Evaluating Substantial Similarity of Prior Out-of-State Convictions after State v. Graham

State v. Graham, 2021-NCSC-125, 379 N.C. 75 (2021), sheds new light on what it means for an out-of-state prior conviction to be “substantially similar” to a North Carolina crime for prior record level purposes. As noted in several prior posts on this blog, including this one, a special classification rule applies to out-of-state prior convictions for purposes of assigning prior record points. By default, a prior conviction for a crime that another jurisdiction classifies as a felony counts as a Class I felony (which carries two points) for record-level purposes in North Carolina. A prior conviction for a crime that another state classifies as a misdemeanor is classified as a Class 3 misdemeanor, and so does not factor into a defendant’s prior record level at all. G.S. 15A-1340.14(e). The State or the defendant can attempt to depart from the default classification by presenting evidence that the offense is substantially similar to an offense in North Carolina with an offense class different from the default. If the State can prove by a preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to a North Carolina offense that is classified as a Class I felony or higher, the conviction is treated as that class of felony for prior record level purposes. If the State can prove that a misdemeanor from another jurisdiction is substantially similar to a Class A1 or Class 1 misdemeanor in North Carolina, the conviction is treated as [...]