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.

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Prior Record Level: What a Defendant Can and Cannot Stipulate To

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.

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Stipulating to Prior Convictions for Second-Degree Murder

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.

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Prior Convictions for Possession of Drug Paraphernalia

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 … Read more

Classifying Prior Convictions for Sentencing Purposes

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.

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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.

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