201.3Alleging and Proving Prior Convictions at Trial
Key Concepts
- A defendant with qualifying prior convictions who commits a new qualifying felony offense may be sentenced as an habitual felon, violent habitual felon, armed habitual felon, or habitual breaking and entering status offender.
- A defendant who is sentenced for attaining habitual status may be sentenced at a higher offense class, or face a mandatory/consecutive sentence, or both.
- A number of other habitual offenses prescribe sentencing of an offense at a higher offense class than would otherwise apply, if the defendant has been convicted of the same (or similar) crime in the past.
The pleading requirements, elements, method of proof, and basic court procedures for habitual and status offenses were previously addressed in the entries on “Alleging and Proving Prior Convictions – Pleadings and Types” and“Alleging and Proving Prior Convictions – Court Procedure and Proof.” Those entries will not be fully repeated here, but the key sentencing provisions applicable to each are expanded upon below for reference.
Habitual Felon
Offense Class (Was the offense before or after December 1, 2011?)
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 (unless the offense itself is already a Class A, B1, or B2 offense). Once the defendant pleads guilty, or is found guilty by the jury, the court enters judgment on the underlying felony indictment in accordance with the habitual sentencing statutes – the court does not enter a judgment on the habitual indictment itself. If the jury finds the defendant not guilty of the habitual status, then the court just enters judgment on the underlying felony as it would in any other case.
Underlying Convictions and Prior Record Level
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. If the state alleges five priors in the habitual indictment, then all five convictions are already "spoken for" and can’t be scored for record level purposes. See State v. Lee, 150 N.C. App. 701 (2002) (but if judge had only instructed on 3 of them, then only those 3 would be excluded).
However, the state can still use any of the prior convictions alleged in the indictment to support the extra prior record level points for committing the same offense and/or being on supervision at the time of the current offense. See State v. Bethea, 122 N.C. App. 623 (1996). Additionally, 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).
The state is allowed to “pick and choose” which prior convictions to use for the indictment and which to hold back and score for sentencing – this is not a due process violation. See State v. Cates, 154 N.C. App. 737 (2002).
Check the sentence
Before proceeding with any status charge such as habitual felon, the prosecutor should carefully consider: (i) the offense class of the underlying charges; (ii) any special sentencing provisions applicable to those charges; and (iii) the likely effect on the defendant’s prior record level at sentencing after one or more convictions are excluded because they were used to establish defendant’s status. In rare cases, the defendant could end up receiving a shorter sentence as a result of a status enhancement.
For example, a defendant charged with Class D armed robbery and a Level V prior record might actually face less time as a Class C habitual felon but only a Level III prior record, after the three qualifying felony convictions are excluded from his prior record calculation. Similarly, a defendant who might otherwise be facing a lengthy mandatory minimum drug trafficking sentence under G.S. 90-95(h) could end up facing less time if sentenced as a typical Class C habitual felon. See State v. Eaton, 210 N.C. App. 142 (2011) (suggesting habitual felon sentencing provisions may be “more mandatory” than the otherwise applicable mandatory drug trafficking laws).
Consecutive Sentence
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).
Violent Habitual Felon
Conviction as a violent habitual felon requires two prior felony convictions for a Class A-E felony. Note that this status only applies to an underlying charge which is also a Class A-E felony. If convicted as a violent habitual felon, the defendant must be sentenced to life in prison, which runs consecutively to any other sentence already being served. See G.S. 14-7.12.
Armed Habitual Felon
Conviction as an armed habitual felon requires one or more prior “firearm-related felony” convictions, and applies only to an underlying firearm-related felony charge. If convicted as an armed habitual felon, the 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 which runs consecutively to any other sentence already being served. See G.S. 14-7.41(a). Any conviction used to establish defendant’s status may not be used in determining defendant’s prior record level. G.S. 14-7.41(b).
It’s complicated…
The armed habitual felon statutes raise several interesting questions about eligible offenses, qualifying deadly weapons, and trial procedure. For a discussion about these issues, please see Jeff Welty, “Armed Habitual Felon,” N.C. Criminal Law Blog, February 25, 2014.
Habitual Breaking and Entering
Conviction for habitual breaking and entering requires one or more prior breaking and entering felony convictions, and applies to an underlying felony breaking and entering charge. See G.S. 14-7.31(a). This includes other comparable offenses such as first and second degree burglary, breaking out of a dwelling, and breaking into a place of worship. See G.S. 14-7.25(a). If convicted of habitual breaking and entering, the 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).
Other Elevated Offenses/Punishments
For other cases where a prior conviction is used to elevate the punishment level of the offense (habitual DWI, habitual misdemeanor assault, etc.), 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, but it also dictates that the habitual assault conviction 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. See G.S. 15A-1340.16B. Always consult the charging statute for the particular offense for any other significant sentencing considerations.
Sentencing provisions for some of the most common habitual and elevated offenses are summarized below:
- Habitual Impaired Driving
Offense is committed if defendant drives while impaired and has previously been convicted of DWI three or more times within the past 10 years. If convicted, defendant is punished for a Class F felony. See G.S. 20-138.5.
- Habitual Misdemeanor Assault
Offense is committed if defendant commits an assault and has previously been convicted of misdemeanor or felony assault twice within the past 15 years. If convicted, defendant is punished for a Class H felony. See G.S. 14-33.2.
- Habitual Misdemeanor Larceny
Offense is committed if defendant commits a larceny and has previously been convicted of misdemeanor or felony larceny at least four times. If convicted, defendant is punished for a Class H felony. See G.S. 14-72(b)(6).
- Drug Offenses
Punishment for a drug offense under G.S. 90-95(a) may be increased as provided in G.S. 90-95(e)(3), 90-95(e)(4), or 90-95(e)(7) by proof of a prior conviction of any drug offense.
- Vending Machines
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. See State v. Ford, 71 N.C. App. 452 (1984).
- Repeat DVPO Violations
If a defendant violates a valid domestic violence protective order under G.S. 50B-4.1(a), after having previously been convicted of two prior offenses under Chapter 50B, the offense is punished as a Class H felony. See G.S. 50B-4.1(f).
- Other Misdemeanors
Prior convictions can also 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, but G.S. 15A-928 only applies to the prosecutions of these offenses in superior court.
