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
Tag Archives: prior record level
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).
Improper counting of a defendant’s prior out-of-state convictions is a common sentencing error. This post collects the law on the subject, including the many appellate cases decided over the past decade or so. I’ll admit, it’s the Atacama Desert of blog posts: long and dry. But the issue comes up often enough—and can have significant enough effect on a defendant’s ultimate sentence—that I thought it was worth a comprehensive review.
Convictions in the courts of the United States, another state, the Armed Forces of the United States, or another country qualify as prior convictions, regardless of whether the offense in question would be a crime if it occurred in the North Carolina. G.S. 15A-1340.11(7)c. A special classification rule applies to these out-of-state prior convictions for purposes of assigning prior record points. By default, a prior conviction for a crime that another jurisdiction classifies as a felony counts as a Class I felony (which carries two points) for record-level purposes in North Carolina. A prior conviction for a crime that another state classifies as a misdemeanor is classified as a Class 3 misdemeanor, and so does not factor into a defendant’s prior record level at all. G.S. 15A-1340.14(e). No special findings are required if the defendant’s prior out-of-state convictions are treated according to the default level. State v. Hinton, 196 N.C. App. 750 (2009).
The State or the defendant can attempt to depart from the default classification by presenting evidence that the offense is substantially similar to an offense in North Carolina with an offense class different from the default. If the State can prove by a preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to a North Carolina offense that is classified as a Class I felony or higher, the conviction is treated as that class of felony for prior record level purposes. If the State can prove that a misdemeanor from another jurisdiction is substantially similar to a Class A1 or Class 1 misdemeanor in North Carolina, the conviction is treated as a Class A1 or Class 1 misdemeanor for prior record purposes. Conversely, if the defendant can prove that an offense classified as a felony in another jurisdiction is substantially similar to a North Carolina misdemeanor, the conviction will be treated as that class of misdemeanor for prior record level purposes. Though not classified under Structured Sentencing, impaired driving has been deemed a Class 1 misdemeanor for purposes of applying G.S. 15A-1340.14(e), allowing out-of-state drunk driving offenses to count for one point. State v. Armstrong, 203 N.C. App. 399 (2010).
Substantial similarity is a question of law that must be determined by the trial judge, not by the jury and not by stipulation. A defendant may validly stipulate to the bare fact that an out-of-state conviction exists, and may also stipulate that the crime is felony or misdemeanor in the other jurisdiction. State v. Bohler, 198 N.C. App. 631, 637–38 (2009). Those stipulations are a sufficient basis for the court to treat an out-of-state felony at the default Class I level for prior record purposes. State. v. Hinton, 196 N.C. App. 750 (2009). The defendant may not, however, stipulate to substantial similarity. State v. Palmateer, 179 N.C. App. 579 (2006). The latest version of the Prior Record Level Worksheet, form AOC-CR-600B, includes a check-box for the court to record its determination of substantial similarity.
The General Statutes do not prescribe a particular method for determining whether an out-of-state crime is substantially similar to a North Carolina offense. The cases, however, have made clear that the trial court should compare the elements of the out-of-state offense with the elements of the purportedly similar North Carolina crime. State v. Hanton, 175 N.C. App. 250 (2006). The comparison should be based on the substantive elements of the offenses involved, not on their relative punishments. State v. Sanders, ___ N.C. App. ___, 736 S.E.2d 238 (2013).
An out-of-state crime need not be identical to a North Carolina crime in order to be substantially similar to it. State v. Sapp, 190 N.C. App. 698, 713 (2008) (noting that G.S. 15A-1340.14(e) does not require offenses to “precisely match”). In State v. Claxton, for example, New York’s crime of third degree sale of a controlled substance was deemed substantially similar to Class G sale of a schedule I or II controlled substance in North Carolina in spite of minor differences between the states’ drug schedules. __ N.C. App. __, 736 S.E.2d 603 (2013). But only minor differences are allowed. For instance, a prior burglary from Florida was not substantially similar to burglary in North Carolina when the Florida offense included buildings other a dwelling, did not require that the offense occur at night, and did not require that there be a breaking in addition to an entry. State v. Rollins, __ N.C. App. __ __, 729 S.E.2d 73 (2012).
In general, the process of determining substantial similarity should be done with the rule of lenity in mind—any ambiguities should be resolved in the defendant’s favor. For example, an Ohio conviction for “Intentional shooting, cutting, or stabbing” was not substantially similar to North Carolina’s Class E assault with a deadly weapon with intent to kill because the Ohio crime did not require an intent to kill, but could also be completed with an intent to wound or maim. State v. Phillips, __ N.C. App. __, 742 S.E.2d 338 (2013). If an out-of-state offense is similar to more than one North Carolina offense, the court should find it substantially similar to the least serious similar offense. Hanton, 175 N.C. App. at 259 (holding that the court erred by finding New York’s second-degree assault crime to be substantially similar to North Carolina’s Class A1 assault inflicting serious injury instead of Class 2 simple assault).
The proponent of the substantial similarity finding should provide the court with statutes or cases from the other jurisdiction sufficient to make the necessary comparison. See, e.g., State v. Rich, 130 N.C. App. 113 (1998) (holding that photocopies of statutes from New York and New Jersey were sufficient proof that the defendant’s crimes in those states were substantially similar to crimes in North Carolina). Providing the names of the crimes alone is not enough. State v. Cao, 175 N.C. App. 434 (2006) (holding that a computerized printout of defendant’s criminal history record from Texas, showing the names of offenses committed there but not their elements, was sufficient to prove existence of the convictions but insufficient evidence of substantial similarity to North Carolina crimes). The submitted information should pertain to the other jurisdiction’s law as it existed at the time of the defendant’s prior conviction there. State v. Morgan, 154 N.C. App. 298, 309 (2004) (trial court erred by basing its substantial similarity determination on the 2002 version of New Jersey’s homicide law when the defendant had been convicted in 1987; the State presented no evidence that New Jersey law was unchanged between 1987 and 2002).
Finally, the burden is on the proponent to present the requisite information. Substantial similarity is not something the judge should consider on his or her own initiative. State v. Davis, __ N.C. App. __, 738 S.E.2d 417 (2013).
Author’s note: This post has been updated since its initial publication. The original version overlooked G.S. 15A-1340.11(7), a statute that is clearly relevant to the discussion.
Do old (as in, pre-1997) impaired driving convictions count toward felony prior record level? My answer is that they probably do—at least back to 1983—but there is no clear guidance from the appellate courts.
When Structured Sentencing was first enacted in 1994, DWIs did not count toward felony prior record level. G.S. 15A-1340.14 (1994). Only Class 1 and, later (under S.L. 1995-507), Class A1 misdemeanors counted, and Chapter 20 offenses aside from misdemeanor death by vehicle were explicitly excluded.
In 1997, the General Assembly amended G.S. 15A-1340.14(b)(5) to say that prior impaired driving convictions under G.S. 20-138.1 would count for 1 point toward a person’s record. S.L. 1997-486. The effective date for the relevant part of that legislation said merely that it was “effective December 1, 1997”—with no indication about the convictions or sentences to which it applied. To avoid an ex post facto issue, however, it has always been assumed that the change would only apply to the sentencing of offenses committed on or after December 1, 1997. To apply it to earlier offenses would impermissibly increase punishment in a way that the defendant would not have been aware of at the time of his or her crime. A usage note to that effect has long been on the back of the prior record level worksheet (form AOC-CR-600).
But that limitation is for the offense date of the crime being sentenced. It does not relate to the date of the prior DWI convictions themselves. There is no constitutional problem with counting them; as of December 1, 1997, would-be felons who reviewed G.S. 15A-1340.14 would have been on notice that their prior DWIs would count for a point toward the sentencing of any subsequent offense.
Some have argued that the legislature’s failure to specify that older DWIs count means that they should not. There may be something to that as a matter of lenity. On the other hand, the statute itself refers to “prior” convictions, and prior record level determinations are inherently backward looking. Additionally, the definition of “prior conviction” in Structured Sentencing includes covered convictions “regardless of whether the crime was committed before or after the effective date” of the law. G.S. 15A-1340.11(7); see also State v. Rich, 130 N.C. App. 113 (1998) (noting in 1998 that the General Assembly placed no limitations upon the sentencing court’s consideration of prior convictions occurring more than 10 years before the conviction being sentenced).
With that authority in mind, it appears that pre-1997 DWIs probably count for a point in the sentencing of a crime committed on or after December 1, 1997. In State v. Armstrong, 729 S.E.2d 730 (2012) (unpublished), the court of appeals saw no problem with counting a 1987 DWI toward a series of recent drug crimes. But Armstrong is unpublished, and the issue in the case was the defendant’s stipulation to the prior conviction, not the propriety of counting the conviction itself. Thus, the case cannot be said to have resolved the matter definitively.
Even if pre-1997 DWIs do count toward a defendant’s record, there may be some argument that pre-1983 DWIs do not. Before 1983, DWI was set out in G.S. 20-138, not G.S. 20-138.1. The felony prior record level statute refers only to impaired driving under G.S. 20-138.1, and so arguably excludes older DWIs committed under the prior statute.
Who Proves Prior Record?
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.
Yesterday’s post was about the prior record point that applies when all the elements of the offense being sentenced are included in one of the defendant’s prior offenses. Today’s post is about the other sentencing bonus point, which applies when the offense being sentenced was committed while the defendant was on probation, parole, or post-release supervision; while he or she was serving a sentence of imprisonment; or while he or she was on escape from a correctional institution. G.S. 15A-1340.14(b)(7). I usually refer to the second point as the “under supervision” bonus point. Like the same elements point, the idea behind the under supervision point is straightforward. You committed another crime before you even finished your sentence in a prior case. We’re going to punish you a little more severely this time.
For the under supervision bonus point to apply, the defendant must have been under one of the types of supervision or confinement set out in the statute at the time of the offense being sentenced. Though the statute uses words common to the criminal and juvenile systems, it appears that only the criminal (that is, adult) versions can qualify a defendant for the additional point. For example, the court of appeals held in State v. Tucker that a defendant was not eligible for the point when being sentenced for a crime committed while he was in training school. 154 N.C. App. 653 (2002). The court concluded that training school was not a “sentence of imprisonment” within the language of G.S 15A-1340.14(b)(7). Id. at 659. And in light of the reasoning behind the court’s conclusion—the “fundamental legal difference” between the adult and juvenile systems—the same logic would probably extend to crimes committed by defendants on juvenile probation or juvenile post-release supervision.
A defendant is eligible for the additional point even if the offense for which he or she was on probation would not itself count for points. For instance, a defendant being sentenced for a crime committed while he was on probation for a Class 3 misdemeanor would receive the additional point, even though a Class 3 misdemeanor does not count for any points on its own. See State v. Leopard, 126 N.C. App. 82 (1997) (allowing the additional point for a defendant on probation for impaired driving, at a time before DWIs counted toward felony prior record level). A defendant being sentenced as a habitual felon qualifies for the point even if the offense for which the defendant was on probation at the time of the principal offense is also one of the three prior felonies used to habitualize him or her. State v. Bethea, 122 N.C. App. 623, 626–27 (1996).
Procedurally, the under supervision bonus point is more complicated than the same elements point. Unless the defendant waives it, the State must provide the defendant with written notice at least 30 days before trial or the entry of a plea that it intends to prove the existence of the under supervision point. G.S. 15A-1340.16(a6). (There is no statutory notice requirement for the same elements point.) The State is not required to allege its intent to establish the point in an indictment or other pleading. G.S. 15A-1340.16(a5). The facts supporting the under supervision point must be proved to a jury beyond a reasonable doubt, unless the defendant admits to them—just like an aggravating factor. See State v. Miles, __ N.C. App. __, 727 S.E.2d 375 (June 5, 2012) (holding that the trial court did not commit error under Blakely v. Washington by adding the additional point without submitting the question to the jury when the defendant admitted that he was imprisoned at the time of the present assault). The defendant may admit to the facts supporting the under supervision point—unlike the same elements points, which is a question of law that must be evaluated by the court.
Finally, the fact that a defendant was on probation at the time of the offense being sentenced may be used both to establish the under supervision bonus point and as a non-statutory aggravating factor under G.S. 15A-1340.16(d)(20). State v. Moore, 188 N.C. App. 416 (2008).
In addition to the regular sentencing points assigned to a defendant based on his or her prior convictions, there are two additional “bonus points” that apply in certain circumstances. One is for defendants being sentenced for crimes committed while they were probation, parole, or post-release supervision; serving a sentence of imprisonment; or on escape. G.S. 15A-1340.14(b)(7). The other applies when all the elements of the offense being sentenced are included in any prior offense for which the offender was convicted. G.S. 15A-1340.14(b)(6). Today’s post discusses some of the technicalities of the second point, which I refer to as the “same elements” bonus point.
The idea behind the same elements point is to elevate slightly the prior record level of a defendant being sentenced for a crime that he or she has also committed in the past. You’ve done this (or a greater offense that includes this) before. You know it’s wrong and we’re going to punish you a little more severely this time.
The full language of the bonus point statute says that the point applies “whether or not the prior offense or offenses were used in determining prior record level.” On the one hand, that means a single prior conviction can do double duty, counting for points itself and also qualifying the defendant for the bonus point if it includes the elements of the offense being sentenced. On the other hand, the bonus point also applies when the prior conviction in question does not otherwise factor into the defendant’s record level. That means a prior conviction can be used to establish the bonus point even when it is otherwise masked from the defendant’s prior record level because it was used to habitualize him, State v. Bethea, 122 N.C. App. 623 (1996), or because it was not the defendant’s most serious prior offense from a single week of superior court. So it’s a bit of a lose-lose from the defendant’s point of view.
If the offense now being sentenced is part of a consolidated judgment, the defendant qualifies for the bonus point only if the most serious conviction in that consolidated judgment is included within all the elements of a prior offense. State v. Mack, 188 N.C. App. 365 (2008); State v. Prush, 185 N.C. App. 472 (2007). That rule came into play in a case decided by the court of appeals last week, albeit with a habitual felon wrinkle. In State v. Gardner, the defendant’s present convictions for Class F assault with a deadly weapon on a government officer (AWDWOGO), Class H speeding to elude, and several other lesser convictions were consolidated for judgment under the AWDWOGO. The defendant was sentenced at Class C because she was a habitual felon. At sentencing, the court applied the same elements point based on the defendant’s prior conviction for felony speeding to elude. On appeal, the defendant argued that she should not qualify for the point because her present speeding to elude conviction was not the most serious offense in her consolidated judgment.
The court of appeals agreed. Under G.S. 15A-1340.15(b), a consolidated judgment contains a single sentence driven by the most serious offense. In this case the most serious offense was Class F AWDWOGO. The court rejected the State’s argument that either the AWDWOGO or speeding to elude charge could be considered the most serious offense because both were elevated to Class C by virtue of the defendant’s habitual felon status—notwithstanding some contrary language from a recent case. See State v. Skipper, __ N.C. App. __, 715 S.E.2d 271 (Aug. 16, 2011) (suggesting that all the felonies in a consolidated habitual felon judgment are categorized as Class C). The court concluded that the habitual felon law does not actually transform underlying offenses into Class C felonies. See State v. Vaughn, 130 N.C. App. 456 (1999) (holding that habitualized crimes count for prior record points according to their original offense class, not as Class C felonies). Rather, the Class F AWDWOGO remains the more serious of the two underlying felonies, which makes it the lead offense for consolidation purposes, which in turn makes it the proper offense against which to gauge the applicability of the same elements point. Because the defendant did not have any priors that included all the elements of AWDWOGO, the court of appeals remanded for resentencing.
Like the finding of “substantial similarity” that allows a prior conviction from another jurisdiction to count for points like the comparable North Carolina crime (discussed here), the same elements finding is a question of law that must be determined by the court. The defendant cannot validly stipulate to it. State v. Prush, 185 N.C. App. 472 (2007). Instead, it must be proved by comparing the elements of the present offense against those of the defendant’s prior convictions. The elements of the present offense must be included in a prior offense for the point to apply, but the present and prior offenses need not be factually identical. For instance, a defendant being sentenced for delivery of a Schedule II controlled substance (cocaine) qualifies for the point based on his prior conviction for delivery of a Schedule VI controlled substance (marijuana). State v. Williams, 200 N.C. App. 767 (2009). Likewise, a defendant being sentenced for attempted felony larceny qualifies based on his prior felony larceny conviction, even if the two offenses were elevated from misdemeanors to felonies on different bases under G.S. 14-72. State v. Ford, 195 N.C. App. 321 (2009).
Under G.S. 15A-1340.14(e), a defendant’s prior out-of-state convictions count by default as Class I felonies if the other jurisdiction classifies them as a felony, or as Class 3 misdemeanors if the other jurisdiction classifies them as a misdemeanor. The State or the defendant may, however, attempt to depart from those default classifications through a preponderance-of-the-evidence showing that the offense is “substantially similar” to a North Carolina offense with a different classification. For example, the State might try to show that a prior rape conviction from another State is substantially similar to first-degree rape in North Carolina, and should thus count as a Class B1 conviction (9 points) instead of the default Class I (2 points). Conversely, the defendant might attempt to show that a felony conviction from another state is similar to a misdemeanor in North Carolina. For defendants with significant out-of-state records, those substantial similarity determinations can have a big impact on prior record level.
A common sentencing error is a defendant’s improper stipulation to the substantial similarity of prior convictions from other jurisdictions. The court of appeals has held many times that substantial similarity is a question of law that may not be validly stipulated to by the defendant. See, e.g., State v. Hanton, 175 N.C. App. 250 (2006); State v. Palmateer, 179 N.C. App. 579 (2006); State v. Lee, 193 N.C. App. 748 (2008). Instead, the court must make a legal determination that the out-of-state conviction is indeed substantially similar to a North Carolina crime with a particular offense classification. There is a check-box near the bottom of the front page of the prior record level worksheet (AOC-CR-600) for the court to indicate that it has made the requisite finding. No findings are required if the parties are content to count the out-of-state crimes at the default levels described in the first paragraph above. A defendant may stipulate to the existence of the prior conviction and even to its classification in the other jurisdiction as a felony or misdemeanor, State v. Bohler, 198 N.C. App. 631 (2009), but not to substantial similarity. I discussed the issue in this prior post.
How should the court go about making its legal determination of substantial similarity? The General Statutes do not say, but cases from the appellate courts offer pretty clear guidance: the court should review copies of the out-of-state criminal law and compare the elements of the out-of-state offense to those of the purportedly similar North Carolina offense. State v. Hanton, 175 N.C. App. 250 (2006); see also State v. Rich, 130 N.C. App. 113 (1998) (holding that photocopies of statutes from New York and New Jersey were sufficient proof that the defendant’s crimes in those states were substantially similar to crimes in North Carolina); State v. Hadden, 175 N.C. App. 492 (2006) (photocopies of statutes from New York and Illinois, along with testimony by a detective, sufficient to prove substantial similarity). Cf. State v. Burgess, __ N.C. App. __ (Sept. 20, 2011) (remanding for resentencing when the defendant’s South Carolina crimes were identified only by “brief and non-specific descriptions” and the State failed to show that the 2008 copies of the law were unchanged from the 1993 and 1994 versions under which the defendant had been convicted); State v. Cao, 175 N.C. App. 434 (2006) (computerized printout of defendant’s criminal history record from Texas, showing only the names of offenses committed there, sufficient to prove existence of the convictions but insufficient evidence of substantial similarity to North Carolina crimes); State v. Morgan, 164 N.C. App. 298 (2004) (remanding for resentencing when the State presented a copy of the 2002 New Jersey homicide statute but offered no evidence that the statute was unchanged from the 1987 version of the law under which the defendant was convicted).
Even with copies of another state’s laws in hand the comparison will not always be easy. In State v. Rollins, __ N.C. App. __ (July 17, 2012), the trial court found that the defendant’s Florida burglary conviction was substantially similar to a Class G second-degree burglary in North Carolina and should thus count for 4 points instead of the default 2 points for a Class I. The court of appeals disagreed, holding that the Florida crime was not sufficiently similar to the crime we call “burglary” here. Unlike North Carolina burglary, the Florida crime need not occur at night and does not require both a breaking and an entering. The appellate court concluded that the Florida crime is, at most, substantially similar to North Carolina’s Class H felonious breaking or entering and should thus count for no more than 2 prior record points. If an out-of-state crime has elements that are substantially similar to multiple North Carolina offenses, the rule of lenity requires that the court assign record points corresponding to the less serious North Carolina offense. Hanton, 175 N.C. App. at 259 (holding that New York second-degree assault was more similar to North Carolina simple assault than to assault inflicting serious injury).
With these cases in mind, the party arguing for substantial similarity should be prepared to offer a copy of the relevant out-of-state law and, to be safe, probably also any lesser offenses that might be even more similar. Stipulations obviously should be avoided. The court should review those statutes and announce its determination accordingly.
Wouldn’t it be nice if every state had a resource substantially similar to North Carolina Crimes?