Transcript Criminal Law Update and Review

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
Note: This presentation is available at:
http://ncinfo.iog.unc.edu/faculty/smithjess/
200306conference.htm
© 2003
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
© 2003
Habitual Felon Law—The Basics
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
© 2003
Habitual Felon Law—The Basics
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.
© 2003
Habitual Felon Law—The Basics
Violent Habitual Felon G.S. 14-7.7 to 7.12
Violent felonies: Class A-E felonies,
substantially similar repealed/superceded
offenses, & substantially similar offenses
from other jurisdictions. G.S. 14-7.7(b).
What about
reclassified
felonies?
© 2003
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. 14-7.7 to 7.12
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substantially similar repealed/superceded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).
© 2003
Habitual Felon Law—The Basics
Violent Habitual Felon G.S. 14-7.7 to 7.12
Consequences:
Sentenced to life imprisonment w/out parole
(except where death is imposed). G.S. 14-7.8; 147.12
Sentence runs consecutively to any being served.
G.S. 14-7.12
© 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, 151191 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).
© 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.
633.
© 2003
Habitual Felon Law—The Basics
(1) J&C on Habitual Felon, Class C felony,
151-191 months;
XXXXX
(2) J&C on Habitual Felon, Class C felony.
Same sentence, consecutive to (1); and
XXXXX
(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).
© 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
Status
Habitual Felon
Violent Habitual
Felon
v.
Crime
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. 14-7.3; see also G.S. 14-7.9
(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. 262.
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. 14-7.3; 14-7.9
© 2003
Habitual Felon Law—Procedure
 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; 147.11.
...
© 2003
Habitual Felon Law—Procedure
 D can plead guilty to H.F. status. See
Gilmore, 142 N.C. App. 465.
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?
© 2003
Habitual Felon Law—Procedure
 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.
© 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 1st 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. 495.
Rationale: H.F. is a status that once
attained is never lost.
© 2003
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 1st 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).
Note: State can try D again as H.F.; just needs new
offenses to do so.
© 2003
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
Not guilty in H.F. hearing
Rule #5: Can’t try D
again for H.F.
based on same
convictions
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
Status
Habitual Felon
Violent Habitual
Felon
v.
Crime
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. 14-7.4; 14-7.10; 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. 14-7.4; 14-7.10.
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. 14-7.6.
© 2003
Habitual Felon Law--Sentencing
Guilty in H.F.
hearing
Rule #8: Can’t use
same convictions for
prior record level
(reason: statute)
Not guilty in H.F.
hearing
Rule #6: Can use same
convictions for prior
record level (reason:
no collateral
estoppel)
© 2003
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. 456.
© 2003
Correcting Errors
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
© 2003
Correcting Errors
• 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?
© 2003
Correcting Errors
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.
© 2003
Correcting Errors
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.
© 2003
Correcting Errors
• 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?
© 2003
Correcting Errors
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
© 2003
Correcting Errors
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?
© 2003
Correcting Errors
Rule #3: A trial judge’s authority to correct
judicial errors out of session is very limited.
© 2003
Correcting Errors
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.
© 2003
Correcting Errors
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)
© 2003
Correcting Errors
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.
© 2003
Correcting Errors
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.
© 2003
Correcting Errors
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.
© 2003
Correcting Errors
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.
© 2003
Correcting Errors
Rule #3 (again): A trial judge’s authority to
correct judicial errors out of session is very
limited.
© 2003
Correcting Errors
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.
© 2003
Correcting Errors
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.
© 2003
Correcting Errors
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)
© 2003
Correcting Errors
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.
© 2003
Correcting Errors
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.”
© 2003
Correcting Errors
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).
© 2003
Resentencing
 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 . . .
© 2003
Resentencing
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.
© 2003
Resentencing
 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
© 2003
Resentencing
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.
© 2003
Resentencing
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
XXX
Held: Neither D.J. nor Due Process
barred PA from obtaining a death
sentence at the 2nd trial.
© 2003
Resentencing
 G.S. 15A-1335 Applies When:
1st conviction resulted from jury verdict
What about when
1st conviction
results from a
plea bargain?
© 2003
Resentencing
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
© 2003
Resentencing
Wagner: G.S. 15A-1335 also
applies when original
conviction resulted from plea
bargain
© 2003
Resentencing
 G.S. 15A-1335 Applies When:
Conviction resulted from jury verdict
Conviction resulted from a plea bargain
© 2003
Resentencing
 Does not apply:
De novo appeal from district to superior
court. See Burbank, 59 N.C. App. at 54647.
Prayer for judgment results in sentence
on offense for which judgment was
arrested. See Pakulski, 106 N.C. App.
444.
© 2003
Resentencing
 Prohibits more severe sentence
Easy case: life v. 196-245 months.
See Holt, 144 N.C. App. 112.
© 2003
Resentencing
 Prohibits more severe sentence
Hard case: consolidated sentences
under FSA. See Hemby, 333 N.C.
331; Nixon, 119 N.C. App. 571.
© 2003
Resentencing
 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)
© 2003
Resentencing
 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).
© 2003
Resentencing
 15A-1335 doesn’t prohibit:
•
Changing the way sentences are
consolidated. See Ransom, 80 N.C.
App. at 713.
© 2003
Resentencing
 15A-1335 doesn’t prohibit:
•
Finding new agg. factors (so long as
they don’t increase sentence). See
Hemby, 333 N.C. at 334.
© 2003
Resentencing
 15A-1335 doesn’t prohibit:
•
Imposing same sentence when fewer
agg. factors are found. See Mitchell,
67 N.C. App. 549.
© 2003