January 26, 1993
Beryl E. Wade Legislative Assistant Counsel Office of the Governor 116 West Jones Street Raleigh, NC 27603
RE: Advisory Opinion: Application of Ex Post Facto Clause to Increased Penalty for Felony Recidivists; NCGS § 14-7.1.
Dear Beryl:
In your letter dated 20 January 1994 you requested an advisory opinion on:
"Whether is constitutional or otherwise lawful to increase the penalty for a recidivist and still be able to utilize for enhancement purposes felonies committed prior to the effective date of the penalty increase?"
The answer is "yes." Any ex post facto clause challenge can be avoided by inserting an effective date for the commission of the felony that triggers the sentence enhancement. Further, our current Habitual Felon Act, NCGS § 14-7.1, et. seq., can easily be modified to include "life without parole" for violent felonies.
As you are aware, our habitual felon law is triggered when a defendant who has committed three or more prior felonies commits a fourth or subsequent felony. (The Act, as currently written, does not differentiate violent and non-violent felonies.) If convicted of the fourth felony, and found by the jury in a separate hearing to have attained the status of an habitual felon, the defendant is sentenced for the fourth felony as an habitual felon. The fact that the defendant is being sentenced for the fourth (or any subsequent felony after three) is the key factor that distinguishes a recidivist enhancement statute under an ex post facto analysis. Our habitual felon law is a sentence enhancer for a separate felony. "Habitual felon" is a status, not a crime.
The Act can easily be amended to include a separate, stronger penalty for a defendant who has previously been convicted of three or more violent felonies, and the provisions for defendants convicted of any other combination of felonies, either violent or non-violent, allowed to remain. Also, since our statute is not a "three strikes you’re out", it can be amended for two prior violent felonies and a third triggering violent felony, and the provisions for recidivists with any other combination felonies allowed to remain.
Both the United States Constitution and the North Carolina Constitution prohibit ex post facto laws. The United States Supreme Court has interpreted the Clause to bay any legislation 1) making illegal that which was legal at the time of the alleged criminal activity, 2) increasing the punishment for a crime after the commission, or 3) depriving the accused of any legal defense available at the time the crime was committed. Collins v. Young, 497 U.S. 37, 42, 110 S.Ct. 2715, 2724, 111 L. Ed. 2d 30, 38-39 (1990). Similarly, State v. Broadway, 157 N.C. 598, 72,
S.E. 987 (1911). On its face number two appears to bar any new recidivist statute or an increase in the penalty under our current habitual felon law. However, such is not the case if the crime for which the sentence is being enhanced was committed after the effective date of the statutory penalty increase.
State and federal courts have universally upheld sentence enhancement provisions, and separate recidivist enhancement laws, against ex post facto challenges where there is a delineation between the prior offenses, the date of the statute’s enactment, and the subsequent offense. Each of these cases looks for guidance to a 45 year old United States Supreme Court case, Gryger v. Burke, 334 U.S. 728, 68 S. Ct. 1256, 92 L. Ed. 1683 (1948).
At a point in time after a defendant had been convicted of at least one felony, the State of Arizona passed an habitual felon law similar to North Carolina’s. Upon committing and being found guilty of his fourth felony, the defendant was sentenced as an habitual felon. In rejecting the defendant’s claim that the act was an ex post facto law, the United States Supreme Court stated:
Nor do we think the fact that one of the convictions that entered into the calculations by which petitioner became a fourth offender occurred before the Act was passed, makes the Act invalidly retroactive. … The sentence as a[n]…habitual criminal is not be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.
Id. at 732, 68 S. Ct. At 1258, 92 L. Ed. At 1687. See also, McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L. Ed. 542 (1901) (increasing punishment for felony because of prior convictions does not violate ex post facto clause where punishment is for his latest crime). The precedent set by Gryger has not been alerted and is continually cited by state and federal courts.
Since our current habitual felon law has withstood constitutional challenge on numerous occasions, including equal protection, due process, and "cruel and unusual punishment" attacks, a modification of NCGS § 14-7.1, et. seq., in accordance with the Governor’s proposal–rather than an entirely new law–would lessen future attacks on constitutional grounds.
An effective date for the commission of the subsequent or triggering felony would be the key to a constitutionally valid amendment to our Habitual Felon Act. As stated by the Second Circuit Court of Appeals, "[a]s long as the [triggering] offense occurs after passage of the punishmentenhancing statute, …there is no retroactivity problem." United States v. Panebianco, 543 F.2d 477, 453 n.4 (2nd Cir. 1976) (citing Gryger), cert. denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L. Ed. 2d 553 (1977). This fact is well borne out in Jones v. Arkansas, 929 F.2d 375 (8th Cir. 1991), where the court reversed the magistrate judge’s denial of the defendant’s federal habeas petition where the defendant had been sentenced for an offence that occurred prior to the effective date of a change in Arkansas’s habitual felon law (i.e. statute changed from "at least three prior felonies" to "more than one (1) but less than four (4) felonies").
Of course, other slight modifications to the Acto would be required and it has been suggested that the changes made by the Structured Sentencing Law (effective 1 January 1995) be repealed and a stronger penalty be restored for those recidivists that have a combination of violent and nonviolent felonies.
This office will be glad to assist you in drafting the appropriate legislation to accomplish the Governor’s intent.
John R. McArthur Chief Legal Counsel
Jeffrey P. Gray Assistant Attorney General