In United States v. Haymond, 139 S. Ct. 2369 (2019), a divided Supreme Court concluded that a federal statute was unconstitutional to the extent that it exposed the defendant to additional mandatory imprisonment based on a judicial finding that he had violated his supervised release. Does the case have implications for probation and post-release supervision hearings in North Carolina? Continue reading
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Does United States v. Haymond Impact Probation and Post-Release Supervision in North Carolina?
Concurrent Sentencing of 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.