Can North Carolina increase the punishment for repeat felons and still count earlier felony convictions toward the enhancement, or would that violate the ex post facto clause?

Plain-English summary

The Governor's office asked the AG whether the General Assembly could increase the punishment under the Habitual Felons Act and still count prior felonies (committed before the increase took effect) toward the enhancement. Chief Legal Counsel John R. McArthur and Assistant AG Jeffrey P. Gray concluded yes, with one key drafting rule: the new heavier penalty had to be triggered only by a felony committed after the amendment took effect.

The reason traces to the structure of the Habitual Felons Act and to a long line of ex post facto case law. The Act in 1993 was triggered when someone with three or more prior felony convictions committed a fourth or subsequent felony. The defendant was then convicted of the fourth felony and, in a separate hearing, the jury determined whether he or she had attained the status of habitual felon. If found to be one, the defendant was sentenced for the fourth felony as a habitual felon, with enhanced punishment.

Under the U.S. Supreme Court's framework in Collins v. Youngblood, the ex post facto clauses bar three kinds of legislation: (1) making illegal what was legal at the time of the conduct, (2) increasing the punishment for a crime after it was committed, or (3) depriving the accused of a defense that existed at the time. North Carolina's clause in N.C. Const. art. I, § 16 has the same scope (State v. Broadway).

On its face, increasing the penalty under a recidivist statute might look like type (2). But the U.S. Supreme Court answered that puzzle in 1948 in Gryger v. Burke. There, Arizona enacted a habitual felon law after the defendant had at least one prior felony. The defendant later committed and was found guilty of his fourth felony and was sentenced as a habitual felon. He argued the law was an ex post facto law because it counted his pre-enactment prior felony. The Court rejected that argument:

"Nor do we think the fact that one of the convictions that entered into the calculations by which petitioner became a fourth offender occurred before the Act was passed, makes the Act invalidly retroactive.... The sentence as a habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one."

That framing has not been altered in 45 years. McDonald v. Massachusetts (1901) had said the same thing earlier. The Second Circuit in United States v. Panebianco (1976) put the rule succinctly: "as long as the [triggering] offense occurs after passage of the punishment-enhancing statute, there is no retroactivity problem." Jones v. Arkansas (1991) reversed a state habitual felon sentence where the triggering offense had occurred before an amendment that changed Arkansas's enhancement rules, illustrating the limit: the triggering offense must be on the right side of the effective date.

McArthur and Gray translated the doctrine into drafting advice. The Governor's proposal to add a stronger penalty for defendants with three or more violent felonies (rather than any mix of three felonies) could be enacted as an amendment to § 14-7.1, with the existing provisions for non-violent mixes left in place. Alternatively, the Act was not a "three strikes" structure, so the General Assembly could enact a two-prior-violent-felonies-plus-triggering-violent-felony enhancement and keep the broader recidivist provisions for everyone else.

The opinion noted in passing that the Structured Sentencing Law (effective January 1, 1995) would change the surrounding sentencing landscape, and one option under discussion was to repeal part of those changes to restore stronger penalties for recidivists with mixed violent and non-violent histories. The AG's office offered to help with drafting.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. North Carolina's Habitual Felons Act and the surrounding Structured Sentencing framework have been amended substantially since 1993, and the Habitual Violent Felon Act in N.C.G.S. § 14-7.7 et seq. now provides the violent-felony enhancement the Governor's office discussed in this opinion. Current law on enhancement triggers, definitions of violent felonies, and life-without-parole sentencing differs from the 1993 framework. Any current question about ex post facto challenges to a recidivist amendment should be analyzed against the present statute and the present case law, including post-1993 Supreme Court decisions on retroactivity.

Background and statutory framework

The federal ex post facto clauses appear in Article I, § 9 (binding Congress) and Article I, § 10 (binding the states). The North Carolina Constitution has its own version in Article I, § 16. The doctrine traces to colonial-era abuses where legislatures would retroactively criminalize political opponents' past conduct. The modern formulation in Collins v. Youngblood is narrower than the original Calder v. Bull formulation, but the core protection remains: a person's conduct is judged by the law in force when the conduct happened.

Recidivist statutes raised an early puzzle. They count past conduct (prior convictions) toward present punishment (the enhanced sentence for the latest offense). If the rule that counts the past conduct changes after the past conduct happened, has the defendant's punishment for that past conduct been increased? Gryger v. Burke answered no, because the past conviction is not what is being punished; it is merely an attribute of the defendant that aggravates the seriousness of the latest offense. The legal fiction is that the latest offense is "considered to be an aggravated offense because a repetitive one." The doctrine has been criticized in academic literature as a workaround that lets legislatures effectively reach back, but it has been remarkably stable in the case law.

The drafting rule that follows from Gryger and Panebianco is precise: the new statute must apply only to triggering offenses committed after the statute takes effect. A statute that says "any defendant sentenced after January 1, 1994, for a violent felony with three prior violent felony convictions shall serve life without parole" might or might not survive depending on whether courts construed the triggering event as the sentencing date or the commission date. The safer drafting names the commission date of the triggering offense explicitly.

The opinion's reference to "life without parole" for violent felony recidivists fits the early 1990s wave of "three strikes" legislation, which California enacted in 1994 and many other states followed. North Carolina did not adopt a true three-strikes law in 1993, but the Habitual Felons Act provided much of the same function.

The 1992 letter date in the original text (referencing "your letter dated 20 January 1994") is a typo in the published opinion; the opinion was issued in January 1993 and the requesting letter was from late January 1993, not 1994.

Common questions

What is the difference between a habitual felon and a defendant with prior convictions cited at sentencing?

A habitual felon is a status determined by the jury in a separate proceeding under § 14-7.1. The status, once attained, exposes the defendant to enhanced punishment for the latest felony. Prior convictions raised only at sentencing (not in a separate habitual felon proceeding) are sentencing factors that the judge can weigh, but they do not invoke the Habitual Felons Act framework.

Could the General Assembly retroactively reach a defendant already convicted of a fourth felony?

No. Even under Gryger, the new heavier penalty applies only to triggering offenses committed after the new statute. A defendant whose fourth felony occurred before the amendment cannot be subjected to the new penalty under that amendment.

Did the AG endorse a specific drafting proposal?

The opinion offered general drafting advice rather than a specific bill. The key point was that an effective date for the commission of the triggering felony was essential.

What about prior felonies that occurred in other states?

The opinion did not address that, but the Habitual Felons Act has historically counted out-of-state felony convictions that would be felonies under North Carolina law. The ex post facto analysis does not change for out-of-state priors; what matters is the date of the triggering offense relative to the amendment's effective date.

Were the prior convictions required to be final at the time of the triggering offense?

The opinion did not directly address that, but standard practice under § 14-7.1 was that the priors had to be convictions (not just charges) at the time of the triggering offense.

Citations

• N.C.G.S. § 14-7.1 et seq. (Habitual Felons Act)
• U.S. Const. art. I, §§ 9, 10 (ex post facto clauses)
• N.C. Const. art. I, § 16 (ex post facto clause)
• Gryger v. Burke, 334 U.S. 728 (1948)
• McDonald v. Massachusetts, 180 U.S. 311 (1901)
• Collins v. Youngblood, 497 U.S. 37 (1990)
• State v. Broadway, 157 N.C. 598, 72 S.E. 987 (1911)
• United States v. Panebianco, 543 F.2d 477 (2nd Cir. 1976)
• Jones v. Arkansas, 929 F.2d 375 (8th Cir. 1991)

Source

• Landing page: https://ncdoj.gov/opinions/application-of-ex-post-facto-clause-to-increased-penalty-for-felony-recidivists/

Original opinion text

January 26, 1993

Beryl E. Wade
Legislative Assistant Counsel
Office of the Governor
116 West Jones Street
Raleigh, NC 27603

RE: Advisory Opinion: Application of Ex Post Facto Clause to Increased Penalty for Felony Recidivists; NCGS § 14-7.1.

Dear Beryl:

In your letter dated 20 January 1994 you requested an advisory opinion on:

"Whether is constitutional or otherwise lawful to increase the penalty for a recidivist and still be able to utilize for enhancement purposes felonies committed prior to the effective date of the penalty increase?"

The answer is "yes." Any ex post facto clause challenge can be avoided by inserting an effective date for the commission of the felony that triggers the sentence enhancement. Further, our current Habitual Felon Act, NCGS § 14-7.1, et. seq., can easily be modified to include "life without parole" for violent felonies.

As you are aware, our habitual felon law is triggered when a defendant who has committed three or more prior felonies commits a fourth or subsequent felony. (The Act, as currently written, does not differentiate violent and non-violent felonies.) If convicted of the fourth felony, and found by the jury in a separate hearing to have attained the status of an habitual felon, the defendant is sentenced for the fourth felony as an habitual felon. The fact that the defendant is being sentenced for the fourth (or any subsequent felony after three) is the key factor that distinguishes a recidivist enhancement statute under an ex post facto analysis. Our habitual felon law is a sentence enhancer for a separate felony. "Habitual felon" is a status, not a crime.

The Act can easily be amended to include a separate, stronger penalty for a defendant who has previously been convicted of three or more violent felonies, and the provisions for defendants convicted of any other combination of felonies, either violent or non-violent, allowed to remain. Also, since our statute is not a "three strikes you're out", it can be amended for two prior violent felonies and a third triggering violent felony, and the provisions for recidivists with any other combination felonies allowed to remain.

Both the United States Constitution and the North Carolina Constitution prohibit ex post facto laws. The United States Supreme Court has interpreted the Clause to bar any legislation 1) making illegal that which was legal at the time of the alleged criminal activity, 2) increasing the punishment for a crime after the commission, or 3) depriving the accused of any legal defense available at the time the crime was committed. Collins v. Young [Youngblood], 497 U.S. 37, 42, 110 S.Ct. 2715, 2724, 111 L. Ed. 2d 30, 38-39 (1990). Similarly, State v. Broadway, 157 N.C. 598, 72 S.E. 987 (1911). On its face number two appears to bar any new recidivist statute or an increase in the penalty under our current habitual felon law. However, such is not the case if the crime for which the sentence is being enhanced was committed after the effective date of the statutory penalty increase.

State and federal courts have universally upheld sentence enhancement provisions, and separate recidivist enhancement laws, against ex post facto challenges where there is a delineation between the prior offenses, the date of the statute's enactment, and the subsequent offense. Each of these cases looks for guidance to a 45 year old United States Supreme Court case, Gryger v. Burke, 334 U.S. 728, 68 S. Ct. 1256, 92 L. Ed. 1683 (1948).

At a point in time after a defendant had been convicted of at least one felony, the State of Arizona passed an habitual felon law similar to North Carolina's. Upon committing and being found guilty of his fourth felony, the defendant was sentenced as an habitual felon. In rejecting the defendant's claim that the act was an ex post facto law, the United States Supreme Court stated:

Nor do we think the fact that one of the convictions that entered into the calculations by which petitioner became a fourth offender occurred before the Act was passed, makes the Act invalidly retroactive.... The sentence as a[n] habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.

Id. at 732, 68 S. Ct. at 1258, 92 L. Ed. at 1687. See also, McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L. Ed. 542 (1901) (increasing punishment for felony because of prior convictions does not violate ex post facto clause where punishment is for his latest crime). The precedent set by Gryger has not been altered and is continually cited by state and federal courts.

Since our current habitual felon law has withstood constitutional challenge on numerous occasions, including equal protection, due process, and "cruel and unusual punishment" attacks, a modification of NCGS § 14-7.1, et. seq., in accordance with the Governor's proposal, rather than an entirely new law, would lessen future attacks on constitutional grounds.

An effective date for the commission of the subsequent or triggering felony would be the key to a constitutionally valid amendment to our Habitual Felon Act. As stated by the Second Circuit Court of Appeals, "[a]s long as the [triggering] offense occurs after passage of the punishment-enhancing statute, ...there is no retroactivity problem." United States v. Panebianco, 543 F.2d 477, 453 n.4 (2nd Cir. 1976) (citing Gryger), cert. denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L. Ed. 2d 553 (1977). This fact is well borne out in Jones v. Arkansas, 929 F.2d 375 (8th Cir. 1991), where the court reversed the magistrate judge's denial of the defendant's federal habeas petition where the defendant had been sentenced for an offence that occurred prior to the effective date of a change in Arkansas's habitual felon law (i.e. statute changed from "at least three prior felonies" to "more than one (1) but less than four (4) felonies").

Of course, other slight modifications to the Act would be required and it has been suggested that the changes made by the Structured Sentencing Law (effective 1 January 1995) be repealed and a stronger penalty be restored for those recidivists that have a combination of violent and nonviolent felonies.

This office will be glad to assist you in drafting the appropriate legislation to accomplish the Governor's intent.

John R. McArthur
Chief Legal Counsel

Jeffrey P. Gray
Assistant Attorney General