Stipulations to the Classification of Prior Convictions for Possession of Drug Paraphernalia

Prior record level calculations would be pretty straightforward—if the law never changed. But it does. Offense classifications change. New offenses are created. And existing offenses are split into multiple offenses with different classifications. Structured Sentencing makes some effort to modernize a person’s prior criminal history by counting prior convictions for points based on their classification as of the offense date of the crime now being sentenced. G.S. 15A-1340.14(c). But it’s not always clear how that rule should be applied—even when a defendant stipulates to his or her record. State v. Green, __ N.C. App. __ (2019), decided by the court of appeals last week, illustrates the issue. The defendant was convicted of multiple felonies in 2017. He stipulated to a prior record level worksheet showing 19 points, making him Prior Record Level VI. On appeal, the defendant challenged the classification assigned to several of his prior convictions from the 1990s, arguing that the court erred by accepting his stipulations to them. For today I’ll focus primarily on just one of them, a 1994 conviction for possession of drug paraphernalia (PDP). The defendant argued that it should count as Class 3, not Class 1, in light of the 2014 legislation that created the new Class 3 offense of possession of marijuana paraphernalia. In State v. McNeil, __ N.C. App. __, 821 S.E.2d 862, temp. stay allowed, __ N.C. __, 820 S.E.2d 519 (2018) (discussed here), the court of appeals indeed held that a prior PDP conviction should count as Class 3 unless [...]