – Defendant charged with being a habitual felon
- May 2009 – Superseding habitual felon indictment returned, effectively making technical corrections to the earlier indictment
- June 2009 – During defendant’s trial on unrelated drug charges, defendant offers a bribe to two jurors
- July 2009 – Defendant is charged with several offenses related to the bribery incident
- July 2011 – Defendant is tried on the bribery charges, is convicted, and is sentenced as a habitual felon (there’s a reference in the court’s opinion to July 1, 2009, which I’m guessing is a mistake)
On appeal, the defendant argued that the state should not have been allowed to proceed against him as a habitual felon, because the habitual felon indictment was returned before he had even committed the bribery offenses, and so could not possibly be ancillary to those offenses. Citing State v. Flint, 199 N.C. App. 709 (2009), the court of appeals agreed. It stated that a habitual felon indictment may attach to an indictment for a substantive felony that is returned after the habitual felon indictment, but that the habitual felon indictment may not attach when the substantive felony is committed after the habitual felon indictment is returned.
Nothing’s earth-shattering about these results. But they do serve as a reminder that indictment errors are frequent and can be frustrating. The School of Government publishes a manual called Arrest Warrant and Indictment Forms, available here, that contains recommended charging language for several hundred offenses. The manual itself isn’t new, but earlier this week, we released the 2012 update, with several all-new forms and revised versions of several others. The update is a free PDF, and is available here.
I wrote recently about how the Justice Reinvestment Act changes North Carolina’s existing habitual felon law (you can read that post here). This post examines a new recidivist offender statute created by the act: the status offense of habitual breaking and entering.
Under the new law, set out in G.S. 14-7.25 through -7.31, a person can be charged, convicted, and sentenced as a habitual breaking and entering status offender upon his or her second conviction of “breaking and entering.” “Breaking and entering” is defined in new G.S. 14-7.25 to include the following felonies:
- First degree burglary (G.S. 14‑51);
- Second degree burglary (G.S. 14‑51);
- Breaking out of dwelling house burglary (G.S. 14‑53);
- Breaking or entering buildings generally (G.S. 14‑54(a));
- Breaking or entering a building that is a place of religious worship (G.S. 14‑54.1);
- Any repealed or superseded offense substantially equivalent to any of the offenses listed above;
- Any offense committed in another jurisdiction substantially similar to any of the offenses above.
The habitual B & E status offense is similar operationally to the habitual felon law. Like being a habitual felon, it is a status, not a crime—a person cannot be prosecuted simply for having a prior covered felony. There must be a conviction for a new principal felony, to which the status offender sentencing provisions then attach. The key differences between the new habitual B & E status offense and the existing habitual felon law are that that the former applies to a much smaller universe of qualifying offenses (those listed above, as opposed to all felonies), and that it can kick in upon a person’s second “strike” instead of his or her fourth.
A person convicted and sentenced as a habitual B & E status offender gets sentenced as a Class E felon. How steep of a punishment enhancement that is depends upon the principal breaking and entering crime for which the defendant has been convicted. For routine felony breaking or entering buildings, a Class H felony, getting sentenced as a Class E felon is a three-class enhancement that roughly triples the defendant’s punishment. If the principal felony is a Class G second-degree burglary or breaking or entering a place of worship, the new law approximately doubles the sentence. First-degree burglary and breaking out of a dwelling house burglary are already Class D offenses, so getting sentenced as a habitual B & E status offender would actually decrease the defendant’s punishment. Those offenses were obviously included in the law for use as qualifying prior felonies, not as principal felonies. Any conviction used to establish a person’s status as a habitual B & E status offender does not count toward the person’s prior record level.
Sentences imposed under the new habitual B & E law must run consecutively with any sentence being served by the defendant. In other statutes (discussed in this prior post), including the regular habitual felon and drug trafficking laws, that language has been interpreted to allow concurrent sentences for convictions sentenced at the same time. I can’t think of a reason this law would be interpreted differently. Some habitual B & E status offenders—those in Prior Record Level I and II—will be eligible for probation. As I mentioned last week in the context of the new habitual felon law, it’s not clear how the law’s requirement for consecutive sentences works when applied to a suspended sentence.
Using language borrowed from the existing habitual felon law, the new law says that “felony offenses of breaking and entering committed before the person is 18 years of age shall not constitute more than one felony of breaking and entering.” G.S. 14-7.26. Given that only one prior felony (not three) is necessary to qualify a defendant as a B & E status offender, the practical effect of that rule is simply that a person’s principal B & E felony must be committed after his or her eighteenth birthday. A defendant’s second breaking and entering felony only qualifies for habitualization if it is committed after the conviction of the first felony breaking and entering offense. In that regard, the new law is a bit clearer than the existing habitual felon law, which prohibits overlapping first, second, and third prior felonies, but never explicitly says that a fourth or subsequent felony must occur after conviction of the third.
The new habitual B & E law is pretty similar to the existing habitual felon law in terms of procedure. The new law clearly requires the habitual status offense charge to be brought in an indictment separate from that charting the principal B & E crime. The statute thus avoids the longstanding inconsistency in G.S. 14-7.3 that appears in the same breath to require a single and separate charging documents (see p. 7–8 of Jeff Welty’s bulletin on North Carolina’s habitual felon laws). [Editor’s note: Although new G.S. 14-7.28(a) requires that the indictment for the habitual offense “shall be separate” from the indictment for the principal offense, the provision of G.S. 15A-928(b) allowing the habitual offense to be charged “in the principal indictment as a separate count” may apply.] The required contents of the B & E status offender indictment are the same as a regular habitual felon indictment, and the defendant is similarly entitled to a twenty-day waiting period before going to trial on the charge. Other provisions regarding evidence of prior convictions and trial procedure likewise mirror the existing habitual felon law.
New G.S. 14-7.31(c) provides that a “conviction as a status offender under this Article shall not constitute commission of a felony for the purpose of either Article 2A or Article 2B of Chapter 14 of the General Statutes.” Article 2A and 2B are the habitual felon and violent habitual felon laws, respectively. The exact meaning of that provision isn’t clear. It may just be an offshoot of the rule that being a habitual B & E offender is a status, not a crime, and that a person’s conviction as a status offender is not itself a qualifying strike under the other recidivist status provisions, but other readings are also possible.
As you can imagine, a one-strike habitual status like this carries a cost. The fiscal note accompanying the Justice Reinvestment Act projected the law could create the need for over 1,000 additional prison beds in the next five years and increased prison costs of over $30 million. It’s hard, though, to predict exactly how the law will be used in practice—or what savings it might achieve as a deterrent to persistent property crime.
The law is effective for principal breaking and entering felonies committed on or after December 1, 2011.
As part of the Justice Reinvestment project, analysts from the Council of State Governments (CSG) looked at how the habitual felon law is used in North Carolina. In general, the analysts recognized the law as a valuable tool for prosecutors (its use was on the rise between 2005 and 2009), but they also cited some indications that the law could benefit from a little recalibration. For instance, they noted that a clear majority of defendants convicted under the law get sentenced in the mitigated range. According to N.C. Sentencing and Policy Advisory Commission data from fiscal year 2009-2010, 69 percent of habitual felons received mitigated sentences (compared to 27 percent of felonies generally), with an additional 11 percent sentenced at the very bottom of the presumptive range. That large percentage of mitigated-range sentences was viewed as an indication that the system is uncomfortable with cliff effect that exists under current law: all habitualized crimes, regardless of offense class, are sentenced as Class C felonies—even though most principal felonies triggering the law’s application are Class G, H, or I offenses. At the same time, CSG focus group meetings with prosecutors and law enforcement officials indicated that for some offenders—especially those involved in breaking or entering crimes—the habitual punishment was appropriate and couldn’t come soon enough.
Based on those findings, the Justice Reinvestment Act (S.L. 2011-192) made two key changes related to the habitual felon law. The first change is an amendment to our existing habitual felon law. The second is the creation of a new habitual breaking and entering status offense. I’ll discuss the first change today and then walk through the new habitual B & E law in a post next week.
Under the revised habitual felon law, effective for principal felonies committed on or after December 1, 2011, a habitualized crime will be punished “at a felony class level that is four classes higher than the principal felony . . . but under no circumstances . . . higher than a Class C felony.” G.S. 14-7.6. The practical result of that change is that habitualized Class I felonies will be sentenced as Class E felonies; Class H felonies will be sentenced as Class D felonies; and everything else will be Class C, just like under existing law. (A few readers may remember that the Sentencing Commission offered a similar alternative—a three-class enhancement—back in 2002.)
A novelty of the new graduated enhancement is that some Class I felons habitualized to Class E will fall into “I/A” cells on the sentencing grid, making it possible for the first time that a habitual felon could get probation. It’s not obvious how the law’s requirement that habitual sentences run consecutively to any sentence being served applies to a suspended sentence. It could mean that the probation period itself cannot begin until any other sentence being served is completed (a so-called “contingent” case under G.S. 15A-1346(a), described here). Or it could mean that the suspended sentence must be set to run consecutively to other sentences being served in the event of activation.
I have already received a number of inquiries, many of them from inmates, about whether the changes to the habitual felon law apply retroactively. The effective date clause in the Justice Reinvestment Act makes pretty clear that the changes apply only to principal (fourth or subsequent) felonies that occur on or after December 1, 2011. S.L. 2011-192, sec. 3.(e). That section goes on to state explicitly that “[p]rosecutions for offenses committed before the effective date of this act are not abated or affected by this act,” making it pretty clear to me that no retroactive application was intended. I am sometimes asked whether the “retroactive application” provision for “significant change[s] in law” in the motion for appropriate relief article (specifically, G.S. 15A-1415(b)(7)) allows a judge to apply the law to someone already convicted and sentenced. For the reasons stated in this prior post, I don’t think it does.
As most of you probably know, G.S. 90-95(h) sets out special sentencing rules for drug trafficking offenses, including mandatory fines and minimum and maximum sentences that apply regardless of the defendant’s prior record. This chart summarizes the law.
During the Felony Sentencing installment of my colleague Alyson Grine’s “Lunchinar” series (available on demand for free viewing or for CLE purchase here), a participant asked whether drug trafficking sentences could be enhanced under the habitual felon law. At the time of the lunchinar, that was a question that had never been answered by our appellate courts. Since then, however, the court of appeals decided State v. Eaton, __ N.C. App. __ (Mar. 1, 2011).
In Eaton, the defendant was convicted of trafficking by possession of 4–14 grams of an opiate (specifically, dihydrocodeinone). That’s a Class F felony under G.S. 90-95(h)(4), which prescribes a 70–84 month sentence and a fine of not less than $50,000. The defendant, who had a lengthy criminal record, was also found to be a habitual felon. He was sentenced as a Class C felon to 133–169 months, the high end of the presumptive range for his record level (IV) under the pre-December 1, 2009 sentencing grid.
The defendant appealed, arguing that drug trafficking sentences—“mandatory” under G.S. 90-95(h), “[n]otwithstanding any other provision of law”—can’t be habitualized. The court of appeals disagreed, reasoning that the drug trafficking law isn’t really any more “mandatory” than any other statutory provision setting out the punishment for a particular crime. Statutes “almost universally employ mandatory language directing that a person convicted of a particular offense ‘shall be punished’ as a Class ‘X’ felon or providing that specific terms of imprisonment are authorized for particular offenses and prior record levels.” Slip op. at 12. The habitual felon law itself provides in G.S. 14-7.6 that a covered offender “must, upon conviction . . . be sentenced as a Class C felon . . . ,” language the court of appeals described as “arguably even more mandatory” than the language in the drug trafficking law. Id. The court concluded by noting that the habitual felon law explicitly excludes a few types of offenses, but drug trafficking isn’t among them.
For now, the rule from Eaton is that drug trafficking convictions may be sentenced under the habitual felon law. The defendant petitioned for discretionary review just last week, so there’s a chance the supreme court might weigh in, and I’ll let you know if it does. As a practical matter, note that under the post-December 1, 2009 sentencing grid many trafficking defendants—all Class C and D traffickers and even some convicted of Class E and F trafficking crimes, depending on their prior record—would actually benefit from being sentenced as habitual felons.
Under G.S. 14-7.6, when a defendant is sentenced as a habitual felon, his sentence “shall run consecutively with and shall commence at the expiration of any sentence being served” by the defendant. This language sometimes leads lawyers and judges to think that when a defendant is sentenced as a habitual felon for more than one offense, the sentences for each offense must run consecutively. That’s not right, as a recent court of appeals case helps illustrate.
The reason it isn’t right is that the consecutive sentencing mandate applies only to a “sentence being served” by the defendant. So if a defendant is already serving a sentence for a drug offense, then commits a felonious assault while in prison, and is ultimately convicted of the assault and sentenced as a habitual felon, his sentence for the assault must run consecutively with his sentence for the drug offense. The sentence for the drug offense is a “sentence being served” at the time the defendant is sentenced as a habitual felon for the assault.
By contrast, consider a defendant who isn’t already serving a sentence, but who is charged with, and convicted as a habitual felon of, three counts of obtaining property by false pretenses. The judge may impose concurrent sentences, because none of the sentences are “being served” yet. I suppose one could try to argue that as soon as the first one is imposed, it is “being served,” but that argument’s awfully technical, and similar statutory language in other contexts has been read to allow concurrent sentencing. See, e.g., State v. Walston, 193 N.C. App. 134 (2008) (drug trafficking statute); State v. Thomas, 85 N.C. App. 319 (1987) (former armed robbery statute).
Based on the reasoning and cases above, I stated in my Administration of Justice Bulletin on the habitual felon laws that “a habitual felon sentence may run concurrent with other sentences imposed at the same time, including other habitual felon sentences.” (Page 19 n.16.)
This conclusion was bolstered by the court of appeals this week, when it decided a closely related issue in State v. Haymond. The judge in that case imposed ten consecutive sentences on the defendant, a habitual felon. In the course of holding that the sentence appeared to have been imposed in part to punish the defendant for exercising his right to a jury trial — an aspect of the case about which my colleague Jamie Markham or I may write later — the court made the point that the judge could have imposed a less severe sentence. Specifically, the court held that the judge could have consolidated the ten convictions and imposed a single sentence. It may not quite follow automatically that the judge could have imposed concurrent sentences, but it doesn’t take much of a leap. If this issue wasn’t settled before — and I thought it was — it surely is now.