Court of Appeals Rejects Habitual Felon Sentence Based on Enhanced Sentence for Misdemeanor Possession of Marijuana

Suppose a person is convicted of the misdemeanor of possessing more than 1/2 ounce but no more than 1 1/2 ounces of marijuana, a Class 1 misdemeanor under G.S. 90-95(d)(4). Suppose further that the person was convicted previously for an offense under North Carolina’s Controlled Substances Act. Based on this prior conviction, the person may be “punished as a Class I felon” under G.S. 90-95(e)(3). May the State also use that felony punishment as the current felony for the purpose of prosecuting the person as a habitual felon? If so, the punishment would increase four more classes—from a Class I to a Class E felony—under the habitual felon sentencing scheme in G.S. 14-7.6. The Court of Appeals said no in its recent decision in State v. Howell, ___ N.C. App. ___, 792 S.E.2d 898 (Dec. 6, 2016), temp. stay allowed, ___ N.C. ___, 794 S.E.2d 345 (Dec. 20, 2016). As in the above scenario, the defendant in Howell was convicted of Class 1 misdemeanor possession of marijuana. The State alleged that he had a prior conviction under North Carolina’s Controlled Substance Act, making the punishment for the marijuana offense a Class I felony. The felony punishment, in turn, was used as the current felony for the purpose of imposing a Class E, habitual felon punishment. The Court of Appeals reversed the Class E sentence and remanded for resentencing. The court focused on the language of G.S. 90-95(e)(3), which provides that a person “shall be punished as a Class I felon” if [...]