When can a court arrest judgment in a case? And what does it mean to do so? Continue reading
Tag Archives: prior record level
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 →
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 →
In North Carolina we have a fair number of habitual and repeat offender punishment provisions—laws that increase a defendant’s punishment because of crimes he or she has committed in the past. Today’s post considers how the prior convictions needed to establish those enhancements factor into the defendant’s prior conviction level. Continue reading →
Before Structured Sentencing we had Fair Sentencing. Under Fair Sentencing, there was no such thing as “prior record level,” but a prior conviction could qualify as an aggravating factor, exposing a person to a longer sentence. G.S. 15A-1340.4(a)(1)(o) (1988). However, the law included an exception for any crime joinable with the crime for which the defendant was currently being sentenced. Id. If prior conviction A could have been joined for trial with current charge B, then A could not count as an aggravating factor for the sentencing of B.
There is no such prohibition under Structured Sentencing. Rather, a prior conviction is now defined as any conviction existing on the date judgment is entered for current offense. G.S. 15A-1340.11(7). That rule grabs essentially any prior conviction—even those for offenses that actually occurred after the offense date of the crime now being sentenced, State v. Threadgill, __ N.C. App. __, 741 S.E.2d 677 (2013), and even those arising between the sentencing and resentencing of the same offense, State v. Pritchard, 186 N.C. App. 128 (2007). There is no exception in the prior record level statute for joined or joinable offenses.
Nevertheless, limits have emerged on the use of a joined conviction when calculating a person’s prior record level. In State v. West, 180 N.C. App. 664 (2006), a defendant was convicted by a jury of four crimes on the same day. The trial court sentenced the defendant for three of the crimes before lunch. When sentencing the fourth crime after lunch, the court counted prior record points for one of the offenses sentenced that morning. The court of appeals reversed, holding that while “[n]othing within [Structured Sentencing] specifically addresses the effect of joined charges when calculating previous convictions . . . using joined convictions would be unjust and in contravention of the intent of the General Assembly.” Id. at 669.
Under West, it is impermissible to introduce a short delay between the sentencing of joined offenses to allow one to count for points in the sentencing of the other. But what if the delay arises naturally? Suppose two charges are joined for trial. One results in a conviction, but the jury fails to reach a verdict on the other. If the mistried offense is retried and results in a conviction, does the conviction from the first trial count for prior record points toward the sentencing of the retried offense—even though they were initially joined for trial?
A mechanical application of G.S. 15A-1340.11(7) would suggest that it does. The first conviction clearly exists on the date a criminal judgment is entered for the second, and so it would appear to meet Structured Sentencing’s definition of a prior conviction. On the other hand, West could be read to suggest that it would be “unjust and in contravention of the intent of the General Assembly” to count the once-joined offense for points. Close call, right?
So close, in fact, that when two cases presenting that exact fact pattern were decided by the court of appeals last week, two panels of the court answered the question differently. In State v. Perkins, __ N.C. App. __ (2014), the defendant was initially tried on 20 sex crimes at the same time but convicted of only one of them, indecent liberties with a child. The jury failed to reach a verdict on the remaining counts. A year later when the defendant was retried and convicted on four of the charges, the indecent liberties conviction counted for points toward his prior record level. The court of appeals found no error, rejecting the defendant’s argument that counting points for the once-joined offense was prohibited. The panel distinguished West, saying the prior conviction in this case, unlike in West, “was established well in advance of [the defendant’s] attaining four additional convictions.”
State v. Watlington, __ N.C. App. __ (2014), went a different direction with West (pun intended). The defendant in Watlington was tried for several charges on the same day. The jury convicted him of some of the charges, found him not guilty of others, and was unable to reach a verdict on three of them. About two months later he was retried on the three mistried charges and convicted. The trial court counted points from the convictions obtained in the first trial when sentencing the retried offenses. The court of appeals reversed, concluding that, in light of West, it would be “unjust to punish a defendant more harshly simply because, in his first trial, the jury could not reach a unanimous verdict on some charges.”
It’s hard to reconcile the two cases. I suppose there was a longer passage of time between trial and retrial in Perkins, which made the chronologically prior convictions for the once-joined charges seem more well-established by the time the retrial rolled around. But the Watlington decision to bar use of the prior convictions did not appear to turn on the passage of time. Rather, the important thing was the perceived injustice of punishing the defendant more harshly after the second trial solely because the first jury couldn’t resolve the whole thing together. Obviously this sort of split wouldn’t happen if the cases hadn’t been decided on the same day (the panel hearing the second case would have been bound by the first panel’s resolution of the issue—assuming the issues are indeed the same). For the time being, at least, there appears to be good authority on both sides of the argument.
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!)
A defendant’s prior North Carolina juvenile adjudications never count for sentencing points. That is true for felonies and misdemeanors alike. The definition of a “prior conviction” in Structured Sentencing (G.S. 15A-1340.11(7)) includes only a previous “conviction” for a “crime.” By law in North Carolina, a juvenile adjudication is not a conviction at all, and so it cannot be a prior conviction. G.S. 7B-2412 (“An adjudication that a juvenile is delinquent or commitment of a juvenile to the Division for placement in a youth development center shall neither be considered conviction of any criminal offense nor cause the juvenile to forfeit any citizenship rights.”).
What about a prior out-of-state juvenile adjudication for an offense committed when the defendant was 16 or 17 years old? Had the defendant been in North Carolina, that behavior likely would have constituted a crime. Does that open the door for it to count for points here on a theory of “substantial similarity”? No. The substantial similarity analysis of G.S. 15A-1340.14(e) (described here) applies only to prior “convictions” in another jurisdiction when the other jurisdiction classifies the offense as a felony or misdemeanor. If the other state calls it an adjudication, then it seems to me it’s not a conviction for an offense classified as a misdemeanor or felony there. Failing that threshold determination, you don’t even proceed to the point of analyzing how a substantially similar offense would be categorized in North Carolina.
Just as a juvenile adjudication may not count as a prior conviction, a defendant who commits a felony while on juvenile probation or post-release supervision is probably not eligible for the additional sentencing point available under G.S. 15A-1340.14(b)(7). That point applies to defendants who commit their offense while on supervised or unsupervised probation, parole, post-release supervision, or while the offender was serving a sentence of imprisonment, or while the offender was on escape. In State v. Tucker, 154 N.C. App. 653 (2002), the court of appeals held that juvenile training school was not a “sentence of imprisonment” within the meaning of G.S. 15A-1340.14(b)(7). Given the court’s focus on the “fundamental legal difference” between the adult and juvenile systems, my sense is that it would reach a similar conclusion regarding juvenile supervision, even though those statutes use words common to the juvenile and adult systems.
None of this is to say that juvenile adjudications are entirely off limits for adult sentencing. Under G.S. 15A-1340.16(d)(18a), a prior adjudication for an offense that would be a Class A–E felony if committed by an adult may be alleged as an aggravating factor. A similar aggravator applies for capital sentencing. G.S. 15A-2000(e)(2). A person’s juvenile record can also shape other aspects of his or her sentence. A probation officer has limited access to the juvenile record of a person on probation for an offense committed while the person was less than 25 years old. The supervising officer may, without a court order, examine the record of any adjudication for an offense that would be a felony if committed by an adult for the purpose of assessing the offender’s risk. G.S. 15A-1341(e); 7B-3000(e1). Finally, properly obtained juvenile information can, in felony and Class A1 misdemeanor cases, be used by prosecutors and the courts for, among other things, “plea negotiating decisions and plea acceptance decisions.” G.S. 7B-3000(b) and (e).