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April 9, 2018

Guest Post: "Do Two Misdemeanors a Felony Make?"

The question in the title of this post is posed by by North Caroline lawyer Bruce Cunningham to set up his discussion of a notable recent decision from his state's top court.  Bruce was kind enough to write up the following for this blog on the ruling:

Last Friday, the North Carolina Supreme Court flirted with, but unfortunately avoided, one of the most important questions impacting modern criminal sentencing; “What is the nature of a prior conviction?”  Can it be used as an ‘element’ of a substantive criminal offense?”  Or, must its role be confined solely to increasing the level of punishment for a crime, but not the level of the crime itself?”

State v Howell, opinion here, involved a conviction for possessing marijuana, a Class 1 Misdemeanor, which carries up to 4 months in jail.  Because the defendant had previously been convicted of the same offense, the Defendant faced being “punished as a Class 1 Felony.” The prosecutor also charged the Def. with being an habitual felon, under the N.C. three strike law.

As a result Howell was sentenced to 29 to 36 months in prison, which was suspended for 36 months on probation.  So, Howell’s conduct on the day of the offense exposed him to 4 months in jail, and his prior record earned him the additional 32 months.

The narrow issue presented in Howell related to the “intent of the legislature” concerning whether the phrase “be punished as a class I felony,” is the equivalent of “committed a class I Felony.  The N.C Supreme said it was.  Because the defendant did not argue a federal constitutional claim, the case will go no further, which leaves open the issue of whether the use of prior convictions as elements of crime passes constitutional muster.

During oral argument in United States v Johnson, both Justice Scalia and Justice Stevens questioned if two misdemeanors can make a felony.  Johnson, No 08-6935, Oral argument transcript p. 49 (October 6, 2009).  Justice Scalia inquired, “Have we ever approved that, by the way, kicking a misdemeanor up to the felony category simply because of recidivism?”

It appears that in McDonald v Massachusetts, 180 U.S. 311 (1901) not only did the Court address the question, it answered “No”.  In McDonald, the Court considered whether habitual felon statutes violated double jeopardy, and stated, “The allegation of previous convictions is not a distinct charge of crimes but is necessary to bring the case within the (habitual felon) statute, and goes to the punishment only.”

There are many felonies in N.C. which are charged because a defendant commits the same misdemeanor twice. Felonious Stalking, Breaking into a Coin Machine, Habitual DWI, Habitual Misdemeanor Assault, etc. There may be other states which have similar “recidivist felonies”

Howell said that it is okay to kick up a misdemeanor to a felony if the legislature intended the elevation of the second misdemeanor.  Justice Scalia’s question of whether the notion of two misdemeanors making a felony passes constitutional muster, must await another day.

April 9, 2018 at 11:38 AM | Permalink

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