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: structured sentencing
The governor has proclaimed today, October 1, 2019, as Structured Sentencing Day. It has been 25 years since North Carolina’s primary sentencing law for felonies and misdemeanors came into effect. Let’s take a moment to reflect on a quarter-century of grid-based sentencing. 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 →
It’s a chilly, blustery day in Chapel Hill, but I see signs of spring. The days are getting a little longer. College basketball season kicks into high gear tonight. And there are only four days until pitchers and catchers report. But one of my favorite signs that we’ve completed another trip around the sun and are starting to tilt toward it has also arrived: the North Carolina Sentencing and Policy Advisory Commission has issued its annual Statistical Report for Felonies and Misdemeanors. Continue reading →
Much has been written—and much of it by the Supreme Court—on the proper way to find aggravating factors for sentencing. After Apprendi v. New Jersey, Blakely v. Washington, and countless cases at the state level, it is of course clear that a defendant has a Sixth Amendment right to have aggravating factors proved to a jury beyond a reasonable doubt. Once sentencing factors are properly found, however, responsibility shifts back to the judge to decide what to do about them. The rules for weighing factors are as loosey-goosey as the rules for finding them are rigid. Continue reading →