DEFENDING AGAINST HABITUAL FELON PROSECUTIONS

DEFENDING AGAINST HABITUAL FELON PROSECUTIONS June 2001 Anne M. Gomez Assistant Appellate Defender Office of the Appellate Defender 123 W. Main St., Suite 600 Durham, N.C. 27701 (919)560-3334 Anne.M.Gomez@nccourts.org I. What is an Habitual Felon? A person is an habitual felon when he has - pled guilty to or been convicted of three felony offenses (in any state or federal court) and - the three felony offenses do not overlap (i.e., sequence must be first felony [commit, convict], second felony [commit, convict], third felony [commit, convict]). G.S. 14-7.1. Being an habitual felon is a status. It is not equivalent to a criminal conviction. Instead, a defendant s habitual felon status subjects him to a greater sentence for his fourth felony. State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721 (1988); State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977). Once a defendant attains this status, he never loses it after committing three felonies, the defendant thereafter may be sentenced as an a habitual felon for any felonies he commits II. Habitual Felon Indictment A. In General. If the State wants to convict and sentence someone as an habitual felon, they must indict him as an habitual felon. The indictment must set forth 1) the dates the prior felonies were committed; 2) name of the State or other sovereign against which prior felonies committed; 3) dates of guilty pleas or convictions to prior felonies; 4) identity of court where pleas or convictions took place. G.S. 14-7.3

2 Habitual felon indictments found defective where: - no allegation of State against whom felonies committed. State v. Mewborn, 131 N.C. App. 495, 507 S.E.2d 906 (1998) (violent habitual felon). - failure to allege underlying felony with particularity. State v. Oakes, 113 N.C. App. 332, 438 S.E.2d 477 (1994). See State v. Smith, 112 N.C. App. 512, 436 S.E.2d 160 (1993) (habitual felon indictment sufficient where did not allege date defendant pled guilty to charge, but gave date defendant sentenced). The defendant must be charged as an habitual felon in a separate indictment from substantive felony indictment (but can have same file number). State v. Young, 120 N.C. App. 456, 462 S.E.2d 683 (1995); State v. Hodge, 112 N.C. App. 462, 436 S.E.2d 251 (1993); State v. Smith, supra. Separate habitual felon indictment not required for each substantive felony indictment. State v. Patton, 342 N.C. 633, 466 S.E.2d 708 (1996). Habitual felon indictment need not specifically refer to indictment on substantive offense. State v. Cheek, 339 N.C. 725, 453 S.E.2d 862 (1995). The substantive felony indictment need not refer to defendant s status as an habitual felon. State v. Todd, 313 N.C. 110, 326 S.E.2d 249 (1985); State v. Sanders, 95 N.C. App. 494, 383 S.E.2d 409, disc. rev. denied, 325 N.C. 712, 388 S.E.2d 470 (1989). B. Timing. A habitual felon indictment must be supported by a valid indictment on a substantive charge. State v. Winstead, 78 N.C. App. 180, 336 S.E.2d 721 (1985). Therefore, habitual felon indictment attached to prior invalid indictment also invalid. - Prejudice problem initial habitual felon indictment has put defendant on notice he is being tried as a recidivist. The habitual felon indictment must be filed prior to the defendant s pleading in the substantive felony case. State v. Little, 126 N.C. App. 262, 484 S.E.2d 835 (1997).

3 Initial Habitual Felon Indictment is Defective and State Wants to Bring Superceding Indictment - Scenario 1: defendant is indicted for substantive offense and habitual felon; habitual felon indictment is defective; defendant pleads not guilty to substantive charge; defendant found guilty by jury of substantive charge; defendant s motion to dismiss defective habitual felon indictment is granted. o If defect is merely technical, defendant has had sufficient notice State intended to try him as a recidivist and State may reindict him as an habitual felon. State v. Oakes, supra. o If the defect is not merely technical, the State cannot reindict defendant as an habitual felon. State v. Little, supra (defect not mere technical change in initial indictment where State used different felony conviction). - Scenario 2: defendant is indicted for substantive offense and habitual felon; habitual felon indictment is defective; defendant enters guilty plea to substantive charge; defendant s motion to dismiss defective habitual felon indictment is granted. o Guilty plea could be undone. State v. Allen, supra. o Can defendant keep guilty plea in place and be subject to unenhanced sentence for substantive offense? Defendant charged with being habitual felon may not be brought to trial on that charge within 20 days of finding of true bill by grand jury. Defendant can waive 20-day period. G.S. 14-7.3; State v. Winstead, supra. III. Habitual Felon Proceeding or Guilty Plea A. Guilty Plea Defense attorney cannot stipulate to defendant s habitual felon status in lieu of guilty plea. State v. Gilmore, N.C. App., 542 S.E.2d 694 (2001). Guilty plea will preclude appeal on almost all issues. But defendant can reserve right to appeal issues

4 related to habitual felon even if pleads guilty. State v. Little, supra. B. Habitual Felon Proceeding - defendant can stipulate to the existence of prior convictions - otherwise, prove by original or certified copy of court record bearing defendant s name (prima facie evidence defendant is that person and of facts therein) G.S. 14-7.4. o slight discrepancy between defendant s name and name on documents doesn t matter. State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337 (1990) ( Martin Bernard Petty versus Martin Petty ); State v. Hodge, 112 N.C. App. 462, 436 S.E.2d 251 (1993) ( Michael Hodge versus William Michael Hodge ). IV. Sentencing as Habitual Felon A. In General. When a habitual felon is convicted of or pleads guilty to his fourth felony, he must be sentenced as a Class C felon. G.S. 14-7.6 The defendant must not receive a separate sentence for being an habitual felon. State v. Penland, supra. (App. 18-20) B. Interaction of Habitual Felon Sentencing and Structured Sentencing. The defendant s prior convictions may be used either to establish his habitual felon status or to increase his prior record level, not both. State v. Bethea, 122 N.C. App. 623, 471 S.E.2d 430 (1996). See also State v. Gentry, 135 N.C. App. 107, 519 S.E.2d 68 (1999) (habitual driving while impaired). Although two convictions on the same calendar week could not both be used to establish defendant habitual felon status, or to increase prior record level, one of these convictions may be used to establish habitual felon status, and one may be used to increase prior record level. State v. Truesdale, 123 N.C. App. 639, 473 S.E.2d 670 (1996).

5 Court cannot consider as separate aggravating circumstances both the status of being an habitual felon and felonies underlying habitual felon adjudication. State v. Kirkpatrick, 345 N.C. 451, 480 S.E.2d 400 (1997). But can use evidence of defendant s prior crimes to establish habitual felon status and to establish aggravating factor of prior felony convictions. State v. Roper, 328 N.C. 337, 402 S.E.2d 600, cert. denied, 502 U.S. 902, 116 L.Ed.2d 232 (1991). *Note there may be a claim related to which prior felonies prosecutor earmarks as habitual felon felonies and which he or she earmarks as prior record level felonies. If the prosecutor decides that the felonies with the lowest point values are habitual felon felonies, the defendant will receive a higher prior record point total than if the felonies with the lowest point totals are used to determine prior record level. If prosecutorial discretion in choosing which felonies are which results in your client being placed in a higher Prior Record Level category, argue this violates due process, separation of powers (see below), and the Rule of Lenity. See State v. Gentry, supra ( It is basic learning that criminal laws must be strictly construed and any ambiguities resolved in favor of the defendant. ). For structured sentencing purposes, prior convictions for which the defendant was sentenced as an habitual felon are counted at their original level, not as Class C felonies. State v. Vaughn, 350 N.C. 88, 511 S.E.2d 638 (1999). V. Constitutional Attacks on Habitual Felon Law A. Double Jeopardy Defendant is being punished twice due to his status as a recidivist. (App. 14-18) B. Equal Protection Two Contradictory Arguments 1. In many counties, prosecutors exercise discretion in deciding who to indict as habitual felons. In State v. Wilson, 139 N.C. App. 544, 533 S.E.2d 865 (2000), the Court of Appeals held that prosecutors can exercise discretion in making this decision as long as the decision was not the result of an improper motivation. Therefore, there is error in counties where prosecutor exercises no discretion.

6 See State v. Barrow, 350 N.C. 640, 517 S.E.2d 374 (1999) (trial judge must exercise discretion he or she is given). 2. No discretion is allowed to be constitutional, habitual felon law must be applied to everyone equally. Yick Wo v. Hopkins, 118 U.S. 356 (1886) (equal protection violation where valid ordinance applied only to Chinese persons). Here, discrimination is on basis of geographical boundaries. See Bush v. Gore, 531 U.S. 98, 148 L.Ed.2d 388 (2000) (equal protection violation where presidential ballots counted differently in different counties). C. Separation of Powers (N.C. Const. art. I, 6) By deciding who to indict as an habitual felon, prosecutor has authority to convert lower class felony into Class C felony. However, it is solely the province of the legislature to determine parameters of punishment for crime. Claim rejected in State v. Wilson, supra. D. Prosecutors Financial Stake (Buncombe, Durham, and Richmond counties) Some counties receive funds earmarked for positions in D.A. s office for prosecutors who concentrate on habitual felon cases. Where prosecutor is paid to indict defendant s as habitual felons, has financial incentive to so indict more defendants. See Tumey v. Ohio, 273 U.S. 510 (1927) (due process violation for judge to have financial stake in outcome of case). (App. 11-14) VI. Other A. Attacking Validity of Third Underlying Felony Motion for appropriate relief to vacate plea to third felony because defense attorney did not inform defendant guilty plea would make him an habitual felon. See State v. Creason, 123 N.C. App. 495, 473 S.E.2d 771 (1996); State v. Dammons, 128 N.C. App. 16, 493 S.E.2d 480 (1997). (App. 1-9) B. Misdemeanors Enhanced to Class C Felonies Some misdemeanors become punishable as felonies if committed more than once. For example, breaking into a video game machine (G.S. 14-56.1) is a 120-day

7 misdemeanor the first time you do it, but punishable as a Class I felony the second time. In the case of G.S. 14-56.1, the statute specifically says a second-time offender shall be punished as a Class I felon. If your client has a conviction like this as a prior felony, or is on trial for a crime like this as the substantive felony, argue that the crime is not a felony, but is only punishable as a felony. C. Improper Pressure from Prosecutor A prosecutor may not apply improper pressure upon a defendant to induce a plea of guilty or no contest. G.S. 15A-1021. A prosecutor may be violating this statute if he or she has used habitual felon status to coerce a guilty plea to substantive felonies. D. Jury Arguments as to Potential Sentence A defendant must be allowed to argue to the jury the potential sentence he may receive if convicted, so the jury can understand the gravity of their decision. State v. McMorris, 290 N.C. 286, 225 S.E.2d 553 (1996). Therefore, defense counsel should be able to argue during the trial on the substantive felony the sentence defendant could receive if sentenced as an habitual felon. Rejected by Court of Appeals in State v. Wilson, supra. See G.S. 14-7.5. (the indictment that the defendant is an habitual felon shall not be revealed to the jury during the trial on the substantive offense). E. Defendant Can Only Be Sentenced as Habitual Felon When Convicted of Fifth Felony Conviction. Under G.S. 14-7.1, you become an habitual felon when you are convicted of your third felony. However, G.S. 14-7.5 implies you only become an habitual felon when the jury finds you to be one. Under G.S. 14-7.6, when an habitual felon... commits any felony... [he] must... be sentenced as a Class C felon. If a person only becomes an habitual felon when the jury finds him to be an habitual felon, i.e., at the trial on his fourth felony, then the defendant may only be sentenced as an habitual felon for conviction of his fifth felony. (App. 23-24)

8 Appendix Motion for Appropriate Relief in State v. Wilson pp. 1-2 Petition for Writ of Certiorari in State v. Wilson - pp. 3-9 Motion for Appropriate Relief in State v. Cates pp. 10-24