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. Continue reading
Tag Archives: prior convictions
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!)
Who proves prior convictions for sentencing purposes? By statute, the State. Sometimes, however, in the fast-paced world of district court, marshaling a defendant’s criminal record can seem like a shared responsibility, with the prosecutor, judge, and clerk all playing a role. Especially today, when more statewide information is available at a mouse click through CJLEADS and other resources, information on a defendant’s record might come to light through means other than proof by the State. Is that okay?
Let’s start with the statutes. Under Structured Sentencing, the burden of proving prior convictions is on the State. G.S. 15A-1340.14(f) (felonies); G.S. 15A-1340.21(c) (misdemeanors). But the felony record level and misdemeanor conviction level statutes are not identically worded. The statute for felony prior record level places an affirmative burden on the prosecutor to “make all feasible efforts to obtain and present to the court the offender’s full record,” G.S. 15A-1340.14(f), while the statute governing sentencing of misdemeanors includes no such requirement. For sentencing of impaired drivers, G.S. 20-179 is more demanding: the State must “make all feasible efforts to secure the defendant’s full record of traffic convictions,” and “shall present to the judge that record for consideration in the hearing,” where they must be proved beyond a reasonable doubt. G.S. 20-179(a).
Beyond the statutes, there is also an ethical dimension to proving a defendant’s prior record. The State and the defendant may not enter into a calculated agreement to underreport the defendant’s record in order to reduce the defendant’s exposure—even if the judge is advised of the tactic and does not object. 2003 Formal Ethics Op. 5. The defendant may, on the other hand, refuse to stipulate to an accurate presentation of his record (responding that the burden is on the State to prove it), and may even remain silent during the presentation of an inaccurate record, provided he or she was not the source of the inaccuracy. Id.; see also 98 Formal Ethics Op. 5 (Apr. 16, 1998) (defendant and his attorney, knowing of defendant’s prior DWI but not affirmatively concealing it from the State, permissibly stood silent while prosecutor told the court the defendant had no prior DWI convictions). (A related ethical issue of note: A defense attorney may not allow a client to proceed under an alias that would allow his client’s prior record to go undetected. RPC 33 (Jan. 15, 1988).)
With those statutory and ethical rules as a backdrop, consider the following scenario. For a misdemeanor convicted in district court, the State does not provide any information about the defendant’s prior record. Assume there was neither calculated underreporting by the State, nor fraudulent misrepresentation by the defendant. At sentencing, the court learns—through an independent review of computer records or by asking the clerk—that a defendant has a prior conviction that would make him level two for sentencing. What conviction level should the court use?
I think prior conviction level one. For the sentencing of a misdemeanor, the State hasn’t done anything wrong by not proving the defendant’s prior conviction; again, G.S. 15A-1340.21 places no affirmative obligation on the prosecutor to produce the defendant’s full record. Because convictions must be “proven in accordance with this section” to allow the court to count them for points, G.S. 15A-1340.21(a), and because the burden of proving them is on the State, G.S. 15A-1340.21(c), arguably the defendant’s record should not be elevated by convictions that come before the court through some avenue other than the prosecutor.
It may be that a defendant’s criminal history is the type of information susceptible to being judicially noticed. See State v. VanBuren, 183 N.C. App. 492 (2007) (unpublished) (holding that it was improper for a judge to take what he called judicial notice of an unsupported prior record level worksheet, but suggesting that the judge could have cured the defect by taking judicial notice of actual court records showing a defendant’s prior convictions). Be that as it may, the Code of Judicial Conduct counsels against independent research into a matter before the court (see Canon 3A(4), discussed in this opinion from the Judicial Standards Commission).
Even if the court may be locked into a particular grid cell based on the record proved (or not proved) by the State, it seems that a judge may review additional information about a defendant’s record at sentencing for other purposes. The sentencing hearing is meant to be a broad inquiry, see State v. Pope, 257 N.C. 326 (1962) (upholding a sentence imposed after the court privately reviewed 68 bills of indictment pending against the defendant), and a judge has broad discretion to consider all sorts of information at sentencing for matters within his or her discretion, see State v. Smith, 300 N.C. 71 (1980) (encouraging judges to consider matters such as a defendant’s age, character, education, environment, habits, mentality, propensities, and record at sentencing). The rules of evidence do not apply at the hearing, and the judge may call his or her own witnesses to make comment to the court. G.S. 15A-1334. Whatever information is discovered could guide the court’s thinking about discretionary decisions within a particular grid cell, such as how many days of imprisonment to impose or whether to give an active or probationary sentence.
Procedurally, the defendant should be given an opportunity to respond to any information the court considers. See State v. Midyette, 87 N.C. App. 199 (1987) (disfavoring trial court’s in camera victim input session before sentencing when the defendant was not given an opportunity to refute the matters urged by the victim); Pope, 257 N.C. at 335 (noting that “[a]ll information coming to the notice of the court which tends to defame and condemn the defendant and to aggravate punishment should be brought to his attention before sentencing, and he should be given full opportunity to refute or explain it.”). As long as that opportunity is provided, I think the information is fair game for decisions within the discretion of the court.
I realize the analysis above may be slicing things pretty thinly given the pace of district court. It may be hard, for example, to identify the particular moment in time when the State is done proving all the convictions it intends to prove for prior conviction level purposes. Nevertheless, the question comes up often enough that I thought it worth writing about, and I would love to learn more from our readers about how things play out in practice.
You can’t always get what you want
But if you try sometimes you might find
You get what you need
–The Rolling Stones
It’s generally understood that a criminal defendant can’t invalidate an old conviction in connection with proceedings on new charges. This is known as the anti-collateral attack rule. Suppose for example that a defendant is charged with habitual impaired driving. That offense requires the State to prove that the defendant has prior impaired driving convictions. The anti-collateral attack rule means that the defendant can’t — in the habitual impaired driving proceeding — seek to invalidate one of those priors, on say constitutional grounds. Under the anti-collateral attack rule, if the defendant wants to invalidate a prior on those grounds, the proper procedure is by way of a post-conviction motion for appropriate relief (MAR). However, as illustrated by the recent court of appeals case, State v. Blocker, the defendant might be able to suppress use of that prior in the habitual impaired driving case, and in that way get what he needs: a defense to the habitual impaired driving charge. Let me explain.
In Blocker, the defendant was indicted on robbery charges and entered an Alford plea. Following entry of her plea, but before sentencing, the defendant filed a motion under G.S. 15A-980 seeking to suppress, for purposes of sentencing, a 2007 conviction that she alleged was obtained in violation of her right to counsel. Specifically, the defendant alleged that she was indigent and did not knowingly and voluntarily waive counsel when she pled guilty to the 2007 conviction. This constituted a “Boykin claim,” a shorthand for referring to a challenge to the knowing, voluntary, and intelligent nature of a plea. Finding the motion to be an impermissible collateral attack that only could be raised by way of a MAR, the trial court summarily denied the defendant’s motion and pronounced sentence. The defendant appealed and the court of appeals found error.
The court of appeals determined that under G.S. 15A-980 a defendant may contest a trial court’s use of a prior conviction at a sentencing hearing on new charges. G.S. 15A-980 deals with the suppression of prior convictions obtained in violation of the right to counsel. Subsection (a) provides:
(a) A defendant has the right to suppress the use of a prior conviction that was obtained in violation of his right to counsel if its use by the State is to impeach the defendant or if its use will:
(1) Increase the degree of crime of which the defendant would be guilty; or
(2) Result in a sentence of imprisonment that otherwise would not be imposed; or
(3) Result in a lengthened sentence of imprisonment.
Applying the statute, the court determined that the trial court’s summary denial of the defendant’s motion on grounds that it constituted an impermissible collateral attack was erroneous. The court noted that although the defendant could not use G.S. 15A-980 to overturn her prior conviction on Boykin grounds, she could use the statute to suppress use of the conviction in the current case.
Note that while the defendant in Blocker sought to suppress the conviction under G.S. 15A-980 because it would have lengthened her sentence, the statute applies in broader range of contexts. By its terms it allows a defendant to “suppress the use of a prior conviction” obtained in violation of his right to counsel whenever:
- the State will use the prior conviction to impeach the defendant;
- its use will increase the degree of crime of which the defendant would be guilty;
- its use will result in a sentence of imprisonment that otherwise would not be imposed; or
- its use will result in a lengthened sentence of imprisonment.
The first scenario—use of the prior for impeachment—would arise, for example, when the State seeks to impeach the defendant under Rule 609 with the prior. The second scenario—using the prior to increase the degree of crime—would apply, for example, when the defendant is charged with a second offense under G.S. 14-56.1 (Breaking into a Coin- or Currency-Operated Machine); for this crime, a first offense is a Class 1 misdemeanor but a second offense is a Class I felony. The third scenario—use of prior conviction to get an active sentence—would apply, for example, when the prior increases prior record level so as to move the defendant into an “active only” block on the sentencing grid. The fourth scenario—use of the prior to get a lengthened sentence—would apply, for example, when the prior increases the defendant’s prior record level.
Keep in mind, however, that notwithstanding this broad potential application, G.S. 15A-980 only allows the defendant to raise one type of Boykin claim: a denial of the right to counsel. Furthermore only a very specific type of denial of counsel claim can be asserted. The statute specifies that when a defendant seeks to suppress a prior on this basis, the defendant bears the burden of proving (by a preponderance) that at the time of the prior conviction he or she was indigent, had no counsel, and had not waived his right to counsel. G.S. 15A-980(c). But in the limited circumstances when the claim can be established, the defendant just might get what he needs: suppression of the conviction in the current case.
I ended last week’s post by noting that the date on which a prior impaired driving conviction occurs for purposes of the seven-year-look-back period in G.S. 20-179(c)(1)(a) may not be immediately obvious when a district court conviction for an impaired driving offense has been appealed to superior court and the appeal is later withdrawn.
When a defendant appeals from a conviction for an offense committed on or after December 1, 2006 and sentenced under G.S. 20-179 (I’ll refer to this type of offense as a “covered offense”), the filing of the notice of appeal vacates the sentence. G.S. 20-38.7(c). In contrast, giving notice of appeal from a conviction for a structured sentencing misdemeanor merely stays the execution of all portions of the judgment; if the appeal subsequently is withdrawn, the case is remanded to district court for execution of the judgment. G.S. 15A-1431(f1),(g),(h). When an appeal from a conviction for a covered offense is withdrawn, the district court must hold a new sentencing hearing and must consider any new convictions. G.S. 20-179(c). This divergent procedure was enacted by the Motor Vehicle Driver Protection Act of 2006, S.L. 2006-253, to prevent a defendant with two pending offenses sentenced under G.S. 20-179 from avoiding application in either case of the grossly aggravating factor for prior convictions. Formerly, a defendant could avoid application of this grossly aggravating factor by appealing the conviction for the first offense and, while the case was on appeal, pleading guilty and being sentenced for the second offense. The first conviction was not considered a prior conviction at the time of sentencing for the second offense sentenced under G.S. 20-179 because it was not a “final conviction” so long as the case was on appeal. See G.S. 20-4.01(4a) (defining conviction as a “final conviction of a criminal offense”). Before the 2006 statutory changes, a defendant could, after the second conviction was entered, withdraw his appeal of the first conviction, triggering execution of a sentence that did not take into account the second conviction.
Now, if an appeal from a conviction for a covered offense is withdrawn before the case is transferred to superior court (see G.S. 15A-1431(c)) or after that time and the case is remanded to district court with the consent of the prosecutor and the superior court (see G.S. 15A-1431(g),(h)), the district court must hold a new sentencing hearing and consider any new convictions. See G.S. 20-38.7(c). When this occurs, the defendant initially will have been convicted of the offense and sentenced on one date, though the final judgment and sentence for the offense necessarily will have been entered at a later date. On which date may the prior conviction be said to occur for purposes of considering the seven-year-look-back period under G.S. 20-179(c)(1)? Given that the term “conviction,” when used in connection with sentencing, generally means the determination of a defendant’s guilt, see G.S. 15A-1331(b) (“a person has been convicted when he has been adjudged guilty or has entered a plea of guilty or no contest”); State v. Wilkins, 128 N.C. App. 315, 317 (1998); State v. Canellas, 164 N.C. App. 775 (2004), my view is that the date on which the defendant was adjudicated guilty is the date of conviction. Cf. State v. Wilkins, 128 N.C. App. 315 (1998) (determining for purposes of G.S. 15A-1340.14(d)—which provides that for purposes of determining a defendant’s prior record level for felony sentencing purposes, if an offender is convicted of more than one offense in a single session of district court, only one of the convictions is used—that when a defendant is convicted in district court, appeals the conviction to the superior court, and subsequently withdraws the appeal causing the case to be remanded to the district court for execution of the judgment, the conviction occurs upon the date when the offender was originally convicted in the district court). Moreover, the consideration of a conviction as occurring on the date of the initial adjudication of guilt, even though it became a final conviction on some later date, does not infringe upon a defendant’s right to trial de novo and by jury in superior court, which appears to be the purpose for counting only those convictions deemed final.
The Supreme Court of the United States recently granted certiorari in a case originating out of North Carolina. United States v. McNeill, 598 F.3d 161 (4th Cir. 2010), cert. granted, 2011 WL 48124 (U.S., Jan. 7, 2011). The defendant in the case, Clifton McNeill, pled guilty to gun and drug crimes in federal court. The district court then sentenced him under the Armed Career Criminal Act (ACCA), a federal sentencing enhancement for offenders with three previous convictions for a “violent felony or a serious drug offense.” 18 U.S.C. § 924. A serious drug offense under the ACCA is “an offense under State law . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).
The serious drug offenses on Mr. McNeill’s record were North Carolina convictions from the early 1990s. At the time they were committed those crimes were punishable under the Fair Sentencing Act by a maximum sentence of 10 years, which would make them serious drug offenses under the ACCA. Today, however, the same crimes are punishable by a maximum of only 30 months under Structured Sentencing—well short of the ACCA’s requisite maximum. McNeill argued that the present-tense language of the serious drug offense definition (“is prescribed by law”) means the maximum currently applicable to the prior crime should control when deciding whether a crime is a serious drug offense. The district court disagreed and gave an enhanced ACCA sentence.
The Fourth Circuit affirmed, but only after adding an additional wrinkle to the analysis. The panel found it significant that when North Carolina transitioned from Fair Sentencing to Structured Sentencing in 1994, the change only applied to offenses committed on or after October 1, 1994. So, even if McNeill’s prior drug convictions from 1991, 1992, and September 1994 were tried and convicted today, they would be sentenced under Fair Sentencing. With that in mind the court concluded those particular prior offenses are still punishable by up to 10 years and should count under the ACCA.
There’s a circuit split on this issue. The Second and Sixth Circuits have held that the relevant maximum term for a previous offense should be determined according to the law in place at the time of the current federal proceeding. United States v. Darden, 539 F.3d 116 (2d Cir. 2008); United States v. Morton, 17 F.3d 911 (6th Cir. 1994). The Fifth Circuit, on the other hand, reads the law like the Fourth: if a revised sentencing scheme doesn’t apply to crimes committed before the effective date of the revision, the law applicable at the time of the previous offense should be used to determine whether that conviction counts under the ACCA. United States v. Hinojosa, 349 F.3d 200 (5th Cir. 2003). Presumably the Court’s eventual decision in McNeill will resolve the split.
I write about this case mostly as a matter of general interest—it’s not every day that the Justices agree to review a case that started with a routine traffic stop in Fayetteville—but it’s also an opportunity to mention how a few similar issues are handled under state law.
Prior Record Level: When determining how many points to assign to a prior offense for prior record level–calculation purposes, use the classification assigned to the prior offense as of the offense date of the crime for which the offender is currently being sentenced. G.S. 15A-1340.14(c).
Violent habitual felon: Generally, Class A through E felonies are “violent felonies” for the purposes of North Carolina’s violent habitual felon law. G.S. 14-7.7(b)(1). The definition of a violent felony also includes “[a]ny repealed or superseded offense substantially equivalent to [a Class A through E felony].” G.S. 14-7.7(b)(2). The court of appeals has read subdivision (b)(2) to mean a prior conviction counts if is for a crime that is a Class A through E felony at the time of the current violent habitual felon proceeding, even it was a less serious offense when committed. State v. Wolfe, 157 N.C. App. 22 (2003) (holding that a prior conviction for voluntary manslaughter, a Class F felony when committed in 1987 but upgraded to Class D in 1997, counted as a violent felony for the purposes of a 1999 violent habitual felon proceeding).
Habitual felon: North Carolina’s habitual felon law says a person is a habitual felon when he or she has prior convictions for three felony offenses, defined as “an offense which is a felony under the laws of the State or other sovereign.” G.S. 14-7.1. The statute doesn’t say whether a prior conviction counts as a felony if it was a felony when committed but has since been downgraded to a misdemeanor, or was a misdemeanor when committed but is now a felony. There are no appellate cases answering the question either. Similar to the defendant in McNeill, one might argue that the use of the present-tense “is a felony” language in G.S. 14-7.1 suggests the classification as of the time of the current habitual felon proceeding should control. On the other hand, the absence of language like that found in the prior record level and violent habitual felon statutes, mandating that a prior conviction be judged by its current classification, perhaps means the classification as of the time of the prior conviction itself should control. Jeff leans toward the latter reading in the bulletin available here.
Some crimes, such as felon in possession of a firearm, include as an element that the defendant has a qualifying prior conviction. When this is the case, the defense may seek to limit the prejudicial effect of the prior conviction by offering to stipulate to its existence and asking the trial judge to preclude the State from introducing evidence of the crime at trial. Often, Old Chief v. United States, 519 U.S. 172 (1997), will be cited in support of this argument.
Old Chief involved a federal prosecution for the crime of felon in possession of a firearm. So as to keep the details of his prior felony—assault causing serious bodily injury—from the jury, the defendant offered to stipulate to the prior conviction. The prosecutor objected, insisting that he had a right to prove his case his own way. The trial court rejected the defendant’s offer to stipulate and allowed the government to prove its case by introducing evidence of the prior crime. The defendant was convicted and he appealed. The United States Supreme Court held that because the nature of the prior offense raised a risk of a verdict tainted by improper considerations and the evidence was admitted solely to prove the fact of the prior conviction, the trial court abused its discretion under Federal Rule 403 by admitting the record of the defendant’s prior conviction where an admission was available as an alternative form of proof. Id. at 191. It explained:
In dealing with the specific problem raised by [the federal felon in possession statute] and its prior-conviction element, there can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant. That risk will vary from case to case . . . but will be substantial whenever the official record offered by the Government would be arresting enough to lure a juror into a sequence of bad character reasoning. Where a prior conviction was for a gun crime or one similar to other charges in a pending case the risk of unfair prejudice would be especially obvious . . . .
Id. at 185. The Court went on to note that when a prior offenses is far removed “in time or nature” from the current charges, its potential to prejudice the defendant is minimal. Id. at 185 n.8.
But does Old Chief apply in North Carolina? Noting that Old Chief was decided under federal evidence rule 403, several North Carolina Court of Appeals decisions have concluded that the case is not binding on North Carolina courts interpreting state Rule 403. State v. Little, 191 N.C. App. 655 (2008); State v. Jackson, 139 N.C. App. 721 (2000), reversed on other grounds, 353 N.C. 495 (2001); State v. Faison, 128 N.C. App. 745 (1998). However, the Court of Appeals has declined to reject Old Chief outright, opting instead to distinguish it from the facts presented. Jackson, 139 N.C. App. 721 (at defendant’s trial for carrying a concealed weapon, possession of a firearm by a felon, and resisting an officer, the State offered evidence of the defendant’s prior voluntary manslaughter conviction and the defendant offered to stipulate to having a prior felony conviction; the defendant was not “charged with any attendant offenses similar to his prior conviction of voluntary manslaughter, thus reducing the potential of prejudice in comparison to Old Chief”); Little, 191 N.C. App. 655 (defendant was charged with felon in possession, attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and discharging a firearm into occupied property; defendant offered to stipulate to the existence of a prior felony conviction; distinguishing Old Chief, the court concluded that given the charged crimes, “we cannot say admission of the record evidence of defendant’s prior involuntary manslaughter conviction in lieu of defendant’s stipulation . . . so risked unfair prejudice that it substantially outweighed the discounted probative value of the record of conviction”); State v. Fortney, __ N.C. App. __, 687 S.E.2d 518 (Jan. 5, 2010) (no abuse of discretion by allowing the State to introduce evidence of the defendant’s prior rape conviction, notwithstanding the defendant’s offer to stipulate to a prior felony conviction; the prior conviction was not substantially similar to the offenses being tried: drug possession, possession of a firearm by a felon, and carrying a concealed weapon).
Also, the North Carolina Court of Appeals has said that even if Old Chief applies in North Carolina, the issue cannot be raised on appeal unless the defendant offers to stipulate to the prior conviction at trial. Faison, 128 N.C. App. 745 (in the absence of a defense stipulation “[t]he State . . . had no alternative but to introduce evidence of Defendant’s prior convictions in order to meet its burden of showing an element of the crime charged”).