GENERAL ASSEMBLY OF NORTH CAROLINA

EXTRA SESSION 1994

H	1 

HOUSE BILL 47

Short Title:  Three Strikes You're Out.	(Public)
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Sponsors: Representatives Nichols; Alphin, Arnold, Balmer, Barbee, Berry, Bowie, Bowman, Brawley, J. Brown, Brubaker, Church, Cole, Creech, Culp, Daughtry, Decker, Dickson, Dockham, Edwards, Ellis, Esposito, Flaherty, Gardner, Hall, Hayes, Hill, Ives, Lemmond, McCombs, McCrary, McLaughlin, McLawhorn, Mercer, Miner, Mitchell, J. Preston, Ramsey, Russell, Sexton, Smith, Spears, Sutton, Tallent, Thompson, Weatherly, Wilson, and Yongue.
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Referred to:  Judiciary III.
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February 8, 1994

A BILL TO BE ENTITLED
AN ACT TO PROVIDE THAT UPON A THIRD CONVICTION OF CERTAIN SERIOUS FELONIES AN OFFENDER IS A SERIOUS HABITUAL FELON AND SHALL BE SENTENCED TO LIFE IMPRISONMENT WITHOUT PAROLE, UNLESS THE OFFENDER IS SENTENCED TO DEATH FOR A CAPITAL OFFENSE.
The General Assembly of North Carolina enacts:
Section 1.  Article 2A of Chapter 14 reads as rewritten:
"ARTICLE 2A. 
"Habitual Felons; Serious Habitual Felons.
"§ 14-7.1. Definitions.
The following definitions apply in this Article:
(1)	Felony. – An offense that is a felony under the laws of the State or another sovereign in which a plea of guilty was entered or a conviction was returned, regardless of the sentence actually imposed.  The term does not include, however, federal offenses relating to the manufacture, possession, sale of, and kindred offenses involving intoxicating liquors.  For the purposes of this Article, felonies committed before a person attains the age of 18 years shall not constitute more than one felony.  Pleas of guilty to or convictions of felonies before July 6, 1967, are not felonies for the purposes of this Article.  A felony offense to which a pardon has been extended is not a felony for the purposes of this Article.  The burden of proving the pardon shall rest with the defendant; the State is not required to disprove a pardon.
(2)	Habitual felon. – An offender who (i) is convicted in this State of a felony and (ii) was convicted on at least three separate occasions, whether in this State or elsewhere, prior to that conviction, of offenses that under the laws of this State would be considered felonies, no more than one of which was for an offense that under the law of this State would be considered a Class H, I, or J felony.
(3)	Serious felony. – For purposes of this Article, any of the following felonies or a felony attempt to commit any of the following felonies:
a.	Any Class A or Class B felony.
b.	Any of the following common law offenses:
1.	Robbery.
2.	First degree arson.
3.	First degree burglary.
c.	Any felony in which a special finding was made that the defendant was armed with a deadly weapon at the time of the commission of the crime.
d.	Any of the following felonies:
1.	G.S. 14-18.  Manslaughter.
2.	G.S. 14-27.3.  Second degree rape.
3.	G.S. 14-27.5.  Second degree sexual offense.
4.	G.S. 14-32.  Felonious assault with a deadly weapon with intent to kill or inflict serious injury.
5.	G.S. 14-32.1.  Assault on handicapped persons.
6.	G.S. 14-32.2.  Patient abuse and neglect.
7.	G.S. 14-34.2.  Assault with a firearm or other deadly weapon upon government officers or employees.
8.	G.S. 14-39.  Kidnapping.
9.	G.S. 14-49.  Malicious use of explosive or incendiary.
10.	G.S. 14-49.1.  Malicious damage of occupied property by use of explosive or incendiary.
11.	G.S. 14-50.  Conspiracy to injure or damage by use of explosive or incendiary.
12.	G.S. 14-118.4.  Extortion.
13.	G.S. 14-178.  Incest between certain near relatives.
14.	G.S. 14-190.16.  First degree sexual exploitation of a minor.
15.	G.S. 14-190.18.  Promoting prostitution of a minor.
16.	G.S. 14-190.19.  Participating in prostitution of a minor.
17.	G.S. 14-202.1.  Taking indecent liberties with children.
18.	G.S. 14-318.4.  Felony child abuse.
19.	G.S. 20-141.4(a1).  Felony death by vehicle.
20.	G.S. 90-95(a)(1) or (2).  Manufacture, sell, deliver, or possess with intent to manufacture, sell, or deliver a controlled substance classified in Schedule I or Schedule II or a counterfeit controlled substance.
21.	G.S. 90-95(e)(8).  Manufacture, sell, deliver, or possess with intent to manufacture, sell, or deliver certain controlled substances in drug-free school zone.
22.	G.S. 90-95(h) or conspiracy to commit an offense under G.S. 90-95(h).  Drug trafficking.
23.	G.S. 90-95.1.  Continuing criminal enterprise.
(4)	Serious habitual felon. – An offender who (i) is convicted in this State of a serious felony and (ii) was convicted on at least two separate occasions, whether in this State or elsewhere, prior to that conviction, of felonies that under the laws of this State would be considered serious felonies.
"§ 14-7.2. Punishment.
(a)	When any person is charged by indictment with the commission of a felony under the laws of this State and is also charged with being an habitual felon as defined in G.S. 14-7.1, the person must, upon conviction, be sentenced and punished as an habitual felon, except in those cases where the person is charged and convicted of being a serious habitual felon or where the death penalty or a life sentence is imposed.
(b)	When any person is charged by indictment with the commission of a serious felony under the laws of this State and is also charged with being a serious habitual felon as defined in G.S. 14-7.1, the person must, upon conviction, be sentenced and punished as a serious habitual felon, except in those cases where the death penalty is imposed.
"§ 14-7.3.  Charge of habitual or serious habitual felon.
(a)	An indictment which charges a person who is an habitual felon within the meaning of G.S. 14-7.1 with the commission of any felony under the laws of the State of North Carolina must, in order to sustain a conviction of habitual felon, also charge that the person is an habitual felon. The indictment charging the defendant as an habitual felon shall be separate from the indictment charging him with the principal felony. An indictment which charges a person with being an habitual felon must set forth the date that prior felony offenses were committed, the name of the state or other sovereign against whom the felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in the felony offenses, and the identity of the court wherein the pleas or convictions took place. No defendant charged with being an habitual felon in a bill of indictment shall be required to go to trial on the charge within 20 days of the finding of a true bill by the grand jury, unless the defendant waives this 20-day period.
(b)	An indictment that charges a person who is a serious habitual felon within the meaning of G.S. 14-7.1 with the commission of any serious felony under the laws of this State must, in order to sustain a conviction of serious habitual felon, also charge that the person is a serious habitual felon.  The indictment charging the defendant as a serious habitual felon shall be separate from the indictment charging the defendant with the principal serious felony. An indictment which charges a person with being a serious habitual felon shall set forth the date that prior serious felony offenses were committed, the name of the state or other sovereign against whom the serious felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in the serious felony offenses, and the identity of the court in which the pleas or convictions took place. No defendant charged with being a serious habitual felon in a bill of indictment shall be required to go to trial on the charge within 20 days of the finding of a true bill by the grand jury, unless the defendant waives this 20-day period.
"§ 14-7.4.  Evidence of prior convictions of felony offenses.
(a)	In all cases where a person is charged under the provisions of this Article with being an habitual felon, the record or records of prior convictions of felony offenses shall be admissible in evidence, but only for the purpose of proving that the person has been convicted of former felony offenses. A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein.
(b)	In all cases in which a person is charged with being a serious habitual felon, the records of prior convictions of serious felony offenses shall be admissible in evidence, but only for the purpose of proving that the person has been convicted of former serious felony offenses.  A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction.  The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein.
"§ 14-7.5.  Verdict and judgment.
(a)	When an indictment charges an habitual felon with a felony as above provided and an indictment also charges that the person is an habitual felon as provided herein, the defendant shall be tried for the principal felony as provided by law. The indictment that the person is an habitual felon shall not be revealed to the jury unless the jury shall find that the defendant is guilty of the principal felony or other felony with which he is charged. If the jury finds the defendant guilty of a felony, the bill of indictment charging the defendant as an habitual felon may be presented to the same jury. Except that the same jury may be used, the proceedings shall be as if the issue of habitual felon were a principal charge.  If the jury finds that the defendant is an habitual felon, the trial judge shall enter judgment according to the provisions of this Article. If the jury finds that the defendant is not an habitual felon, the trial judge shall pronounce judgment on the principal felony or felonies as provided by law.
(b)	When an indictment charges a serious habitual felon with a serious felony and an indictment also charges that the person is a serious habitual felon as provided herein, the defendant shall be tried for the principal serious felony as provided by law.  The indictment that the person is a serious habitual felon shall not be revealed to the jury unless the jury finds that the defendant is guilty of the principal serious felony or other serious felony with which the defendant is charged.  If the jury finds the defendant guilty of a serious felony, the bill of indictment charging the defendant as a serious habitual felon may be presented to the same jury.  Except that the same jury may be used, the proceedings shall be as if the issue of serious habitual felon were a principal charge.  If the jury finds that the defendant is a serious habitual felon, the trial judge shall enter judgment according to the provisions of this Article.  If the jury finds that the defendant is not a serious habitual felon, the trial judge shall pronounce judgment on the principal serious felony or felonies as provided by law.
"§ 14-7.6.  (Effective January 1, 1995) Sentencing of habitual and serious habitual felons.
(a)	When an habitual felon shall commit any felony classified as a Class E, F, G, H, or I felony under the laws of the State of North Carolina, the felon must, upon conviction or plea of guilty under indictment be punished as a Class D felon.  
(b)	When a serious habitual felon commits any serious felony as defined by G.S. 14-7.1 under the laws of the State of North Carolina, the defendant shall, upon conviction or plea of guilty under indictment, be sentenced to life imprisonment without parole.
(c)	In determining the prior record level, convictions used to establish a person's status as an habitual felon or a serious habitual felon shall not be used.  Sentences imposed under this Article shall run consecutively with and shall begin at the expiration of any sentence being served by the person sentenced."
Sec. 2.  G.S. 15A-1370.1 reads as rewritten:
"§ 15A-1370.1.  (Effective January 1, 1995) Applicability of Article 85.
This Article applies to all prisoners serving sentences of imprisonment for convictions of impaired driving under G.S. 20-138.1 and prisoners serving sentences of life imprisonment other than as serious habitual felons sentenced under Article 2A of Chapter 14 of the General Statutes.  A person serving a sentence of life imprisonment without parole shall not be eligible for parole at any time."
Sec. 3.  G.S. 15A-1340.10, as amended by Section 1 of Chapter 538 of the 1993 Session Laws, reads as rewritten:
"§ 15A-1340.10.  (Effective January 1, 1995) Applicability of structured sentencing.
This Article applies to criminal offenses in North Carolina, other than impaired driving under G.S. 20-138.1 that occur on or after January 1, 1995.  This Article does not apply to serious habitual felons sentenced under Article 2A of Chapter 14 of the General Statutes."
Sec. 4.  This act becomes effective January 1, 1995, and applies to offenses committed on or after that date.