The centerpiece of Structured Sentencing for felonies is the statutory table of punishments, commonly referred to as the sentencing grid, in G.S. 15A-1340.17(c) and included as Table 1 at the end of this chapter. Four other tables necessary to determine the appropriate sentence for a felony also are included: Tables 2 and 2A, dealing with maximum sentences, and Tables 3 and 3A, dealing with prior record levels.

A sentencing court must take seven steps to determine the appropriate sentence for felonies under Structured Sentencing. These steps are:

(1) Determine the offense class for the felony conviction (listed under each offense in this book under the heading “Punishment”).(2) Determine the defendant’s prior record level. See Tables 3 and 3A.(3) Consider aggravating and mitigating factors and decide whether to sentence in the mitigated, presumptive, or aggravated range. G.S. 15A-1340.16(b).(4) Select a minimum sentence from the applicable minimum sentence range. See Table 1.(5) Select the corresponding maximum sentence. See Tables 2 and 2A.(6) Select a sentence disposition (active, intermediate, or community). See Table 1.(7) Consider restitution (discussed later in this chapter).

Each of these steps is summarized below. The main exceptions also are noted, under the heading “Special Provisions.”

Offense Class

The first step in determining the appropriate sentence for a felony is to identify the class of the felony. There are ten classes of felonies under Structured Sentencing: A, B1, B2, C, D, E, F, G, H, and I. Punishments increase in severity as you move from Class I to Class A. For each felony listed in this book, the class of the offense is indicated under the heading “Punishment.” For example, a violation of G.S. 14-32(c) (“Assault with a Deadly Weapon with Intent to Kill,” discussed in Chapter 7 (Assaults)) is a Class E felony. Typically, the statute creating the offense sets out the offense class. When no offense class is specified, the felony is classified as a Class I felony. G.S. 15A-1340.17(a). As as a general rule, conspiracies and attempts are punished one class below the main offense (for example, an attempt to commit a Class E felony is punished as a Class F felony) and solicitations are punished two offense classes below the main offense. See “Attempt,”“Solicitation,” and “Conspiracy” in Chapter 5 (General Crimes). However, some statutes punish these versions of the crimes at the same level as the main offense. See “Armed Robbery” in Chapter 14 (Robbery, Extortion, and Blackmail) (statute specifies that attempts are punished like the completed offense) and “Indecent Liberties with a Child” in Chapter 10 (Sexual Assaults) (same).

Prior Record Level

The second step in felony sentencing is to determine the defendant’s prior record level. Under G.S. 15A-1340.14(c), a defendant is assigned to one of six prior record levels (I through VI) based on the number of points he or she receives under Structured Sentencing. For example, a defendant with six to nine points is assigned to prior record level III. Punishments increase in severity as you move from prior record level I to VI. The six prior record levels, and the point ranges for each level, are indicated in the prior record level worksheet, Form AOC-CR-600B (online at www.nccourts.org/Forms/Documents/145.pdf) and Form AOC-CR-600 (online at www.nccourts.org/Forms/Documents/1255.pdf), which appear as Tables 3 and 3A at the end of this chapter. The felony portion of AOC-CR-600B is derived from G.S. 15A-1340.14, while the misdemeanor portion is from G.S. 15A-1340.21. These forms will be used by the prosecutor and the judge to make a record of a defendant’s criminal history. Readers should check for updated versions of these forms before using the versions reproduced in this book.

Under G.S. 15A-1340.14(b), a defendant is assigned prior record level points in one of three ways. First, if a defendant has any prior convictions, points are assigned to each conviction based on the offense class of the prior conviction. For example, a prior conviction for a Class H felony is assigned two points. The point values for each offense class are indicated in Table 3. In calculating points for prior convictions, the following rules must be kept in mind.

Prior misdemeanors. In determining a defendant’s prior record level for the purpose of felony sentencing, prior convictions of Class 2 and 3 misdemeanors do not count, nor do prior misdemeanor offenses of any class under Chapter 20 of the General Statutes, except

misdemeanor death by vehicle under G.S. 20-141.4(a2), impaired driving under G.S. 20-138.1, and commercial impaired driving under G.S. 20-138.2.

G.S. 15A-1340.14(b).

Current classification of prior conviction. Under the Structured Sentencing rules for felonies, the classification of the prior offense is the classification assigned to that offense at the time the current offense was committed. For example, if the defendant has a prior conviction for second-degree burglary, the points assigned to the conviction depend on the current classification of the offense (now Class G), not the classification in effect at the time the conviction occurred. G.S. 15A-1340.14(c).

Multiple prior convictions. If the defendant was convicted of more than one offense in a single superior court during one calendar week, only the conviction with the highest point total is counted. If the defendant was convicted of more than one offense during a single session (typically a day) of district court, only the most serious conviction is counted. G.S. 15A-1340.14(d).

Convictions from other jurisdictions. Unless the prosecution or defendant proves otherwise, a conviction from another jurisdiction is classified as a Class I felony if that jurisdiction classifies the offense as a felony. Similarly, unless the prosecution proves otherwise, a conviction from another jurisdiction is classified as a Class 3 misdemeanor (and thus does not count) if the other jurisdiction classifies the offense as a misdemeanor. G.S. 15A-1340.14(e). The default classifications do not apply when the defendant or the State proves, by a preponderance of the evidence, that the out-of-state conviction is substantially similar to a North Carolina crime. Id. When this showing is made, the out-of-state crime is classified like the substantially similar North Carolina crime. Id. The question of whether an out-of-state conviction is substantially similar to a North Carolina crime is a question of law which must be determined by a judge; although a defendant may stipulate to the existence of an out-of-state conviction, a stipulation that such a conviction is substantially similar to a North Carolina conviction is ineffective. State v. Bohler, 198 N.C. App. 631, 635–38 (2009). The United States Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004) (holding that any fact other than a prior conviction that increases the statutory maximum punishment must be submitted to a jury and found beyond a reasonable doubt), does not change the rule that “substantial similarity” is determined by a judge. State v. Hanton, 175 N.C. App. 250, 252–55 (2006); State v. Hadden, 175 N.C. App. 492, 500 (2006).

The second way a defendant is assigned prior record level points is if all the elements of the present offense are included in a prior offense. In essence, the current offense must be the same as or a lesser-included offense of a prior offense committed by the defendant. This fact adds one point, and the additional point may be counted whether or not the prior offense was used in determining the prior record level. G.S. 15A-1340.14(b)(6). Whether a point is assigned on this basis is a question of law; as such, a stipulation to this point is ineffective. State v. Prush, 185 N.C. App. 472, 479–80 (2007). This prior record level point is not affected by the United States Supreme Court’s decision in Blakely, 542 U.S. 296, and thus may be determined by a judge. State v. Poore, 172 N.C. App. 839, 843 (2005).

Third, one point is added if the defendant was on probation, parole, or post-release supervision, was serving a sentence of imprisonment, or was an escapee when the current offense was committed. G.S. 15A-1340.14(b)(7). Unless admitted to by the defendant, this prior record level point must be submitted to the jury and proved beyond a reasonable doubt. G.S. 15A-1340.16(a5).

For a more detailed discussion of prior record level points, see Jamie Markham, Sentencing: Prior Record Level, in The Survival Guide: Superior Court Judges’ Trial Notebook (UNC School of Government, May 2009) (online at www.sog.unc.edu/sites/www.sog.unc.edu/files/SentencingPriorRecordLevel.pdf).

Aggravating and Mitigating Factors

Table 1, the sentencing grid, contains three ranges of punishment for all but one of the ten felony classes. The exception is Class A, for which punishment is death or life imprisonment without parole. The three ranges of punishment for all of the other felony classes are mitigated, presumptive, and aggravated.

Mitigated terms are at the low end, aggravated terms are at the high end, and presumptive sentences fall in the middle. G.S. 15A-1340.17(c)(2)–(4). The presumptive range is the default sentencing range, and the judge does not need to make any special findings to impose a sentence in this range. G.S. 15A-1340.16(c); 15A-1340.17(c)(2). A judge may deviate upward from the presumptive range and sentence in the aggravated range if he or she determines that aggravating factors are sufficient to outweigh any mitigating factors. G.S. 15A-1340.16(b). Similarly, a judge may sentence in the mitigated range if he or she determines that mitigating factors are present and are sufficient to outweigh any aggravating factors. G.S. 15A-1340.16(b). Although the sentencing judge is required to consider evidence of aggravating and mitigating factors, the decision to sentence in the mitigated or aggravated range is discretionary. State v. Bivens, 155 N.C. App. 645, 648 (2002). If the judge exercises this discretionary authority, then he or she must make written findings as to the aggravating and/or mitigating factors, even if the defendant is being sentenced after a plea with stipulations. State v. Bright, 135 N.C. App. 381, 382–83 (1999). Form AOC-CR-605 (online at www.nccourts.org/Forms/Documents/1097.pdf) should be used to record all findings of aggravating and mitigating factors.

As a general rule, aggravating factors must be submitted to the jury and proved beyond a reasonable doubt, unless admitted to by the defendant. G.S. 15A-1340.16(a)–(a1). G.S. 15A-1340.16(b) sets out an exception to this rule, providing that the statutory aggravating factor in G.S. 15A-1340.16(d)(12a) (the defendant has, during the ten-year period prior to the commission of the offense, been found in willful violation of the conditions of probation imposed pursuant to a suspended sentence or of a condition of parole or post-release super-vision imposed pursuant to release from incarceration) may be found by a judge. Although the same subsection also provides that the G.S. 15A-1340.16(d)(18a) statutory aggravating factor (previously adjudicated delinquent for an offense that would be a Class A, B1, B2, C, D, or E felony if committed by an adult) also may be found by a judge, there are conflicting court of appeals opinions on whether this factor must be submitted to the jury and proved beyond a reasonable doubt. Compare State v. Yarrell, 172 N.C. App. 135, 141–43 (2005) (must be submitted to the jury), with State v. Boyce, 175 N.C. App. 663, 669 (2006) (need not be submitted to the jury).

G.S. 15A-1340.16(d) sets out twenty-five statutory aggravating factors, including, among other things, that the crime was especially heinous, atrocious, or cruel, id. at -1340.16(d)(7); that the victim was very young, very old, or mentally or physically infirm or handicapped, id. at -1340.16(d)(11); and that the defendant involved a person under the age of 16 in the commission of the crime, id. at -1340.16(d)(13). In addition to the statutory aggravating factors, non-statutory aggravating factors can affect a defendant’s sentence. G.S. 15A-1340.16(d)(20). A non-statutory aggravating factor must be “reasonably related to the purposes of sentencing.” Id. Examples include leaving a badly injured victim without offering aid, State v. Applewhite, 127 N.C. App. 677, 683 (1997), and causing the victim to incur excessive medical expenses, State v. Pender, 176 N.C. App. 688, 695–97 (2006).

The defendant bears the burden of proving, by a preponderance of the evidence, that a mitigating factor exists. G.S. 15A-1340.16(a). G.S. 15A-1340.16(e) sets out twenty statutory mitigating factors, including, among other things, that the defendant has made substantial or full restitution to the victim, id. at -1340.16(e)(5), reasonably believed his or her conduct was legal, id. at -1340.16(e)(10), and has a positive employment history or is gainfully employed, id. at -1340.16(e)(19). In addition to the statutory mitigating factors, non-statutory mitigating factors can affect a defendant’s sentence. Id. at -1340.16(e)(21). Non-statutory mitigating factors must be “reasonably related to the purposes of sentences.” Id. Examples include that the defendant had no prior criminal record, State v. Pender, 176 N.C. App. 688, 691 (2006), or that the defendant identified a co-defendant at an early stage of the prosecution, State v. Easterling, 119 N.C. App. 22, 35 (1995).

Minimum Sentence

Once the sentencing court determines the class of felony, prior record level, and whether to sentence in the aggravated, mitigated, or presumptive range, the court must select a minimum term of imprisonment from Table 1. G.S. 15A-1340.13(c). To determine the minimum term, the court must locate the class of felony at issue along the left-hand side of the grid and the prior record level along the top of the grid. The cell in which the felony class and prior record level intersect shows the range of permissible minimum sentences that the court may impose. Having determined whether to impose a term of imprisonment from the presumptive, aggravated, or mitigated ranges (expressed in months) shown in the particular cell, the court must select a minimum term of imprisonment from within the applicable range.

Maximum Sentence

The judgment of the court also must contain a maximum term of imprisonment. G.S. 15A- 1340.13(c). The maximum term is set by statute based on the minimum term imposed by the court. For Class B1 through E felonies committed before December 1, 2011, the maximum term of imprisonment is 120 percent of the minimum term rounded to the next highest month, plus nine months to allow time for post-release supervision. For Class F through I felonies committed before December 1, 2011, the maximum term of imprisonment is 120 percent of the minimum term rounded to the next highest month. G.S. 15A-1340.17(d), (e), (e1).

A minimum/maximum table containing these calculations is shown as Table 2. The numbers in the table to the left of the dash represent the minimum term of imprisonment imposed by the court, expressed in months. The numbers to the right of the dash represent the corresponding maximum term required by statute. The table is in two parts—the first part lists maximum sentences for Class B1 through E felonies, and the second lists the maximum sentences for Class F through I felonies.

For felonies committed on or after December 1, 2011, all defendants who serve a period of imprisonment will be released into post-release supervision. S.L. 2011-192. The maximum sentences for those crimes were increased accordingly. For Class B1 through E felonies, the maximum term of imprisonment is 120 percent of the minimum term rounded to the next highest month, plus 12 months. For Class F through I felonies, the maximum term of imprisonment is 120 percent of the minimum term rounded to the next highest month, plus nine months. A minimum/maximum table containing these calculations is shown as Table 2A, which is the same as Table 2, described above, except for the listed maximums.

For new special maximum terms that apply to certain sex offenders, see “Sex offenders” under “Special Provisions,” below.

Sentence Disposition

The next step in felony sentencing is to determine the sentence disposition, which is prescribed in Table 1. Each cell in the grid contains a sentence disposition, signified by the letter “A,” “I,” or “C,” or a combination of these letters. “A” represents active punishment; “I” represents intermediate punishment; and “C” represents community punishment. G.S. 15A-1340.17(c)(1). All of these terms are described below. The court must impose a sentence disposition indicated in the applicable cell. Some cells in the grid prescribe two or three possible dispositions, separated by a slash (for example, “I/A”). In those cases, the court can impose either disposition.

Active punishment. Active punishment is an unsuspended term of imprisonment. G.S. 15A-1340.11(1). If the court imposes an active punishment, the minimum and maximum term of imprisonment previously determined by the court may not be suspended. The maximum term may be reduced by earned-time credit (awarded by the Department of Correction or local jail), but the term of imprisonment may not be reduced (except for credit for time served awaiting trial) below the minimum term imposed by the court. G.S. 15A-1340.13(d).1

Ordinarily, if the only disposition prescribed in a particular cell is “A,” the court must impose active imprisonment. Upon a finding of extraordinary mitigation, however, the court may impose an intermediate punishment even when only an active punishment is prescribed. See “Extraordinary mitigation,” discussed below under “Special Provisions.” In drug-trafficking cases, the court is not required to impose an active punishment (regardless of the class of offense or the defendant’s prior record level) if it finds that the defendant provided “substantial assistance” within the meaning of G.S. 90-95(h)(5). Drug trafficking is discussed further below, under the heading “Special Provisions.”

When sentencing a defendant for multiple offenses, the court may consolidate sentences, run them concurrently, or run them consecutively. G.S. 15A-1340.15; 15A-1354. Unless other-wise specified by the court, sentences run concurrently. G.S. 15A-1340.15(a); 15A-1354(a). If the court consolidates offenses for sentencing, the most serious offense is controlling—the sentence disposition and the minimum and maximum terms of imprisonment must conform to the Structured Sentencing rules for that offense. G.S. 15A-1340.15(b). If the court imposes consecutive sentences, the minimum term of imprisonment is the sum of the minimum terms imposed for the offenses, and the maximum term is the sum of the maximum terms for the offenses. G.S. 15A-1354(b).2

A defendant sentenced to active punishment for a felony is committed to the custody of the Department of Correction. G.S. 15A-1352(b).

Intermediate punishment. For defendants placed on probation based on offenses that occurred before December 1, 2011, intermediate punishment is supervised probation involving at least one of the following:

special probation, assignment to a residential program, house arrest with electronic monitoring, intensive probation, assignment to a day-reporting center, or assignment to a drug treatment court program.

G.S. 15A-1340.11(6).

For these defendants, if the court imposes an intermediate punishment, it must suspend the minimum and maximum term of imprisonment and impose a period of supervised probation with at least one of the six conditions listed above.

2011 legislation changed the nature of intermediate punishment. S.L. 2011-192, sec. 1(b). As a result of that legislation and for defendants placed on probation based on offenses that occur on or after December 1, 2011, intermediate punishment consists of supervised probation. G.S. 15A-1340.11(6) (as amended by S.L. 2011-192). It may include drug treatment court, special probation as defined in G.S. 15A-1351(a), and one or more of the conditions set forth in new G.S. 15A-1343(a1). Id. The conditions in new G.S. 15A-1343(a1), which are in addition to any conditions authorized by G.S. 15A-1343(b1), include:

House arrest with electronic monitoring.Perform community service.Submission to a period or periods of confinement in a local confinement facility for a total of no more than six days per month during any three separate months during the period of probation. The six days per month confinement may only be imposed as two-day or three-day consecutive periods. When a defendant is on probation for multiple judgments, confinement periods must run concurrently and may total no more than six days per month.Substance abuse assessment, monitoring, or treatment.Participation in an educational or vocational skills development program, including an evidence-based program.Submission to satellite-based monitoring in certain circumstances.

G.S. 15A-1343(a1). For intermediate punishments for felonies under both the old and new statutes, the court is authorized to impose a period of probation ranging from eighteen to thirty-six months. G.S. 15A-1343.2(d)(4). The court may depart from this range upon finding that a longer or shorter period is necessary, but that period may not exceed five years. G.S. 15A-1343.2(d).

As a condition of intermediate punishment under both the old and new statutes, the court is authorized to impose special probation, also known as a split sentence. Under special probation, the court suspends the term of imprisonment, places the defendant on probation, and requires the defendant to submit to a period of imprisonment as a condition of probation. G.S. 15A-1351(a). The period of imprisonment pursuant to special probation may not exceed one-fourth of the maximum term of imprisonment imposed. Id. Periods of incarceration under special probation may be continuous or non-continuous, but all incarceration must be served within two years of the conviction. G.S. 15A-1351(a).

Community punishment. For defendants placed on probation based on offenses that occurred before December 1, 2011, community punishment is any sentence that does not include an active or intermediate punishment. G.S. 15A-1340.11(2). The court must suspend any term of imprisonment; it may not impose an active term of imprisonment or special probation requiring a period of imprisonment.

For these defendants, a community punishment may include unsupervised probation or supervised probation with any authorized condition other than one defined as an intermediate punishment. G.S. 15A-1340.11(2); 15A-1340.11(6). 

2011 legislation changed the nature of community punishment. S.L. 2011-192, sec. 1(a). As a result of that legislation and for defendants placed on probation based on offenses that occur on or after December 1, 2011, community punishment consists of a sentence that includes supervised or unsupervised probation and any condition of probation except drug treatment court or special probation. G.S. 15A-1340.11(2) (as amended by S.L. 2011-192). Community punishment may include any one or more of the conditions set forth in new G.S. 15A-1343(a1). Id. The conditions in new G.S. 15A-1343(a1) are set out under “Intermediate punishment,” above.

For community punishments for felonies under both the old and new statutes, the court is authorized to impose a period of probation ranging from twelve to thirty months. G.S. 15A-1343.2(d)(3). The court may depart from this range upon finding that a longer or shorter period is necessary, but that period may not exceed five years. G.S. 15A-1343.2(d). A community punishment also may consist of a fine only, without probation. G.S. 15A-1340.17(b).

G.S. 15A-1382.1(b) provides that if the court finds that there was a personal relationship, as defined in G.S. 50B-1(b), between the defendant and the victim and imposes a sentence of community punishment, the court must determine whether the defendant must comply with any of the special conditions of probation in G.S. 15A-1343(b1). G.S. 15A-1382.1(b) also provides that the court may impose house arrest under G.S. 15A-1343(b1)(3c). It is not clear whether this subsection is meant to apply to any case in which the court finds that there was a personal relationship or whether it is limited to the offenses mentioned in G.S. 15A-1382.1(a), which include assault and communicating a threat.

Fines. The court may impose a fine as part of any disposition, whether active, intermediate, or community. Unless otherwise provided by statute, the amount of the fine is in the court’s discretion. G.S. 15A-1340.17(b); 15A-1343(b)(9).

Restitution

The last step in felony sentencing is for the judge to consider whether the defendant should be required to pay restitution. G.S. 15A-1340.34 (this step is mandatory). For a detailed discussion of restitution, see Jamie Markham, Restitution, in Superior Court Judges’ Trial Notebook (UNC School of Government, Apr. 2009) (online at www.sog.unc.edu/sites/www.sog.unc.edu/files/Restitution.pdf), from which much of the discussion here is drawn directly.

Restitution can be ordered in addition to any other punishment that is imposed, including an active sentence. G.S. 15A-1340.34(c). Article 81C of G.S. Chapter 15A, G.S. 15A-1340.34 through 15A-1340.38, governs restitution in all criminal cases.

If the offense is subject to the Crime Victims’ Rights Act (CVRA), G.S. 15A-830 through 15A-841, restitution is mandatory. Offenses covered by the CVRA include:

any Class A, B1, B2, C, D, or E felony;the following Class F felonies: G.S. 14-16.6(b); 14-16.6(c); 14-18; 14-32.1(e); 14-32.2(b)(3); 14-32.3(a); 14-32.4; 14-34.2; 14-34.6(c); 14-41; 14-43.3; 14-43.11; 14-190.17; 14-190.19; 14-202.1; former 14-277.3; 14-277.3A; 14-288.9; and 20-138.5;the following Class G felonies: G.S. 14-32.3(b); 14-51; 14-58; 14-87.1; and 20-141.4;the following Class H felonies: G.S. 14-32.3(a); 14-32.3(c); 14-33.2; former 14-277.3; and 14-277.3A;the following Class I felonies: G.S. 14-32.3(b); 14-34.6(b); and 14-190.17A;an attempt to do one of the listed felonies if the attempt is punishable as a felony;any of the following misdemeanor offenses when the offense is committed between persons who have a personal relationship as defined in G.S. 50B-1(b): G.S. 14-33(c)(1); 14-33(c)(2); 14-33(a); 14-34; 14-134.3; former 14-277.3; and 14-277.3A andany violation of a valid protective order under G.S. 50B-4.1.

G.S. 15A-830(7).

The amount of restitution must be supported by evidence presented at trial or sen- tencing. See, e.g., State v. Replogle, 181 N.C. App. 579 (2007). The court may delegate to a probation officer the authority to determine a restitution payment schedule and may authorize the probation officer to transfer the defendant to unsupervised probation after all moneys are paid. G.S. 15A-1343(g).

G.S. 15A-1340.35 specifies the factors that a judge must consider when determining restitution. For example, for offenses resulting in bodily injury to the victim, the judge must consider: the cost of medical and related professional services, including physical, psychiatric, and psychological care; the cost of necessary physical and occupational therapy and rehabilitation; and lost income. Restitution may not be ordered for a victim’s pain and suffering. State v. Wilson, 158 N.C. App. 235, 241 (2003).

When determining restitution, the court must consider the defendant’s ability to pay but is not required to make findings as to this determination. G.S. 15A-1340.36(b).

The court may order partial restitution; if it does so, it must state on the record the reasons for doing so. G.S. 15A-1340.36. A court can order restitution in addition to any penalty authorized by law, including an active sentence. Id. The court may require restitution to be paid by a certain date or in installments over a specified time period. G.S. 15A-1340.36(b).

When an active sentence is imposed, the court must consider whether to recommend that restitution be made out of any earnings gained by the defendant if he or she is granted work release privileges. G.S. 15A-1340.36(c).

The judge generally may not order a criminal defendant to pay money to a victim as a “civil judgment.” State v. Clemmons, 111 N.C. App. 569 (1993). However, restitution for offenses covered by the CVRA and exceeding $250 may be enforced like a civil judgment. G.S. 15A-1340.38(a). Such judgments may be collected in the same manner as a civil judgment, unless the restitution is ordered as a condition of probation. In probation cases, the judgment may not be executed upon the defendant’s property until the clerk is notified that the defendant’s probation has been terminated or revoked and the judge has made a finding that restitution in a sum certain remains owed. G.S. 15A-1340.38(c). The court can use Form AOC-CR-612 to document that finding (online at www.nccourts.org/Forms/Documents/158.pdf).

Special Provisions

A number of provisions depart from the basic Structured Sentencing scheme for felonies, described above. The principal exceptions are as follows:

Class A felonies. Class A felonies are punishable by death or life without parole, regardless of the defendant’s prior record level. The only Class A felonies are first-degree murder under G.S. 14-17 and injuring another by use of a nuclear, biological, or chemical weapon of mass destruction under G.S. 14-288.22. For a discussion of capital sentencing issues, see Robert L. Farb, North Carolina Capital Case Law Handbook (UNC School of Government, 2d ed. 2004).

Habitual felon. A person becomes a habitual felon when he or she has been convicted of three felony offenses as set out in G.S. 14-7.1. When a defendant is convicted of a felony that was committed before December 1, 2011, after having achieved the status of habitual felon, the punishment for that offense is elevated to a Class C felony (unless the offense for which he or she was convicted is a Class A, B1, or B2 felony). G.S. 14-7.6. For example, a defendant found to be a habitual felon after being convicted of felonious breaking or entering under G.S. 14-54, ordinarily a Class H felony, is sentenced as though he or she was convicted of a Class C felony.

2011 legislation changed the sentencing of habitual felons. S.L. 2011-192. Under the new legislation, if the principal felony occurred on or after December 1, 2011, a habitual felon is punished four classes higher than the principal felony for which the person was convicted, up to a maximum of Class C. G.S. 14-7.6 (as amended by S.L. 2011-192). Thus, a defendant who is determined to be a habitual felon after being convicted of a Class H felony will be sentenced as a Class D felon. But a defendant who is determined to be a habitual felon after being convicted of a Class D felony will be sentenced as a Class C felon.

Under both the old and new law, a defendant’s status as a habitual felon is determined by a jury at a hearing held after a conviction, unless the defendant admits to being a habitual felon. G.S. 14-7.5. Prior convictions used to establish habitual felon status cannot be used in determining the prior record level in sentencing for the Class C felony. G.S. 14-7.6.

Violent habitual felon. A person becomes a violent habitual felon when he or she has been convicted of two violent felony offenses as set out in G.S. 14-7.7. When a defendant is convicted of a violent felony after having achieved the status of violent habitual felon, the punishment for that offense (except when the death penalty has been imposed) is life imprisonment without parole. G.S. 14-7.12.

Habitual breaking and entering status offender. Under 2011 legislation, S.L. 2011-192, a person becomes a habitual breaking and entering status offender when he or she has been convicted of or pled guilty to one or more prior felony offenses of breaking and entering in any federal or state court. G.S. 14-7.26. When a habitual breaking and entering status offender commits a felony breaking and entering offense, the offender must be sentenced as a Class E felon. G.S. 14-7.31(a). The covered felony breaking and entering offenses include:

“First-Degree Burglary,” discussed in Chapter 15 (Burglary, Breaking or Entering, and Related Offenses);“Second-Degree Burglary,” discussed in Chapter 15 (Burglary, Breaking or Entering, and Related Offenses);“Felony Breaking or Entering of a Building,” discussed in Chapter 15 (Burglary, Breaking or Entering, and Related Offenses);“Breaking or Entering a Place of Worship,” discussed in Chapter 15 (Burglary, Breaking or Entering, and Related Offenses);Breaking out of dwelling house as proscribed by G.S. 14-53;Any repealed or superseded offense substantially equivalent to any of the offenses listed above; andAny offense committed in another jurisdiction substantially similar to any of the offenses listed above.

G.S. 14-7.25.

As with habitual felon and violent habitual felon status, described above, a defendant’s status as a habitual breaking and entering offender is determined by a jury at a hearing held after conviction. G.S. 14-7.30. A prior conviction used to establish a person’s status as a habitual breaking and entering offender cannot be used to determine the prior record level in sentencing for the Class E felony. G.S. 14-7.31(b). For more detail on this status offense, see G.S. 14-7.25 through -7.31.

Although this status offense appears to elevate punishment for such offenders, it may operate to lower punishment in some instances. Two of the covered offenses, “First-Degree Burglary” and breaking out of a dwelling house already are classified as Class D felonies. See the section entitled “Punishment” under “First-Degree Burglary” in Chapter 15 (Burglary, Breaking or Entering, and Related Offenses); G.S. 14-53 (breaking out of a dwelling house). If a defendant who committed either of those offenses was prosecuted for this status offense, his or her punishment would be reduced from a Class D felony to a Class E felony. It is thus unlikely that prosecutors will indict such a defendant for this status offense. For all of the other covered offenses, the new status offense increases punishment.

Habitual impaired driving. As discussed in the note on “Punishment” under “Habitual Impaired Driving” in Chapter 28 (Motor Vehicle Offenses), a defendant convicted of this Class F felony must, under G.S. 20-138.5, be sentenced to an active term of imprisonment of at least twelve months, which may not be suspended.

Firearm or deadly weapon enhancement. Subject to certain exceptions, a defendant who, during the commission of a Class A through E felony, (1) used, displayed, or threatened to use or display a firearm or deadly weapon and (2) actually possessed the firearm or deadly weapon about his or her person must be sentenced to an additional sixty months imprisonment. G.S. 15A-1340.16A(c). The sixty-month enhancement attaches to the minimum term of imprisonment; the applicable maximum term is calculated using the enhanced minimum. Id. The facts supporting the enhancement must be alleged in an indictment or information and proved to a jury beyond a reasonable doubt, unless the defendant pleads guilty or no contest to the issue. G.S. 15A-1340.16A(d), (e).

Sex offenders. Certain Class B1 through E felonies committed on or after December 1, 2011, that are reportable convictions under the sexual offender registration program are subject to higher statutory maximum sentences than those reflected in Tables 2 and 2A. Specifically, unless otherwise provided in a statute setting out the punishment for a specific crime, for defendants sentenced for Class B1 through E felonies that are reportable convictions, the maximum term of imprisonment is 120 percent of the minimum term of imprisonment rounded to the next highest month, plus sixty additional months. G.S. 15A-1340.17(f). The additional sixty months corresponds to the five-year period of post-release supervision applicable to sex offenders under G.S. 15A-1368.2(c). A defendant with the extended maximum sentence will be released from prison sixty months before the end of his or her maximum imposed sentence, less earned time. G.S. 15A-1368.2(a) (as amended by S.L. 2011-307). Offenders who violate a condition of post-release supervision can be returned to prison to serve the time remaining on their maximum imposed terms. G.S. 1368.3(c). For other Class B1 through E felonies, the “plus” is nine months (for offenses occurring before December 1, 2011) or twelve months (for offenses occurring on or after that date). For a discussion of the sex offender registration program, see the note entitled “Generally” to “Failure to Register, etc. as a Sex Offender” in Chapter 10 (Sexual Assaults).

B1 felonies against young victims. Subject to an exception, a person who commits a Class B1 felony—such as first-degree rape or sex offense—against a victim who was 13 years old or younger and who has a prior Class B1 felony conviction will be sentenced to life imprisonment without parole. G.S. 15A-1340.16B(a). The facts supporting the enhancement must be alleged in an indictment or information and proved to a jury beyond a reasonable doubt, unless the defendant pleads guilty or no contest to the issue. G.S. 15A-1340.16B(d), (e). The enhancement does not apply if there are any mitigating factors present under G.S. 15A-1340.16(e). G.S. 15A-1340.16B(f).

Bullet-proof vest enhancement. Subject to certain exceptions, a person who commits a felony while wearing or having in his or her immediate possession a bullet-proof vest will be punished one class higher than the underlying felony. G.S. 15A-1340.16C(a). Thus, if the felony is punishable as a Class D felony, the person will be sentenced as a Class C felon. The facts supporting the enhancement must be alleged in an indictment or information and proved to a jury beyond a reasonable doubt, unless the defendant pleads guilty or no contest to the issue. G.S. 15A-1340.16C(c), (d). For the relevant exceptions, see G.S. 15A-1340.16C(b1), (e).

Conditional discharge for certain drug offenders. Under G.S. 90-96, as amended by 2011 legislation, S.L. 2011-192, for certain offenders convicted of a misdemeanor under the North Carolina Controlled Substances Act or a felony possession of a controlled substance offense under G.S. 90-95(a)(3), see “Possession of a Controlled Substance” and other drug crimes in Chapter 27 (Drug Offenses), conditional discharge is mandatory.

Methamphetamine enhancement. Unless an exception applies, if a person is convicted of manufacturing methamphetamine and a law enforcement, probation, or parole officer, an emergency medical services employee, or a firefighter suffered serious injury caused by the hazards associated with the manufacture of methamphetamine, then that person’s minimum term of imprisonment is enhanced by twenty-four months. G.S. 15A-1340.16D(a). The facts supporting the enhancement must be alleged in an indictment or information and proved to a jury beyond a reasonable doubt, unless the defendant pleads guilty or no contest to the issue. G.S. 15A-1340.16D(b), (c). The enhancement does not apply if the offense is packaging or repackaging methamphetamine, or labeling or relabeling the methamphetamine container. G.S. 15A-1340.16D(d).

Drug trafficking. Drug trafficking is punished according to a separate table of punishments, containing minimum and maximum terms of imprisonment that depart from the sentencing grid. Minimum fines also are prescribed for drug-trafficking offenses. See G.S. 90-95(h); Chapter 27 (Drug Offenses). The sentencing court can deviate from the prescribed sentences for drug trafficking if the defendant is determined to have provided “substantial assistance in the identification, arrest, or conviction of any accomplices, accessories, co-conspirators, or principals.” G.S. 90-95(h)(5).

Domestic violence protective order enhancement. G.S. 50B-4.1(d) provides that, unless covered under some other provision of law providing greater punishment, when a person commits a felony knowing that the behavior is prohibited by a valid protective order as provided in G.S. 50B-4.1(a), punishment for the felony is elevated by one class. This provision does not apply to a person:

charged with or convicted of a Class A or B1 felony; charged with an offense under G.S. 50B-4.1(f) (knowingly violating a valid protective order after having been previously convicted of two 50B offenses); or charged with an offense under G.S. 50B-4.1(g) (knowingly violating a valid protective order by failing to stay away from a place or a person while possessing a deadly weapon).

G.S. 50B-4.1(d). The enhancement must be alleged in the charging instrument and there must be a finding that the person knowingly violated the protective order while committing the underlying felony. G.S. 50B-4.1(e).

Extraordinary mitigation. G.S. 15A-1340.13(g) provides that a court may impose an inter- mediate punishment for a class of offense and prior record level that ordinarily requires the imposition of an active punishment if it finds, in writing, that

extraordinary mitigating factors of a kind significantly greater than in the normal case are present; those factors substantially outweigh any factors in aggravation; andit would be a manifest injustice to impose an active punishment in the case.

The sentencing court must consider evidence of extraordinary mitigating factors, but the decision to find any such factors, or to impose an intermediate punishment, is in the court’s discretion. G.S. 15A-1340.13(g). Any extraordinary mitigating factors found by the court must be specified in the judgment. Id. Extraordinary mitigation may not be applied if:

the offense is a Class A or Class B1 felony,is a drug-trafficking offense under G.S. 90-95(h) or drug-trafficking conspiracy offense under G.S. 90-95(i), or if the defendant has five or more prior record points as determined by G.S. 15A-1340.14.

G.S. 15A-1340.16(h). Extraordinary mitigation does not allow a sentencing judge to deviate from the applicable sentencing range. State v. Messer, 142 N.C. App. 515 (2001). Form AOC-CR-606 should be used in connection with extraordinary mitigation (online at www.nccourts.org/Forms/Documents/152.pdf).


1.Defendants who receive post-release supervision are automatically released from prison a set period before the end of their maximum terms of imprisonment. For offenses committed before December 1, 2011, Class B1 through E felons are released from prison into post-release supervision nine months before the end of their maximum imposed sentences. For offenses committed on or after December 1, 2011, Class B1 through E felons are released from prison into post-release supervision twelve months before the end of their maximum imposed sentences, and Class F through I felons are released nine months before attaining their maximums. In every case, the defendant may be released sooner if his or her maximum sentence has been reduced through earned time credit awarded by the Department of Correction, G.S. 15A-1368.2, but a defendant may never be released before serving the minimum term of imprisonment imposed by the court. G.S. 15A-1340.13(d). If the defendant violates a condition of post-release supervision during that period, he or she can be returned to prison as provided in G.S. 15A-1368.3. For special post-release supervision provisions related to sex offenders, see “Sex offenders” under “Special Provisions,” below.

2.For offenses committed before December 1, 2011, if the court imposes consecutive terms of imprisonment for more than one Class B1 through E felony, the maximum term for each second and subsequent Class B1 through E felony is reduced by nine months. G.S. 15A-1354(b)(1). For offenses committed on or after December 1, 2011, if the court imposes consecutive terms of imprisonment for more than one Class B1 through E felony, the maximum term for each second and subsequent B1 through E felony is reduced by twelve months (or sixty months if the defendant has multiple convictions sentenced under G.S. 15A-1340.17(f), see “Sex offenders” under “Special Provisions,” below); for Class F through Class I felonies, the same rule applies but the reduction is nine months. G.S. 15A-1354(b)(1) (as amended by S.L. 2011-192). For certain offenders, advanced supervised release may be available. G.S. 15A-1340.18.

Supplement 

Prior Record Level

Delete the last paragraph of this section.

Aggravating and Mitigating Factors

As a result of 2013 legislation, S.L. 2013-284, sec. 2(b); S.L. 2013-368, sec. 14, the first sentence of the fourth paragraph in this note should read as follows:

G.S. 15A-1340.16(d) sets out more than 20 statutory aggravating factors, including, among others, that the crime was especially heinous, atrocious, or cruel, id. at -1340.16(d)(7); that the victim was very young, very old, or mentally or physically infirm or handicapped, id. at -1340.16(d)(11); and that the defendant involved a person under the age of 16 in the commission of the crime, id. at -1340.16(d)(13).

Sentence Disposition

Active Punishment

As a result of 2017 legislation, S.L. 2017-186, sec. 2(qqq), replace the reference to the Department of Correction with: Division of Adult Correction and Juvenile Justice.

Intermediate punishment

2012 legislation, S.L. 2012-146, amended G.S. 15A-1343(a1), adding the following condition to those listed:

Abstain from alcohol consumption and submit to continuous alcohol monitoring when alcohol dependency or chronic abuse has been identified by a substance abuse assessment.

Community punishment

2012 legislation, S.L. 2012-39, repealed G.S. 15A-1382.1(b). Thus, the last paragraph of this section should be deleted.

Restitution

Delete the second sentence of this section.

Special Provisions

Class A felonies

Delete the last sentence of this section and replace it with the following:

For a discussion of capital sentencing issues, see Jeffrey B. Welty, North Carolina Capital Case Law Handbook (UNC School of Government, 3d ed. 2013).

Armed habitual felon (new note)

2013 legislation, S.L. 2013-369, sec. 26, created a new armed habitual felon status. Put simply, when a person who has been convicted of one firearm-related felony commits a second such offense, the defendant may, in the discretion of the district attorney, be charged as an armed habitual felon. If convicted, the defendant must be sentenced as a Class C felon with a minimum 120-month prison term. See generally G.S. 14-7.35 through -7.41 (enacted by S.L. 2013-369, sec. 26).

Habitual breaking and entering status offender

2017 legislation, S.L. 2017-176, sec. 3(a), amended G.S. 14-7.25, adding the following offense to the covered felony breaking and entering offenses included in this section’s bulleted list:

Breaking or entering with intent to terrorize or injure an occupant of the building under G.S. 14-54(a1), and covered in this supplement under “Felony Breaking or Entering of a Building.”

Firearm or deadly weapon enhancement

2013 legislation, S.L. 2013-369, sec. 5, amended the enhancement described in this section so that punishment applies as follows:

If the felony is a Class A through E felony, the minimum term of imprisonment is increased by 72 months; the applicable maximum is the maximum that corresponds to the enhanced minimum.

If the felony is a Class F or G felony, the minimum term of imprisonment is increased by 36 months; the applicable maximum is the maximum that corresponds to the enhanced minimum.

If the felony is a Class H or I felony, the minimum term of imprisonment is increased by 12 months; the applicable maximum is the maximum that corresponds to the enhanced minimum.

G.S. 15A-1340.16A(c) (as amended by S.L. 2013-369, sec. 5).

Conditional discharge for certain drug offenders

Replace this section with the following text:

G.S. 90-96, as amended by S.L. 2017-102, sec. 38, allows for conditional discharge of certain drug convictions in specified circumstances.

Methamphetamine enhancement

As a result of 2013 legislation, S.L. 2013-124, sec. 2, the following should be added at the end of this section:

If a defendant is convicted of manufacturing of methamphetamine and a person under 18 years old or a disabled or elder adult

resided on the property used for the manufacture of methamphetamine or

was present where methamphetamine was being manufactured,

the defendant’s minimum sentence must be increased by 24 months. G.S. 15A-1340.16D(a1). If both a minor and a disabled or elder adult resided on the property or were present, the minimum sentence must be increased by 48 months. Id. The maximum sentence is the maximum that corresponds to the enhanced minimum. The terms “disabled adult” and “elder adult” are defined by cross-reference to G.S. 14-32.3(d). G.S. 15A-1340.16D(a2). The facts supporting the enhancement must be alleged in an indictment or information and proved to a jury beyond a reasonable doubt, unless the defendant pleads guilty or no contest to the issue. G.S. 15A-1340.16D(b), (c).

Domestic violence protective order enhancement

The G.S. 50B-4.1(d) enhancement does not apply to felony convictions when the defendant also is charged with a Class A or B1 felony or under G.S. 50B-4.1(f) or (g). State v. Jacobs, 239 N.C. App. 425, 427 (2015) (trial court erred by enhancing the defendant’s conviction for assault with a deadly weapon with intent to kill inflicting serious injury and attempted second-degree kidnapping where the defendant also was charged with a violation of G.S. 50B-4.1(g)).

Criminal gang activity enhancement (new note)

G.S. 15A-1340.16E, enacted by S.L. 2017-194, sec. 5, creates certain sentencing enhancements that apply when the offense is committed as part of criminal gang activity and when the defendant is a criminal gang leader or organizer. The enhancements do not apply to any gang offense included in Article 13A of Chapter 14 (the North Carolina Criminal Gang Suppression Act). The statute specifies the procedural requirements for application of the enhancements.

Tables—Felonies

Table 1

2013 legislation, S.L. 2013-410, sec. 3(a), amended the punishment for a Class A felony from “Life Imprisonment Without Parole or Death” to “Life Imprisonment With Parole or Without Parole, or Death.”

Table 2A

2013 legislation, S.L. 2013-101, sec. 6, made three changes to the maximum sentences grid, effective October 1, 2013, and applying to offenses committed on or after that date:

The maximum sentence for a 66-month minimum is 92 months.

The maximum sentence for an 86-month minimum is 116 months.

The maximum sentence for a 216-month minimum is 272 months.

Tables 3 and 3A

These forms have been updated. Updated N.C. AOC forms are available here: www.nccourts.org/Forms/FormSearch.asp.