GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
H D
HOUSE DRH70137-LH-12 (10/20)
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Short Title: Amend Habitual Felon Law. |
(Public) |
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Sponsors: |
Representative Haire. |
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Referred to: |
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A BILL TO BE ENTITLED
AN ACT to amend the habitual felon law by redefining aN habitual felon as a person who has been convicted of three prior felony offenses that were class g felonies or higher and that were committed within FIFTEEN years of the commission of the principal felony with which the person is charged by changing the sentence imposed on a person convicted as an habitual felon to be one felony class higher than the principal felony for which the person is convicted, to provide that an enhanced sentence may be imposed on a defendant convicted of a class h or I felony who has at least three prior convictions of a class h or I felony within TEN years of the date of the commission of the principal felony with which the person is charged, and to direct the post-release supervision and parole commission to determine whether the sentence being served by certain inmates is longer than would have been imposed under structured sentencing for the same crime and if so, then to reinitiate the parole review process for those particular inmates.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 14-7.1 reads as rewritten:
"§ 14-7.1. Persons defined as habitual felons.
Any person who has been convicted of or pled guilty to three
felony offenses that were committed within a 15-year period of time from the
date of the commission of the principal felony with which the person is charged
and that were Class G felonies or higher or the equivalent thereof in any
federal court or state court in the United States or combination thereof is
declared to be an habitual felon. For the purpose of this Article, a felony
offense is defined as an offense which is a felony Class G felony or
higher under the laws of the State or other sovereign wherein a plea of
guilty was entered or a conviction was returned regardless of the sentence
actually imposed. Provided, however, that federal offenses relating to the
manufacture, possession, sale and kindred offenses involving intoxicating
liquors shall not be considered felonies for the purposes of this Article. For
the purposes of this Article, felonies committed before a person attains the
age of 18 years shall not constitute more than one felony. The commission of a
second felony shall not fall within the purview of this Article unless it is
committed after the conviction of or plea of guilty to the first felony. The
commission of a third felony shall not fall within the purview of this Article
unless it is committed after the conviction of or plea of guilty to the second
felony. Pleas of guilty to or convictions of felony offenses prior to July 6,
1967, shall not be felony offenses within the meaning of this Article. Any
felony offense to which a pardon has been extended shall not for the purpose of
this Article constitute a felony. The burden of proving such pardon shall rest
with the defendant and the State shall not be required to disprove a
pardon."
SECTION 2. G.S. 14-7.2 reads as rewritten:
When any person is charged by indictment with the commission of a felony that is a Class G felony or higher under the laws of the State of North Carolina and is also charged with being an habitual felon as defined in G.S. 14-7.1, he must, upon conviction, be sentenced and punished as an habitual felon, as in this Chapter provided, except in those cases where the death penalty or a life sentence is imposed."
SECTION 3. G.S. 14-7.3 reads as rewritten:
"§ 14-7.3. Charge of habitual felon.
An indictment which charges a person who is an habitual felon within the meaning of G.S. 14-7.1 with the commission of any felony that is a Class G felony or higher under the laws of the State of North Carolina must, in order to sustain a conviction of habitual felon, also charge that said person is an habitual felon. The indictment charging the defendant as an habitual felon shall be separate from the indictment charging him with the principal felony. An indictment which charges a person with being an habitual felon must set forth the date that prior felony offenses were committed, the name of the state or other sovereign against whom said felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place. No defendant charged with being an habitual felon in a bill of indictment shall be required to go to trial on said charge within 20 days of the finding of a true bill by the grand jury; provided, the defendant may waive this 20-day period."
SECTION 4. G.S. 14-7.4 reads as rewritten:
"§ 14-7.4. Evidence of prior convictions of felony offenses.
In all cases where a person is charged under the provisions
of this Article with being an habitual felon, the record or records of prior
convictions of felony offenses shall be admissible in evidence, but only for
the purpose of proving that said person has been convicted of former felony offenses.
offenses, that those offenses were at least Class G felonies or higher,
and that those offenses were committed within a 15-year period of time from the
date of the commission of the principal felony. A prior conviction may be
proved by stipulation of the parties or by the original or a certified copy of
the court record of the prior conviction. The original or certified copy of the
court record, bearing the same name as that by which the defendant is charged,
shall be prima facie evidence that the defendant named therein is the same as
the defendant before the court, and shall be prima facie evidence of the facts
set out therein."
SECTION 5. G.S. 14-7.5 reads as rewritten:
"§ 14-7.5. Verdict and judgment.
When an indictment charges an habitual felon with a felony
Class G felony or higher as above provided and an indictment also
charges that said person is an habitual felon as provided herein, the defendant
shall be tried for the principal felony as provided by law. The indictment that
the person is an habitual felon shall not be revealed to the jury unless the
jury shall find that the defendant is guilty of the principal felony or other
felony with which he is charged. If the jury finds the defendant guilty of a felony,
felony that is a Class G felony or higher, the bill of indictment
charging the defendant as an habitual felon may be presented to the same jury.
Except that the same jury may be used, the proceedings shall be as if the issue
of habitual felon were a principal charge. If the jury finds that the defendant
is an habitual felon, the trial judge shall enter judgment according to the
provisions of this Article. If the jury finds that the defendant is not an
habitual felon, the trial judge shall pronounce judgment on the principal
felony or felonies as provided by law."
SECTION 6. G.S. 14-7.6 reads as rewritten:
"§ 14-7.6. Sentencing of habitual felons.
When an habitual felon as defined in this Article commits any
felony that is a Class G felony or higher under the laws of the State of
North Carolina, the felon must, upon conviction or plea of guilty under
indictment as provided in this Article (except where the felon has been
sentenced as a Class A, B1, or B2 felon) be sentenced as a Class C felon. one
felony class higher than the principal felony for which the person was
convicted. In determining the prior record level, convictions used to
establish a person's status as an habitual felon shall not be used. Sentences
imposed under this Article shall run consecutively with and shall commence at
the expiration of any sentence being served by the person sentenced under this
section."
SECTION 7. Article 81B of Chapter 15A of the General Statutes is amended by adding a new section to read:
"§ 15A-1340.16E. Enhanced sentence if defendant has at least three prior convictions of Class H or I felonies.
(a) Notwithstanding G.S. 15A-1340.17, if a person is convicted of a Class H or Class I felony, and it is found as provided by this section that the person has three or more prior convictions for a Class H or Class I felony in this State, for any offense substantially similar to a Class H or Class I felony committed in another jurisdiction, or any combination thereof, and that those offenses occurred within 10 years from the date of the commission of the principal felony with which the person is charged, then the person shall be sentenced to a minimum term of 20 months of active punishment and a maximum term of 25 months. Upon completion of the active sentence, the person shall be released from prison for post-release supervision. Notwithstanding G.S. 15A-1368.2, the period of post-release supervision shall be 12 months; otherwise, the provisions of Article 84A of Chapter 15A of the General Statutes shall apply as appropriate.
(b) An indictment or information for the Class H or Class I felony shall allege in that indictment or information or in a separate indictment or information the facts set out in subsection (a) of this section. The pleading is sufficient if it alleges that the defendant has three or more prior felony convictions of a Class H or Class I felony or substantially similar offenses committed in another jurisdiction that occurred within a 10-year period of time from the date of the commission of the principal felony with which the person is charged.
(c) The State shall prove the issues set out in subsection (a) of this section beyond a reasonable doubt during the same trial in which the defendant is tried for the felony unless the defendant pleads guilty or no contest to the issues. The issues shall be presented in the same manner as provided in G.S. 15A-928(c). If the defendant pleads guilty or no contest to the felony but pleads not guilty to the issues set out in subsection (a) of this section, then a jury shall be impaneled to determine the issues."
SECTION 8.(a) The Post-Release Supervision and Parole Commission shall, with the assistance of the North Carolina Sentencing and Policy Advisory Commission and the Department of Correction, analyze the amount of time each inmate who is eligible for parole on or before July 1, 2012, has served compared to the time served by offenders under Structured Sentencing for comparable crimes. The Commission shall determine if the person has served more time in custody than the person would have served if sentenced to the maximum sentence under the provisions of Article 81B of Chapter 15A of the General Statutes. The "maximum sentence," for the purposes of this section, shall be calculated as set forth in subsection (b) of this section. The Commission shall then reinitiate the parole review process for each offender who has served more time than that person would have under Structured Sentencing as provided by this section and may parole any offender as the Commission deems appropriate pursuant to the provisions of Article 85 of Chapter 15A of the General Statutes.
SECTION 8.(b) For the purposes of this section, the following rules apply for the calculation of the maximum sentence:
(1) The offense upon which the person was convicted shall be classified as the same felony class as the offense would have been classified if committed after the effective date of Article 81B of Chapter 15A of the General Statutes.
(2) The minimum sentence shall be the maximum number of months in the presumptive range of minimum durations in Prior Record Level VI of G.S. 15A-1340.17(c) for the felony class determined under subdivision (1) of this subsection. The maximum sentence shall be calculated using G.S. 15A-1340.17(d), (e), or (e1).
(3) If a person is serving sentences for two or more offenses that are concurrent in any respect, then the offense with the greater classification shall be used to determine a single maximum sentence for the concurrent offenses. The fact that the person has been convicted of multiple offenses may be considered by the Commission in making its determinations under subsection (a) of this section.
SECTION 9. This act becomes effective December 1, 2011. G.S. 15A-1340.16E, as enacted by Section 7 of this act, applies to offenses that are committed on or after that date that are the principal felony for the enhanced sentence that may be imposed pursuant to G.S. 15A-1340.16E.