Habitual status offenses include habitual felon, habitual misdemeanor assault, habitual breaking and entering, armed habitual felon, and habitual driving while impaired. Summations of the status offenses are as follows:
Habitual Felon: 3 prior felony convictions. Sentenced at 4 classes higher than the underlying felony, but no higher than a class C felony punishment level.
Habitual Misdemeanor Assault: 2 or more prior felony or misdemeanor assaults within 15 years, and commits an assault with physical injury under N.C.G.S. 14-33 or an assault under N.C.G.S. 14-34. Class H felony punishment.
Habitual Larceny: Commits a larceny, with four prior larceny (misdemeanor or felony) convictions. Class H felony punishment.
Violent Habitual Felon: 2 prior Class A-E felony convictions. Life without parole.
Habitual Breaking and Entering: 1 prior breaking and entering conviction. Sentenced as a Class E felony.
Armed Habitual Felon: One prior firearm related felony. Sentenced as a Class C felony, with a mandatory 120 month minimum active sentence.
Habitual Impaired Driving: 3 prior impaired driving related convictions within 10 years of the new charge’s offense date. Class F felony, 12 month minimum active sentence required.
A person attains habitual felon status if they have been previously convicted of or plead guilty to 3 felony offenses in any federal or state court or combination thereof in the United States. The offense date of the second and third felony must each occur after the conviction date of the previous felony. Any felony may serve as an underlying offense in which the State may attach a habitual felon charge (including habitual impaired driving or habitual misdemeanor assault). An interesting exception includes federal crimes related to intoxicating liquors; a notable exception includes felonies committed prior to the defendant attaining the age of 18 (in adult court, juvenile crimes are excluded), of which only one felony may be used in calculating the habitual felon status. Pardon’s are also exempted from the calculation, as are convictions dating prior to June 6th, 1967.
Habitual felons are punished four classes higher than the underlying felony charge, but no higher than a class C felony. Thus, Class I felonies are sentenced as Class E felonies, Class H felonies as Class D, with all other felonies being punished at the Class C level. The convictions used to establish the defendant’s habitual status are not used to determining prior record levels. However, those same convictions may be used over and over again to support any new habitual felony charges.
Habitual misdemeanor assault requires two or more prior felony or misdemeanor assaults within 15 years of the offense date. If the defendant commits an assault under N.C.G.S. 14-33, and actually causes physical injury, or an assault under N.C.G.S. 14-34 (assault by pointing a gun), they may be punished as a Class H felon.
Larceny is elevated to a Habitual Larceny felony, which is a Class H felony, if the defendant has four prior larceny convictions. The convictions may be either felonies, misdemeanors, or any combination of the two.
The punishment for a violent habitual felon is life without parole. A person reaches this status if they have 2 prior violent felony convictions, defined as all Class A through Class E felonies, in any federal or state court or combination thereof in the United States. Any prior conviction that was a statutorily classified lower offense at the time of conviction, but has been elevated to a Class E or higher by the time of the new underlying offense date, counts as the new, higher classification for status purposes. The existence of “factual violence,” in the current or previous offense(s) is irrelevant. Prior habitual felony convictions, or habitual breaking and entering convictions do not count as “violent habitual felonies.” Convictions prior to July 6, 1967, and pardons are also exempted, although there is no provision regarding the use of convictions prior to the defendant reaching 18 years of age.
A second breaking and entering charge, committed after a previous breaking and entering conviction, elevates a defendant to a “habitual breaking and entering status offender.” The prior conviction may be from any federal or state court or combination thereof in the United States, but mirrors the habitual felon statute regarding convictions obtained while under the age of 18. A defendant is sentenced as a Class E felon, and the prior conviction used to determine the habitual status is not considered when determining the record level. Prior convictions and qualifying offenses categorized under this statute include first degree burglary (14-51), second degree burglary (14-51), breaking out of dwelling house burglary (14-53), breaking or entering buildings generally (14-54(a)), and breaking or entering a building that is a place of religious worship (14-54.1).
A firearm related charge may be elevated to a habitual status under 14-7.36. The statute allows a prosecutor to charge an individual with only one prior firearm-related felony conviction as an armed habitual felon. A firearm-related felony is defined as any felony in which the person used or displayed a firearm while committing the crime. An element of the prior conviction must include the use, display, or threatened use or display of a firearm or that a firearm was needed to establish the requirement for an enhanced or aggravated sentence.
The choice of a prior firearm-related conviction should be carefully chosen by a prosecutor, and closely scrutinized by the defense. N.C.G.S. 15A-1382.2 requires judges to determine whether or not a defendant used or displayed a firearm and include that determination when entering a judgement. However, such a finding does not necessarily mean that the use of a firearm was necessary to prove an element of the prior conviction. For the purpose of the habitual status, the underlying new conviction, as found by the jury, must have been committed by using, displaying or threatening the use or display of a firearm or deadly weapon and the person actually possessed the firearm or deadly weapon about their person. The statute’s use of the phrase “or deadly weapon” does not change the fact that the statute only applies to firearms, and not other weapons. The firearm enhancement of 15A-1340.16A cannot be used in conjunction with this enhancement. A pardoned prior felony will not constitute a prior conviction.
The decision to charge an individual as a habitual felon, violent habitual felon, habitual status for breaking and entering, or armed habitual felon is subject to prosecutorial discretion. Evidence of prior convictions may be proved by stipulation of the parties, or by an original or certified copy of the prior conviction court record. Prior conviction dates are defined as the date of the plea or verdict, not the sentencing date. Habitual felon, violent habitual felon, habitual breaking and entering, and armed habitual felon sentences imposed by the court run consecutively with and commence at the expiration of any current sentence being served.
Habitual impaired driving is defined as a defendant committing the offense of driving while impaired (as defined in 20-138.1), and has previously been convicted of three or more offenses involving impaired driving as defined in 20-4.01(24a), within 10 years of the offense date.
For sentencing purposes, it is a class F felony, and requires a 12 month minimum active sentence that can not be suspended. The sentence must run consecutive with and commence at the expiration of any sentence being currently served. The defendant’s vehicle is subject to seizure and forfeiture, and upon conviction their driver’s license will be permanently revoked.
As a practical matter, the offense date of the new underlying DWI charge must occur after the previous conviction dates. Prior convictions may include impaired driving (20-138.1), habitual impaired driving (20-138.5), impaired driving in a commercial vehicle (20-138.2), death of serious injury by vehicle based on impaired driving (20-141.4), murder based on impaired driving (14-17), involuntary manslaughter involving impaired driving (14-18), and substantially similar offenses committed in another jurisdiction. This includes convictions involving impaired driving from Canada! Crazy, eh?
If you’ve been charged with a Habitual Status Crime, contact the attorneys at Garrett, Walker and Aycoth at 336-379-0539. We can assist you!