GENERAL ASSEMBLY OF NORTH CAROLINA

EXTRA SESSION 1994

H	2 

HOUSE BILL 9*
Committee Substitute Favorable 2/21/94

Short Title:  Increase Firearm Penalty.	(Public)
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Sponsors:
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Referred to:  
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February 8, 1994

A BILL TO BE ENTITLED
AN ACT TO PROVIDE THAT AN ENHANCED SENTENCE SHALL BE IMPOSED ON A PERSON CONVICTED OF A CLASS A THROUGH E FELONY IF THE PERSON USED, DISPLAYED, OR THREATENED TO USE OR DISPLAY A FIREARM DURING THE COMMISSION OF THE FELONY, AND TO PROVIDE THAT A FIREARM USED IN THE COMMISSION OF A FELONY SHALL BE CONFISCATED AND DISPOSED OF AS ORDERED BY THE COURT UNLESS IT CAN BE ESTABLISHED THAT THE FIREARM IS OWNED BY SOMEONE OTHER THAN THE CONVICTED DEFENDANT. 
The General Assembly of North Carolina enacts:
Section 1.  G.S. 14-2.2 reads as rewritten:
"§ 14-2.2.  
Sentencing of a person convicted of a Class A, B, C, D, or E felony who used, displayed, or threatened to use or display a firearm during the commission of the crime; confiscation and disposition of a firearm used in a felony.
(a)	If a person is convicted of a Class A, B, C, D, or E felony and the person used, displayed, or threatened to use or display a firearm during the commission of the felony, the person shall, in addition to the punishment for the underlying felony, be sentenced to imprisonment for five years.
The court shall not sentence a person sentenced under this section as a committed youthful offender.  The court shall not suspend any sentence imposed under this section and shall not place a person sentenced under this section on probation for the sentence imposed under this section.  Sentences imposed pursuant to this section shall be consecutive to all other sentences imposed and shall begin at the expiration of any other sentence being served by the person.
(b)	Subsection (a) of this section does not apply in any of the following circumstances:
(1)	The person is convicted of a Class E felony and the person is not sentenced to an active term of imprisonment.
(2)	The evidence of the use, display, or threatened use or display of a firearm is needed to prove an element of the underlying Class A, B, C, D, or E felony.
(3)	The person did not actually possess a firearm about his or her person.
(c)	When a person is found to have personally used a firearm in the commission or attempted commission of a felony and the firearm is owned by that person, or the serial number on the firearm has been defaced such that ownership is not traceable, the court shall order that the firearm be confiscated and disposed of in any of the ways provided by G.S. 14-269.1 that the court in its discretion deems appropriate.
(d)	Subsection (a) of this section does not apply to the following felonies:
(1)	G.S. 14-49(b).  Malicious use of explosive or incendiary.
(2)	G.S. 14-59.  Burning of certain public buildings.
(3)	G.S. 14-60.  Burning of schoolhouses or buildings of educational institutions.
(4)	G.S. 14-61.  Burning of certain bridges and buildings.
(5)	G.S. 14-62.  Burning of churches and certain other buildings.
(6)	G.S. 14-62.1.  Burning of building or structure in process of construction.
(7)	G.S. 53-129.  Misapplication of bank funds by officer or employee."
Sec. 2.  (a) G.S. 14-2.2(a), as amended by Section 1 of this act, reads as rewritten:
"(a)	If a person is convicted of a Class A, B, C, D, or E felony and the person used, displayed, or threatened to use or display a firearm during the commission of the felony, the person shall, in addition to the punishment for the underlying felony, be sentenced to a minimum term of imprisonment for 60 months as provided by G.S. 15A-1340.16A.  Evidence of the use, display, or threatened use or display of a firearm that is needed to prove an element of the underlying felony shall not be used to establish the enhancement under this section.
The court shall not suspend any sentence imposed under this section and shall not place a person sentenced under this section on probation for the sentence imposed under this section.  Sentences imposed pursuant to this section shall be consecutive to all other sentences imposed and shall begin at the expiration of any other sentence being served by the person."
(b) G.S. 14-2.2(d), as amended by Section 1 of this act, is repealed.
(c)	Section 4 of Chapter 538 of the 1993 Session Laws is repealed.
Sec. 3.  Part 2 of Article 81B of Chapter 15A of the General Statutes is amended by adding a new section to read:
"§ 15A-1340.16A.  Enhanced sentence if defendant is convicted of a Class A, B, C, D, or E felony and the defendant used, displayed, or threatened to use or display a firearm during the commission of the felony.
(a)	If a person is convicted of a Class A, B, C, D, or E felony and the court finds that the person used, displayed, or threatened to use or display a firearm at the time of the felony, the court shall increase the minimum term of imprisonment to which the person is sentenced by 60 months.  The court shall not suspend the 60-month minimum term of imprisonment imposed as an enhanced sentence under this section and shall not place any person sentenced under this section on probation for the enhanced sentence.
(b)	Subsection (a) of this section does not apply in any of the following circumstances:
(1)	The person is convicted of a Class E felony and the person is not sentenced to an active term of imprisonment.
(2)	The evidence of the use, display, or threatened use or display of a firearm is needed to prove an element of the underlying Class A, B, C, D, or E felony.
(3)	The person did not actually possess a firearm about his or her person."
Sec. 4.  G.S. 15A-1340.4(a)(1) reads as rewritten:
"(1)	Aggravating factors:
a.	The defendant induced others to participate in the commission of the offense or occupied a position of leadership or dominance of other participants.
b.	The offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
c.	The defendant was hired or paid to commit the offense.
d.	The offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
e.	The offense was committed against a present or former: law enforcement officer, employee of the Department of Correction, jailer, fireman, emergency medical technician, ambulance attendant, justice or judge, clerk or assistant or deputy clerk of court, magistrate, prosecutor, juror, or witness against the defendant, while engaged in the performance of his official duties or because of the exercise of his official duties.
f.	The offense was especially heinous, atrocious, or cruel.
g.	The defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person.
h.	The defendant held public office at the time of the offense and the offense related to the conduct of the office.
i.	The defendant was armed with or used a deadly weapon at the time of the crime.
j.	The victim was very young, or very old, or mentally or physically infirm.
k.	The defendant committed the offense while on pretrial release on another felony charge.
l.	The defendant involved a person under the age of 16 in the commission of the crime.
m.	The offense involved an attempted or actual taking of property of great monetary value or damage causing great monetary loss, or the offense involved an unusually large quantity of contraband.
n.	The defendant took advantage of a position of trust or confidence to commit the offense.
o.	The defendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days' confinement.  Such convictions include those occurring in North Carolina courts and courts of other states, the District of Columbia, and the United States, provided that any crime for which the defendant was convicted in a jurisdiction other than North Carolina would have been a crime if committed in this State.  Such prior convictions do not include any crime that is joinable, under G.S. Chapter 15A, with the crime or crimes for which the defendant is currently being sentenced.
p.	The offense involved the sale or delivery of a controlled substance to a minor.
q.	The offense was committed because of the race, color, religion, nationality, or country of origin of another person.
r.	The offense for which the defendant stands convicted was committed against a victim because of the victim's race, color, religion, nationality, or country of origin.
Evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation, and the same item of evidence may not be used to prove more than one factor in aggravation.  Evidence necessary to establish that an enhanced sentence is required under G.S. 14-2.2 may not be used to prove any factor in aggravation.
The judge may not consider as an aggravating factor the fact that the defendant exercised his right to a jury trial."
Sec. 5.  G.S. 15A-1340.16(d) reads as rewritten:
"(d)	Aggravating Factors. – The following are aggravating factors:
(1)	The defendant induced others to participate in the commission of the offense or occupied a position of leadership or dominance of other participants.
(2)	The defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy.
(3)	The offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
(4)	The defendant was hired or paid to commit the offense.
(5)	The offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
(6)	The offense was committed against a present or former: law enforcement officer, employee of the Department of Correction, jailer, fireman, emergency medical technician, ambulance attendant, justice or judge, clerk or assistant or deputy clerk of court, magistrate, prosecutor, juror, or witness against the defendant, while engaged in the performance of that person's official duties or because of the exercise of that person's official duties.
(7)	The offense was especially heinous, atrocious, or cruel.
(8)	The defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person.
(9)	The defendant held public office at the time of the offense and the offense related to the conduct of the office.
(10)	The defendant was armed with or used a deadly weapon at the time of the crime.
(11)	The victim was very young, or very old, or mentally or physically infirm, or handicapped.
(12)	The defendant committed the offense while on pretrial release on another charge.
(13)	The defendant involved a person under the age of 16 in the commission of the crime.
(14)	The offense involved an attempted or actual taking of property of great monetary value or damage causing great monetary loss, or the offense involved an unusually large quantity of contraband.
(15)	The defendant took advantage of a position of trust or confidence to commit the offense.
(16)	The offense involved the sale or delivery of a controlled substance to a minor.
(17)	The offense for which the defendant stands convicted was committed against a victim because of the victim's race, color, religion, nationality, or country of origin.
(18)	The defendant does not support the defendant's family.
(19)	The serious injury inflicted upon the victim is permanent and debilitating.
(20)	Any other aggravating factor reasonably related to the purposes of sentencing.
Evidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation, and the same item of evidence shall not be used to prove more than one factor in aggravation.  Evidence necessary to establish that an enhanced sentence is required under G.S. 14-2.2 may not be used to prove any factor in aggravation.
The judge shall not consider as an aggravating factor the fact that the defendant exercised the right to a jury trial."
Sec. 6. G.S. 14-269.1 reads as rewritten:
"§ 14-269.1.  Confiscation and disposition of deadly weapons.
Upon conviction of any person for violation of G.S. 14-2.2, 14-269, 14-269.7, or any other offense involving the use of a deadly weapon of a type referred to in G.S. 14-269, the deadly weapon with reference to which the defendant shall have been convicted shall be ordered confiscated and disposed of by the presiding judge at the trial in one of the following ways in the discretion of the presiding judge.
(1)	By ordering the weapon returned to its rightful owner, but only when such owner is a person other than the defendant and has filed a petition for the recovery of such weapon with the presiding judge at the time of the defendant's conviction, and upon a finding by the presiding judge that petitioner is entitled to possession of same and that he was unlawfully deprived of the same without his consent.
(2)	By ordering the weapon turned over to a law-enforcement agency in the county of trial for the official use of such agency, but only upon the written request by the head or chief of such agency.  The clerk of the superior court of such county shall maintain a record of such weapons and the law-enforcement agency receiving them.
(3)	By ordering the weapon turned over to the sheriff of the county in which the trial is held to be sold as herein provided.  Under the direction of the sheriff, the weapon shall be sold at public auction after one advertisement in a newspaper having general circulation in the county which advertisement shall be at least seven days prior to sale.  The proceeds of such sale shall go to the general fund of the county in which such weapons are sold.  The sheriff shall maintain a record and inventory of all such weapons received and sold by him.  Sales of such weapons by the sheriff shall be held at least once each year.
(4)	By ordering such weapon turned over to the sheriff of the county in which the trial is held or his duly authorized agent to be destroyed.  The sheriff shall maintain a record of the destruction thereof.
(5)	By ordering such weapon turned over to the North Carolina State Bureau of Investigation's Crime Laboratory Weapons Reference Library for official use by that agency.  The State Bureau of Investigation shall maintain a record and inventory of all such weapons received.
(6)	By ordering such weapons turned over to the North Carolina Justice Academy for official use by that agency.  The North Carolina Justice Academy shall maintain a record and inventory of all such weapons received."
Sec. 7.  Sections 1, 4, and 6 of this act become effective May 1, 1994, and apply to offenses committed on or after the date of ratification.  The remainder of this act becomes effective on the date that Section 56 of Chapter 538 of the 1993 Session Laws provides that that act becomes effective, and applies to offenses committed on or after that date.  Prosecutions for, or sentences based on, offenses committed before the effective dates of this act are not abated or affected by this act, and the statutes that would be applicable to those prosecutions or sentences but for the provisions of this act remain applicable to those prosecutions or sentences.