NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION REPORT #2 ON PROPOSED LEGISLATION PURSUANT TO G.S

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1 NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION REPORT #2 ON PROPOSED LEGISLATION PURSUANT TO G.S SUBMITTED TO THE 2005 SESSION OF THE NORTH CAROLINA GENERAL ASSEMBLY MAY 2005 THE HONORABLE W. ERWIN SPAINHOUR CHAIRMAN SUSAN KATZENELSON EXECUTIVE DIRECTOR

2 NC SENTENCING AND POLICY ADVISORY COMMISSION MEMBERSHIP Hon. W. Erwin Spainhour, Chairman Superior Court Judge Talmage Baggett NC Association of County Commissioners Locke T. Clifford NC Bar Association William A. Dudley NC Dept. of Crime Control & Public Safety Designee Dr. Bertus R. Ferreira Professor, East Carolina University Melita Groomes NC Post-Release Supervision & Parole Commission Designee Hon. R. Phillip Haire State Representative Donn Hargrove NC Department of Juvenile Justice and Delinquency Prevention William P. Hart NC Attorney General s Designee Mary Y. Larry Hines Private Citizen, Governor s Appointee Hon. Carolyn K. Justus State Representative Hon. John Kerr State Senator Judge H. Paul McCoy, Jr. NC District Court Judges Association Judge Douglas J. McCullough NC Court of Appeals Designee Moe McKnight NC Retail Merchants Association Luther T. Moore Lieutenant Governor s Appointee Hon. Ronald L. Moore NC Conference of District Attorneys Judge Fred G. Morrison, Jr. Justice Fellowship Sheriff Sam Page NC Sheriffs Association Chief Frank Palombo NC Association of Chiefs of Police Judge Ronald K. Payne NC Conference of Superior Court Judges Sandy C. Pearce NC Department of Correction Designee Cathy B. Purvis NC Victim Assistance Network June Ray NC Association of Clerks of Superior Court Lao E. Rubert NC Community Sentencing Association Billy J. Sanders Commission Chairman s Appointee Hon. Scott Thomas State Senator Lyle J. Yurko NC Academy of Trial Lawyers Vacant State Representative Vacant State Senator

3 NC SENTENCING AND POLICY ADVISORY COMMISSION STAFF MEMBERS ===================================================================== Susan Katzenelson Executive Director John Madler Associate Director for Policy, Staff Attorney Ginny Hevener Associate Director for Research Deborah Dawes Senior Research & Policy Associate Rebecca Ebron Senior Research & Policy Associate Karen Jones Senior Research & Policy Associate Troy Page Research & Policy Associate Tamara Flinchum Research & Policy Associate Deborah Andrews Administrative Assistant P.O. Box 2472 Raleigh, NC (919)

4 NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION REPORT ON PROPOSED LEGISLATION PURSUANT TO G.S This report by the Sentencing Commission includes all bills introduced or amended through May 3, The report is submitted in conformance with the following requirements of G.S : (e) Upon adoption of a system for the classification of offenses formulated pursuant to G.S , the Commission or its successor shall review all proposed legislation which creates a new criminal offense, changes the classification of an offense, or changes the range of punishment for a particular classification, and shall make recommendations to the General Assembly. (f) In the case of a new criminal offense, the Commission or its successor shall determine whether the proposal places the offense in the correct classification, based upon the considerations and principles set out in G.S If the proposal does not assign the offense to a classification, it shall be the duty of the Commission or its successor to recommend the proper classification placement. (g) In the case of proposed changes in the classification of an offense or changes in the range of punishment for a classification, the Commission or its successor shall determine whether such a proposed change is consistent with the considerations and principles set out in G.S , and shall report its findings to the General Assembly. (h) The Commission or its successor shall meet within 10 days after the last day for filing general bills in the General Assembly for the purpose of reviewing bills as described in subsections (e), (f) and (g). The Commission or its successor shall include in its report on a bill an analysis based on an application of the correctional population simulation model to the provisions of the bill. A one page summary is included for each bill (or each relevant section of a bill) which either creates a new crime, changes the classification of an existing crime, or prescribes a new range of punishments. The summary provides the bill number, the short title, and a brief description. At the bottom of the summary is an analysis and a finding of whether the bill appears consistent with the Commission s classification criteria as specified in G.S (see following page for a description of the criteria). Following the summary is an analysis of the projected impact of the bill (a more detailed impact analysis is provided to the Fiscal Research Division). The impact estimates assume an effective date of December 1, These summaries may not reflect the most recent bill amendments or committee substitutes. The date on which each individual summary was prepared is shown on the bottom left hand corner of each summary page. Changes made after this date are not reflected in this report. The bills included in this report were reviewed by the Legislative Review Subcommittee on May 6, The findings are tentative subject to a final review by the full Sentencing Commission on June 10, 2005.

5 The fact that the Commission found a bill to be either consistent or inconsistent with the structured sentencing offense classification criteria does not imply either support for or opposition to the bill. In this report, the Commission has taken no position on the merits of any bill other than those specifically proposed by the Commission. THE OFFENSE CLASSIFICATION CRITERIA The Sentencing Commission was required by G.S to "... classify criminal offenses into felony and misdemeanor categories on the basis of their severity." The Commission developed a classification criteria to guide the classification process and to ensure that there was a systematic and rational basis for the classifications. The Commission decided that the severity of an offense should be directly related to the harm to the victim that normally results or tends to result from the criminal conduct. The Commission defined three general types of harms: 1) harms to person (including both physical and mental injury); 2) harms to property; and 3) harms to society (violations of public order and welfare, violations of judicial or governmental operations, and/or violations of public morality). Through considerable discussion and debate, the Commission grouped these harms into a ten-level hierarchy which served as the basis for the Commission's classifications (refer to the classification criteria on the following page). Once the classification criteria was established, the Commission reviewed the individual elements of all felonies in North Carolina and assigned each felony to a specific offense class based on how closely the elements of the crime matched the classification criteria. The purpose of establishing the classification criteria was to create a rational and consistent philosophical basis for classifying offenses; to assure proportionality in severity; and to provide a guidepost for classifying new crimes in the future. Under the classification criteria, the most serious offense classes (A through F) primarily involve personal injury, the risk of personal injury, serious societal injury or widespread societal injury. The lower offense levels (G through I) primarily involve property loss or less serious societal injury. The degree of harm is divided into three levels; injury to person, property or society; significant injury to person, property or society; and serious injury to person, property or society. The Commission also assigned misdemeanor offenses to four classes: class A1, class 1, class 2 or class 3. The Commission did not create classification criteria for misdemeanors but relied on the maximum sentences previously set by the General Assembly. Generally, crimes which had previously been punishable by over six months were made class 1 misdemeanors, those previously punishable by more than 30 days and up to six months were made class 2 misdemeanors, and those previously punishable by 30 days or less were made class 3 misdemeanors. Assaultive misdemeanors were made Class A1 misdemeanors.

6 FELONY OFFENSE CLASSIFICATION CRITERIA* CLASS CRITERIA A! Reserved for First Degree Murder [Reasonably tends to result or does result in]: B C D E F G H I M! Serious debilitating long-term personal injury! Serious long-term personal injury! Serious long-term or widespread societal injury! Serious infringements on property interest which also implicate physical safety concerns by use of a deadly weapon or an offense involving an occupied dwelling! Serious personal injury! Significant personal injury! Serious societal injury! Serious property loss: Loss from the person or from the person's dwelling! Serious property loss: Loss from any structure designed to house or secure any activity or property Loss occasioned by the taking or removing of property Loss occasioned by breach of trust, formal or informal! Personal injury! Significant societal injury! Serious property loss: All other felonious property loss! Societal injury! All other misdemeanors * Personal injury includes both physical and mental injury. Societal injury includes violations of public morality, judicial or government operations, and/or public order and welfare. Note: The criteria were not used in the classification of the homicide offenses or drug offenses.

7 TABLE OF CONTENTS Felony Bills Page HB 687 Pirating Movies [v.3]...1 HB 822 Blakely Decision/Conform State Law HB 888 Cockfighting/Increase Penalty...5 HB 1011 Inmate Biting Felony [v.2]...7 HB 1048 Governor s DWI Task Force Recommendations HB 1100 Break Into Place of Worship...13 HB 1186 Sentence Lengths...16 HB 1187 Restructure Prior Crim. Record Pts HB 1209 Aggravate Penalty/Predatory Sex Offenders HB 1215 Adjust B1-E Felony Penalties...22 HB 1216 Exploitation of Elder or Disabled Adults/POA HB 1279 Speeding to Elude Arrest...26 HB 1308 Public Safety & Treatment Act...29 HB 1322 Safer Communities Act...31 HB 1324 Unborn Victims of Violence...33 HB 1345 Limit Certain Self-Service Drug Purchases HB 1351 Threaten Persons in Certain Governmental Activity HB 1392 Failure to Return Hired Motor Vehicles HB 1400 School Bus Safety Act...52 HB 1437 High-Level Theft/Increase Penalties HB 1451 Reform Drivers License Issuance Criteria HB 1463 Assault/Rape of Child by Parent or Guardian HB 1466 Exploitation/Elderly or Disabled Adult HB 1484 DWI After Conviction of DWI With a Death HB 1486 Felony Death by Vehicle...76 HB 1543 Autopsy Photos Not Public Record HB 1548 Aggravated Assault on a Female...83 SB 6 Ban Video Poker/All But Reservations SB 104 DWI-Zero Alcohol When Transporting Child SB 486 Rachel s Law [v.2]...89 SB 488 Exploitation of Elder or Disabled Adults/POA SB 507 Aggravating Factor/Add Social Worker

8 SB 542 Blakely Decision/Amend Aggravating Factors [v.2] SB 560 Amend Certain Criminal Offenses SB 574 Amend Post-Release Supervision Laws SB 590 Consumer Credit Counseling/Debt Management SB 600 Crime to Falsify Highway Inspection Reports [v.2] SB 686 Meth. Lab Prevention Act [v.3] SB 776 Amend Indecent Exposure Law SB 795 Installing MV Parts and Air Bags SB 853 Death by Distribution of Drugs SB 934 Notary Public Act SB 966 Definite Release Dates for Inmates SB 972 Break Into Place of Worship [v.2] SB 989 Civil Justice Improvements SB 1039 Increase Penalties/2nd Degree Rape SB 1040 Prohibit Human Cloning SB 1058 Amend Assault Assistance Animal SB 1069 DWI Task Force Recommendations SB 1080 Criminal Changes SB 1088 Medical Release for Ill and Disabled Inmates Misdemeanor Bills...150

9 ANALYSIS OF BILL TO CREATE A NEW OFFENSE (PREPARED PURSUANT TO G.S ) BILL NUMBER/SHORT TITLE: HB PIRATING MOVIES [v.3] STATUTE Unlawful operation of an audiovisual recording device. DESCRIPTION A person who 1. knowingly operates or attempts to operate 2. an audiovisual recording device 3. in a motion picture theater 4. to transmit, record, or otherwise make a copy 5. of a motion picture, or any part thereof, 6. without the written consent of the motion picture theater owner. PROPOSED OFFENSE CLASS Class 1 misdemeanor for the first offense, Class I felony for a second or subsequent offense. ANALYSIS The Sentencing Commission does not have criteria for classifying misdemeanor offenses. The Sentencing Commission classified offenses which reasonably tend to result or do result in serious property loss or societal injury as Class I felonies. Under G.S , attempts are punishable under the next lower classification as the offense which the offender attempted to commit. FINDINGS Bill is consistent with Offense Classification Criteria. Bill is inconsistent with Offense Classification Criteria. Offense Classification Criteria are not applicable. DATE PREPARED: 5/3/05 IMPACT OF BILL ON NEXT PAGE A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 1

10 HB PIRATING MOVIES ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED UNDER STRUCTURED SENTENCING Since the proposed bill creates a new offense, the Sentencing Commission does not have any historical data from which to estimate the impact of this bill on the prison population. It is not known how many offenders might be convicted under this proposed offense. It is also not known how many offenders may be repeat offenders under the proposed statute. The first violation is a Class 1 misdemeanor. In FY 2003/04, 19% of Class 1 misdemeanor convictions resulted in active sentences. The average estimated time served was 31.2 days. Offenders serving active sentences of 90 days or less are housed in county jails. Therefore, convictions for this proposed offense would not be expected to have a significant impact on the prison population. The impact on local jail populations is not known. The second and subsequent violations are a Class I felony. If, for example, there were 10 additional convictions for the Class I felony offense per year, the combination of active sentences and probation revocations would result in the need for one additional prison bed the first year and three additional prison beds the second year. G.S covers sound recordings without authorization. The Administrative Office of the Courts (AOC) currently does not have a specific offense code for violations of G.S The lack of an AOC offense code is some indication that this offense is infrequently charged and/or infrequently results in convictions. SOURCE: NC Sentencing and Policy Advisory Commission, FY 2003/04 Felony and Misdemeanor Simulation Data 2

11 ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS (PREPARED PURSUANT TO G.S ) BILL NUMBER/SHORT TITLE: HB BLAKELY DECISION/CONFORM STATE LAW STATUTE 15A Aggravated and mitigated sentences. DESCRIPTION Amends the process for finding: 1. aggravating factors and 2. the prior record level point for an offense committed while the offender was on supervised or unsupervised probation, parole, or post-release supervision, or while the offender was serving a sentence of imprisonment, or while the offender was on escape from a correctional institution while serving a sentence of imprisonment. PUNISHMENT RANGE CURRENT: Aggravated minimum sentence range if factors are found by the judge based on a preponderance of the evidence. PROPOSED: Aggravated minimum sentence range if factors are found by the jury beyond a reasonable doubt or the defendant admits to their existence. ANALYSIS This bill is based on a recommendation from the Sentencing and Policy Advisory Commission. The difference is that this bill requires that notice be given to the defendant at least 30 days before trial whereas the Sentencing Commission recommended at least 10 days before trial. FINDINGS Bill is consistent with G.S Bill is inconsistent with G.S G.S is not applicable. DATE PREPARED: 5/5/05 IMPACT OF BILL ON NEXT PAGE A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 3

12 HB BLAKELY DECISION/CONFORM STATE LAW ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED UNDER STRUCTURED SENTENCING No additional prison population projected from this bill. A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 4

13 ANALYSIS OF BILL TO CHANGE THE CLASS OF AN EXISTING OFFENSE (PREPARED PURSUANT TO G.S ) BILL NUMBER/SHORT TITLE: HB COCKFIGHTING/INCREASE PENALTY STATUTE Cockfighting. DESCRIPTION A person who 1. instigates, promotes, conducts, is employed at, allows property under his ownership or control to be used for, participates as a spectator at, or profits from 2. an exhibition featuring the fighting of a cock. OFFENSE CLASS CURRENT: Class 2 misdemeanor. PROPOSED: Class I felony. ANALYSIS The Sentencing Commission does not have criteria for classifying misdemeanor offenses. The Sentencing Commission classified offenses which reasonably tend to result or do result in serious property loss or societal injury as Class I felonies. FINDINGS Bill is consistent with Offense Classification Criteria. Bill is inconsistent with Offense Classification Criteria. Offense Classification Criteria are not applicable. DATE PREPARED: 5/3/05 IMPACT OF BILL ON NEXT PAGE A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 5

14 HB COCKFIGHTING/INCREASE PENALTY ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED UNDER STRUCTURED SENTENCING In FY 2003/04 there were ten convictions for cockfighting. Therefore, this proposed reclassification is not expected to have a substantial impact on the prison system. If, for example, there were 10 convictions that moved from a Class 2 misdemeanor to a Class I felony, the combination of active sentences and probation revocations would result in the need for one prison bed the first year and three prison beds the second year. SOURCE: NC Sentencing and Policy Advisory Commission, FY 2003/04 Felony and Misdemeanor Simulation Data 6

15 ANALYSIS OF BILL TO CREATE A NEW OFFENSE (PREPARED PURSUANT TO G.S ) BILL NUMBER/SHORT TITLE: HB INMATE BITING FELONY [v.2] STATUTE Malicious conduct by prisoner. DESCRIPTION A person 1. in the custody of the Department of Correction, the Department of Juvenile Justice and Delinquency Prevention, any law enforcement officer, or any local confinement facility, including persons pending trial, appellate review, or presentence diagnostic evaluation, 2. who knowingly and willfully 3. bites causing a break in the skin with bleeding 4. a person who is an employee of the State or a local government 5. while the employee is in the performance of the employee s duties. PROPOSED OFFENSE CLASS Class F felony. ANALYSIS The Sentencing Commission classified offenses which reasonably tend to result or do result in significant personal injury or serious societal injury as Class F felonies. The current offense in G.S involves throwing, emitting or causing to be used as a projectile, bodily fluids or excrement. It is a Class F felony. FINDINGS Bill is consistent with Offense Classification Criteria. Bill is inconsistent with Offense Classification Criteria. Offense Classification Criteria are not applicable. DATE PREPARED: 5/2/05 IMPACT OF BILL ON NEXT PAGE A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 7

16 HB INMATE BITING FELONY ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED UNDER STRUCTURED SENTENCING This bill amends G.S , malicious conduct by prisoner, to add an offense for a person in custody (of DOC, DJJDP, law enforcement officer, or local confinement facility) to bite a person who is an employee of the State or a local government while the employee is in the performance of the employee s duties. Violation is a Class F felony. In FY 2003/04, there were 100 convictions under G.S The Sentencing Commission does not have any historical data from which to estimate the impact of this bill on the prison population. It is not known how many offenders might be sentenced under the proposed bill. If, for example, there were two Class F convictions under this proposed bill per year, the combination of active sentences and probation revocations would result in the need for one additional prison bed the first year and three additional prison beds the second year. It is unclear whether the conduct covered by this proposed offense is currently covered under G.S (c)(4), assault on government official/employee, which is a Class A1 misdemeanor. In FY 2003/04, there were 1,551 convictions under G.S (c)(4). It is not known how many of these convictions were for the government officials listed in the proposed statute, nor is it known whether the assault involved biting. SOURCE: NC Sentencing and Policy Advisory Commission, FY 2003/04 Felony and Misdemeanor Simulation Data 8

17 ANALYSIS OF BILL TO CHANGE THE CLASS OF AN EXISTING OFFENSE (PREPARED PURSUANT TO G.S ) BILL NUMBER/SHORT TITLE: HB GOVERNOR S DWI TASK FORCE RECOMMENDATIONS STATUTE Felony and misdemeanor death by vehicle. DESCRIPTION A person who 1. unintentionally 2. causes the death of another person 3. while engaged in the offense of impaired driving (G.S or G.S ) and 4. commission of that offense is the proximate cause of the death. OFFENSE CLASS CURRENT: Class G felony. PROPOSED: Class D felony. ANALYSIS The Sentencing Commission did not use the criteria in classifying the homicide offenses. G.S , involuntary manslaughter, is a Class F felony. G.S , second-degree murder, is a Class B2 felony. This provision is identical to Senate Bill 687 which the Sentencing Commission reviewed in April The Commission found that the Offense Classification Criteria were not applicable. FINDINGS Bill is consistent with Offense Classification Criteria. Bill is inconsistent with Offense Classification Criteria. Offense Classification Criteria are not applicable. The Offense Classification Criteria were not used in the classification of homicide offenses. DATE PREPARED: 5/2/05 BILL CONTINUED ON NEXT PAGE A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 9

18 ANALYSIS OF BILL TO CREATE A NEW OFFENSE (PREPARED PURSUANT TO G.S ) BILL NUMBER/SHORT TITLE: HB GOVERNOR S DWI TASK FORCE RECOMMENDATIONS (cont.) STATUTE Felony and misdemeanor death by vehicle. DESCRIPTION Subsection (a3) - Felony Serious Injury by Vehicle: A person who 1. unintentionally 2 causes serious injury to another person 3. while engaged in the offense of impaired driving (G.S or ) and 4. the commission of the offense is the proximate cause of the serious injury. PROPOSED OFFENSE CLASS Class E felony. ANALYSIS The Sentencing Commission classified offenses which reasonably tend to result or do result in serious personal injury as Class E felonies. G.S (b), assault with a deadly weapon inflicting serious injury, is Class E felony. This provision is identical to Senate Bill 687 which the Sentencing Commission reviewed in April, The Commission found that provision to be consistent with the Offense Classification Criteria. FINDINGS Bill is consistent with Offense Classification Criteria. Bill is inconsistent with Offense Classification Criteria. Offense Classification Criteria are not applicable. DATE PREPARED: 5/2/05 IMPACT OF BILL ON NEXT PAGE A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 10

19 HB GOVERNOR S DWI TASK FORCE RECOMMENDATIONS ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED UNDER STRUCTURED SENTENCING PART VIII. SECTION 17. Felony Serious Injury by Vehicle This section creates a new offense of Felony Serious Injury by Vehicle (G.S (a3)). This makes it a Class E felony for a person to unintentionally cause serious injury to another person while engaged in the offense of impaired driving or impaired driving in a commercial vehicle and the commission of the offense is the proximate cause of the serious injury. Since the proposed bill creates a new offense, the Sentencing Commission does not have any historical data from which to estimate the impact of this bill on the prison population. It is not known how many offenders might be sentenced for this offense. If, for example, there were two Class E convictions for this offense per year, the combination of active sentences and probation revocations would result in the need for one additional prison bed the first year and three additional prison beds the second year. Offenders eligible for prosecution under the new offense currently may be convicted of Assault with a Deadly Weapon Inflicting Serious Injury (G.S (b), a Class E felony) or Assault Inflicting Serious Injury (G.S (c)(1), a Class A1 misdemeanor). It is also possible that offenders eligible for prosecution under the new offense could be convicted of Assault with a Deadly Weapon (G.S (c)(1), a Class A1 misdemeanor). In FY 2003/04 there were 453 convictions for Assault with a Deadly Weapon Inflicting Serious Injury, 871 convictions for Assault Inflicting Serious Injury, and 1,397 convictions for Assault with a Deadly Weapon. The Sentencing Commission s felony and misdemeanor data do not contain information on how many of these convictions involved injury proximately caused by a Driving While Impaired offense. Since Assault with a Deadly Weapon Inflicting Serious Injury is a Class E felony, there would be no additional impact if such convictions would instead be convictions for Class E Felony Serious Injury by Vehicle. However, there would be an impact on the prison population for any Class A1 convictions that would become Class E Felony Serious Injury by Vehicle convictions under the proposed statute. Convictions for Class A1 offenses typically do not have an impact on the prison system due to the rate of active sentences imposed (24% in FY 2003/04) and their sentence lengths (an average estimated time served of 53.8 days). However, if, for example, two Class A1 convictions per year became Class E convictions under the proposed statute, the combination of active sentences and probation revocations would result in the need for one additional prison bed the first year and three additional prison beds the second year. Felony Death by Vehicle This bill reclassifies Felony Death by Vehicle from a Class G felony to a Class D felony (see attached impact projection). There were 35 convictions for this offense in FY 2003/04. Instead of being convicted of Felony Death by Vehicle, offenders proximately causing a death during commission of a Driving While Impaired offense can be convicted of Involuntary Manslaughter (G.S. 14- SOURCE: NC Sentencing and Policy Advisory Commission, FY 2003/04 Felony and Misdemeanor Simulation Data 11

20 18), a Class F felony, under current law. There were 83 convictions for Involuntary Manslaughter in FY 2003/04. The Sentencing Commission s felony data does not contain information on how many of these convictions involved offenders proximately causing a death during commission of a Driving While Impaired offense so it is not possible to determine how many of these offenders would be convicted under Felony Death by Vehicle if it were classified more seriously than Involuntary Manslaughter. NOTES: RECLASSIFY FELONY DEATH BY VEHICLE FROM CLASS G TO CLASS D ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED UNDER STRUCTURED SENTENCING FISCAL YEAR ESTIMATED ADDITIONAL PRISON BEDS 2006/ / / / / / / / / / This bill reclassifies Felony Death by Vehicle from a Class G felony to a Class D felony. There were 35 convictions for this offense in FY 2003/ Assumes effective for crimes committed on or after 12/1/2005. Fiscal Year 2006/07 represents the first full year of impact due to the gap between the time a felony offense is committed and the offender is sentenced. 3. The assumptions for active sentences and probation revocations assume the same percentages as found in FY 2003/04 for Class D convictions. Assumes no changes in judicial or prosecutorial behavior regarding convictions for this offense. 4. There will be some impact on Post-Release Supervision caseloads as a result of reclassifying this offense from a Class G to a Class D. 5. Assumes no deterrent or incapacitative effects. SOURCE: NC Sentencing and Policy Advisory Commission, FY 2003/04 Felony and Misdemeanor Simulation Data 12

21 ANALYSIS OF BILL TO CREATE A NEW OFFENSE (PREPARED PURSUANT TO G.S ) BILL NUMBER/SHORT TITLE: HB BREAK INTO PLACE OF WORSHIP STATUTE Breaking or entering a building that is a place of worship. DESCRIPTION A person who 1. Wrongfully breaks or enters 2. Any building that is a place of worship. PROPOSED OFFENSE CLASS Class G felony. Class F felony if: 1. The person breaks or enters two or more buildings that are places of worship; or 2. The person is convicted of a second or subsequent violation of the offense. ANALYSIS The Sentencing Commission classified offenses which reasonably tend to result or do result in serious property loss from the person or from the person s dwelling as Class G felonies. The Sentencing Commission classified offenses which reasonably tend to result or do result in significant personal injury or serious societal injury as Class F felonies. This conduct is currently punishable as breaking or entering buildings generally, which is a Class H felony if done with the intent to commit any felony or larceny therein, otherwise a Class 1 misdemeanor (G.S ). (See Senate Bill 972.) FINDINGS Bill is consistent with Offense Classification Criteria. Bill is inconsistent with Offense Classification Criteria. Offense Classification Criteria are not applicable. DATE PREPARED: 5/2/05 IMPACT OF BILL ON NEXT PAGE A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 13

22 HB BREAK INTO PLACE OF WORSHIP ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED UNDER STRUCTURED SENTENCING The proposed bill would add a new statute (G.S ), creating new felonies for wrongfully breaking or entering any building that is a place of worship, defined as any church, chapel, meetinghouse, synagogue, temple, or mosque. Offenders eligible for conviction under the new statute currently may be convicted of either felony or misdemeanor Breaking or Entering under G.S Violation of G.S is a Class H felony (subsection (a)) if the offender intended to commit a larceny or felony within the structure entered, or it is a Class 1 misdemeanor (subsection (b)) if the offender lacked such intent. Attempts are punished one class lower (Class I and Class 2, respectively). In FY 2003/04 there were 2,690 convictions for Felony Breaking or Entering, 60 convictions for Attempted Felony Breaking or Entering, 2,478 convictions for Misdemeanor Breaking or Entering, and 49 convictions for Attempted Misdemeanor Breaking or Entering. It is not known how many of these convictions involved breaking or entering a place of worship, subsequent convictions of offenders with prior records for the same conduct, or breaking or entering multiple places of worship. Because the new offenses in the proposed bill do not address the offender's intent, offenders who would be eligible for conviction under the proposed bill may be found in both the felony and misdemeanor convictions under G.S G.S (a) G.S (a) would make it a Class G felony to break or enter a single place of worship, if it is the offender s first conviction for this offense. If, for example, there were three convictions that moved from a Class H felony to a Class G felony, the combination of active sentences and probation revocations would result in the need for one additional prison bed the first year and one additional prison bed the second year. If, for example, there were two convictions that moved from a Class 1 misdemeanor to a Class G felony, the combination of active sentences and probation revocations would result in the need for one additional prison bed the first year and two additional prison beds the second year. G.S (b)(1) G.S (b)(1) would make it a Class F felony to break or enter two or more places of worship. If, for example, there were three convictions that moved from a Class H felony to a Class F felony, the combination of active sentences and probation revocations would result in the need for one additional prison bed the first year and three additional prison beds the second year. SOURCE: NC Sentencing and Policy Advisory Commission, FY 2003/04 Felony and Misdemeanor Simulation Data 14

23 If, for example, there were two convictions that moved from a Class 1 misdemeanor to a Class F felony, the combination of active sentences and probation revocations would result in the need for one additional prison bed the first year and three additional prison beds the second year. G.S (b)(2) G.S (b)(2) would make it a Class F felony to break or enter a single place of worship, if the offender has a previous conviction under subsection (a). It is not known how many offenders may be repeat offenders under the proposed statute. If, for example, there were three convictions that moved from a Class H felony to a Class F felony, the combination of active sentences and probation revocations would result in the need for one additional prison bed the first year and three additional prison beds the second year. If, for example, there were two convictions that moved from a Class 1 misdemeanor to a Class F felony, the combination of active sentences and probation revocations would result in the need for one additional prison bed the first year and three additional prison beds the second year. SOURCE: NC Sentencing and Policy Advisory Commission, FY 2003/04 Felony and Misdemeanor Simulation Data 15

24 ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS (PREPARED PURSUANT TO G.S ) BILL NUMBER/SHORT TITLE: HB SENTENCE LENGTHS STATUTE 15A Punishment limits for each class of offense and prior record level. DESCRIPTION Makes the increase in sentence lengths between prior record levels proportionate. PUNISHMENT RANGE CURRENT: The increase in sentence lengths between prior record levels varies between cells. PROPOSED: The increase in sentence lengths between prior record levels is based on a 15% increment increase starting with Prior Record Level II, except in Classes H and I. ANALYSIS A change in the increase in sentence lengths between prior record levels would change the minimum sentence ranges in the majority of cells in Prior Record Levels II through VI, Offense Classes B1 through G. This bill is identical to House Bill 264/Senate Bill 208 which the Sentencing Commission reviewed in April, The Commission found that provision to be consistent with G.S FINDINGS Bill is consistent with G.S Bill is inconsistent with G.S G.S is not applicable. DATE PREPARED: 5/2/05 IMPACT OF BILL ON NEXT PAGE A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 16

25 HB SENTENCE LENGTHS ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED UNDER STRUCTURED SENTENCING Analysis has not been requested yet. A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 17

26 ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS (PREPARED PURSUANT TO G.S ) BILL NUMBER/SHORT TITLE: HB RESTRUCTURE PRIOR CRIM. RECORD PTS. STATUTE 15A Prior record level for felony sentencing. DESCRIPTION Subsection (c): Restructure the prior record level point ranges to expand Level I and even out the remaining ranges. PUNISHMENT RANGE CURRENT: Prior Record Levels Level I - 0 points. Level II - At least 1, but not more than 4 points. Level III - At least 5, but not more than 8 points. Level IV - At least 9, but not more than 14 points. Level V - At least 15, but not more than 18 points. Level VI - At least 19 points. PROPOSED: Prior Record Levels Level I - Not more than 2 points. Level II - At least 3, but not more than 6 points. Level III - At least 7, but not more than 10 points. Level IV - At least 11, but not more than 14 points. Level V - At least 15, but not more than 18 points. Level VI - At least 19 points. ANALYSIS A change in prior record level point ranges could change the minimum sentence range for offenders in Prior Record Levels I through IV. This bill is identical to House Bill 247/Senate Bill 207 which the Sentencing Commission reviewed in April, The Commission found that provision to be consistent with G.S FINDINGS Bill is consistent with G.S Bill is inconsistent with G.S G.S is not applicable. DATE PREPARED: 5/2/05 IMPACT OF BILL ON NEXT PAGE A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 18

27 HB RESTRUCTURE PRIOR CRIM. RECORD PTS. ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED UNDER STRUCTURED SENTENCING Analysis has not been requested yet. A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 19

28 ANALYSIS OF BILL TO CREATE A NEW OFFENSE (PREPARED PURSUANT TO G.S ) BILL NUMBER/SHORT TITLE: HB AGGRAVATE PENALTY/PREDATORY SEX OFFENDERS STATUTE A. Habitual sexual offense. DESCRIPTION A person who 1. commits any one of the following offenses: a. Any reportable conviction under the Sex Offender and Public Protection Registration Program (as set forth in G.S (4) and as defined in G.S ; felony and misdemeanor offenses). b. A violation of G.S Indecent exposure. c. Any offense under G.S Secretly peeping. d. A violation of G.S A. Sexual battery. and 2. has two or more convictions for any one of the offenses listed above. PROPOSED OFFENSE CLASS Class F felony ANALYSIS The Sentencing Commission classified offenses which reasonably tend to result or do result in significant personal injury or serious societal injury as Class F felonies. FINDINGS Bill is consistent with Offense Classification Criteria. Bill is inconsistent with Offense Classification Criteria. Offense Classification Criteria are not applicable. DATE PREPARED: 5/3/05 IMPACT OF BILL ON NEXT PAGE A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 20

29 HB AGGRAVATE PENALTY/PREDATORY SEX OFFENDERS ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED UNDER STRUCTURED SENTENCING Analysis has not been requested yet. A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 21

30 ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS (PREPARED PURSUANT TO G.S ) BILL NUMBER/SHORT TITLE: HB ADJUST B1 - E FELONY PENALTIES STATUTE 15A Punishment limits for each class of offense and prior record level. DESCRIPTION Reallocates three months from the minimum sentences in Classes B1 through E to the corresponding maximum sentences and increases the period of post-release supervision from nine months to twelve months. PUNISHMENT RANGE CURRENT: An offender is on post-release supervision for nine months. PROPOSED: The minimum sentence range would decrease by three months and the corresponding maximum would increase by three months. An offender would be on post-release supervision for twelve months. ANALYSIS This bill is identical to House Bill 246/Senate Bill 209 which the Sentencing Commission reviewed in April, The Commission found that provision to be consistent with G.S FINDINGS Bill is consistent with G.S Bill is inconsistent with G.S G.S is not applicable. DATE PREPARED: 5/3/05 IMPACT OF BILL ON NEXT PAGE A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 22

31 HB ADJUST B1 - E FELONY PENALTIES ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED UNDER STRUCTURED SENTENCING Analysis has not been requested yet. A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 23

32 ANALYSIS OF BILL TO CREATE A NEW OFFENSE (PREPARED PURSUANT TO G.S ) BILL NUMBER/SHORT TITLE: HB 1216/SB EXPLOITATION OF ELDER OR DISABLED ADULTS STATUTE Domestic abuse, neglect, and exploitation of disabled or elder adults. DESCRIPTION A person who 1. is a caretaker of a disabled or elder adult and 2. knowingly, willfully and with the intent to permanently deprive the owner of property or money: (a) makes a false representation, (b) abuses a position of trust or fiduciary duty, or (c) coerces, commands, or threatens, and, 3. as a result of the act, the disabled or elder adult gives or loses possession and control of property or money. PROPOSED OFFENSE CLASS If the value of the property or money is more than $1,000, a Class H felony. If the value of the property or money is $1,000 or less, Class 1 misdemeanor. ANALYSIS The Sentencing Commission classified offenses which reasonably tend to result or do result in serious property loss occasioned by the taking or removing of property, or occasioned by breach of trust, formal or informal, as Class H felonies. This bill amends the current statute to delete the requirement that the disabled or elder adult reside in a domestic setting. FINDINGS Bill is consistent with Offense Classification Criteria. Bill is inconsistent with Offense Classification Criteria. Offense Classification Criteria are not applicable. DATE PREPARED: 5/3/05 IMPACT OF BILL ON NEXT PAGE A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 24

33 HB 1216/SB EXPLOITATION OF ELDER OR DISABLED ADULTS ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED UNDER STRUCTURED SENTENCING G.S (c) currently makes it a Class H felony for a caregiver to exploit a disabled or elder adult if the loss of property or money is of a value of more than $1,000 and a Class 1 misdemeanor is the value of the property or money lost is $1,000 or less. This bill expands the current statute by deleting the requirement that the disabled or elder adult be residing in a domestic setting. There were three Class H felony and two Class 1 misdemeanor convictions under G.S (c) in FY 2003/04. It is not known how many additional offenders might be sentenced as a result of the broadening of G.S (c). If, for example, there were three additional Class H convictions per year, the combination of active sentences and probation revocations would result in the need for one additional prison bed the first year and two additional prison beds the second year. In FY 2003/04, 19% of Class 1 misdemeanor convictions resulted in active sentences. The average estimated time served for Class 1 convictions was 31.2 days. Offenders serving active sentences of 90 days or less are housed in county jails. Therefore, additional convictions resulting from the proposed expansion of the scope of this statute would not be expected to have a significant impact on the prison population. The impact on local jail populations is not known. SOURCE: NC Sentencing and Policy Advisory Commission, FY 2003/04 Felony and Misdemeanor Simulation Data 25

34 ANALYSIS OF BILL TO CREATE A NEW OFFENSE (PREPARED PURSUANT TO G.S ) BILL NUMBER/SHORT TITLE: HB SPEEDING TO ELUDE ARREST STATUTE Speeding to elude arrest. DESCRIPTION Subsection (c): A person who 1. violates G.S (a) (Operating a motor vehicle while fleeing or attempting to elude a law enforcement officer who is in the lawful performance of his duties, a Class 1 misdemeanor) and 2. any person dies during or as the result of injuries sustained during the violation. PROPOSED OFFENSE CLASS Class H felony. ANALYSIS The Sentencing Commission classified offenses which reasonably tend to result or do result in significant societal injury as Class H felonies. The Sentencing Commission did not use the criteria in classifying the homicide offenses. Misdemeanor death by vehicle (G.S (a2)) is a Class 1 misdemeanor. FINDINGS Bill is consistent with Offense Classification Criteria. Bill is inconsistent with Offense Classification Criteria. Offense Classification Criteria are not applicable. DATE PREPARED: 5/3/05 BILL CONTINUED ON NEXT PAGE A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 26

35 ANALYSIS OF BILL TO CREATE A NEW OFFENSE (PREPARED PURSUANT TO G.S ) BILL NUMBER/SHORT TITLE: HB SPEEDING TO ELUDE ARREST (cont.) STATUTE Speeding to elude arrest. DESCRIPTION Subsection (c): A person who 1. violates G.S (b) (Operating a motor vehicle while fleeing or attempting to elude a law enforcement officer who is in the lawful performance of his duties with two or more of the listed aggravating factors present, a Class H felony) and 2. any person dies during the violation. PROPOSED OFFENSE CLASS Class E felony. ANALYSIS The Sentencing Commission classified offenses which reasonably tend to result or do result in serious personal injury as Class E felonies. The Sentencing Commission did not use the criteria in classifying the homicide offenses. Misdemeanor death by vehicle (G.S (a2)) is a Class 1 misdemeanor. Involuntary manslaughter (G.S ) is a Class F felony. FINDINGS Bill is consistent with Offense Classification Criteria. Bill is inconsistent with Offense Classification Criteria. Offense Classification Criteria are not applicable. DATE PREPARED: 5/3/05 IMPACT OF BILL ON NEXT PAGE A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 27

36 HB SPEEDING TO ELUDE ARREST ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED UNDER STRUCTURED SENTENCING Analysis has not been requested yet. A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 28

37 ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS (PREPARED PURSUANT TO G.S ) BILL NUMBER/SHORT TITLE: HB PUBLIC SAFETY & TREATMENT ACT STATUTE Sentencing of habitual felons. DESCRIPTION A person who 1. is indicted as a habitual felon, 2. has a Class G, H, or I felony as the triggering offense, 3. is clinically diagnosed to be mentally ill or chemically dependent, 4. has had a comprehensive presentence investigative report that includes an appropriate treatment and supervision plan prepared and presented to the judge, and 5. The prosecutor has not proven to the sentencing judge by a preponderance of the evidence that the defendant is not amenable to treatment for substance abuse or mental illness and the defendant would pose an unacceptable risk to public safety. PUNISHMENT RANGE CURRENT: Class C felony, mandatory active sentence. PROPOSED: The indictment may be dismissed, the defendant sentenced for the underlying offense, and, notwithstanding the dispositions in G.S. 15A , the defendant shall be sentenced to an intermediate punishment that shall include substance abuse and mental health treatment. ANALYSIS Intermediate punishments are authorized in Class G, Prior Record Levels I through IV, Class H, Prior Record Levels I through V, and Class I, Prior Record Levels II through VI. FINDINGS Bill is consistent with G.S Bill is inconsistent with G.S G.S is not applicable. Note: In certain prior record levels of Classes G, H and I, an intermediate punishment is not authorized. This bill would require the judge to depart from the authorized dispositions without any findings to support the departure. DATE PREPARED: 5/3/05 IMPACT OF BILL ON NEXT PAGE A finding that a bill is either consistent or inconsistent with the Sentencing Commission s Offense Classification Criteria does not imply either support or opposition to the bill itself. 29