n.c. conference of superior court judges criminal law update and review jessica smith institute of...

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

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Note: This presentation is available at: http://ncinfo.iog.unc.edu/faculty/smithjess/

200306conference.htm

Habitual Felon Law—The Basics

Habitual Felon. G.S. 14-7.1 to 7.6

Definition: D who has been convicted or pled guilty to 3 felonies. G.S. 14-7.1

Felonies can be from any state or federal court. 14-7.1.

No contest pleas on/after 7/1/75 = “convictions.” Jackson, 128 N.C. App. 626.

Per 14-7.1, 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

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Habitual Felon G.S. 14-7.1 to 7.6

Consequences:

Sentenced as Class C felon (except where death or life sentence is imposed). G.S. 14-7.6

Sentence runs consecutively to any being served. G.S. 14-7.6

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Violent Habitual Felon G.S. 14-7.7 to 7.12

Definition: D who has been convicted of 2 violent felonies. G.S. 14-7.7

Felonies can be from any state or federal court G.S. 14-7.7.

“Convicted” = found guilty or pled guilty or no contest. G.S. 14-7.7

Per G.S. 14-7.7, some felonies are excepted: (1) Pardoned felonies; and (2) Felonies prior to 7/6/67.

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Violent felonies: Class A-E felonies, substantially similar repealed/superceded offenses, & substantially similar offenses from other jurisdictions. G.S. 14-7.7(b).

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What about reclassified felonies?


• 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?

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Violent felonies: Class A-E felonies, substantially similar repealed/superceded offenses, & substantially similar offenses from other jurisdictions. G.S. 14-7.7(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).

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Consequences:

Sentenced to life imprisonment w/out parole (except where death is imposed). G.S. 14-7.8; 14-7.12

Sentence runs consecutively to any being served. G.S. 14-7.12

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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:

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(1) J&C on H.F., Class C felony, 151-191 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 151-191, consecutive to sentence imposed in (2).

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“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. 633.

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(1) J&C on Habitual Felon, Class C felony, 151-191 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 151-191, to begin at the expiration of the sentence imposed in (2).

XXXXX

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Rule #1: Habitual felon is a status not a crime & cannot, by itself, sustain a

criminal sentence.

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Status Crimev.

Habitual Felon

Violent Habitual Felon

Habitual Misdemeanor

Assault (Class H)

Habitual Impaired Driving (Class F)

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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?

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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. 14-7.3; see also G.S. 14-7.9 (violent H.F.)

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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.

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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. 262.

Rationale: Notice

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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)

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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. 14-7.3; 14-7.9

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D tried 1st for substantive offense

Jury can’t be told of H.F. indictment during trial of substantive offense. G.S. 14-7.5; 14-7.11.

If found guilty, jury then decides ancillary H.F. issue. G.S. 14-7.5; 14-7.11.

. . .

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D can plead guilty to H.F. status. See Gilmore, 142 N.C. App. 465.

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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?


D can plead guilty to H.F. status. See Gilmore, 142 N.C. App. 465.

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. 317.

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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 1st H.F. indictment. • D argues this is a double jeopardy violation. Is it?

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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. 495.

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Rationale: H.F. is a status that once attained is never lost.


• 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 1st H.F. indictment. D objects.

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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).

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Note: State can try D again as H.F.; just needs new offenses to do so.


• 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.

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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).

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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.

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Guilty in H.F. hearing

Rule #4: Can reuse underlying

convictions to establish H.F. status again

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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

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Habitual Felon Law—Underlying Crimes


Assault

Habitual Impaired Driving

Can you habitualize

these habitual offenses?

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Status Crimev.

Habitual Felon

Violent Habitual Felon


Assault

Habitual Impaired Driving

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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)

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Underlying crimes “may” be proved by:

Stipulation

Original record

Certified copy of the record

G.S. 14-7.4; 14-7.10; see also Wall, 141 N.C. App. 529 (faxed certified copy OK).

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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

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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. 14-7.4; 14-7.10.

Discrepancies in details re: judgments (e.g., listing of D’s race) were for jury to weigh

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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.

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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. 14-7.6.

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Habitual Felon Law--Sentencing

Not guilty in H.F. hearing

Rule #6: Can use same convictions for prior record level (reason:

no collateral estoppel)

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Guilty in H.F. hearing

Rule #8: Can’t use same convictions for

prior record level (reason: statute)


• 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?

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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. 456.

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Correcting Errors

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AOJB 2003/02: Trial Judge’s Authority to Sua Sponte Correct Errors After Entry

of Judgment in a Criminal Case

http://ncinfo.iog.unc.edu/programs/crimlaw/aoj.htm

Correcting Errors

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• 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

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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

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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

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• 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

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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

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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

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

Correcting Errors

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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

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• 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

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• 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

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• Judge made a typo when listing a statute number on the judgment. See McKinnon, 35 N.C. App. at 743.

Correcting Errors

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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

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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 737-38.

Correcting Errors

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Rule #3 (again): A trial judge’s authority to correct judicial errors out of session is very

limited.

Correcting Errors

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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

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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

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Example of Judicial Error: Entering judgment on the status of being an habitual felon. Taylor, -- N.C. App. – (2/18/03)

Correcting Errors

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Exception to General Rule: Judgment is invalid as a matter of law. Branch, 134 N.C. App. 637.

Correcting Errors

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Branch, 134 N.C. App. 637: • Trial judge combined SSA & FSA offenses & sentenced D to 12-15 mos.• After judge learned offenses couldn’t be combined, resentenced D to 12-15 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

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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

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Resentencing hearings are de novo. See e.g. Mitchell, 67 N.C. App. at 551.

--New determinations re: agg. & mitig. Factors. See id.

--Can vary weight previously given to factors. See id.

BUT . . .

Resentencing

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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

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15A-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

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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 2nd trial.

Resentencing

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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 2nd trial.

XXX

Resentencing

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G.S. 15A-1335 Applies When:

1st conviction resulted from jury verdict

What about when 1st conviction results from a plea bargain?

Resentencing

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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

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G.S. 15A-1335 Applies When:

Conviction resulted from jury verdict

Conviction resulted from a plea bargain

Resentencing

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Does not apply:

De novo appeal from district to superior court. See Burbank, 59 N.C. App. at 546-47.

Prayer for judgment results in sentence on offense for which judgment was arrested. See Pakulski, 106 N.C. App. 444.

Resentencing

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Prohibits more severe sentence

Hard case: consolidated sentences under FSA. See Hemby, 333 N.C.

331; Nixon, 119 N.C. App. 571.

Resentencing

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Exception: Statutorily mandated sentence. See Williams. 74 N.C. App. 728; Kirkpatrick, 89 N.C. App. 353.

E.g., Drug trafficking under 90-95(h)

Resentencing

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15A-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

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• Finding new agg. factors (so long as they don’t increase sentence). See

Hemby, 333 N.C. at 334.

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