N.C. Conference of Superior Court Judges Criminal Law Update and Review Jessica Smith Institute of Government School of Government, UNC-Chapel Hill June 2003 © 2003

Habitual Felon Law Correcting Errors Resentencing © 2003 Note: This presentation is available at: conference.htm

Habitual Felon Law—The Basics Habitual Felon. G.S to 7.6 Definition: D who has been convicted or pled guilty to 3 felonies. G.S Felonies can be from any state or federal court No contest pleas on/after 7/1/75 = “convictions.” Jackson, 128 N.C. App Per , some felonies are excepted: (1) Fed’l intoxicating liquor offenses; (2) Guilty pleas/convictions before 7/6/67; (3) Pardoned felonies; (4) Multiple felonies when D<18 count as one © 2003

Habitual Felon Law—The Basics Habitual Felon G.S to 7.6 Consequences: Sentenced as Class C felon (except where death or life sentence is imposed). G.S Sentence runs consecutively to any being served. G.S © 2003

Habitual Felon Law—The Basics Violent Habitual Felon G.S to 7.12 Definition: D who has been convicted of 2 violent felonies. G.S Felonies can be from any state or federal court G.S “Convicted” = found guilty or pled guilty or no contest. G.S Per G.S , some felonies are excepted: (1) Pardoned felonies; and (2) Felonies prior to 7/6/67. © 2003

Habitual Felon Law—The Basics Violent Habitual Felon G.S to 7.12 Violent felonies: Class A-E felonies, substantially similar repealed/superceded offenses, & substantially similar offenses from other jurisdictions. G.S (b). © 2003 What about reclassified felonies?

Habitual Felon Law—The Basics D was convicted in 1990 under FSA of a Class F felony. Got out of prison & last year committed another offense for which he’s been indicted. The 1990 crime has been reclassified under SSL as a Class D offense. Can the 1990 crime now be considered a violent felony for establishing V.H.F. status? © 2003

Habitual Felon Law—The Basics Violent Habitual Felon G.S to 7.12 Violent felonies: Class A-E felonies, substantially similar repealed/superceded offenses, & substantially similar offenses from other jurisdictions. G.S (b). Rule: For classifying a prior felony when the offense class has changed, use the present classification. Stevenson, 136 N.C. App. 235; Wolfe, -- N.C. App. – (4/1/03). © 2003

Habitual Felon Law—The Basics Violent Habitual Felon G.S to 7.12 Consequences: Sentenced to life imprisonment w/out parole (except where death is imposed). G.S ; Sentence runs consecutively to any being served. G.S © 2003

Habitual Felon Law—The Basics D pled guilty to 3 counts of felony larceny. Additionally, the State indicted D on 3 counts of being an H.F. to which D also pled guilty. At sentencing, trial judge entered the following 3 judgments: © 2003

Habitual Felon Law—The Basics (1) J&C on H.F., Class C felony, months; (2) J&C on H.F., Class C felony. Same sentence, consecutive to (1); and (3) J&C consolidating 3 felony larceny & final H.F. count, enhancing the larceny to a Class C & sentencing D to , consecutive to sentence imposed in (2). © 2003

Habitual Felon Law—The Basics “Being an habitual felon is not a crime but is a status the attaining of which subjects a person thereafter convicted of a crime to an increased punishment for that crime. The status itself, standing alone, will not support a criminal sentence.” Taylor, -- N.C. App. – (2/18/03)(quoting Thomas, 82 N.C. App. 682; see also Patton, 342 N.C © 2003

Habitual Felon Law—The Basics (1) J&C on Habitual Felon, Class C felony, months; (2) J&C on Habitual Felon, Class C felony. Same sentence, consecutive to (1); and (3) J&C consolidating 3 felony larceny & final habitual felon count, enhancing the larceny to a Class C & sentencing D to , to begin at the expiration of the sentence imposed in (2). XXXXX © 2003

Habitual Felon Law—The Basics Rule #1: Habitual felon is a status not a crime & cannot, by itself, sustain a criminal sentence. © 2003

Habitual Felon Law—The Basics StatusCrime v. Habitual Felon Violent Habitual Felon Habitual Misdemeanor Assault (Class H) Habitual Impaired Driving (Class F) © 2003

Habitual Felon Law--Indictment D pled guilty to 3 counts of felony larceny. Additionally, the State indicted D on 3 counts of being an habitual felon, to which D also pled guilty.  Do you need a separate indictment? How many indictments do you need? © 2003

Habitual Felon Law--Indictment Rule #2: “The indictment charging the defendant as an habitual felon shall be separate from the indictment charging him with the principal felony.” G.S ; see also G.S (violent H.F.) © 2003

Habitual Felon Law--Indictment Rule #3: One habitual felon indictment is enough for all felony offenses being charged. Patton, 342 N.C. 633); Taylor, - - N.C. App. – (2/18/03). Rationale: A single indictment gives notice that D is being prosecuted as a recidivist. © 2003

Habitual Felon Law--Indictment State must get H.F. indictment before D has entered a plea (guilty, not guilty, or no contest) to the substantive offense. Little, 126 N.C. App Rationale: Notice © 2003

Habitual Felon Law--Indictment H.F. indictment not invalid when returned 2 weeks before substantive felony & when there is compliance with statute’s notice & procedural requirements. Blakney, - -N.C. App.– (3/18/03) © 2003

Habitual Felon Law—Procedure Trial: D can’t be required to go to trial on H.F. indictment within 20 days of return of that indictment by the grand jury unless D waives. G.S ; © 2003

Habitual Felon Law—Procedure D tried 1 st for substantive offense Jury can’t be told of H.F. indictment during trial of substantive offense. G.S ; If found guilty, jury then decides ancillary H.F. issue. G.S ; © 2003

Habitual Felon Law—Procedure D can plead guilty to H.F. status. See Gilmore, 142 N.C. App © 2003 D is charged with felony larceny and indicted as an H.F. After jury finds D guilty of felony larceny, D stipulates to the 3 prior felonies for H.F. & to his H.F. status. Judge enters judgment for felony larceny while being an H.F. OK?

Habitual Felon Law—Procedure D can plead guilty to H.F. status. See Gilmore, 142 N.C. App Must follow guilty plea procedure; getting a stipulation to the underlying felonies & to H.F. status isn’t enough. Id. Can accept a no contest plea to H.F. status. Jones, 151 N.C. App © 2003

Habitual Felon Law—Double Jeopardy & Collateral Estoppel D is convicted of felony larceny while being an H.F. & is sentenced as a Class C felon. Later, D is indicted for a new felony & again as an H.F. New H.F. indictment lists the very same felonies used in the 1 st H.F. indictment. D argues this is a double jeopardy violation. Is it? © 2003

Habitual Felon Law—Double Jeopardy/Collateral Estoppel Rule #4: Double jeopardy does not bar the State from “reusing” convictions to establish habitual felon status. Creason, 123 N.C. App © 2003 Rationale: H.F. is a status that once attained is never lost.

Habitual Felon Law—Double Jeopardy/Collateral Estoppel D is indicted for felony larceny & H.F. D is convicted of felony larceny but found NOT GUILTY in the H.F. hearing. Later, D is indicted for a separate felony & again for H.F. The new H.F. indictment lists the very same felonies used in the 1 st H.F. indictment. D objects. © 2003

Habitual Felon Law—Double Jeopardy/Collateral Estoppel Rule #5: Once there has been a not guilty verdict in an habitual felon hearing, collateral estoppel bars (issue preclusion) the State from trying the D again for habitual felon based on the same convictions. Safrit, 145 N.C. App. 541 (2001) (violent H.F. case) (Safrit I). © 2003 Note: State can try D again as H.F.; just needs new offenses to do so.

Habitual Felon Law—Double Jeopardy/Collateral Estoppel D is indicted for felony larceny & H.F. D is convicted of felony larceny but is found NOT GUILTY in the H.F. hearing. When sentencing D for felony larceny, court uses the felonies supporting the H.F. indictment to calculate prior record level points. D says collateral estoppel applies. © 2003

Habitual Felon Law--Double Jeopardy/Collateral Estoppel Rule #6: Once there has been a not guilty verdict in an habitual felon hearing, collateral estoppel does not bar the State from using the underlying convictions to establish prior record level. Safrit, -- N.C. App. -- (12/17/02) (violent habitual felon case) (Safrit II). © 2003

Habitual Felon Law--Double Jeopardy/Collateral Estoppel Rationale: For collateral estoppel to apply, the issues must be the same. In an H.F. hearing, State must prove prior convictions beyond a reasonable doubt. At sentencing the standard for prior convictions for prior record level is preponderance of the evidence. Difference in burden of proof precludes application of collateral estoppel. © 2003

Habitual Felon Law--Double Jeopardy/Collateral Estoppel Guilty in H.F. hearing Rule #4: Can reuse underlying convictions to establish H.F. status again © 2003

Habitual Felon Law--Double Jeopardy/Collateral Estoppel Rule #5: Can’t try D again for H.F. based on same convictions Not guilty in H.F. hearing Rule #6: Can use same convictions for prior record level © 2003

Habitual Felon Law—Underlying Crimes Habitual Misdemeanor Assault Habitual Impaired Driving Can you habitualize these habitual offenses? © 2003

Habitual Felon Law—Underlying Crimes StatusCrime v. Habitual Felon Violent Habitual Felon Habitual Misdemeanor Assault Habitual Impaired Driving © 2003

Habitual Felon Law—Underlying Crimes Rule #7: There is no statutory bar to using habitual offenses such as habitual impaired driving or habitual misd. assault as (a) the substantive felony OR (b) to establish H.F. status. State v. Baldwin, 117 N.C. App. 713 (1995); State v. Smith, 139 N.C. App. 209 (2000) © 2003

Habitual Felon Law—Underlying Crimes Underlying crimes “may” be proved by: Stipulation Original record Certified copy of the record G.S ; ; see also Wall, 141 N.C. App. 529 (faxed certified copy OK). © 2003

Habitual Felon Law—Underlying Crimes Carpenter, --N.C. App.– (12/31/02): State didn’t to prove NJ convictions were felonies NJ judgments didn’t say they were felonies; no certification from any official saying they were State’s evidence: that D could have received sentence >1 year & offenses punishable by >1 year were felonies in NJ © 2003

Habitual Felon Law—Underlying Crimes Wolfe, --N.C. App.– (4/1/03) State introduced certified copies of judgments of felony convictions in D’s name This established p.f. evidence of the priors. See G.S ; Discrepancies in details re: judgments (e.g., listing of D’s race) were for jury to weigh © 2003

Habitual Felon Law—Sentencing After the jury finds D guilty of burglary, it finds him to be an H.F., elevating the punishment for the burglary to a Class C. At sentencing, the prosecutor offers the underlying offenses that were used to establish H.F. status to establish D’s prior record level. D objects. © 2003

Habitual Felon Law—Sentencing Rule #8: In H.F. sentencing, the underlying crimes used to establish H.F. status cannot be used when determining prior record level. G.S © 2003

Habitual Felon Law--Sentencing Not guilty in H.F. hearing Rule #6: Can use same convictions for prior record level (reason: no collateral estoppel) © 2003 Guilty in H.F. hearing Rule #8: Can’t use same convictions for prior record level (reason: statute)

Habitual Felon Law—Sentencing D has been adjudicated an H.F. To establish prior record level, State offers a prior felony B/E conviction that was elevated to from a Class H to a Class C b/c of H.F. status. The B/E isn’t also being used to establish H.F. status. When calculating prior record points, do you consider the B/E a Class H or a Class C? © 2003

Habitual Felon Law—Sentencing Rule #9: H.F. status is not a prior felony conviction for purposes of calculating prior record level. When there is a prior felony that was enhanced b/c of H.F. status, look to the offense class of the substantive felony offense to determine points. Vaughn, 130 N.C. App © 2003

Correcting Errors © 2003 AOJB 2003/02: Trial Judge’s Authority to Sua Sponte Correct Errors After Entry of Judgment in a Criminal Case

Correcting Errors © 2003 You have entered judgment in a criminal case. After thinking about the case overnight, you decide that you shouldn’t have found one of the aggravating factors. Can you now delete the finding? Why or why not?

Correcting Errors © 2003 Rule #1: Until expiration of the session, the court’s judgment is in fieri and the judge has discretion to amend it or set it aside. See e.g., Godwin, 210 N.C. 447; Sammartino, 120 N.C. App. 597; Quick, 106 N.C. App. 548.

Correcting Errors © 2003 Procedure: May hear further evidence in open court; parties should be present. See e.g. Godwin, 210 N.C. at 449. Session ends when time set for it by Chief Justice expires, see e.g. Jones, 27 N.C. App. at 638; can end earlier if judge adjourns sine die. See Quick, 106 N.C. App. at 561.

Correcting Errors © 2003 You have entered judgment in a criminal case, sentencing D in the agg. range. The session has ended. You realize that when filling out the J&C form, you forgot to check the box indicating that agg. factors outweighed mitigators. Can you now correct the judgment? Why or why not?

Correcting Errors © 2003 Rule #2: A trial judge has inherent authority to correct clerical errors after the session has ended. See e.g. Linemann, 135 N.C. App. at 738. Exception: appeal docketed. See e.g. Dixon, 139 N.C. App. at 338. “Speak the truth.” See e.g. Linemann, 135 N.C. app. at 738. Nunc pro tunc. See Dixon, 139 N.C. App. at 338 Best practices: notice & opportunity to be heard

Correcting Errors © 2003 Rule #2: A trial judge has inherent authority to correct clerical errors after the session has ended. See e.g. Linemann, 135 N.C. App. at 738. What’s a clerical error? Why does the definition of “clerical error” matter?

Correcting Errors © 2003 Rule #3: A trial judge’s authority to correct judicial errors out of session is very limited.

Correcting Errors © 2003 Clerical Errors—Stuff That’s Clearly Clerical Judge mistakenly lists offense A as the one for which he/she arrested judgment when in fact judge arrested offense B. See Hendricks, 138 N.C. App. 668.

Correcting Errors © 2003 Clerical Errors—Stuff That’s Clearly Clerical Judge failed to check box indicating that agg. factors outweighed mitigators when in fact judge made such a finding. See e.g. Sellers, 155 N.C. App. – (12/31/02)

Correcting Errors © 2003 Clerical Errors—Stuff That’s Clearly Clerical Judge found agg. factor A in open court but checked agg. factor B on the J&C form. See e.g. Thomas, 153 N.C. App. 326.

Correcting Errors © 2003 Clerical Errors—Stuff That’s Clearly Clerical Judge made a typo when listing a statute number on the judgment. See McKinnon, 35 N.C. App. at 743.

Correcting Errors © 2003 Clerical Errors--Stuff That Counts As Clerical But Doesn’t Seem Clerical Judge mistakenly gives D credit against service of sentence for time served while under house arrest. See Jarman, 140 N.C. App. at 203.

Correcting Errors © 2003 Clerical Errors--Stuff That Counts As Clerical But Doesn’t Seem Clerical Incorrect listing of offense class. See e.g., Linemann, 135 N.C. App. at

Correcting Errors © 2003 Rule #3 (again): A trial judge’s authority to correct judicial errors out of session is very limited.

Correcting Errors © 2003 Two sources of authority: 1)MAR statute 15A-1420(d) (trial judge’s sua sponte motion) Limited to when “[D] would be entitled to relief” & thus to errors that work to the D’s disadvantage. See Oakley, 75 N.C. App. 99.

Correcting Errors © 2003 Two sources of authority: 2) Inherent Authority General rule: While a trial court can correct clerical errors to make record speak the truth, it can’t correct judicial errors. See e.g. Cannon, 244 N.C. at 404.

Correcting Errors © 2003 Two sources of authority: 2) Inherent Authority Example of Judicial Error: Entering judgment on the status of being an habitual felon. Taylor, -- N.C. App. – (2/18/03)

Correcting Errors © 2003 Two sources of authority: 2) Inherent Authority Exception to General Rule: Judgment is invalid as a matter of law. Branch, 134 N.C. App. 637.

Correcting Errors © 2003 Branch, 134 N.C. App. 637: Trial judge combined SSA & FSA offenses & sentenced D to mos. After judge learned offenses couldn’t be combined, resentenced D to mos. on SSA crimes & 10 yrs on FSA crimes. D challenged resentencing & lost; court held that trial judges have authority to correct judgments that “are invalid as a matter of law.”

Correcting Errors © 2003 Rule #3 (revised): A trial judge’s authority to correct judicial errors out of session is limited to: (1) Correcting errors that disadvantage D (under G.S. 15A-1420(d)); & (2) Correcting judgments that are invalid as a matter of law (under Branch).

Resentencing © 2003 Resentencing hearings are de novo. See e.g. Mitchell, 67 N.C. App. at New determinations re: agg. & mitig. Factors. See id. --Can vary weight previously given to factors. See id. BUT...

Resentencing © 2003 G.S. 15A-1335 When a conviction/sentence is set aside on direct review/collateral attack, the court may not impose a new sentence for the same offense, or for a difference offense based on the same conduct, that is more severe than the prior sentence less the portion of the prior sentence previously served.

Resentencing © A-1335 embodies the rule of N.C. v. Pearce, 395 U.S. 711, but is more restrictive Pearce: absent vindictiveness, court could increase sentence based on conduct that occurred after original sentencing e.g., bad conduct in prison 15A-1335 is a blanket prohibition

Resentencing © 2003 Sattazahn v. PA, 537 U.S. 101 (2003): After jury deadlocked at capital sentencing, life sentence was imposed as required by PA law. D appealed & got 2nd trial & was sentenced to death Held: Neither D.J. nor Due Process barred PA from obtaining a death sentence at the 2 nd trial.

Resentencing © 2003 Sattazahn v. PA, 537 U.S. 101 (2003): After jury deadlocked at capital sentencing, life sentence was imposed as required by PA law. D appealed & got 2nd trial & was sentenced to death Held: Neither D.J. nor Due Process barred PA from obtaining a death sentence at the 2 nd trial. XXX

Resentencing © 2003 G.S. 15A-1335 Applies When: 1 st conviction resulted from jury verdict What about when 1 st conviction results from a plea bargain?

Resentencing © 2003 State v. Wagner, 356 N.C. 599 (2002): D pled G & sentenced pursuant to plea bargain On D’s MAR, plea & judgment was set aside D was retried, jury returned G verdict & judge imposed more severe sentence

Resentencing © 2003 Wagner: G.S. 15A-1335 also applies when original conviction resulted from plea bargain

Resentencing © 2003 G.S. 15A-1335 Applies When: Conviction resulted from jury verdict Conviction resulted from a plea bargain

Resentencing © 2003 Does not apply: De novo appeal from district to superior court. See Burbank, 59 N.C. App. at Prayer for judgment results in sentence on offense for which judgment was arrested. See Pakulski, 106 N.C. App. 444.

Resentencing © 2003 Prohibits more severe sentence Easy case: life v months. See Holt, 144 N.C. App. 112.

Resentencing © 2003 Prohibits more severe sentence Hard case: consolidated sentences under FSA. See Hemby, 333 N.C. 331; Nixon, 119 N.C. App. 571.

Resentencing © 2003 Exception: Statutorily mandated sentence. See Williams. 74 N.C. App. 728; Kirkpatrick, 89 N.C. App E.g., Drug trafficking under 90-95(h)

Resentencing © A-1335 doesn’t prohibit: Replacement of concurrent sentences with consecutive sentences (provided individual and aggregate sentences don’t exceed original). Oliver, 155 N.C. App.– (2002).

Resentencing © A-1335 doesn’t prohibit: Changing the way sentences are consolidated. See Ransom, 80 N.C. App. at 713.

Resentencing © A-1335 doesn’t prohibit: Finding new agg. factors (so long as they don’t increase sentence). See Hemby, 333 N.C. at 334.

Resentencing © A-1335 doesn’t prohibit: Imposing same sentence when fewer agg. factors are found. See Mitchell, 67 N.C. App. 549.