201.1Alleging and Proving Prior Convictions at Trial

Note: This entry discusses when and how prior convictions must be alleged and pleaded. For templates with recommended language to use when charging specific criminal offenses, please see the related entry on Arrest Warrant and Indictment Forms.

Overview

Over the years, the North Carolina legislature has enacted a number of statutes regarding a defendant’s prior convictions and how those convictions impact either the offenses that may be charged or the punishment that may be imposed. These statutes are wide-ranging in scope and applicability, and must be consulted individually for their specific requirements, but in general they fall into one of four categories:

1. Increased Offense Level or Punishment
   Making a prior conviction an element which increases the offense level or punishment for another underlying offense (for example, habitual misdemeanor assault, habitual impaired driving, habitual larceny, or stalking when the defendant has a prior stalking conviction);
2. Status
   Creating a “status” (for example, the status of being an habitual felon, a violent habitual felon, an armed habitual felon, or a habitual breaking and entering status offender) that is proven at a subsequent hearing after the conviction of an underlying offense and that increases the punishment for the underlying offense;
3. Element of the Offense
   Making a prior conviction an element of the offense itself (for example, possession of firearm by convicted felon); or
4. Sentencing and Criminal History
   Counting a prior conviction as points to establish a prior record level (for felonies) or a prior conviction record (for misdemeanors) for sentencing purposes.

G.S. 15A-924(d) provides that in alleging (and proving) a prior conviction – a process that is necessary in the first three situations described above – it is generally sufficient to state that the defendant was at a certain time and place convicted of the previous offense, without otherwise fully alleging all the elements. For example, “The defendant was previously convicted of impaired driving on December 1, 2015, in Orange County District Court.” However, G.S. 15A-928, discussed in the next section, and other statutes such as G.S. 14-7.3 (habitual felon) and G.S. 14-7.10 (violent habitual felon), may require more specificity.

Increased Offense Level or Punishment

For certain crimes, when a defendant has been previously convicted of that criminal offense and is subsequently charged with committing the same or similar offense again, the prior conviction(s) may subject the defendant to a higher grade of punishment. In such a case, special rules apply to the allegation and pleading of the prior conviction(s) in superior court for felonies – and, as discussed further below, for misdemeanors on trial de novo. See G.S. 15A-928. The purpose of this statutory scheme is not to ensure that the “that the procedures referred to therein be accomplished at a certain time and no other, which would be pointless,” but rather to “insure that defendants are informed of the prior convictions they are charged with and are given a fair opportunity to either admit or deny them before the State's evidence is concluded; because, as the statute makes plain, if the convictions are denied, the State can then present proof of that element of the offense to the jury, but cannot do so if the prior convictions are admitted.” State v. Stephens, 188 N.C. App. 286 (2008); quoting State v. Ford, 71 N.C. App. 452 (1984). Note that for felonies, these allegation requirements do not apply to an arrest warrant – they only apply to an indictment or information.

First, the charge in the indictment or information for the higher offense should not allege or make reference to the prior conviction(s) – this applies even if name of the charge itself contains a term (such as “habitual”) which indicates a prior conviction. Instead, an “improvised name or title” which does not indicate the existence of a prior conviction should be used for the substantive count. See G.S. 15A-928(a). For example, instead of charging “Habitual Misdemeanor Assault,” the charge could be captioned as “Assault Pursuant to G.S. 14-33.2” or something similar. Additionally, the indictment for the primary charge should be “accompanied” by a special indictment or information, filed along with the principal pleading, which alleges the prior conviction(s). See G.S. 15A-928(b). Alternatively, at the prosecutor’s option, this can be done as a separate count within the same indictment. See G.S. 15A-928(b).

When a misdemeanor is tried de novo in superior court, the state must replace the original pleadings with superseding statements of charges which separately allege the substantive offense and any prior convictions, and then proceed at trial as described above. See G.S. 15A-928(d); State v. Smith, 291 N.C. 438 (1976).

Examples of offenses to which G.S. 15A-928 applies include: 

1. Habitual impaired driving, G.S. 20-138.5.
2. Habitual misdemeanor assault, G.S. 14-33.2.
3. Habitual misdemeanor larceny, G.S. 14-72(b)(6).
4. Prior convictions that increase the punishments for certain misdemeanors such as worthless checks, G.S. 14-107; shoplifting, G.S. 14-72.1; stalking, G.S. 14-277.3A; and failure to support spouse or children, G.S. 14-322. [G.S. 15A-928 applies to the prosecutions of these offenses in superior court only.]
5. Punishment for a drug offense under G.S. 90-95(a) that may be increased as provided in G.S. 90-95(e)(3), G.S. 90-95(e)(4), or G.S. 90-95(e)(7) by proof of a prior conviction of any drug offense.
6. When there is a prior conviction of breaking and entering a coin operated machine, G.S. 14-56.1, or a paper currency operated machine, G.S. 14-56.3, punishment for a subsequent charge of such offense is raised from a misdemeanor to a felony. State v. Ford, 71 N.C. App. 452 (1984). 

Failure to the comply with the statutory requirements of G.S. 15A-928 was formerly held to be a fatal jurisdictional defect, but several recent cases have reversed that holding and determined that it is not a fatal jurisdictional defect, so if the defendant fails to raise the issue at trial it may not be argued for the first time on appeal. See State v. Brice, 370 N.C. 244 (2017); State v. Simmons, 258 N.C. App. 141 (2018); State v. Norman, 258 N.C. App. 565 (2018) (unpublished).

Habitual Status of Defendant 

When a defendant is alleged to be an habitual felon, a violent habitual felon, an armed habitual felon, or a habitual breaking and entering status offender, that allegation is not subject to the provisions of G.S. 15A-928 because it represents a “status” applicable to the defendant at the time of the underlying offense, as opposed to being a principal charge. See State v. Allen, 292 N.C. 431 (1977). These “status” provisions each have their own particular indictment requirements, which are laid out in the applicable statutes. See generally G.S. 14-7.1-7.6 (habitual felon); G.S. 14-7.7-7.12 (violent habitual felon); G.S. 14-7.35-7.41 (armed habitual felon); and G.S. 14-7.25-7.31 (habitual breaking and entering).

The decision whether or not to charge a particular defendant with a status is left in the discretion of the district attorney. See G.S. 14-7.3; G.S. 14-7.28, G.S. 14-7.38. As a general rule, if the state does elect to pursue an habitual status, the status must be alleged separately from the underlying or principal criminal offense, and it must set forth (i) the date the prior felonies were committed; (ii) the name of the state or other sovereign against whom the felonies were committed; (iii) the dates the guilty pleas were entered or convictions returned on those felonies; and (iv) the identity of the court where the pleas or convictions took place.

The key distinctions between these four status categories are: (i) the number and type of qualifying prior convictions which support the status, (ii) the underlying charges which can give effect to the status, and (iii) the impact the status has on sentencing. These factors are briefly summarized below:

1. Habitual felon: (i) requires three prior convictions for any felony; (ii) applies to any underlying felony charge; (iii) results in defendant being sentenced four classes higher than the offense would otherwise be (but no higher than Class C).
2. Violent habitual felon: (i) requires two prior felony convictions for a Class A-E felony; (ii) applies only to an underlying charge of another Class A-E felony; (iii) results in defendant being sentenced to life in prison.
3. Armed habitual felon: (i) requires one or more prior “firearm-related felony” convictions; (ii) applies only to an underlying firearm-related felony charge; (iii) results in punishment as a Class C felony with a mandatory minimum sentence of 120 months.
4. Habitual breaking and entering: (i) requires one or more prior breaking and entering felony convictions; (ii) applies to an underlying felony breaking and entering charge; (iii) results in punishment as a Class E felony.

Element of the Offense

G.S. 15A-928 is inapplicable when a prior conviction is an essential element of the offense itself (e.g., possession of a firearm by a convicted felon) rather than a mechanism for increasing the level of punishment of another offense. See G.S. 14-415.1; State v. Jeffers, 48 N.C. App. 663 (1980). The felon in possession statute contains its own specific pleading requirements (similar, but not identical to, the requirements in G.S. 15A-928), which dictate that the indictment charging a defendant with possession of a firearm by a convicted felon must be separate from any indictment charging him with “other offenses related to or giving rise to a charge under this section,” and must also set forth the date of the prior offense, type of offense and penalty, date of guilty plea or conviction, identity of the court which took the plea or entered conviction, and the verdict and judgment rendered. See G.S. 14-415.1(c). Failure to allege the felon in possesion charge in a separate indictment from any related offenses was formerly deemed a fatal defect that deprived the court of jurisdiction, see State v. Wilkins, 225 N.C. App. 492 (2013), but the state Supreme Court has reversed that determination and held that the statutory "requirement is not jurisdictional, and failure to comply with the requirement does not render the indictment fatally defective." State v. Newborn, 384 N.C. 656 (2023). Records of the prior conviction are admissible in evidence for the purpose of proving the violation. G.S. 14-415.1(b).

Sentencing Considerations for Status Offenses 

Obviously one of the main ways the state uses a defendant’s prior convictions at sentencing is by preparing and submitting a sentencing worksheet to determine the defendant’s record level. See AOC-CR-600. But in cases where a prior conviction is used to establish a sentencing status for the defendant, there are some additional sentencing considerations to keep in mind. (See also the related entry on Alleging and Proving Prior Convictions – Punishment and Sentencing) 

1. Habitual Felon
   
   1. The habitual felon statutes were substantially revised as part of the Justice Reinvestment Act. As a result, if the substantive offense was committed before December 1, 2011, then upon conviction the defendant will be sentenced for a Class C felony (unless the offense itself is already a Class A, B1, or B2 offense). But if the offense was committed after that date, the offense will be punished as an offense four levels higher than it would otherwise be, but not to exceed Class C (again – unless the offense itself is already a Class A, B1, or B2 offense).
   2. Felonies alleged in support of the habitual felon status charge may not also be used as prior convictions for calculating defendant’s record level. See G.S. 14-7.6. However, the state can score any other felony convictions which were entered at the same time as the felony being used for status purposes, even if the multiple offenses were consolidated together for sentencing. See State v. Truesdale, 123 N.C. App. 639 (1996).
   3. Any habitual felon sentence imposed must run consecutively to any other sentence the defendant is already serving, but the defendant may still be ordered to serve the sentence concurrently with any other sentences imposed at the same time, including another habitual felon sentence. See State v. Watkins, 189 N.C. App. 784 (2008); State v. Haymond, 203 N.C. App. 151 (2010).
2. Violent Habitual Felon

Defendant must be sentenced to life in prison, to run consecutively to any other sentence already being served. See G.S. 14-7.12.

3. Armed Habitual Felon
   Defendant must be sentenced for a Class C felony (unless the offense itself is already a Class A, B1, or B2 offense), with a mandatory minimum term of 120 months. See G.S. 14-7.41(a). ). Any conviction used to establish defendant’s status may not also be used in calculating defendant’s prior record level. G.S. 14-7.41(b).
4. Habitual Breaking and Entering
   Defendant must be sentenced for a Class E felony, to run consecutively to any other sentence already being served. See G.S. 14-7.31(a). Any conviction used to establish defendant’s status may not also be used in calculating defendant’s prior record level. See G.S. 14-7.31(b).

Sentencing Considerations for Elevated Offenses/Punishments

For cases where a prior conviction is used to elevate the punishment level of an offense, be aware that the charging statute itself may contain additional sentencing requirements or limitations particular to that charge. For example, on a charge of Habitual Misdemeanor Assault under G.S. 14-33.2, the statute specifies that a conviction for this offense is punished as a Class H felony, rather than a Class 2 misdemeanor, and also dictates that it may not be used as a prior conviction for any other habitual offense statute. Similarly, G.S. 15A-1340.16B specifies that a defendant must receive life imprisonment without parole upon receiving a second or subsequent conviction of Class B1 felony if the victim is 13 years of age or younger, and there were no mitigating factors.

Convictions from Another Jurisdiction

In some cases the state may wish to use a conviction from another jurisdiction as a qualifying prior convictions for proving a defendant’s status or as an element to increase the offense/punishment level of a charge. As a general rule, the relevant statutes allow for the use of such a conviction. For example, the habitual felon statute applies to any defendant who has been convicted of or pled guilty to three felonies “in any federal court or state court in the United States or combination thereof.” G.S. 14-7.1.

Historically, this meant that North Carolina courts accepted the other jurisdictions’ classification of the offense in deciding whether it was a “felony” offense or not. Effective December 1, 2017, this has been revised to more explicitly state that a “qualifying felony” means any conviction that is: (i) a felony in North Carolina; (ii) a felony under federal law; (iii) an offense from another state that is ‘substantially similar’ to a felony offense in North Carolina; or (iv) in states that don’t use the term “felony,” an offense that is ‘substantially similar’ to a North Carolina felony and punishable by more than one year imprisonment. See G.S. 14-7.1(b).