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
Tag Archives: stipulations
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 →
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 →
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 →
“Stipulating” to Habitual Felon Status
This post discusses what may be the single most common error in habitual felon proceedings: having a defendant stipulate, rather than plead guilty, to being a habitual felon.
Must plead guilty, not just stipulate. “Being an habitual felon is not a crime but is a status.” State v. Allen, 292 N.C. 431 (1977). Yet a defendant who wishes to admit being a habitual felon must plead guilty, not merely “stipulate to his . . . status” or to his previous convictions. State v. Gilmore, 142 N.C. App. 465 (2001). The court in Gilmore reasoned that, by statute, “the proceedings [on a habitual felon allegation] shall be as if the issue . . . were a principal charge.” G.S. 14-7.5. Thus, an admission by the defendant must include a full plea colloquy under G.S. 15A-1022. See also State v. Edwards, 150 N.C. App. 544 (2002) (following Gilmore notwithstanding the state’s argument, citing Allen, that “that the charge of habitual felon is not an independent crime subject to the requirements of Chapter 15A”).
Frequent reversals. Habitual felon convictions are regularly reversed because a defendant merely stipulated to being a habitual felon. I suspect that this is the most common error in habitual felon proceedings. A few minutes on Westlaw disclosed the following cases on point, including one just last week, and I’m sure that there are others that I missed:
- State v. Wilkins, __ N.C. App. __, __ S.E.2d __, 2013 WL 427194 (N.C. Ct. App. Feb. 5, 2013)
- State v. Wilson, 2013 WL 151128 (N.C. Ct. App. Jan. 15, 2013) (unpublished)
- State v. Smith, 2012 WL 4878878 (N.C. Ct. App. Oct. 16, 2012) (unpublished)
- State v. Snipes, 2011 WL 378798 (N.C. Ct. App. Feb. 1, 2011) (unpublished)
- State v. Gaddy, 2010 WL 522704 (N.C. Ct. App. Feb. 16, 2010 (unpublished) (no factual basis)
- State v. Walker, 2009 WL 2929521 (N.C. Ct. App. Sept. 15, 2009 (unpublished)
- State v. Stone, 2008 WL 4635434 (N.C. Ct. App. Oct. 21, 2008) (unpublished)
- State v. Ford, 2006 WL 1825021 (N.C. Ct. App. July 5, 2006) (unpublished)
- State v. Cloninger, 2006 WL 1320037 (N.C. Ct. App. May 17, 2006 (unpublished)
- State v. Artis, 174 N.C. App. 668 (2005) (in this case, the defendant didn’t even offer a stipulation; when asked about the habitual felon charge, he simply stated, “what I say doesn’t matter in this courthouse”)
- State v. George, 2005 WL 1431675 (N.C. Ct. App. June 21, 2005) (unpublished)
- State v. Ponds, 2005 WL 89102 (N.C. Ct. App. Jan. 18, 2005) (unpublished)
- State v. Delk, 2004 WL 2340224 (N.C. Ct. App. Oct. 29, 2004) (unpublished)
- State v. Giles, 2004 WL 292000 (N.C. Ct. App. Feb. 17, 2004) (unpublished)
- State v. Strickland, 2003 WL 21791625 (N.C. Ct. App. Aug. 5, 2003) (unpublished)
- State v. Ballard, 2003 WL 21497485 (N.C. Ct. App. July 1, 2003) (unpublished)
- State v. Smith, 2002 WL 31461485 (N.C. Ct. App. Nov. 11, 2002) (unpublished)
- State v. Edwards, 150 N.C. App. 544 (2002)
- State v. Gilmore, 142 N.C. App. 465 (2001)
Remedy. When the court of appeals finds that a habitual felon conviction must be reversed because of a lack of a guilty plea, it most often says something along the lines of what it said in Edwards, where it “reverse[d] [the] defendant’s conviction of being an habitual felon and remand[ed] for a new habitual felon hearing.” But the court occasionally says something similar to what it said in Wilkins, where it simply stated that the defendant’s habitual felon conviction was “vacated,” with no mention of a remand. See also Stone, supra (stating that the defendant’s habitual felon “conviction in this respect is reversed and the underlying conviction is remanded for resentencing”).
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”).
Defendants often stipulate to prior convictions for the purpose of establishing their prior record level. Form AOC-CR-600, the prior record level/prior conviction level worksheet, includes a section (Section III, at the top of Side Two) to note that that stipulation. The court of appeals said in State v. Hussey, __ N.C. App. __ (2008), that a signed stipulation in Section III is adequate to satisfy the State’s burden of proving a defendant’s prior record level, distinguishing prior cases (State v. Jeffery, 167 N.C. App. 575 (2004), for example) decided at a time when the form did not include Section III.
The frequency and ease of stipulations gives rise to two potential traps for the unwary.
The first involves prior record points for out-of-state convictions. Under G.S. 15A-1340.14(e), felony convictions from other jurisdictions are, by default, considered Class I felonies for prior record level purposes. Misdemeanors from other states are considered as Class 3 misdemeanors, and thus do not count at all for felony sentencing purposes. The State or the defendant may, however, attempt to depart from these 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 defendant’s prior armed robbery conviction from another jurisdiction is substantially similar to our G.S. 14-87, and thus that it should count as a Class D prior conviction (6 points) instead of a Class I (2 points).
Even if the State and a defendant agree that the defendant’s out-of-state crimes should count like their North Carolina analogues — and even if the defendant will so stipulate — the court must still make a finding as to the crimes’ substantial similarity to the relevant North Carolina offenses. Substantial similarity is a question of law, not fact, and questions of law generally may not be stipulated to by the parties. State v. Prevette, 39 N.C. App. 470 (1979) (citing Young v. United States, 315 U.S. 257 (1942), for the rule that the “due administration of the criminal law cannot be left to the stipulation of the parties”). The court of appeals has reversed many cases on this point over the past few years. See e.g., State v. Hanton, 175 N.C. App. 250 (2006); State v. Palmateer, 179 N.C. App. 579 (2006); State v. Lee, __ N.C. App. __ (2008). To avoid reversal, the court must make a finding of substantial similarity and check the box near the bottom of Section II on the front of the form saying “For each out-of-state conviction listed in Section IV on the reverse, the Court finds by a preponderance of the evidence that the offense is substantially similar to a North Carolina offense and that the North Carolina classification assigned to this offense in Section IV is correct.”
Under another recent case, State v. Bohler, __ N.C. App. __ (2009), a trial court may accept a defendant’s stipulation that a particular offense is either a felony or a misdemeanor under the law of another jurisdiction, so long as that conviction will count for points under the default provisions of G.S. 15A-1340.14(e). That generally makes sense, but it seems like it could be an oversimplification when the other state has an atypical felony-misdemeanor classification scheme. In New Jersey, for example, misdemeanors are classified into four degrees, three of which are considered “high misdemeanors” that are treated as felonies for some purposes. Thus, when Garden State convictions are involved, the basic question of whether a crime is a felony or misdemeanor may itself involve a question of law.
The second trap involves the additional prior record level point available under G.S. 15A-1340.14(b)(6) when all elements of the present offense are included in any prior offense for which the offender was convicted. In State v. Prush, 185 N.C. App. 472 (2007), the court of appeals held that the comparison of the elements of two North Carolina offenses is a matter of law, rendering the defendant’s stipulation to the prior record bonus point invalid and ineffective. For cases involving offenses committed before December 1, 2009, the prior record level worksheet does not include a box for the court to check that it has made a finding regarding this point; I recommend that judges make a written note of their finding on the form. The new new worksheet for offenses committed on or after that date includes a check-box for the finding, right above the existing box in Section II for findings on substantial similarity of out-of-state convictions.
So, if stipulations are invalid, what’s the proper way to prove substantial similarity or that all elements are included in a prior offense? In State v. Hadden, 175 N.C. App. 492 (2006), the court of appeals upheld a trial judge’s substantial-similarity finding for out-of-state convictions when the State introduced a record of the defendant’s convictions and copies of the relevant New York and Illinois criminal statutes.