Substantial Similarity of Prior Convictions from Other Jurisdictions

Under G.S. 15A-1340.14(e), a defendant’s prior out-of-state convictions count by default as Class I felonies if the other jurisdiction classifies them as a felony, or as Class 3 misdemeanors if the other jurisdiction classifies them as a misdemeanor. The State or the defendant may, however, attempt to depart from those default classifications through a preponderance-of-the-evidence showing that the offense is “substantially similar” to a North Carolina offense with a different classification. For example, the State might try to show that a prior rape conviction from another State is substantially similar to first-degree rape in North Carolina, and should thus count as a Class B1 conviction (9 points) instead of the default Class I (2 points). Conversely, the defendant might attempt to show that a felony conviction from another state is similar to a misdemeanor in North Carolina. For defendants with significant out-of-state records, those substantial similarity determinations can have a big impact on prior record level. A common sentencing error is a defendant’s improper stipulation to the substantial similarity of prior convictions from other jurisdictions. The court of appeals has held many times that substantial similarity is a question of law that may not be validly stipulated to by the defendant. See, e.g., State v. Hanton, 175 N.C. App. 250 (2006); State v. Palmateer, 179 N.C. App. 579 (2006); State v. Lee, 193 N.C. App. 748 (2008). Instead, the court must make a legal determination that the out-of-state conviction is indeed substantially similar to a North Carolina crime with a particular [...]