Prior Record Level for Habitual and Repeat Offender Sentencing

In North Carolina we have a fair number of habitual and repeat offender punishment provisions—laws that increase a defendant’s punishment because of crimes he or she has committed in the past. Today’s post considers how the prior convictions needed to establish those enhancements factor into the defendant’s prior conviction level. The general rule is that the prior conviction or convictions used to establish a person’s eligibility for a punishment enhancement do not count toward his or her prior record level. Under most of our laws that use the word “habitual,” that rule is set out by statute. Habitual felon: “In determining the prior record level, convictions used to establish a person’s status as an habitual felon shall not be used.” G.S. 14-7.6. So, a person’s three prior strikes do not count toward his or her record level for the crime now being sentenced. Recall, however, that the State is free to allege the defendant’s least serious prior convictions in the habitual felon indictment, leaving the more serious ones available for prior record points, State v. Cates, 154 N.C. App. 737 (2002), or vice-versa. And if the State alleges “extra” prior convictions in the habitual felon indictment beyond the requisite three, they too are off limits for prior record points. State v. Lee, 150 N.C. App. 701 (2002). Habitual breaking and entering: “In determining the prior record level, any conviction used to establish a person’s status as a status offender shall not be used. G.S. 14-7.31(b). Armed habitual felon: “In determining the prior record [...]