State v. Graham, 2021-NCSC-125, 379 N.C. 75 (2021), sheds new light on what it means for an out-of-state prior conviction to be “substantially similar” to a North Carolina crime for prior record level purposes. Continue reading
Tag Archives: prior record level
Evaluating Substantial Similarity of Prior Out-of-State Convictions after State v. Graham
Possession of Fentanyl (2022 Update)
In an earlier post, I wrote that simple possession of fentanyl was a misdemeanor Schedule II offense under then-current law. No more. Effective Dec. 1, 2021, fentanyl possession in any amount is treated as a felony. I have been receiving calls about the change and thought a brief post would be useful. Read on for the details. Continue reading →
Under G.S. 15A-1340.14(f), a defendant’s prior convictions can be proved by stipulation of the parties. And they often are. But that doesn’t mean every aspect of a person’s prior record level can be proved by stipulation. Today’s post collects the rules for what a defendant can and cannot stipulate to. Continue reading →
Stipulations to the Classification of Prior Convictions for Possession of Drug Paraphernalia
Prior record level calculations would be pretty straightforward—if the law never changed. Continue reading →
Arrest of Judgment
When can a court arrest judgment in a case? And what does it mean to do so? Continue reading →
Under G.S. 15A-1340.14(d), when a defendant has more than one prior conviction from a “single superior court during one calendar week,” only the most serious of them counts for prior record points for felony sentencing. What is a “single superior court”? Continue reading →
In a previous post I wrote about State v. McNeil, a case that resolved the question of how to count prior convictions for possession of drug paraphernalia, in light of that crime’s 2014 division into Class 1 (non-marijuana) and Class 3 (marijuana) offenses. Today’s post is about prior convictions for second-degree murder—split into Class B1 and Class B2 varieties in 2012—in light of State v. Arrington, a case recently decided by the supreme court. Continue reading →
A recent case from the court of appeals answers a question we’ve been wondering about for four years: How should a person’s prior conviction for possession of drug paraphernalia (PDP) count toward his or her prior record level after the General Assembly created a new offenses of possession of marijuana paraphernalia?
I wrote about this general issue back in 2014 (here), when G.S. 90-113.22A first came into effect. Under that law, effective December 1, 2014, possession of drug paraphernalia related to marijuana was created as a Class 3 misdemeanor. The existing PDP offense, G.S. 90-113.22(a), remained a Class 1 misdemeanor, but was amended to say that it applied to possession of paraphernalia related to controlled substances other than marijuana.
In State v. McNeil, the defendant was convicted in 2017 for a felony committed in 2016. He had a prior PDP conviction from 2012—back when the only version of the offense was the Class 1 misdemeanor. It was treated as a Class 1 misdemeanor, counting for 1 point. That point gave him 14 total points, making him Prior Record Level V.
On appeal, the defendant argued that his 2012 PDP conviction ought to have been treated as a Class 3 misdemeanor. Under G.S. 15A-1340.14(c), the classification of a prior offense is the classification assigned to it as of the offense date of the crime now being sentenced. Because McNeil’s present offense was committed in February 2016, he maintained that his prior PDP should be updated to a Class 3 misdemeanor in the absence of any proof by the State that it did not involve marijuana.
The court of appeals agreed. There was no proof in the record indicating whether the PDP conviction involved marijuana or some other drug, and the defendant didn’t stipulate one way or the other. With that in mind, the unanimous panel concluded that “the State failed to prove whether that charge was related to marijuana or another drug,” slip op. at 5, and therefore the trial court erred by treating it as a Class 1 misdemeanor. The court remanded the case to the trial court for the defendant to be resentenced at Prior Record Level IV.
McNeil will likely lead to resentencing for many felony defendants sentenced for offenses committed on or after December 1, 2014, who had PDP convictions from before that date on their record. The case doesn’t have any impact on defendants presently sentenced for misdemeanors, since all convictions count the same for misdemeanor prior conviction level purposes.
Going forward, if the State wants a pre–12/1/2014 PDP conviction to count for a felony sentencing point, it will apparently need to present information to the court sufficient for the judge to find that the crime was not related to marijuana. It seems to me that will sometimes be a difficult negative to prove given the records readily available for a low-level crime of that vintage. Even if records were available, the paraphernalia in question might not always be tied to a specific drug, or at least any single drug.
It also appears to be permissible to resolve the issue by stipulation of the defendant. That’s essentially what happened in State v. Arrington, a case recently decided by the Supreme Court of North Carolina on how prior second-degree murders should count for points in light of the 2012 bifurcation of that offense into Class B1 and Class B2 varieties. I’ll write more about Arrington in a future post.
When determining a defendant’s prior record level for felony sentencing, prior convictions count for points according to their classification as of the offense date of the crime now being sentenced. G.S. 15A-1340.14(c). That law helps modernize a person’s record, treating it according to present-day classification standards as opposed to those that existed at the time of the prior offenses themselves. The rule can cut in either direction. If the offense class of the prior conviction has increased between the time of the prior and present offenses, the prior counts for points according to the higher offense class. If the offense class has decreased, the prior counts at its new, reduced level.
The rule is simple enough to apply when an offense classification for a single crime is ratcheted up or down. What do you do, though, when a person has a prior conviction for an offense that has since been split into multiple offenses with different classifications? A recent case gives some guidance. Continue reading →
The Right Way to Find the “Under Supervision” Prior Record Level Bonus Point
A person convicted of a felony is eligible for an additional prior record point if “the offense was committed while the offender was on supervised or unsupervised probation, parole, or post-release supervision, or while the offender was serving a sentence of imprisonment, or while the offender was on escape from a correctional institution.” G.S. 15A-1340.14(b)(7). I call that point the “under supervision” bonus point. Though part of the defendant’s prior record level, the point is probably best thought of as an aggravating factor. A recent court of appeals case reminds us why. Continue reading →