Habitualized Sex Crimes, Take Two

About seven years ago, I wrote this post about habitualized sex crimes. The issue I explored there was how to sentence a person convicted of a Class F through I sex crime when he or she has also attained habitual felon status. The question is whether the defendant, who is now sentenced as a Class B1 through E felon due to the habitual felon law’s four-class enhancement, is subject to the elevated maximum sentence applicable to Class B1 through E sex offenders under G.S. 15A-1340.17(f). When I wrote that post there was no appellate case answering the question. There is now. In State v. Essick, 2022-NCCOA-131 (Mar. 1, 2022), the defendant was convicted of third-degree sexual exploitation of a minor, a Class H felony that requires registration as a sex offender. He also pled guilty to being a habitual felon, elevating the punishment classification from Class H to Class D. When it came time for sentencing, the trial court imposed a 67–141 month sentence, concluding that the rule in G.S. 15A-1340.17(f) (the maximum sentence is 120 percent of the minimum plus 60 additional months) should apply to a low-level felony sex offender sentenced as a Class D felon under the habitual felon law. Through a petition for writ of certiorari, the defendant argued in the Court of Appeals that the sentence should have been 67–93 months. He thought the “regular” maximum sentence (120% of the minimum plus 12 additional months) should have applied, because an enhanced Class H sex crime is [...]