GENERAL ASSEMBLY OF NORTH CAROLINA

EXTRA SESSION 1994

S	1 

SENATE BILL 45

Short Title:  Two Strikes You're In.	(Public)
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Sponsors: Senators Plexico; Albertson, Allran, Cochrane, Codington, Conder, Forrester, Gulley, Harris, Hartsell, Hoyle, Kincaid, Lee, Martin of Pitt, Odom, Parnell, Sands, Sherron, Smith, Simpson, Speed, and Warren.
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Referred to:  Corrections/Punishment.
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February 10, 1994

A BILL TO BE ENTITLED
AN ACT TO PROVIDE THAT UPON A SECOND CONVICTION OF CERTAIN VIOLENT FELONIES AN OFFENDER IS A VIOLENT 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; Violent 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 felony offenses before July 6, 1967, shall not be felony offenses within the meaning of this Article.  A felony offense to which a pardon has been extended is not a felony for the purpose 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 is not a violent habitual felon and (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, before 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)	Violent felony. – For the purposes of this Article, any of the following felonies:
a.	G.S. 14-17.  First degree murder and second degree murder.
b.	G.S. 14-27.2.  First degree rape.
c.	G.S. 14-27.4.  First degree sexual offense.
d.	G.S. 14-28.  Malicious castration.
e.	G.S. 14-30.  Malicious maiming.
f.	G.S. 14-32(a).  Assault with a deadly weapon with intent to kill and inflicting serious injury.
g.	G.S. 14-32.1(b).  Assault on a handicapped person with a deadly weapon with intent to kill and inflicting serious injury.
h.	G.S. 14-32.2(b)(1).  Patient abuse and neglect, intentional conduct proximately causing death.
i.	G.S. 14-39.  First degree kidnapping.
j.	G.S. 14-87.  Robbery with firearms or other dangerous weapons.
(4)	Violent habitual felon. – An offender who (i) is convicted in this State of a violent felony and (ii) was convicted on at least one occasion, whether in this State or elsewhere, before that conviction, of a felony that under the laws of this State would be considered a violent felony.
"§ 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 violent habitual felon or where the death penalty or a life sentence is imposed.
(b)	When a person is charged by indictment with the commission of a violent felony under the laws of this State and is also charged with being a violent habitual felon as defined in G.S. 14-7.1, the person must, upon conviction, be sentenced and punished as a violent habitual felon, except in those cases where the death penalty is imposed.
"§ 14-7.3.  Charge of habitual or violent 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 violent habitual felon within the meaning of G.S. 14-7.1 with the commission of any violent felony under the laws of North Carolina must, in order to sustain a conviction of a violent habitual felon, also charge that the person is a violent habitual felon.  The indictment charging the defendant as a violent habitual felon shall be separate from the indictment charging the defendant with the principal violent felony.  An indictment that charges a person with being a violent habitual felon shall set forth the date that the prior violent felony was committed, the name of the state or other sovereign against whom the violent felony was committed, the date that a plea of guilty was entered to or a conviction was returned in the violent felony, and the identity of the court in which the plea or conviction took place.  A defendant charged with being a violent habitual felon in a bill of indictment shall not 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 where a person is charged under this Article with being a violent habitual felon, the record of prior convictions of violent felonies shall be admissible in evidence, but only for the purpose of proving that the person has been convicted of a former violent felony.  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 in the record is the same as the defendant before the court, and shall be prima facie evidence of the facts set out in the record.
"§ 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 violent habitual felon with a violent felony and an indictment also charges that the person is a violent habitual felon, the defendant shall be tried for the principal violent felony as provided by law.  The indictment that the person is a violent habitual felon shall not be revealed to the jury unless the jury finds that the defendant is guilty of the principal violent felony or another violent felony with which the defendant is charged.  If the jury finds the defendant guilty of a violent felony, the bill of indictment charging the defendant as a violent 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 violent habitual felon were a principal charge.  If the jury finds that the defendant is a violent 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 violent habitual felon, the trial judge shall pronounce judgment on the principal violent felony or felonies as provided by law.
"§ 14-7.6.  (Effective January 1, 1995) Sentencing of habitual and violent habitual felons.
(a)	When an habitual felon commits any felony classified as a Class E, F, G, H, or I felony under the laws of this State, the felon must, upon conviction or plea of guilty under indictment, be punished as a Class D felon.  
(b)	When a violent habitual felon commits any violent felony as defined by G.S. 14-7.1 under the laws of this State, the felon must, 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 violent 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 violent 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 violent 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.