NC Felonies: What Is A Felony in North Carolina?

Raleigh Felony Lawyer A felony in North Carolina is a serious charge. In the past, a felony was defined as a crime for which you could serve more than one year in prison as a punishment for the crime, but that has since changed. Today, the North Carolina Legislature determines what crimes are classified as felonies. Some crimes can be classified as either felonies or misdemeanors, such as larceny, , assault, and some drug possession charges, while other crimes, usually violent in nature can only be felonies.

Felonies in North Carolina include sex offenses such as rape and indecent liberties with a minor, robbery, kidnapping, murder, certain violent assaults, larceny, and certain drug crimes like possession, possession with intent to sell and deliver (PWISD), manufacturing, distribution, sale, or trafficking. One issue to be concerned about with these types of felonies is that enhanced sentencing comes into play, where repeat offenses can be punished more harshly. North Carolina has a version of a three strikes law, call a habitual offender that significantly increases penalties for felony convictions.

Felonies have additional consequences beyond prison or probation. If you are convicted of a felony, you may lose citizenship rights such as the loss of the right to vote and to hold public office. If you are not a US citizen and are on a green card or visa, a felony conviction can result in the denial of green card or visa renewal and denial of a citizenship request. In addition, convicted felons lose the right to carry a firearm.

The majority of felonies begin in district court, which is the lower level of two courts in the North Carolina state court system. Many are resolved in district court, but some are escalated to superior court. Felonies handled in district court are dealt with by dismissal, plea agreement, drug diversion program or deferral agreement. If none of these agreements can be reached in district court, the case is escalated to superior court. In superior court, a district attorney has the option to again revisit the options of dismissal, deferral, diversion or plea, but if this cannot be agreed upon, then the case will go to a jury trial. A jury trial in superior court can take as long as two years to be scheduled.

Jury trials are complex in that there are multiple phases: jury selection, the actual trial, and if found guilty, the sentencing phase. It is important if you are facing felony charges to find a criminal defense lawyer that has both felony and trial experience and is unafraid to go to trial. Some attorneys are less comfortable in a trial setting and would prefer to negotiate a plea offer, but you should seek the counsel of a criminal lawyer who can analyze the facts in your case, determine what defense strategy would be in your best interests, and if that means having a trial, taking your case to trial.

Michael Dunn: Guilty of Attempted Second Degree Murder

Michael Dunn, 45, was found guilty by a Duval County (Jacksonville, Florida) jury of three counts of attempted second degree murder of three teenage boys and one count of shooting into an occupied car. The jury was hung on the first degree murder charge with respect to Jordan Davis, who would’ve turned 19 today had he not been shot and killed by Dunn.

Judge Russell Healey declared a mistrial with respect to the first degree murder charge, and Duval County State Attorney Angela Corey has said that the state will retry Michael Dunn on that charge. Sentencing for the four convictions has been continued to the week of March 24. In the meantime, a presentence report is being prepared. Mr. Dunn was remanded back into the sheriff’s custody, and will remain in custody until sentencing, at which point he faces a mandatory minimum sentence of 20 years, with a possible maximum of 75 years.

The case made national headlines, especially in the wake of the Trayvon Martin case in which George Zimmerman was acquitted of murder on the basis of Florida’s controversial stand-your-ground law. The defense in Dunn’s case raised a similar defense, arguing that Davis had a gun, and threatened to use that gun on Dunn, after the two had a verbal argument over the loud music coming from the car in which Davis was a passenger.

No gun was found. No gun was seen by any witness, other than Dunn who claimed he saw a shotgun. It’s evident that Jordan Davis had no gun.

Twitter is a-twitter of the apparent illogic of the verdicts. After all, how could Dunn be guilty of attempted murder of the three survivors, but no verdict rendered in the case involving the dead teenager.

More perplexing to North Carolina criminal defense lawyers is the notion of an attempted second degree murder charge, which is impossible as a matter of law in North Carolina. However, in Florida, second degree murder can involve an attempt.

Reconciling the Results

Juries are often illogical. While observers love to try to discern possible rationale behind a jury’s verdict, especially compromise verdicts, it’s almost always futile. While juries promise to follow the law, different jurors will almost always have different impressions from the evidence, especially in cases that are at least a bit ambiguous.

Often jurors negotiate and render a mixed verdict that is not exactly what everyone would want. Dunn was charged in his indictment with five counts: one count of first degree murder in the death of Jordan Davis, one count of attempted first degree murder for Tevin Thompson, one count of attempted first degree murder for Leland Brunson, one count of attempted first degree murder for Tommie Stornes, and one count of shooting a firearm into an occupied vehicle.

Dunn’s criminal defense lawyer made a fine closing. That closing probably undercut the State’s argument that Dunn had premeditated the murder at least for some jurors.

It’s conceivable, therefore, that some jurors were convinced that the proper result was first degree murder, and that some jurors were convinced it was a lessor included of second degree murder. As to the attempts, likely the issue was resolved simply by compromising on the three attempted second degree murder verdicts.

But it’s probably the case that at least some jurors felt that first degree murder was the appropriate result in Jordan Davis’ case.

That’s how you get to a hung jury with respect to count one – first degree murder of Jordan Davis – and guilty results with respect to counts two through four – attempted second degree murder of the other three teenagers.

Self Defense?

Some commenters are claiming that these verdicts underscore the notion that in America you can shoot and kill young black males with impunity. I’m not unsympathetic to this concern; my sympathies were with Trayvon Martin and his family in that case.

However, it seems unlikely that jurors would’ve bought the self-defense claims by Dunn and therefore refused to convict him of First Degree Murder, but inconsistently applied that defense to the other victims in this case, for which Dunn’s self-defense claim, if believed by the jury, should also have excused convictions.

Expungement Law Grants (Some) Convicted Felons Relief

How many people in North Carolina have been convicted of a single felony, and nothing more? How many people were convicted of a low level drug possession crime or low level larceny, and have otherwise maintained a spotless record?

We’re about to find out, thanks to a new bill signed into law by Governor Bev Perdue earlier this month.

The expands the expungement opportunities available to North Carolinians. North Carolina is notoriously stingy with its expungements. First, generally, you are only permitted one expungement in your life – although there may be certain exceptions.

Second, for the most part, you must either be convicted for an offense that occurred before your 18th birthday, or found not guilty or had the charge voluntarily dismissed.

Third, in certain cases, including domestic violence related cases, the DA may require as an express condition of your deferral agreement that you not ever request an expungement.

The new law expands North Carolina’s expungement laws by allowing a person convicted of a low level, non-violent felony to apply for an expungement in three conditions:

  1. More than 15 years pass since the end of the punishment, or probationary period.
  2. The person not have had any other criminal convictions.
  3. The person show good moral character.

The process will not be a slow one. Already, the state’s Administrative Office of the Courts and local county clerks have been overwhelmed with the current volume of expungements under existing law. In some cases, it can take 6 to 10 months for an expungement to be returned.

Expungements for Low Level North Carolina Felonies

The North Carolina General Assembly has passed a measure – now headed to Governor Perdue’s desk – that would allow certain individuals to apply for and be granted expungements in cases where they may have received a low level felony earlier in their lives.

The new expungement bill, if signed into law, will allow individuals convicted of a single Class H or Class I felony – Felony Larceny, Felony PWISD, Felony Possession of Cocaine, Felony Embezzlement (under $100,000) among other North Carolina crimes – to petition a court for an expungement after 15 years have passed since the end of any imposed sentence and upon a showing of good character.

I would expect, assuming the law goes into effect at the end of 2012, that there will be a large number of people applying.

Note that this law does not apply to cases involving multiple felony convictions, or even felony convictions followed by misdemeanor convictions. A court will also need proof of your good character, so even if you’ve never been convicted again of a crime, a person who has been subsequently charged may find it hard to convince a judge to permit an expungement.

A bill was signed into law last year that allowed non-violent offenders who were under the age of 18 at the time of the crime to apply for an expungement. That was a good first step.

Also enacted last year was something called a Certificate of Relief. The Certificate of Relief – N.C.G.S. 15A-173.1 – allows people convicted of a Class G, Class H, or Class I felony to apply for a special determination that relieves them of certain kinds of “collateral” sanctions imposed as a consequence of the felony conviction.

A collateral sanction is a sanction that is imposed not by virtue of the criminal judgment, but by some other legislative requirement. The most common kind of collateral sanction is a licensing sanction that forbids someone to work in a certain field after the person has been convicted of a felony. Talk to a Raleigh criminal attorney about whether you are eligible for a Certificate of Relief, or whether the Certificate of Relief will help you do what you want to do with your life. Certain collateral consequences, including immigration consequences, are not resolved by a Certificate of Relief.

Raleigh DWI, Punishment and Accidental Injury or Death

Drunk driving accidents lead to criminal charges as well collateral consequences associated with personal injury lawsuits or wrongful death suits. These consequences can outstrip even the criminal consequences associated with a DWI-related accident. Raleigh’s extremely tough DWI laws notwithstanding, if you are the victim or the defendant in a DWI-related accidents, it’s important to hire competent and aggressive criminals defense and civil lawyers with knowledge of all aspects related to a wrongful death or accident related claim.

While all personal injury lawsuits involve claims related to injury, death, pain, illness, and medical bills, where the accident is the result of wrongful conduct, punitive damages may be awarded by a jury. These damages may be awarded by the jury to the victim of a DUI-related accident, or to the victim’s family if the victim has died as a result of the accident. The punitive recovery or punitive award is related to how bad the defendant acted.

Where the defendant has never committed a DWI-related offense before, the damages are likely to not be very high. However, where the defendant has committed multiple DWI offenses in the past, the jury may award as much as $250,000 or three times the victim’s or victim’s estate’s actual damages. For instance, where the victim has sustained $500,000 in damages from medical bills, pain and suffering, the permanent loss of mobility or some permanent impairment or death where the person’s earning potential now has been ended, the victim or the victim’s family’s may recover $1.5 million.

Of course, whether the victim or his or her family can recover that much money will depend on the amount of assets the DWI offender has. For instance, if the person who committed the DWI that lead to the accident has a very modest income or savings, the person may be judgment proof.

If you believe you have been the victim of someone who was impaired at the time of driving (or if you are accused of a DWI where an accident has occurred), it is important for you to hire an aggressive Raleigh accident lawyer or Raleigh personal injury lawyer to help defend you or litigate on your behalf for the maximum recovery.

First Degree Burglary in North Carolina

We’re approaching that time of year when the weather starts to get a little nicer (although this year has been a very mild winter in Raleigh!)

Around this time, people start coming out of their homes to enjoy the weather, to have fun, and to hang out with friends.

And each spring in Wake County we have a series of crimes that are strikingly similar. They involve teenagers, typically out on a prank, or maybe up to more serious wrong doing. Maybe they’re looking for some easy money. Steal something and sell it on Craigslist or eBay.

Or maybe they’re just trying to take something that isn’t theirs for their own use.

These acts usually involve the teenagers running into garages, sometimes at night, and stealing bikes or even just beer, or vandalizing.

The result is a spate of First Degree Burglary, Second Degree Burglary, or Felony Breaking & Entering (B&E) charges, where young people face the possibility of not only felony records but also active jail time.

The difference between First and Second Degree Burglary is that in First Degree Burglary the residence must be occupied at the time of the Burglary, and in Second Degree Burglary the residence is unoccupied. Second Degree Burglary also includes the curtilage and outbuildings not connected to the dwelling.

Burglary in North Carolina occurs at night. This is one of the few jurisdictions that maintains the old common law distinction between nighttime burglary and day-time breaking and entering.

Ex: Let’s say someone breaks into the garage of a Raleigh home at night with the intent to commit a theft. Is that First Degree Burglary? Probably, so long as the garage is attached to the dwelling home. If the garage is a separate building within the curtilage, then the crime is probably a Second Degree Burglary.

Importantly, First Degree Burglary is a mandatory prison sentence, even for first time offenders.

Breaking & Entering may be either a misdemeanor or a felony, but in either case probation is generally imposed for first time offenders.

North Carolina Structured Sentencing is No Longer Structured

Until the mid-1990s, North Carolina had a sentencing system called Fair Sentencing. The major criticisms of Fair Sentencing were that:

  1. There was no truth in sentencing. The actual sentence served was usually much lower than the stated sentence at sentencing.
  2. There was disparity in how people were treated from place to place, and defendant to defendant.
  3. The system was uneven and difficult for lay people to understand and interpret.

After years of study, in the mid-1990s North Carolina introduced Structured Sentencing with six prior record levels, and 10 sentencing classes (A to I), with each crime being assigned a sentencing level based on the seriousness of the crime.

The idea of structured sentencing was to end parole and to introduce truth in sentencing.

Misdemeanors were categorized by four levels – A1 to 3 – and three prior record levels.

Almost from the start, however, there were deviations from the Structured Sentencing system. For instance, DWIs have always been governed by the prior Fair Sentencing system, in part because the legislature wanted to punish DWIs more harshly than the newly established Structured Sentencing scheme would allow if DWIs were made a misdemeanor within Structured Sentencing.

Next, the legislature decided that drug trafficking was too serious a crime to be left to structured sentencing. So, while drug trafficking nominally carries with it a Class, each level of drug trafficking has specific mandatory minimums and drug trafficking sentences are not determined by looking at the offender’s prior record level.

Next, the legislature decided that certain sex offenses were too serious to be left to structured sentencing. So, while forcible rape is nominally a B1 felony, it carries with it a mandatory minimum sentence of 25 years, taking it out of Structured Sentencing. That 25 years is set regardless of a person’s prior record level.

These little tweaks here and there have meant that, over time, North Carolina’s Structured Sentencing system has looked more like a hodgepodge. Truth in sentencing has become something less than entirely truthful.

The Justice Reinvestment Act passed in 2011 and now fully in effect in North Carolina as of January 1, 2012 blows a hole in the Structured Sentencing scheme by creating an entirely new program that looks a lot like parole, even though it’s technically called Advanced Supervised Release.

As if the legislature doesn’t entirely trust judges, it requires that the prosecutor not object to putting the defendant into the DOC’s ASR program. If the person is admitted into the program at the time of sentencing, then he is eligible release on his Advanced Supervised Release date which is either the minimum sentence at the bottom of the mitigated range for the same Class and Prior Record Level, or is 80 percent of his minimum sentence if he’s sentenced in the mitigated range.

Eligible defendants must fit into certain Class and Prior Record Levels in order to qualify for the ASR program. And only the sentencing judge can place the person into the ASR program if the prosecutor doesn’t object.

The program is a good move in the right direction, because it incentivizes defendants to take advantage of programs in the DOC to earn ASR release, and then supervises them for a period of time after release.

And it credits worthy offenders, getting them out of prisons earlier, and lessening the financial burden to the State.

But it represents essentially a return to parole, which in my view is a good thing, but which runs counter to the whole concept behind Structured Sentencing.

Rationalizing sentencing only goes so far. Leniency must be built into the system to incentivize offenders. Overall NC’s criminal sanctions are overly punitive. Moving toward a less structured, but more humane criminal justice sytem is the way to go.

North Carolina’s Advanced Supervised Release

The Criminal Justice Reinvestment Act, parts of which went into effect on December 1, 2011, and parts of which went into effect on January 1, 2012, creates a new Department of Corrections program called the Advanced Supervised Release program.

The program is similar to parole or post-supervision release, but by a different name. Here’s how it works, and how it can benefit people who committed felony offenses after December 1, 2011 and are found guilty of those felonies after January 1, 2012.

If the Assistant District Attorney does not object, the judge may order the Department of Corrections (DOC) to place certain defendants into the DOC’s ASR program. Eligible defendants include:

  • Class D Felonies (robbery with a deadly weapon, first degree burglary, etc.) with prior record levels of I to III
  • Class E Felonies (certain violent assaults, felony child abuse, etc.) with prior record levels of I to IV
  • Class F Felonies (involuntary manslaughter, assault inflicting serious bodily injury, certain arsons) with prior record levels of I to V
  • Class G Felonies (felon in possession of a firearm, second degree burglary) with prior record levels of I to VI
  • Class H Felonies (certain drug crimes including PWISD, larcenies, certain embezzlement crimes) with prior record levels of I to VI

If the sentencing judge orders the Defendant into the program, then defendants who complete “risk reduction incentives” in prison are released on post-supervision release on their Advanced Supervised Release Date. This date is determined by calculating the person’s lowest minimum sentence in the mitigated range for the defendant’s offense and prior record level or 80 percent of the imposed minimum if a mitigated-range sentence was imposed.

If the Defendant was not eligible to complete “risk reduction incentives” perhaps because he spent most of his sentence in a local jail, the defendant is still eligible for the ASR program if it’s mandated by the judge.

Once the Judge authorizes ASR, the DOC must allow the defendant to participate in ASR programs. However, the person may not successfully complete ASR risk-reduction programs, such that the person may not benefit.

More information about this program is available here.

Liability for Crimes

Sometimes people are surprised that they may be implicated in a criminal act, even though they weren’t necessarily involved in all aspects of the crime. Liability for crimes can extend to everyone involved in various aspects of the crime, and can extend through time to involve aiding and abetting, accessory after the fact, and conspiracy.

Let’s talk about a few different types of criminal liability.

The most basic criminal liability involves a person acting as a principal in a crime. For instance, if a single person pulls out a gun and with premeditation shoots an individual, that person is the principal in the crime of First Degree murder.

Acting in Concert

What if two people intend to kill an individual, but only one of the two people has the gun and pulls the trigger? The second person, so long as he shares the same mental state and so long as he assists in an aspect of the crime, is similarly guilty as a principal in first degree murder. This is called “acting in concert.” It is a basic concept of criminal law that two or more persons may act as principals in the first or second degree or as accessories. Both actors are principals since each does an act that constitutes the crime and each acts with the necessary criminal intent (to kill). Even though neither individually did all the acts that constitute the crime, under the theory of joint participation or acting in concert the law treats them as partners in crime who have joined together for the common purpose of committing the crime of murder and each is held responsible for the acts of the other in the commission of the object offense.

Conspiracy

A person may be criminally liable even if he did not participate in the acts of the crime, if the person enters into a conspiracy which involves a mutual understanding to commit a crime. In North Carolina, under N.C.G.S. Sec. 14-2.4, punishment for a conspirator is generally one class less than the punishment class of the crime. This reduction in punishment does not extend to drug trafficking; conspiracy to traffic in drugs is punished at the same level as the principal crime. (For instance, Level 1 marijuana trafficking would result in the same punishment as Level 1 conspiracy to traffic in marijuana.)

Accessory Before the Fact

North Carolina has abolished the distinction between Accessory-before-the-Fact and principal, except in the unique case that “if a person who heretofore would have been guilty and punishable as an accessory before the fact is convicted of a capital felony, and the jury finds that his conviction was based solely on the uncorroborated testimony of one or more principals, coconspirators, or accessories to the crime, he shall be guilty of a Class B2 felony.”

Accessory After the Fact

A person who assists a principal in the crime with either escape, evasion of police, or destruction of evidence may be guilty of a number of crimes, including obstruction of justice. At common law, it was generally the rule that the principal in the crime needed to be convicted (the person who shot the victim, for instance, needed to be convicted of murder) before the State could try the Accessory After the Fact for his crime. The theory was that if there was no underlying criminal conviction, there could be no accessory.

N.C.G.S. Sec. 14-7 effectively abolishes this requirement, and allows the State to try the defendant in an Accessory After the Fact case whether or not the principal has ever been brought to justice.

An accessory after the fact is punished to class levels below the class of the principal crime.

Solicitation to Commit

Solicitation is the act of either offering money or other inducement or encouragement with the specific intent that another person commit the crime. While the person who commits the crime is guilty of being a principal with respect to that crime, the person who induces or pays the other person to commit the crime is guilty of solicitation, which in North Carolina is punishable by a two-class-level reduction in the class of the original offense.

Felony Murder Rule

When someone dies in the course of a serious or violent felony, all accomplices in the crime can be held liable for First Degree Murder. This is a rule that dates back to the 1600s. The idea is that if everyone, for instance, agrees to rob a store, and one person pulls out a gun and shoots the shopkeeper, everyone will be held liable for First Degree Murder.

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