Report on proposed legislation pursuant to G.S. 164-43 submitted to the ... session of the North Carolina General Assembly

              NORTH CAROLINA
SENTENCING
AND
POLICY ADVISORY
COMMISSION
REPORT #2 ON PROPOSED LEGISLATION
PURSUANT TO N.C.G.S. 164-43
SUBMITTED TO THE 2011 SESSION OF THE
NORTH CAROLINA GENERAL ASSEMBLY
JUNE 2011
THE HONORABLE W. ERWIN SPAINHOUR
CHAIRMAN
SUSAN KATZENELSON
EXECUTIVE DIRECTOR
NC SENTENCING AND POLICY ADVISORY COMMISSION
MEMBERSHIP
Hon. W. Erwin Spainhour, Chairman
Superior Court Judge
Thomas Bennett
NC Victim Assistance Network
Hon. Stan Bingham
State Senator
Hon. Alice Bordsen
State Representative
Hon. Charles E. Brown
NC District Court Judges’ Association
Joseph B. Cheshire V
NC Advocates for Justice
Locke T. Clifford
NC Bar Association
Louise Davis
NC Community Sentencing Association
Judge Richard A. Elmore
NC Court of Appeals
Judge Robert C. Ervin
NC Conference of Superior Court Judges
Hon. Garry W. Frank
NC Conference of District Attorneys
Hon. Paul H. Gibson
NC Association of County Commissioners
Hon. W. David Guice
State Representative
William P. Hart
NC Attorney General’s Office
Secretary Linda W. Hayes
NC Department of Juvenile Justice and
Delinquency Prevention
Mary Y. “Larry” Hines
Private Citizen, Governor’s Appointee
Sheriff Shepard Jones
NC Sheriffs’ Association
Secretary Alvin W. Keller, Jr.
NC Department of Correction
Hon. Eleanor Kinnaird
State Senator
Hon. Floyd B. McKissick, Jr.
State Senator
Moe McKnight
NC Retail Merchants’ Association
Dr. Harvey Lee McMurray
Academic Member
Luther T. Moore
Lieutenant Governor’s Appointee
Judge Fred G. Morrison, Jr.
Justice Fellowship
Anthony Rand
NC Post-Release Supervision & Parole
Commission
Rhonda Raney
NC Dept. of Crime Control & Public Safety
June Ray
NC Association of Clerks of Superior Court
Billy J. Sanders
Commission Chairman’s Appointee
Hon. Timothy L. Spear
State Representative
Vacant
NC Association of Chiefs of Police
NC SENTENCING AND POLICY ADVISORY COMMISSION
STAFF
Susan Katzenelson
Executive Director
John Madler
Associate Director for Policy, Staff Attorney
Ginny Hevener
Associate Director for Research
David Lagos Tamara Flinchum
Senior Research & Policy Associate Senior Research & Policy Associate
Sara Perdue Ashleigh Gallagher, Ph.D.
Research & Policy Associate Research & Policy Associate
Michelle Hall Amy Craddock, Ph.D.
Research & Policy Associate Research & Policy Associate
Vicky Etheridge
Administrative Assistant
P.O. Box 2448
Raleigh, NC 27602
(919) 890-1470
http://www.nccourts.org/courts/crs/councils/spac
NORTH CAROLINA SENTENCING AND POLICY ADVISORY
COMMISSION
REPORT ON PROPOSED LEGISLATION
PURSUANT TO G.S. 164-43
This report by the Sentencing Commission includes all bills introduced or amended through June
3, 2011. The report is submitted in conformance with the following requirements of
G.S. 164-43:
(e) Upon adoption of a system for the classification of offenses formulated pursuant to G.S. 164-41,
the Commission or its successor shall review all proposed legislation which creates a new criminal
offense, changes the classification of an offense, or changes the range of punishment for a particular
classification, and shall make recommendations to the General Assembly.
(f) In the case of a new criminal offense, the Commission or its successor shall determine whether the
proposal places the offense in the correct classification, based upon the considerations and principles
set out in G.S. 164-41. If the proposal does not assign the offense to a classification, it shall be the
duty of the Commission or its successor to recommend the proper classification placement.
(g) In the case of proposed changes in the classification of an offense or changes in the range of
punishment for a classification, the Commission or its successor shall determine whether such a
proposed change is consistent with the considerations and principles set out in G.S. 164-41, and shall
report its findings to the General Assembly.
(h) The Commission or its successor shall meet within 10 days after the last day for filing general bills
in the General Assembly for the purpose of reviewing bills as described in subsections (e), (f) and (g).
The Commission or its successor shall include in its report on a bill an analysis based on an
application of the correctional population simulation model to the provisions of the bill.
A one page summary is included for each bill (or each relevant section of a bill) which either
creates a new crime, changes the classification of an existing crime, or prescribes a new range of
punishments. The summary provides the bill number, the short title, and a brief description. At
the bottom of the summary is an analysis and a finding of whether the bill appears consistent
with the Commission’s classification criteria as specified in G.S. 164-41 (see following page for
a description of the criteria). Following the summary is an analysis of the projected impact of
the bill (a more detailed impact analysis is provided to the Fiscal Research Division). The
impact estimates assume an effective date of December 1, 2011.
These summaries may not reflect the most recent bill amendments or committee substitutes. The
date on which each individual summary was prepared is shown on the bottom left hand corner of
each summary page. Changes made after this date are not reflected in this report.
The bills included in this report were reviewed by the North Carolina Sentencing and Policy
Advisory Commission on June 3, 2011.
The fact that the Commission found a bill to be either consistent or inconsistent with the
structured sentencing offense classification criteria does not imply either support for or
opposition to the bill. In this report, the Commission has taken no position on the merits of any
bill other than those specifically proposed by the Commission.
THE OFFENSE CLASSIFICATION CRITERIA
The Sentencing Commission was required by G.S. 164-41 to ".... classify criminal offenses into
felony and misdemeanor categories on the basis of their severity." The Commission developed
a classification criteria to guide the classification process and to ensure that there was a
systematic and rational basis for the classifications. The Commission decided that the severity of
an offense should be directly related to the harm to the victim that normally results or tends to
result from the criminal conduct.
The Commission defined three general types of harms: 1) harms to person (including both
physical and mental injury); 2) harms to property; and 3) harms to society (violations of public
order and welfare, violations of judicial or governmental operations, and/or violations of public
morality). Through considerable discussion and debate, the Commission grouped these harms
into a ten-level hierarchy which served as the basis for the Commission's classifications (refer to
the classification criteria on the following page). Once the classification criteria was established,
the Commission reviewed the individual elements of all felonies in North Carolina and assigned
each felony to a specific offense class based on how closely the elements of the crime matched
the classification criteria.
The purpose of establishing the classification criteria was to create a rational and consistent
philosophical basis for classifying offenses; to assure proportionality in severity; and to provide a
guidepost for classifying new crimes in the future.
Under the classification criteria, the most serious offense classes (A through F) primarily involve
personal injury, the risk of personal injury, serious societal injury or widespread societal injury.
The lower offense levels (G through I) primarily involve property loss or less serious societal
injury. The degree of harm is divided into three levels; injury to person, property or society;
significant injury to person, property or society; and serious injury to person, property or society.
The Commission also assigned misdemeanor offenses to four classes: class A1, class 1, class 2
or class 3. The Commission did not create classification criteria for misdemeanors but relied on
the maximum sentences previously set by the General Assembly. Generally, crimes which had
previously been punishable by over six months were made class 1 misdemeanors, those
previously punishable by more than 30 days and up to six months were made class 2
misdemeanors, and those previously punishable by 30 days or less were made class 3
misdemeanors. Assaultive misdemeanors were made Class A1 misdemeanors.
In 2004, the General Assembly noted that there were criteria for the classification of felony
offenses but not for misdemeanor offenses. It asked the Commission to study the classification
of misdemeanor offenses and to develop a system for classifying them on the basis of their
severity.
The Commission developed a misdemeanor offense classification system based on the type and
degree of harm that results or tends to result from an offense (refer to the classification criteria
on the following pages). This is similar to the felony offense classification system. It uses the
same types of harm (person, property, and society) and degrees of harm (serious, significant, and
minor). The Commission divided the criteria into four groups to conform to the four
misdemeanor offense classes. The misdemeanor criteria are separate from the felony criteria
because the harms that result from the misdemeanor offenses are viewed as being separate from
the harms that result from the felony offenses.
The Commission then reviewed the most frequently convicted misdemeanor offenses and
recommended reclassifying some of them based on a comparison of the elements of the crimes to
the criteria. The Commission also decided that it would use the misdemeanor offense
classification criteria for the classification of all new misdemeanor offenses and the
reclassification of existing misdemeanor offenses proposed in the future. This report includes a
comparison of offenses proposed in this session to the misdemeanor offense classification
criteria.
FELONY OFFENSE CLASSIFICATION CRITERIA*
CLASS CRITERIA
A  Reserved for First Degree Murder
[Reasonably tends to result or does result in:]
B  Serious debilitating long-term personal injury
C  Serious long-term personal injury
 Serious long-term or widespread societal injury
D  Serious infringements on property interest which also implicate physical safety
concerns by use of a deadly weapon or an offense involving an occupied
dwelling
E  Serious personal injury
F  Significant personal injury
 Serious societal injury
G  Serious property loss
Loss from the person or the person’s dwelling
H  Serious property loss:
Loss from any structure designed to house or secure any activity or property
Loss occasioned by the taking or removing of property
Loss occasioned by breach of trust, formal or informal
 Personal injury
 Significant societal injury
I  Serious property loss:
All other felonious property loss
 Societal injury
M  All other misdemeanors
* Personal injury includes both physical and mental injury.
Societal injury includes violations of public morality, judicial or government operations, and/or public order and welfare.
Note: The criteria were not used in the classification of the homicide offenses or drug offenses.
MISDEMEANOR OFFENSE CLASSIFICATION CRITERIA*
CLASS CRITERIA
[A misdemeanor offense that reasonably tends to result or does result in]:
A1 (a) Serious injury to person
(b) Battery of a person who is a vulnerable victim or a member of a protected
class
1 (a) Significant injury to person
(b) Serious injury to property
(c) Serious injury to society
2 (a) Significant injury to property
(b) Significant injury to society
(c) Assault or affray against a person who is a vulnerable victim or a member
of a protected class
3 (a) Minor injury to person
(b) Minor injury to property
(c) Minor injury to society
* Personal injury includes both physical and mental injury.
Societal injury includes violations of public morality, judicial or government operations, and/or public order and
welfare.
Note: The criteria were not used in the classification of the drug offenses, impaired driving offenses, or homicide
offenses.
TABLE OF CONTENTS
HB 36 – Government Contractors Must Use E-Verify [Ed.2].................................................................... 1
HB 54 – Habitual Misdemeanor Larceny [Ed.4] ........................................................................................ 3
HB 200 – Appropriations Act of 2011 [Ed.7]............................................................................................. 4
HB 227 – Disturbing/Dismembering Human Remains [Ed.2] ................................................................... 6
HB 408 – Amend Criminal Discovery Laws [Ed.2]................................................................................. 10
HB 451 – DWLR Penalties Increased/Vehicle Seizures. [Ed.2] .............................................................. 13
HB 476 – Protect Galax & Venus Flytrap/WRC Rule Fines [Ed.3]......................................................... 15
HB 512 – Rendering Act Amendments [Ed.2] ......................................................................................... 20
HB 582 – Amend Felony Firearms Act/Increase Penalties [Ed.2] ........................................................... 29
HB 591 – LDP/Ignition Interlock Changes [Ed.2] ................................................................................... 38
HB 642 – Justice Reinvestment Act [Ed.3] .............................................................................................. 39
HB 674 – Amend Habitual Felon Law [Ed.1] .......................................................................................... 49
HB 690 – Supervise RE Closings/Settlement Funds [Ed.3] ..................................................................... 51
HB 696 – Assault on Officer/Serious Injury/Penalty [Ed.2] .................................................................... 53
HB 729 – Reckless Assault of a Child [Ed.1]........................................................................................... 57
HB 753 – Establish Radiologic Technicians Licensure [Ed.1]................................................................. 58
HB 761 – Ignition Interlock Systems/Record Checks [Ed.1] ................................................................... 59
HB 776 – Selling Motor Vehicle Registrations Unlawful [Ed.1]............................................................. 60
HB 798 – Fraudulent Firearm Purchase Prevention Act. [Ed.1] .............................................................. 62
HB 843 – Modernize NC Emergency Management Act [Ed.2] ............................................................... 64
HB 849 – Third Degree Rape [Ed.1] ........................................................................................................ 67
HB 850 – The Baucum-Reynolds Safe Roads Act [Ed.1] ........................................................................ 68
HB 862 – Election Integrity/Voter Access Act [Ed.1] ............................................................................. 70
HB 889 – Amend Locksmith Licensing Act/Increase Fees [Ed.1]........................................................... 72
HB 927 – State Pension Plan Solvency Reform Act [Ed.1] ..................................................................... 76
SB 105 – Increase Penalty/2nd Degree Murder [Ed.2]............................................................................. 80
SB 125 – Regional Schools [Ed.4] ........................................................................................................... 82
SB 144 – Cash Converters Must Keep Purchase Records [Ed.2]............................................................. 83
SB 183 – Selective Vegetation Removal/State Highways [Ed.4]............................................................. 87
SB 195 – Operation of Mopeds [Ed.2] ..................................................................................................... 89
SB 315 – Roadside Campaign Signs [Ed.2] ............................................................................................. 90
SB 374 – Landowner Protection Act [Ed.2] ............................................................................................. 91
SB 523 – North Carolina Casino Gaming Act [Ed.1]............................................................................... 97
SB 602 – Domestic Fowl Stray/Commercial Poultry Lands [Ed.2] ....................................................... 124
SB 604 – NC Illegal Immigration Enforcement Act [Ed.1] ................................................................... 125
SB 621 – Simulated Gaming Allowed/Certain ABC Outlets [Ed.1] ...................................................... 133
SB 628 – WQ Permitting/Compliance Rev. & Submissions [Ed.1]....................................................... 134
SB 657 – Voting Integrity [Ed.1]............................................................................................................ 135
SB 678 – Automotive Glass Repair/Ins. Coverage [Ed.1]...................................................................... 136
SB 684 – Post-Release Supervision/Sex Offenders [Ed.1]..................................................................... 138
SB 707 – School Violence Prevention Act [Ed.1].................................................................................. 142
SB 737 – UI/Five-Hour Public Service Requirement [Ed.1].................................................................. 147
SB 743 – Encourage Volunteer Health Care Providers [Ed.2]............................................................... 148
SB 762 – Assault on Law Enforcement & EM Worker/Felony [Ed.1] .................................................. 149
SB 772 – Consolidate Ethics, Elections, and Lobbying [Ed.1] .............................................................. 155
SB 775 – Regulate Abortion Facilities [Ed.1] ........................................................................................ 156
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
1
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 36 – Government Contractors Must Use E-Verify [Ed.2]
STATUTE
§ 64-11. Contractors must use E-Verify; certification required.
DESCRIPTION
A person who
1. contracts with a public entity
2. to provide any service or product
3. and knowingly submits
4. a false certification that
a. the contractor is registered and participates in E-Verify
b. all subcontractors have provided written certification of their participation in E-Verify
c. the contractor has not been convicted under this section within one year of this certification.
PROPOSED OFFENSE CLASS
Class I felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
property loss or societal injury as Class I felonies.
E-Verify is a federal program to verify the work authorization of newly hired employees.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
2 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 36 – Government Contractors Must Use E-Verify [Ed.2]
(cont’d)
STATUTE
§ 64-12. Subcontractors must use E-Verify; certification required.
DESCRIPTION
A person who
1. furnishes products or services
a. to a contractor or another subcontractor
b. under, or pursuant to, a contract between a contractor and a public entity
2. and knowingly submits
3. a false certification that the person
a. is registered and participates in E-Verify, and
b. has not been convicted under this section within one year of the certification.
PROPOSED OFFENSE CLASS
Class I felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
property loss or societal injury as Class I felonies.
E-Verify is a federal program to verify the work authorization of newly hired employees.
This section applies to “[a]ny person or entity other than a contractor who furnishes construction or
repair work, apparatus, supplies, materials, equipment, services, or other products to a contractor or
another subcontractor with a good faith and reasonable belief that the goods or services were intended
for use in the contract between a contractor and a public entity.” G.S. 64-10(4).
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 IMPACT ANALYSIS NOT REQUESTED YET
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
3
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 54 – Habitual Misdemeanor Larceny [Ed.4]
STATUTE
§ 14-72. Larceny of property; receiving stolen goods or possessing stolen goods.
DESCRIPTION
A person who
1. commits larceny
2. after begin convicted at least seven times
a. while represented by counsel, or
b. after waiving counsel
3. of any
a. larceny offense under G.S. 14-72,
b. offense deemed or punishable as larceny under G.S. 14-72, or
c. substantially similar offense in another jurisdiction.
PROPOSED OFFENSE CLASS
Class H felony (G.S. 14-72(a)).
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
property loss occasioned by the taking or removing of property or in significant societal injury as Class
H felonies.
If a person is convicted of multiple misdemeanor larceny offenses in a single session of district court or
week of superior court or court in another jurisdiction, only one of the convictions may be used as a
prior conviction, except that offenses committed in separate counties shall count as separate convictions.
This Commission reviewed a substantially similar provision in HB 54 [Ed.2] in April 2011, and found it
to be consistent with the Offense Classification Criteria for a Class H felony.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 IMPACT ANALYSIS NOT REQUESTED YET
4 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 200 – Appropriations Act of 2011 [Ed.7]
STATUTE
§ 113-221.3. Monitoring program for State coastal fishing and recreation waters; development and
implementation of program.removal or destruction of warning signs.
DESCRIPTION
A person who
1. removes, destroys, damages, defaces, mutilates, or otherwise interferes with
2. a sign posted by the Department of Environment and Natural Resources
3. providing information on the water quality of coastal recreation waters.
PROPOSED OFFENSE CLASS
Class 2 misdemeanor.
ANALYSIS
The Sentencing Commission recommended classifying offenses which reasonably tend to result or do
result in significant injury to property, significant injury to society, or assault or affray against a person
who is a vulnerable victim or a member of a protected class as Class 2 misdemeanors.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
This offense would be consistent with the Offense Classification Criteria for a Class 3 misdemeanor.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
5
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 200 – Appropriations Act of 2011 [Ed.7] (cont’d)
STATUTE
§ 113-221.3. Monitoring program for State coastal fishing and recreation waters; development and
implementation of program.removal or destruction of warning signs.
DESCRIPTION
A person who
1. without just cause or excuse
2. possesses
3. a sign posted by the Department of Environment and Natural Resources
4. providing information on the water quality of coastal recreation waters.
PROPOSED OFFENSE CLASS
Class 2 misdemeanor.
ANALYSIS
The Sentencing Commission recommended classifying offenses which reasonably tend to result or do
result in significant injury to property, significant injury to society, or assault or affray against a person
who is a vulnerable victim or a member of a protected class as Class 2 misdemeanors.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
This offense would be consistent with the Offense Classification Criteria for a Class 3 misdemeanor.
DATE OF REVIEW: 06/03/11 IMPACT ANALYSIS NOT REQUESTED YET
6 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 227 – Disturbing/Dismembering Human Remains [Ed.2]
STATUTE
§ 14-401.22 Concealment of death.death; disturbing human remains; dismembering human remains.
DESCRIPTION
Subdivision (c)(1):
A person who
1. disturbs, vandalizes, or desecrates by any means
2. human remains.
PROPOSED OFFENSE CLASS
Class I felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
property loss or societal injury as Class I felonies.
“Human remains” is defined as “any dead human body in any condition of decay or any significant part
of a dead human body, including any limb, organ, or bone.” G.S. 14-401.22(e).
It is a Class H felony to knowingly and willfully disturb, destroy, remove, vandalize, or desecrate human
remains that have been interred in a cemetery. G.S. 14-149(a1).
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
7
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 227 – Disturbing/Dismembering Human Remains [Ed.2]
(cont’d)
STATUTE
§ 14-401.22 Concealment of death.death; disturbing human remains; dismembering human remains.
DESCRIPTION
Subdivision (c)(ii):
A person who
1. commits or attempts to commit an act of sexual penetration upon
2. human remains.
PROPOSED OFFENSE CLASS
Class I felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
property loss or societal injury as Class I felonies.
“Human remains” is defined as “any dead human body in any condition of decay or any significant part
of a dead human body, including any limb, organ, or bone.” G.S. 14-401.22(e).
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
8 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 227 – Disturbing/Dismembering Human Remains [Ed.2]
(cont’d)
STATUTE
§ 14-401.22 Concealment of death.death; disturbing human remains; dismembering human remains.
DESCRIPTION
Subdivision (d):
A person who
1. attempts to conceal
2. evidence of another’s death
3. by knowingly and willfully dismembering or destroying human remains.
PROPOSED OFFENSE CLASS
Class H felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
property loss from any structure designed to house or secure any activity or property, loss occasioned by
the taking or removing of property or by breach of trust, formal or informal, in personal injury, or in
significant societal injury as Class H felonies.
“Human remains” is defined as “any dead human body in any condition of decay or any significant part
of a dead human body, including any limb, organ, or bone.” G.S. 14-401.22(e).
It is a Class I felony to secretly bury or dispose of a dead human body with the intent to conceal the
person’s death. G.S. 14-401.22(a).
It is a Class A1 misdemeanor to aid an abet concealment of a person’s death. G.S. 14-401.22(b).
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
9
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 227 – Disturbing/Dismembering Human Remains [Ed.2]
(cont’d)
STATUTE
§ 14-401.22 Concealment of death.death; disturbing human remains; dismembering human remains.
DESCRIPTION
Subdivision (e):
A person who
1. attempts to conceal
2. evidence of another’s death
3. by knowingly and willfully dismembering or destroying human remains,
4. knowing or having reason to know the person did not die of natural causes.
PROPOSED OFFENSE CLASS
Class D felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
infringements on property interest which also implicate physical safety concerns by use of a deadly
weapon or an offense involving an occupied dwelling as Class D felonies.
“Human remains” is defined as “any dead human body in any condition of decay or any significant part
of a dead human body, including any limb, organ, or bone.” G.S. 14-401.22(e).
It is a Class I felony to secretly bury or dispose of a dead human body with the intent to conceal the
person’s death. G.S. 14-401.22(a).
It is a Class A1 misdemeanor to aid an abet concealment of a person’s death. G.S. 14-401.22(b).
Common law obstruction of justice is a Class 1 misdemeanor.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 IMPACT ANALYSIS NOT REQUESTED YET
10 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 408 – Amend Criminal Discovery Laws [Ed.2]
STATUTE
§ 15A-903. Disclosure of evidence by the State – Information subject to disclosure.
DESCRIPTION
A person who
1. willfully omits or misrepresents
2. evidence or information
3. from the complete files of a law enforcement or investigatory agency or prosecutor’s office involved
in the investigation of the crimes committed or the prosecution of the defendant
4. as required to be
a. disclosed by the State to the defendant pursuant to subdivision (a)(1), or
b. provided by the law enforcement or investigatory agency to the prosecutor's office pursuant
to subsection (c).
PROPOSED OFFENSE CLASS
Class H felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
property loss from any structure designed to house or secure any activity or property, loss occasioned by
the taking or removing of property or by breach of trust, formal or informal, in personal injury, or in
significant societal injury as Class H felonies.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
11
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 408 – Amend Criminal Discovery Laws [Ed.2] (cont’d)
STATUTE
§ 15A-903. Disclosure of evidence by the State – Information subject to disclosure.
DESCRIPTION
A person who
1. willfully omits or misrepresents
2. evidence or information
3. required to be disclosed under this section
4. other than the files of all law enforcement and investigatory agencies and prosecutor’s offices
involved in the investigation of the crimes committed or the prosecution of the defendant.
PROPOSED OFFENSE CLASS
Class 1 misdemeanor.
ANALYSIS
The Sentencing Commission recommended classifying offenses which reasonably tend to result or do
result in significant injury to person, serious injury to property, or serious injury to society as Class 1
misdemeanors.
Information covered by this provision includes (1) the prosecutor’s notice to the defendant or any expert
witnesses that the State expects to call at trial, with a report of the results of any tests or examinations
conducted by the expert, the expert’s curriculum vitae, the expert’s opinion, and the underlying basis
therefore, and (2) the prosecutor’s list of witnesses, which must be provided to the defendant at the
beginning of jury selection. G.S. 15A-903(a)(2)-(3).
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 IMPACT ANALYSIS ON NEXT PAGE
12 SOURCE: NC Sentencing and Policy Advisory Commission, FY 2009/10 Structured Sentencing Simulation Data.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
HB 408: AMEND CRIMINAL DISCOVERY LAWS
PREPARED: May 13, 2011
ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED UNDER STRUCTURED
SENTENCING
This bill creates two new offenses, a Class H felony and a Class 1 misdemeanor, by the addition of
subsection (d) to G.S. 15A-903, Disclosure of evidence by the State – Information subject to disclosure.
G.S. 15A-903(d) makes it a Class H felony for any person to willfully omit or misrepresent evidence or
information required to be disclosed or provided pursuant to G.S. 15A-903(a)(1) or G.S. 15A-903(c).
G.S. 15A-903(a)(1) provides that upon motion of the defendant, the court must order the State to make
available to the defendant the complete files of all law enforcement agencies, investigatory agencies, and
prosecutor’s offices involved in the investigation of the crimes committed or the prosecution of the
defendant. G.S. 15A-903(c) provides that on a timely basis, law enforcement and investigatory agencies
shall make available to the prosecutor’s office a complete copy of the complete files related to the
investigation of the crimes committed or the prosecution of the defendant.
Since the proposed section creates a new offense, the Sentencing Commission has no historical data
from which to estimate the impact of this section on the prison population. It is not known how many
offenders might be convicted and sentenced under the proposed section. In FY 2009/10, 36% of Class H
convictions resulted in active sentences, with an average estimated time served of 11 months. If, for
example, there were three Class H convictions for this proposed offense per year, the combination of
active sentences and probation revocations would result in the need for one additional prison bed the
first year and two additional prison beds the second year.
G.S. 15A-903(d) also creates a new Class 1 misdemeanor for willful omission or misrepresentation of
evidence or information required to be disclosed pursuant to any other provision of G.S. 15A-903. G.S.
15A-903(a)(2) - (3) require the prosecuting attorney to give notice to the defendant of any expert
witnesses and a written list of all other witnesses who the State reasonably expects to call during trial,
and G.S. 15A-903(b) provides that if the State voluntarily provides disclosure to the defendant, it shall
be to the same extent as that required by G.S. 15A-903(a).
Since the proposed section creates a new offense, the Sentencing Commission has no historical data
from which to estimate the impact of this section on the prison population. It is not known how many
offenders might be convicted and sentenced under the proposed section. In FY 2009/10, 24% of Class 1
misdemeanor convictions resulted in active sentences. The average sentence imposed for Class 1
convictions was 41 days. Offenders who receive an active sentence of 90 days or less are housed in
county jails. Therefore, convictions for this proposed offense would not be expected to have a
significant impact on the prison population. The impact on local jail populations is not known.
Effective December 1, 2011, and applies to cases pending on that date and to cases filed on or after that
date.
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
13
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 451 – DWLR Penalties Increased/Vehicle Seizures. [Ed.2]
STATUTE
§ 20-28. Unlawful to drive while license revoked, after notification, or while disqualified.
DESCRIPTION
A person who
1. drives any motor vehicle
2. upon the highways of the State
3. while the person’s driver’s license is revoked
4. having two or more prior convictions for driving while license revoked under subsection (a).
PROPOSED OFFENSE CLASS
Class A1 misdemeanor.
ANALYSIS
The Sentencing Commission recommended classifying offenses which reasonably tend to result or do
result in serious injury to person or battery of a person who is a vulnerable victim or a member of a
protected class as Class A1 misdemeanors.
Driving while license revoked is a Class 1 misdemeanor under G.S. 20-28(a).
The Structured Sentencing punishment chart takes a misdemeanant’s prior record into account through
the Prior Conviction Level.
On April 8, 2011, the Commission reviewed a similar provision HB 451 [Ed.1] and found this offense to
be inconsistent with the Offense Classification Criteria for a Class I felony.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
This offense would be consistent with the Offense Classification Criteria for a Class 1 misdemeanor.
DATE OF REVIEW: 06/03/11 IMPACT ANALYSIS ON NEXT PAGE
14 SOURCE: NC Sentencing and Policy Advisory Commission, FY 2009/10 Structured Sentencing Simulation Data.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
HB 451: DWLR PENALTIES INCREASED/VEHICLE SEIZURES
PREPARED: APRIL 26, 2011
ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED
UNDER STRUCTURED SENTENCING
Section 1. This section amends G.S. 20-28, Unlawful to drive while license revoked, after notification,
or while disqualified. Currently, subsection (a) makes it a Class 1 misdemeanor for a person whose
driver’s license has been revoked to drive a motor vehicle on a State highway while the license is
revoked (DWLR). The bill adds subdivision (a)(ii) which makes it a Class A1 misdemeanor for a person
to drive with a revoked license after having two prior DWLR convictions under 20-28(a)(i).1 There is no
time limit on the two prior convictions.
In FY 2009/10, there were 30,587 convictions for DWLR. Of these convictions, 15,247 had two or more
prior conviction points. While the AOC database contains information on the number of prior
record/conviction points, it does not contain information about the specific offenses that are used to
calculate the number of prior record/conviction points. Therefore, it is not known how many of the
15,247 offenders with two or more prior conviction points had two prior DWLR convictions and would
be reclassified from a Class 1 misdemeanor to a Class A1 misdemeanor under the proposed bill.2
In FY 2009/10, 32% of Class A1 misdemeanor convictions resulted in active sentences. The average
sentence imposed for Class A1 convictions was 69 days. Offenders who receive an active sentence of 90
days or less are housed in county jails. If a large number of offenders were to be convicted as Class A1
misdemeanor offenders instead of as Class 1 misdemeanor offenders, the impact on local jail
populations could be substantial. Impact on the prison population would occur when the sentence
imposed is greater than 90 days. Under the misdemeanor punishment chart, the only offenders convicted
of a Class A1 misdemeanor who can receive a sentence length of greater than 90 days are those with 5
or more prior conviction points3 (with a sentence range of 1-150 days). Of the DWLR convictions, 9,324
had five or more prior conviction points. It is not known how many of the 9,324 offenders with five or
more prior conviction points had two prior DWLR convictions or how many would receive sentences of
greater than 90 days under the proposed bill. If a large number of these convictions would be reclassified
to Class A1 and would receive sentences of 90 days or more, the impact on the prison population could
be substantial. Additional prison impact would occur for any Class A1 offenders in Prior Conviction
Level II who receive consecutive sentences totaling more than 90 days.
1 The bill also adds subsection G.S. 20-28(e) (Fines), to require that a person convicted of under G.S. 20-28(a) shall be fined
at least $250 for a first offense, $1,000 for a second offense, and $2,500 for a third or subsequent offense.
2 This assumes that the two prior DWLR convictions must be obtained during separate weeks or sessions of court. (See the
definition of prior convictions under Structured Sentencing (G.S. 15A-1340.11(7)).
3 This analysis assumes that the offender’s two prior DWLR convictions would count toward the Prior Conviction Level
(PCL), rather than being excluded as elements of the Class A1 misdemeanor offense.
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
15
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 476 – Protect Galax & Venus Flytrap/WRC Rule Fines [Ed.3]
STATUTE
§ 106-202.19. Unlawful acts; penalties; enforcement.
DESCRIPTION
Subpart (a)(6a):
A person who:
1. disturbs or removes
2. galax or Venus flytrap
3. from another person’s land
4. without written permission
a. from the owner,
b. dated, and
c. valid for no more than 180 days
PROPOSED OFFENSE CLASS
Class 2 misdemeanor (G.S. 106-202.19(a1)).
ANALYSIS
The Sentencing Commission recommended classifying offenses which reasonably tend to result or do
result in significant injury to property, significant injury to society, or assault or affray against a person
who is a vulnerable victim or a member of a protected class as Class 2 misdemeanors.
The Commission reviewed an identical provision in HB 476 [Ed.1] on April 8, 2011, and found that it
was inconsistent with the Offense Classification Criteria for a Class 2 misdemeanor but would be
consistent with a Class 3 misdemeanor.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
This offense would be consistent with the Offense Classification Criteria for a Class 3 misdemeanor.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
16 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 476 – Protect Galax & Venus Flytrap/WRC Rule Fines [Ed.3]
(cont’d)
STATUTE
§ 106-202.19. Unlawful acts; penalties; enforcement.
DESCRIPTION
Subpart (a)(6b):
A person who:
1. buys galax
2. outside of a buying season as provided by the NC Plant Conservation Board
3. without obtaining the required documents from the seller.
PROPOSED OFFENSE CLASS
Class 2 misdemeanor (G.S. 106-202.19(a1)).
ANALYSIS
The Sentencing Commission recommended classifying offenses which reasonably tend to result or do
result in significant injury to property, significant injury to society, or assault or affray against a person
who is a vulnerable victim or a member of a protected class as Class 2 misdemeanors.
The Commission reviewed an identical provision in HB 476 [Ed.1] on April 8, 2011, and found that it
was inconsistent with the Offense Classification Criteria for a Class 2 misdemeanor but would be
consistent with a Class 3 misdemeanor.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
This offense would be consistent with the Offense Classification Criteria for a Class 3 misdemeanor.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
17
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 476 – Protect Galax & Venus Flytrap/WRC Rule Fines [Ed.3]
(cont’d)
STATUTE
§ 106-202.19. Unlawful acts; penalties; enforcement.
DESCRIPTION
Subpart (a)(6c):
A person who:
1. buys a Venus flytrap
2. outside of a buying season as provided by the NC Plant Conservation Board
3. without obtaining the required documents from the seller.
PROPOSED OFFENSE CLASS
Class 2 misdemeanor (G.S. 106-202.19(a1)).
ANALYSIS
The Sentencing Commission recommended classifying offenses which reasonably tend to result or do
result in significant injury to property, significant injury to society, or assault or affray against a person
who is a vulnerable victim or a member of a protected class as Class 2 misdemeanors.
The Commission reviewed an identical provision in HB 476 [Ed.1] on April 8, 2011, and found that it
was inconsistent with the Offense Classification Criteria for a Class 2 misdemeanor but would be
consistent with a Class 3 misdemeanor.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
This offense would be consistent with the Offense Classification Criteria for a Class 3 misdemeanor.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
18 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 476 – Protect Galax & Venus Flytrap/WRC Rule Fines [Ed.3]
(cont’d)
STATUTE
§ 106-202.19. Unlawful acts; penalties; enforcement.
DESCRIPTION
Subpart (a)(6d):
A person who:
1. buys
2. more than five pounds of galax
3. for resale or trade
4. without
a. a copy of the landowner’s written permission, and
b. confirmation of the collection date.
PROPOSED OFFENSE CLASS
Class 2 misdemeanor (G.S. 106-202.19(a1)).
ANALYSIS
The Sentencing Commission recommended classifying offenses which reasonably tend to result or do
result in significant injury to property, significant injury to society, or assault or affray against a person
who is a vulnerable victim or a member of a protected class as Class 2 misdemeanors.
The Commission reviewed an similar provision in HB 476 [Ed.1] on April 8, 2011, and found that it was
inconsistent with the Offense Classification Criteria for a Class 2 misdemeanor but would be consistent
with a Class 3 misdemeanor.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
This offense would be consistent with the Offense Classification Criteria for a Class 3 misdemeanor.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
19
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 476 – Protect Galax & Venus Flytrap/WRC Rule Fines [Ed.3]
(cont’d)
STATUTE
§ 106-202.19. Unlawful acts; penalties; enforcement.
DESCRIPTION
Subpart (a)(6e):
A person who:
1. buys
2. more than 50 Venus flytrap plants
3. for resale or trade
4. without fully complying with applicable regulations.
PROPOSED OFFENSE CLASS
Class 2 misdemeanor (G.S. 106-202.19(a1)).
ANALYSIS
The Sentencing Commission recommended classifying offenses which reasonably tend to result or do
result in significant injury to property, significant injury to society, or assault or affray against a person
who is a vulnerable victim or a member of a protected class as Class 2 misdemeanors.
The Commission reviewed a similar provision involving more than 5 pounds of Venus flytrap in HB 476
[Ed.1] on April 8, 2011, and found that it was inconsistent with the Offense Classification Criteria for a
Class 2 misdemeanor but would be consistent with a Class 3 misdemeanor.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
This offense would be consistent with the Offense Classification Criteria for a Class 3 misdemeanor.
DATE OF REVIEW: 06/03/11 IMPACT ANALYSIS NOT REQUESTED YET
20 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 512 – Rendering Act Amendments [Ed.2]
STATUTE
§ 14-79.2. Larceny of waste kitchen grease.
DESCRIPTION
Subsection (2):
A person who
1. either
a. takes and carries away, or
b. aids in taking and carrying away
2. waste kitchen grease in a container
a. bearing notice that unauthorized removal is prohibited without the owner’s written consent
b. having a value of more than $1,000.
PROPOSED OFFENSE CLASS
Class H felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
property loss from any structure designed to house or secure any activity or property, loss occasioned by
the taking or removing of property or by breach of trust, formal or informal, in personal injury, or in
significant societal injury as Class H felonies.
Larceny of property with a value exceeding $1,000 is a Class H felony. G.S. 14-72(a).
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
21
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 512 – Rendering Act Amendments [Ed.2] (cont’d)
STATUTE
§ 106-168.14A. Collectors of waste kitchen grease subject to certain provisions.
DESCRIPTION
Subsection (d):
A person who:
1. is conducting rendering operations or collecting raw material, and
2. collects or transports waste kitchen grease without
a. possessing proof of compliance with the licensure requirements of Article 14A (Licensing
and Regulation of Rendering Plants, Rendering Operations, and Waste Kitchen Grease
Collection and Processing), and
b. conspicuously displaying the licensee's name and the license number in letters not less than
three inches high on any vehicle used for the transportation of waste kitchen grease.
PROPOSED OFFENSE CLASS
Class 1 misdemeanor (G.S. 106-168.15).
ANALYSIS
The Sentencing Commission recommended classifying offenses which reasonably tend to result or do
result in significant injury to person, serious injury to property, or serious injury to society as Class 1
misdemeanors.
“Raw material" is inedible whole or portions of animal or poultry carcasses. G.S. 106-168.1(3).
This offense does not apply to a person subject to licensure under G.S. 106-168.2, as amended by HB
512, solely for acting as a collector of waste kitchen grease, or to a farmer collecting waste kitchen
grease for a use related to the farm.
In April 2011, the Commission reviewed an identical provision in HB 512 [Ed.1] and found it
inconsistent with the Offense Classification Criteria for a Class 1 misdemeanor.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
22 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 512 – Rendering Act Amendments [Ed.2] (cont’d)
STATUTE
§ 106-168.14A. Collectors of waste kitchen grease subject to certain provisions.
DESCRIPTION
Subdivision (e)(1):
A person who:
1. is conducting rendering operations or collecting raw material, and
2. sells or offers for sale
3. waste kitchen grease
4. to any person unlicensed under Article 14A (Licensing and Regulation of Rendering Plants,
Rendering Operations, and Waste Kitchen Grease Collection and Processing)
5. knowing the person will transport or process it in violation of the Article.
PROPOSED OFFENSE CLASS
Class 1 misdemeanor (G.S. 106-168.15).
ANALYSIS
The Sentencing Commission recommended classifying offenses which reasonably tend to result or do
result in significant injury to person, serious injury to property, or serious injury to society as Class 1
misdemeanors.
“Raw material" is inedible whole or portions of animal or poultry carcasses. G.S. 106-168.1(3).
This offense does not apply to a person subject to licensure under G.S. 106-168.2, as amended by HB
512, solely for acting as a collector of waste kitchen grease, or to a farmer collecting waste kitchen
grease for a use related to the farm.
In April 2011, the Commission reviewed an identical provision in HB 512 [Ed.1] and found it
inconsistent with the Offense Classification Criteria for a Class 1 misdemeanor.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
23
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 512 – Rendering Act Amendments [Ed.2] (cont’d)
STATUTE
§ 106-168.14A. Collectors of waste kitchen grease subject to certain provisions.
DESCRIPTION
Subdivision (e)(2):
A person who:
1. is conducting rendering operations or collecting raw material, and
2. steals, misappropriates, contaminates, or damages
a. any waste kitchen grease container, or
b. grease therein.
PROPOSED OFFENSE CLASS
Class 1 misdemeanor (G.S. 106-168.15).
ANALYSIS
The Sentencing Commission recommended classifying offenses which reasonably tend to result or do
result in significant injury to person, serious injury to property, or serious injury to society as Class 1
misdemeanors.
“Raw material" is inedible whole or portions of animal or poultry carcasses. G.S. 106-168.1(3).
This offense does not apply to a person subject to licensure under G.S. 106-168.2, as amended by HB
512, solely for acting as a collector of waste kitchen grease, or to a farmer collecting waste kitchen
grease for a use related to the farm.
In April 2011, the Commission reviewed an identical provision in HB 512 [Ed.1] and found it
inconsistent with the Offense Classification Criteria for a Class 1 misdemeanor.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
24 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 512 – Rendering Act Amendments [Ed.2] (cont’d)
STATUTE
§ 106-168.14A. Collectors of waste kitchen grease subject to certain provisions.
DESCRIPTION
Subdivision (e)(3):
A person who:
1. is conducting rendering operations, or collecting raw material
2. and
a. takes or possesses waste kitchen grease from a collector that is not licensed under this section
(unless otherwise allowed under Article 14A), or
b. knowingly takes possession of waste kitchen grease that has been stolen.
PROPOSED OFFENSE CLASS
Class 1 misdemeanor (G.S. 106-168.15).
ANALYSIS
The Sentencing Commission recommended classifying offenses which reasonably tend to result or do
result in significant injury to person, serious injury to property, or serious injury to society as Class 1
misdemeanors.
“Raw material" is inedible whole or portions of animal or poultry carcasses. G.S. 106-168.1(3).
This offense does not apply to a person subject to licensure under G.S. 106-168.2, as amended by HB
512, solely for acting as a collector of waste kitchen grease, or to a farmer collecting waste kitchen
grease for a use related to the farm.
In April 2011, the Commission reviewed an identical provision in HB 512 [Ed.1] and found it
inconsistent with the Offense Classification Criteria for a Class 1 misdemeanor.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
25
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 512 – Rendering Act Amendments [Ed.2] (cont’d)
STATUTE
§ 106-168.14A. Collectors of waste kitchen grease subject to certain provisions.
DESCRIPTION
Subdivision (e)(4):
A person who:
1. is conducting rendering operations or collecting raw material, and
2. places a label on a waste kitchen grease container owned by another person
3. in order to assert ownership over the container.
PROPOSED OFFENSE CLASS
Class 1 misdemeanor (G.S. 106-168.15).
ANALYSIS
The Sentencing Commission recommended classifying offenses which reasonably tend to result or do
result in significant injury to person, serious injury to property, or serious injury to society as Class 1
misdemeanors.
“Raw material" is inedible whole or portions of animal or poultry carcasses. G.S. 106-168.1(3).
This offense does not apply to a person subject to licensure under G.S. 106-168.2, as amended by HB
512, solely for acting as a collector of waste kitchen grease, or to a farmer collecting waste kitchen
grease for a use related to the farm.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
26 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 512 – Rendering Act Amendments [Ed.2] (cont’d)
STATUTE
§ 14-79.2. Larceny of waste kitchen grease.
DESCRIPTION
Subsection (1):
A person who
1. either
a. takes and carries away, or
b. aids in taking and carrying away
2. waste kitchen grease in a container
a. bearing notice that unauthorized removal is prohibited without the owner’s written consent
b. having a value of $1,000 or less.
PROPOSED OFFENSE CLASS
Class 1 misdemeanor.
ANALYSIS
The Sentencing Commission recommended classifying offenses which reasonably tend to result or do
result in significant injury to person, serious injury to property, or serious injury to society as Class 1
misdemeanors.
Larceny of property with a value of $1,000 or less is a Class 1 misdemeanor. G.S. 14-72(a).
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 IMPACT ANALYSIS ON NEXT PAGE
SOURCE: NC Sentencing and Policy Advisory Commission, FY 2009/10 Structured Sentencing Simulation Data. 27
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
HB 512: RENDERING ACT AMENDMENTS
PREPARED: MAY 11, 2011
ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED
UNDER STRUCTURED SENTENCING
This bill amends G.S. Chapter 106, Article 14A (Licensing and Regulation of Rendering Plants,
Rendering Operations, and Waste Kitchen Grease Collection and Processing), thereby expanding the
scope of conduct subject to the existing Class 1 misdemeanor offense in G.S. 106.168.15, Violation a
misdemeanor. It also creates a new Class 1 misdemeanor and Class H felony by enacting G.S. 14-79.2,
Larceny of waste kitchen grease.
SECTION 1.
The bill amends G.S. Chapter 106, Article 14A, to establish a licensure requirement for (1) the storing or
processing of waste kitchen grease at a waste kitchen grease operation, and (2) acting as a collector of
waste kitchen grease. However, the criminal enforcement provision in Article 14A, found in G.S. 106-
168.15, is not amended to apply to these new waste kitchen grease licensees. The bill would maintain
the statute in its current form, under which it is a Class 1 misdemeanor to conduct rendering operations
or collect raw material (i.e., inedible animal carcasses or portions thereof) in violation of the provisions
of the Article. By amending Article 14A, the bill does increase the potential criminal exposure of
persons engaged in rendering operations and collectors of raw material under G.S. 106-168.15, by
further regulating their conduct.1
The Administrative Office of the Courts (AOC) currently does not have a specific offense code for
violations of G.S. 106-168.15. The lack of an AOC offense code indicates that this offense is
infrequently charged and/or infrequently results in convictions. It is, therefore, unknown how many
convictions occurred under G.S. 106-168.15 in FY 2009/10, or how many additional convictions may
result from the proposed broadening of the statute. In FY 2009/10, 24% of Class 1 misdemeanor
convictions resulted in active sentences. The average sentence imposed for Class 1 convictions was 41
days. Offenders who receive an active sentence of 90 days or less are housed in county jails. Therefore,
convictions for this proposed offense would not be expected to have a significant impact on the prison
population. The impact on local jail populations is not known.
SECTION 2.
G.S. 14-79.2. Larceny of waste kitchen grease.
Subsection (1) makes it a Class 1 misdemeanor to take and carry away, or aid in taking and carrying
away, any waste kitchen grease within a container bearing the name of the owner and a notice that
unauthorized removal is prohibited without the owner’s written consent, if the value of the container (or
the container and the grease) is $1,000 or less.
1For example, the bill would prohibit a collector of raw material to do the following: (1) sell or offer for sale to any
unlicensed person any waste kitchen grease, knowing such unlicensed person would transport or process the grease in
violation of the Article; (2) steal, misappropriate, contaminate, or damage any waste kitchen grease container or grease
therein; or (3) take or possess waste kitchen grease from a collector that is not licensed unless otherwise allowed under
Article 14A, or knowingly take possession of stolen waste kitchen grease.
28 SOURCE: NC Sentencing and Policy Advisory Commission, FY 2009/10 Structured Sentencing Simulation Data.
Larceny (and aiding in larceny) of any property valued at or below $1,000 is already a Class 1
misdemeanor under G.S. 14-72(a) – the same classification as the proposed offense. Therefore, the new
offense does not create any new criminal liability or impact.
There were 16,666 Class 1 misdemeanor convictions under G.S. 14-72(a) for larceny and 94 Class 1
misdemeanor convictions under G.S. 14-72(a) for aiding and abetting larceny during FY 2009/10.
Subsection (2) makes it a Class H felony to take and carry away, or aid in taking and carrying away, any
waste kitchen grease within a container bearing the name of the owner and a notice that unauthorized
removal is prohibited without the owner’s written consent, if the value of the container (or the container
and the grease) is more than $1,000.
Larceny (and aiding in larceny) of any property with a value of more than $1,000 is already a Class H
felony under G.S. 14-72(a) – the same classification as the proposed offense. Therefore, the new offense
does not create any new criminal liability or impact.
There were 985 Class H felony convictions under G.S. 14-72(a) for larceny and 15 Class H felony
convictions under G.S. 14-72(a) for aiding and abetting larceny during FY 2009/10.
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
29
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 582 – Amend Felony Firearms Act/Increase Penalties [Ed.2]
STATUTE
§ 14-415.1. Possession of firearms, etc., by felon prohibited.
DESCRIPTION
Subpart (a1)(1):
A person who:
1. is a convicted felon and
2. purchases, owns, possesses, or has in his custody, care, or control
3. any
a. ammunition or
b. electric weapon or device intended to be used as a weapon.
PROPOSED OFFENSE CLASS
Class G felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
property loss from the person or from the person’s dwelling as Class G felonies.
It is a Class G felony for a convicted felon to purchase, own, possess, or have in his custody, care, or
control any firearm or weapon of mass death and destruction. G.S. 14-415.1.
In April 2011, the Commission reviewed a similar provision in HB 582 [Ed.1] and found it inconsistent
with the Offense Classification Criteria for a Class G felony.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
30 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 582 – Amend Felony Firearms Act/Increase Penalties [Ed.2]
(cont’d)
STATUTE
§ 14-415.1. Possession of firearms, etc., by felon prohibited.
DESCRIPTION
Subpart (a1)(1):
A person who:
1. is a convicted felon and
2. carries a concealed weapon.
PROPOSED OFFENSE CLASS
Class G felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
property loss from the person or from the person’s dwelling as Class G felonies.
For purposes of the offense, “concealed weapon” includes a tear gas gun or similar device intended to be
used as a weapon.
It is a Class G felony for a convicted felon to purchase, own, possess, or have in his custody, care, or
control any firearm or weapon of mass death and destruction. G.S. 14-415.1.
Carrying a concealed weapon is a Class 2 misdemeanor. G.S. 14-269(a), (c).
Carrying a concealed pistol or gun is a Class 2 misdemeanor for the first offense, and a Class I felony
for a second or subsequent offense. G.S. 14-249(a1), (c).
In April 2011, the Commission reviewed a similar provision in HB 582 [Ed.1] and found it inconsistent
with the Offense Classification Criteria for a Class G felony.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
31
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 582 – Amend Felony Firearms Act/Increase Penalties [Ed.2]
(cont’d)
STATUTE
§ 14-415.1. Possession of firearms, etc., by felon prohibited.
DESCRIPTION
Subpart (a1)(2):
A person who:
1. is a convicted felon and
a. purchases, owns, possesses, or has in his custody, care, or control a firearm, weapon of mass
death and destruction, ammunition, or electric weapon or device intended to be used as a
weapon, or
b. carries a concealed weapon
2. and discharges the proscribed weapon.
PROPOSED OFFENSE CLASS
Class E felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
personal injury as Class E felonies.
Discharging a firearm into occupied property is a Class E felony. G.S. 14-34.1(a).
Discharging a firearm into an occupied dwelling or vehicle in operation is a Class D felony. G.S. 14-
34.1(b).
In April 2011, the Commission reviewed a similar provision in HB 582 [Ed.1] and found it inconsistent
with the Offense Classification Criteria for a Class E felony.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
32 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 582 – Amend Felony Firearms Act/Increase Penalties [Ed.2]
(cont’d)
STATUTE
§ 14-415.1. Possession of firearms, etc., by felon prohibited.
DESCRIPTION
Subsection (a1)(3):
A person who:
1. is a convicted felon and
a. purchases, owns, possesses, or has in his custody, care, or control any firearm, weapon of
mass death and destruction, ammunition, or electric weapon or device intended to be used as
a weapon, or
b. carries a concealed weapon
2. resulting in serious injury to a person.
PROPOSED OFFENSE CLASS
Class D felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
infringements on property interest which also implicate physical safety concerns by use of a deadly
weapon or an offense involving an occupied dwelling as Class D felonies.
“Serious injury” under G.S. 14-415.1 refers to “a lesser degree of physical harm than serious bodily
injury, which includes but is not limited to bruises, lacerations, sprains, broken bones, or any other
indications of physical injury of a type which do[es] not constitute serious bodily injury.”
Assault with a deadly weapon inflicting serious injury is a Class E felony. G.S. 14-32.
In April 2011, the Commission reviewed a similar provision in HB 582 [Ed.1] and found it inconsistent
with the Offense Classification Criteria for a Class D felony.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
33
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 582 – Amend Felony Firearms Act/Increase Penalties [Ed.2]
(cont’d)
STATUTE
§ 14-415.1. Possession of firearms, etc., by felon prohibited.
DESCRIPTION
Subsection (a1)(4):
A person who:
1. is a convicted felon and
a. purchases, owns, possesses, or has in his custody, care, or control any firearm, weapon of
mass death and destruction, ammunition, or electric weapon or device intended to be used as
a weapon,
b. or carries a concealed weapon
2. resulting in serious bodily injury to a person.
PROPOSED OFFENSE CLASS
Class C felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
long-term personal injury or in serious long-term or widespread societal injury as Class C felonies.
“Serious bodily injury” under G.S. 14-415.1 “has the same definition as the term is defined in G.S. 14-
32.4(a)[.]”
Assault inflicting serious bodily injury under G.S. 14-32.4 is a Class F felony.
In April 2011, the Commission reviewed a similar provision in HB 582 [Ed.1] and found it consistent
with the Offense Classification Criteria for a Class C felony.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 IMPACT ANALYSIS ON NEXT PAGE
34 SOURCE: NC Sentencing and Policy Advisory Commission, FY 2009/10 Structured Sentencing Simulation Data.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
HB 582: AMEND FELONY FIREARMS ACT/INCREASE PENALTIES
PREPARED: MAY 19, 2011
ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED
UNDER STRUCTURED SENTENCING
This bill amends G.S. 14-415.1, Possession of firearms, etc, by felon prohibited, by broadening the
scope of the existing offense and creating several new offenses within the section. Existing G.S. 14-
415.1(a) provides that it shall be a Class G felony for any person who has been convicted of a felony to
purchase, own, possess, or have in his custody, care, or control any firearm or weapon of mass death and
destruction.
G.S. 14-415.1(a) is amended by adding to the list of items that a convicted felon shall not purchase,
own, possess or have in his custody, care or control, any ammunition or any electric weapon or electric
device intended to be used as a weapon, thereby expanding the scope of the existing Class G felony.
The scope of the Class G felony is further expanded by the amendment to G.S. 14-415.1(a) that provides
that it is also unlawful for any person who has been convicted of a felony to carry a concealed weapon,
including a tear gas gun or a chemical weapon or chemical device intended to be used as a weapon.
G.S. 14-415.1(a1)(1) provides that unless the conduct is covered under some other provision of law
providing greater punishment, a violation of G.S. 14-415.1(a) is a Class G felony.
There were 1,145 convictions under G.S. 14-415.1(a) for possession of a firearm by a felon during FY
2009/10. It is not known how many additional convictions may result from the proposed broadening of
the current statute. In FY 2009/10, 42% of Class G convictions resulted in active sentences, with an
average estimated time served of 15 months. If, for example, there were two additional Class G
convictions for this proposed offense per year, the combination of active sentences and probation
revocations would result in the need for one additional prison bed the first year and two additional
prison beds the second year.
This bill creates a new offense and could reclassify some offenders who are currently convicted under
several existing offenses through the addition of G.S. 14-415.1(a1)(2). G.S. 14-415.1(a1)(2) creates a
new Class E felony, providing that unless the conduct is covered under some other provision of law
providing greater punishment, a person who violates G.S. 14-415.1(a) and discharges the firearm,
electronic weapon or device or any other weapon described in G.S. 14-415.1(a) is guilty of a Class E
felony.
1. This bill reclassifies some offenders who may currently be charged with a Class G felony under
G.S. 14-415.1(a), as Class E felons under G.S. 14-145.1(a1)(2).
It is unknown how many of the 1,145 convictions for possession of a firearm by a felon would
meet the requirements for a Class E felony under the proposed statute. Impact on the prison
population will occur if Class G convictions become Class E convictions under the proposed
statute because of the higher rate of active sentences (51% for Class E compared to 42% for
Class G) and longer average estimated time served (27 months compared to 15 months for Class
G). If, for example, there were two Class G felony convictions that were reclassified as Class E
felony convictions, this would result in the need for no additional prison beds the first year and
SOURCE: NC Sentencing and Policy Advisory Commission, FY 2009/10 Structured Sentencing Simulation Data 35
one additional prison bed the second year. No additional prison beds would be needed in year
one because average estimated time served for both Class G and Class E felonies is greater than
12 months. However, impact could occur in year one, depending on the number of convictions
that would be reclassified, due to the difference in active rates. In addition, since a period of
Post-Release Supervision follows release from prison for offenders convicted of Class B1-E
felonies, there will be some impact on Post-Release Supervision caseloads and prison beds due
to revocations.
2. This bill also creates a new Class E felony for some offenders who discharge a firearm.
Offenders who are convicted felons and may currently be charged under G.S. 14-34.1,
Discharging certain barreled weapons or a firearm into occupied property, or under G.S. 14-34.9,
Discharging a firearm from within an enclosure, could be charged under G.S. 14-415.1(a2). G.S.
14-34.1(a) provides that it shall be a Class E felony for any person to willfully and wantonly
discharge or attempt to discharge any firearm or barreled weapon into any building, structure,
vehicle, or enclosure while it is occupied. G.S. 14-34.9 provides that it shall be a Class E felony
for any person to willfully or wantonly discharge or attempt to discharge a firearm, as part of a
pattern of criminal street gang activity, from within any building, structure, motor vehicle, or
other conveyance, erection or enclosure toward a person(s) not within that enclosure. Since the
current offenses and the new offense are Class E felonies, it would not change the classification
of the offense of conviction.
In FY 2009/10, there were 83 convictions for discharging a weapon into occupied property and
no convictions for discharging a firearm from within an enclosure. It is unknown how many of
these offenses were committed by convicted felons. Charging convicted felons under the
proposed section would have no effect on the prison population because it does not change the
offense class.
3. Finally, a new Class E felony is created by G.S. 14-415.1(a1)(2). Some offenders may be
charged with a Class E felony for the new offense of discharging an electric weapon or device, a
tear gas gun, or a chemical weapon or device.
Since the proposed section creates a new offense, the Sentencing Commission does not have any
historical data from which to estimate the impact of this section on the prison population. It is not
known how many offenders might be convicted and sentenced under the proposed section. In FY
2009/10, 51% of Class E convictions resulted in active sentences, with an average estimated time
served of 27 months. If, for example, there were two Class E convictions for this proposed
offense per year, the combination of active sentences and probation revocations would result in
the need for one additional prison bed the first year and three additional prison beds the second
year. In addition, since a period of Post-Release Supervision follows release from prison for
offenders convicted of Class B1-E felonies, there will be some impact on Post-Release
Supervision caseloads and prison beds due to revocations.
The bill creates a new offense and could reclassify some offenders who are currently convicted under
two existing offenses through the addition of G.S. 14-415.1(a1)(3), which provides that a person who
violates G.S. 14-415.1(a) is guilty of a Class D felony if the violation results in serious injury to a
person.
1. This bill reclassifies some offenders who may currently be charged with a Class G felony under
G.S. 14-415.1(a), as Class D felons under G.S. 14-415.1(a1)(3).
36 SOURCE: NC Sentencing and Policy Advisory Commission, FY 2009/10 Structured Sentencing Simulation Data.
It is unknown how many of the 1,145 convictions for possession of a firearm by a felon would
meet the requirements for a Class D felony under the proposed statute. Impact on the prison
population will occur if Class G convictions become Class D convictions under the proposed
statute because of the higher rate of active sentences (100% for Class D compared to 42% for
Class G) and longer average estimated time served (63 months compared to 15 months for Class
G). If, for example, there were two Class G felony convictions that were reclassified as Class D
felony convictions, this would result in the need for one additional prison bed the first year and
two additional prison beds the second year. In addition, since a period of Post-Release
Supervision follows release from prison for offenders convicted of Class B1-E felonies, there
will be some impact on Post-Release Supervision caseloads and prison beds due to revocations.
2. Some offenders guilty of the conduct prohibited in G.S. 14-415.1(a1)(3), may currently be
punished under G.S. 14-32(b). G.S. 14-32(b) provides that it shall be a Class E felony for any
person to assault another with a deadly weapon and inflict a serious injury in so doing; this bill
would reclassify those offenders who inflict serious injury to a person as a result of violating the
provisions of G.S. 14-415(a) as Class D felons.
There were 432 convictions for assault with a deadly weapon inflicting serious injury in FY
2009/10. It is unknown how many of these convictions were for offenses committed by
convicted felons and would be reclassified from Class E to Class D under the proposed bill.
Impact on the prison population will occur if Class E convictions become Class D convictions
under the proposed statute because of the higher rate of active sentences (100% for Class D
compared to 51% for Class E) and longer average estimated time served (63 months compared to
27 months for Class E). If, for example, there were two Class E felony convictions that were
reclassified as Class D felony convictions, this would result in the need for one additional prison
bed the first year and one additional prison bed the second year. In addition, since a period of
Post-Release Supervision follows release from prison for offenders convicted of Class B1-E
felonies, there will be some impact on Post-Release Supervision caseloads and prison beds due
to revocations.
3. Finally, a new Class D felony is created by G.S. 14-145(a1)(3). Some offenders may be charged
with a Class D felony for the new offense of inflicting serious injury to a person as a result of
carrying ammunition, an electric weapon or device, a tear gas gun, or a chemical weapon or
device.
Since the proposed section creates a new offense, the Sentencing Commission does not have any
historical data from which to estimate the impact of this section on the prison population. It is not
known how many offenders might be convicted and sentenced under the proposed section. Under
Structured Sentencing, with the exception of extraordinary mitigation, all Class D offenders are
required to receive an active sentence. In FY 2009/10 the average estimated time served for an
offender convicted of a Class D offense was 63 months. If, for example, there was one
conviction for this proposed offense per year, this proposed change would result in the need for
one additional prison bed the first year and two additional prison beds the second year. In
addition, since a period of Post-Release Supervision follows release from prison for offenders
convicted of Class B1-E felonies, there will be some impact on Post-Release Supervision
caseloads and prison beds due to revocations.
SOURCE: NC Sentencing and Policy Advisory Commission, FY 2009/10 Structured Sentencing Simulation Data 37
Finally, G.S. 14-415.1(a1)(4) creates a new Class C felony and could reclassify some offenders who are
currently convicted under an existing offense. G.S. 14-415.1(a1)(4) provides that a person who violates
G.S. 14-415.1(a) is guilty of a Class C felony if the violation results in serious bodily injury to a person.
1. This bill reclassifies some offenders who may currently be charged with a Class G felony under
G.S. 14-415.1(a), as Class C felons under G.S. 14-415.1(a1)(4).
It is unknown how many of the 1,145 convictions for possession of a firearm by a felon would
meet the requirements for a Class C felony under the proposed statute. Impact on the prison
population will occur if Class G convictions become Class C convictions under the proposed
statute because of the higher rate of active sentences (100% for Class C compared to 42% for
Class G) and longer average estimated time served (82 months compared to 15 months for Class
G). If, for example, there were two Class G felony convictions that were reclassified as Class C
felony convictions, this would result in the need for one additional prison bed the first year and
two additional prison beds the second year. In addition, since a period of Post-Release
Supervision follows release from prison for offenders convicted of Class B1-E felonies, there
will be some impact on Post-Release Supervision caseloads and prison beds due to revocations.
2. Some offenders guilty of the conduct prohibited in G.S. 14-415.1(a1)(4), may currently be
punished under G.S. 14-32.4(a). G.S. 14-32.4(a) provides that it shall be a Class F felony for any
person to assault another and inflict serious bodily injury in so doing; this bill would reclassify
those offenders who inflict serious bodily injury to a person as a result of violating the provisions
of G.S. 14-415(a) as Class C felons.
There were 214 Class F felony convictions for assault with a deadly weapon inflicting serious
injury under G.S. 14-32.4 in FY 2009/10. It is unknown how many of these convictions were for
offenses committed by convicted felons and would be reclassified from Class F to Class C under
the proposed bill. Impact on the prison population will occur if Class F convictions become Class
C convictions under the proposed statute because of the higher rate of active sentences (100% for
Class C compared to 54.3% for Class F) and longer average estimated time served (82 months
for Class C compared to 18 months for Class F). If, for example, there were two Class F felony
convictions that were reclassified as Class C felony convictions, this would result in the need for
one additional prison bed the first year and two additional prison beds the second year. In
addition, since a period of Post-Release Supervision follows release from prison for offenders
convicted of Class B1-E felonies, there will be some impact on Post-Release Supervision
caseloads and prison beds due to revocations.
3. Also, a new Class C felony is created by G.S. 14-415.1(a1)(4) inflicting serious bodily injury as
a result of carrying ammunition, an electric weapon or device, a tear gas gun, or a chemical
weapon or device.
Under Structured Sentencing, with the exception of extraordinary mitigation, all Class C
offenders are required to receive an active sentence. In FY 2009/10 the average estimated time
served for an offender convicted of a Class C offense was 82 months. If, for example, there was
one conviction for this proposed offense per year, this proposed change would result in the need
for one additional prison bed the first year and two additional prison beds the second year. In
addition, since a period of Post-Release Supervision follows release from prison for offenders
convicted of Class B1-E felonies, there will be some impact on Post-Release Supervision
caseloads and prison beds due to revocations.
38 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 591 – LDP/Ignition Interlock Changes [Ed.2]
STATUTE
§ 20-17.8A. Tampering with ignition interlock systems.
DESCRIPTION
A person who
1. tampers with, circumvents, or attempts to circumvent
2. an ignition interlock device
a. installed on a motor vehicle and
b. required as a condition for the individual’s operation thereof
3. for the purpose of
a. avoiding or altering a test on the device in operating or attempting to operate the vehicle, or
b. altering test results received, or in the process of being received, on the device.
PROPOSED OFFENSE CLASS
Class 1 misdemeanor.
Each act of tampering, circumvention, or attempted circumvention is a separate offense.
ANALYSIS
The Sentencing Commission recommended classifying offenses which reasonably tend to result or do
result in significant injury to person, serious injury to property, or serious injury to society as Class 1
misdemeanors.
Tampering with an electronic monitoring device used for a sentence of house arrest is a felony or
misdemeanor one class lower than the most serious underlying conviction. G.S. 14-226.3.
Tampering with an electronic monitoring device used as a condition of bond or pretrial release is a Class
1 misdemeanor. G.S. 14-226.3.
Tampering with a satellite based sex-offender monitoring device is a Class E felony. G.S. 14-208.44(b).
See also HB 761.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE PREPARED: 06/03/11 IMPACT ANALYSIS NOT REQUESTED YET
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
39
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 642 – Justice Reinvestment Act [Ed.3]
STATUTE
§ 15A-1340.11. Definitions.
DESCRIPTION
Subsection (2):
A person sentenced to a community punishment.
PUNISHMENT RANGE
CURRENT: A sentence that does not include active incarceration, an intermediate punishment, or any
of the following conditions of probation: special probation (i.e., split sentence), assignment to a
residential program, day reporting center or drug treatment court program, house arrest with electronic
monitoring, or intensive supervision.
PROPOSED: A sentence that does not include active incarceration or assignment to a drug treatment
court program but may include house arrest with electronic monitoring, special probation (i.e., split
sentence), community service, substance abuse assessment, monitoring or treatment, participation in an
educational or vocational skills development program, satellite-based monitoring (for qualifying sex
offenders), or submission to up to six days per month of confinement in a local confinement facility.
ANALYSIS
The bill changes the definitions of “community punishment” and “intermediate punishment” under
Structured Sentencing. Other than assignment to a drug treatment court, the authorized conditions of
probation are the same for community and intermediate punishments.
On April 8, 2011, the Commission reviewed an identical provision in HB 642 [Ed.1] and found G.S.
164-41 to be inapplicable.
FINDINGS
Bill is consistent with G.S. 164-41.
Bill is inconsistent with G.S. 164-41.
G.S. 164-41 is not applicable.
House Bill 642 changes some of the aspects of structured sentencing and, therefore, it is not possible to apply the
current structure to determine consistency. A finding that the structure is not applicable does not imply either
support for or opposition to the bill itself.
DATE REVIEWED: 06/03/11 BILL CONTINUED ON NEXT PAGE
40 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 642 – Justice Reinvestment Act [Ed.3] (cont’d)
STATUTE
§ 15A-1340.11. Definitions.
DESCRIPTION
Subsection (6):
A person sentenced to an intermediate punishment:
PUNISHMENT RANGE
CURRENT: Supervised probation with at least one of the following conditions: special probation (i.e.,
split sentence), assignment to a residential program, day reporting center or drug treatment court
program, house arrest with electronic monitoring, or intensive supervision.
PROPOSED: Supervised probation. The court may also impose drug treatment court and/or one or
more of the following: house arrest with electronic monitoring, special probation (i.e., split sentence),
community service, substance abuse assessment, monitoring or treatment, participation in an educational
or vocational skills development program, satellite-based monitoring (for qualifying sex offenders), or
submission to up to six days per month of confinement in a local confinement facility.
ANALYSIS
The bill changes the definitions of “community punishment” and “intermediate punishment” under
Structured Sentencing. Other than assignment to a drug treatment court, the authorized conditions of
probation are the same for community and intermediate punishments.
On April 8, 2011, the Commission reviewed an identical provision in HB 642 [Ed.1] and found G.S.
164-41 to be inapplicable.
FINDINGS
Bill is consistent with G.S. 164-41.
Bill is inconsistent with G.S. 164-41.
G.S. 164-41 is not applicable.
House Bill 642 changes some of the aspects of structured sentencing and, therefore, it is not possible to apply the
current structure to determine consistency. A finding that the structure is not applicable does not imply either
support for or opposition to the bill itself.
DATE REVIEWED: 06/03/11 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
41
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 642 – Justice Reinvestment Act [Ed.3] (cont’d)
STATUTE
§ 15A-1344. Response to violations; alteration and revocation.
DESCRIPTION
Subsections (a), (d2):
A person who violates any condition of probation other than the following:
1. Commit no criminal offense in any jurisdiction, G.S. 15A-1343(b)(1), or
2. Not to abscond, by willfully avoiding supervision or by willfully making the defendant’s
whereabouts unknown to the supervising probation officer, G.S. 15A-1343(b)(3a).
PUNISHMENT RANGE
CURRENT: Continue, extend, or modify the conditions of probation, impose special probation (i.e.,
split sentence), or revoke probation and activate the suspended sentence. (G.S. 15A-1344(d)).
PROPOSED: Continue, extend, or modify the conditions of probation, impose special probation (i.e.,
split sentence), or impose a 90-day period of confinement pursuant to G.S. 15A-1344(d2). The court
may not revoke probation unless the defendant has previously received two 90-day periods of
confinement; and the defendant may not receive more than two 90-day periods of confinement under
this subsection.
ANALYSIS
If the time remaining on the defendant’s maximum imposed sentence is less than 90 days, the term of
confinement shall be the remaining period of the sentence. G.S. 15A-1344(d2).
Confinement shall be credited against the defendant’s sentence pursuant to G.S. 15-196.1.
On April 8, 2011, the Commission reviewed a similar provision in HB 642 [Ed.1] and found G.S. 164-
41 to be inapplicable.
FINDINGS
Bill is consistent with G.S. 164-41.
Bill is inconsistent with G.S. 164-41.
G.S. 164-41 is not applicable.
House Bill 642 changes some of the aspects of structured sentencing and, therefore, it is not possible to apply the
current structure to determine consistency. A finding that the structure is not applicable does not imply either
support for or opposition to the bill itself.
DATE REVIEWED: 06/03/11 BILL CONTINUED ON NEXT PAGE
42 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 642 – Justice Reinvestment Act [Ed.3] (cont’d)
STATUTE
§ 15A-1368.2. Post-release supervision eligibility and procedure.
DESCRIPTION
A person sentenced an active punishment for a Class B1 through E felony:
PUNISHMENT RANGE
CURRENT: Release onto 9 months of post-release supervision on the date equivalent to the maximum
prison term less 9 months (less any earned time credits awarded).
PROPOSED: Release onto 12 months of post-release supervision on the date equivalent to the
maximum prison term less 12 months (less any earned time credits awarded).
ANALYSIS
The maximum sentence for Class B1 through E felonies currently includes 9 months for post-release
supervision. The bill increases the maximum sentence for Class B1 through E felonies by 3 months. G.S.
15A-1340.17(e).
The bill maintains the 5-year period of post-release supervision for convictions resulting in registration
as a sex offender under G.S. Chapter 14, Article 27A (Sex Offender Registration Programs).
On April 8, 2011, the Commission reviewed an identical provision in HB 642 [Ed.1] and found G.S.
164-41 to be inapplicable.
FINDINGS
Bill is consistent with G.S. 164-41.
Bill is inconsistent with G.S. 164-41.
G.S. 164-41 is not applicable.
House Bill 642 changes some of the aspects of structured sentencing and, therefore, it is not possible to apply the
current structure to determine consistency. A finding that the structure is not applicable does not imply either
support for or opposition to the bill itself.
DATE REVIEWED: 06/03/11 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
43
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 642 – Justice Reinvestment Act [Ed.3] (cont’d)
STATUTE
§ 15A-1368.2. Post-release supervision eligibility and procedure.
DESCRIPTION
A person sentenced to an active punishment for a Class F through I felony:
PUNISHMENT RANGE
CURRENT: Release without post-release supervision on the date equivalent to the maximum prison
term less any earned time credits awarded pursuant to G.S. 15A-1340.13(d).
PROPOSED: Release onto 9 months of post-release supervision on the date equivalent to the maximum
prison term (less any earned time credits awarded) less 9 months.
ANALYSIS
The bill increases the maximum sentence for Class F through I felonies by 9 months. G.S. 15A-
1340.17(e).
The bill imposes a 5-year period of post-release supervision for Class F through I felony convictions
requiring registration under G.S. Chapter 14, Article 27A (Sex Offender Registration Programs).
On April 8, 2011, the Commission reviewed an identical provision in HB 642 [Ed.1] and found G.S.
164-41 to be inapplicable.
FINDINGS
Bill is consistent with G.S. 164-41.
Bill is inconsistent with G.S. 164-41.
G.S. 164-41 is not applicable.
House Bill 642 changes some of the aspects of structured sentencing and, therefore, it is not possible to apply the
current structure to determine consistency. A finding that the structure is not applicable does not imply either
support for or opposition to the bill itself.
DATE REVIEWED: 06/03/11 BILL CONTINUED ON NEXT PAGE
44 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 642 – Justice Reinvestment Act [Ed.3] (cont’d)
STATUTE
§ 15A-1368.3 Incidents of post‑release supervision.
DESCRIPTION
Subsections (c):
A person who
1. is convicted of an offense that does not require registration as a sex offender, and
2. violates the conditions of post-release supervision other than by
a. committing a new crime, or
b. absconding.
PUNISHMENT RANGE
CURRENT: Continuation on supervision with or without modified conditions, or revocation and re-imprisonment
for a period up to the time remaining on the maximum imposed sentence.
PROPOSED: Continuation on supervision with or without modified conditions, or re-imprisonment for
three months. A supervisee may be returned to prison for three months on each of two subsequent
violations, after which supervisees who were Class B1 through E felons may be returned to prison up to
the time remaining on their maximum imposed sentences.
ANALYSIS
The prisoner is eligible to receive earned time credit against the maximum imposed sentence as provided
in G.S. 15A-1340.13(d) for time served in prison after the revocation.
On April 8, 2011, the Commission reviewed an identical provision in HB 642 [Ed.1] and found G.S.
164-41 to be inapplicable.
FINDINGS
Bill is consistent with G.S. 164-41.
Bill is inconsistent with G.S. 164-41.
G.S. 164-41 is not applicable.
House Bill 642 changes some of the aspects of structured sentencing and, therefore, it is not possible to apply the
current structure to determine consistency. A finding that the structure is not applicable does not imply either
support for or opposition to the bill itself.
DATE REVIEWED: 06/03/11 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
45
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 642 – Justice Reinvestment Act [Ed.3] (cont’d)
STATUTE
§ 14-7.26. Habitual breaking and entering status offender.
DESCRIPTION
A person who
1. commits a “breaking and entering” offense
2. having at least one prior conviction for a felony breaking and entering offense in any U.S. state or
federal court.
PROPOSED OFFENSE CLASS
Class E felony. (G.S. 14-7.31).
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result or do result in serious
personal injury as Class E felonies.
The term “breaking and entering” includes the felonies of first and second degree burglary (G.S. 14-51),
breaking out of a dwelling house (G.S. 14-53), breaking or entering buildings generally (G.S. 14-54(a)),
breaking or entering a place of religious worship (G.S. 14-54.1), any substantially equivalent offense.
The second felony breaking and entering offense must have been committed after the defendant’s
conviction of the first offense. G.S. 14-7.26. Offenses committed before the person is 18 years of age
shall not constitute more than one felony of breaking and entering offense under this Article.
On April 8, 2011, the Commission reviewed a similar provision in HB 642 [Ed.1] and found that it was
inconsistent with the Offense Classification Criteria for a Class E felony, but would be consistent with
Class C or Class F.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
This offense would be consistent with the Offense Classification Criteria for a Class C or Class F felony.
DATE REVIEWED: 06/03/11 BILL CONTINUED ON NEXT PAGE
46 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 642 – Justice Reinvestment Act [Ed.3] (cont’d)
STATUTE
§ 14-7.6. Sentencing of habitual felons.
DESCRIPTION
A person convicted of a felony offense as an habitual felon.
PUNISHMENT RANGE
CURRENT: Sentenced as a Class C felon.
PROPOSED: Sentenced four classes higher than the principal felony, but no higher than Class C.
ANALYSIS
In 2002 the Sentencing Commission proposed that a felony committed as an habitual felon be punished
three classes higher than its offense classification, but in no case higher than Class C.
On April 8, 2011, the Commission reviewed a similar provision in HB 642 [Ed.1], under which the court
would have discretion to impose a sentence one to four classes higher than the principal felony – but no
higher than Class C. The Commission found this provision to be inconsistent with G.S. 164-41.
FINDINGS
Bill is consistent with G.S. 164-41.
Bill is inconsistent with G.S. 164-41.
G.S. 164-41 is not applicable.
DATE REVIEWED: 06/03/11 BILL CONTINUED ON NEXT PAGE
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
47
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 642 – Justice Reinvestment Act [Ed.3] (cont’d)
STATUTE
§ 15A-1340.18. Advanced Supervised Release.
DESCRIPTION
A person who
1. receives a non-mitigated active sentence from the following cells of the felony punishment chart:
a. Class D felony, Prior Record Level I-III;
b. Class E felony, Prior Record Level I-IV;
c. Class F felony, Prior Record Level I-V; or
d. Class G or H felony, any Prior Record Level
2. and completes a court-ordered risk reduction incentive.
PUNISHMENT RANGE
CURRENT: Release after serving the maximum term imposed by the court, less any earned time credits awarded
by the Department of Correction (DOC) down to, but not below, the minimum term.
PROPOSED: Release on Advanced Supervised Release (ASR) after serving the shortest minimum term
authorized in the mitigated range for the offense class and prior record level.
ANALYSIS
Absent objection by the prosecutor, the court has the discretion to include one or more risk reduction incentives in the
defendant’s sentence. Risk reduction incentives are treatment, education, and rehabilitative programs designed by DOC to
reduce the defendant’s likelihood of reoffending.
At sentencing, the defendant shall be notified that if the defendant completes the risk reduction incentives, he or she will be
released on the ASR date. If DOC determines that the defendant is unable to complete the incentives through no fault of the
defendant, it shall release the defendant at the ASR date. A defendant who fails to complete the risk reduction incentives, or
who violates DOC rules or regulations after completion but prior to the ASR date, shall be released based on the original
sentence. A defendant released on ASR is subject to post-release supervision (PRS). If the defendant has been returned to
prison for three three-month periods of confinement for violating PRS, a subsequent violation will result in the defendant
serving the remainder of the maximum sentence.
On April 8, 2011, the Commission reviewed a similar provision in HB 642 [Ed.1] and found G.S. 164-41 to be inapplicable.
A finding that the structure is not applicable does not imply support for, or opposition to, the bill.
FINDINGS
Bill is consistent with G.S. 164-41.
Bill is inconsistent with G.S. 164-41.
G.S. 164-41 is not applicable.
House Bill 642 changes some of the aspects of structured sentencing and, therefore, it is not possible to apply the current
structure to determine consistency. A finding that the structure is not applicable does not imply either support for or
opposition to the bill itself.
DATE REVIEWED: 06/03/11 BILL CONTINUED ON NEXT PAGE
48 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE PUNISHMENT RANGE FOR A CRIME/CLASS
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 642 – Justice Reinvestment Act [Ed.3] (cont’d)
STATUTE
§ 15A-1340.18. Advanced Supervised Release.
DESCRIPTION
A person who
1. receives a mitigated active sentence from the following cells of the felony punishment chart:
a. Class D felony, Prior Record Level I-III;
b. Class E felony, Prior Record Level I-IV;
c. Class F felony, Prior Record Level I-V; or
d. Class G or H felony, any Prior Record Level
2. and completes a court-ordered risk reduction incentive.
PUNISHMENT RANGE
CURRENT: Release after serving the maximum term imposed by the court, less any earned time credits awarded by the
Department of Correction (DOC) down to, but not below, the minimum term.
PROPOSED: Release on Advanced Supervised Release (ASR) after serving 80% of the minimum sentence imposed by the
court.
ANALYSIS
Absent objection by the prosecutor, the court has the discretion to include one or more risk reduction incentives in the
defendant’s sentence. Risk reduction incentives are treatment, education, and rehabilitative programs designed by DOC to
reduce the defendant’s likelihood of reoffending.
At sentencing, the defendant shall be notified that if the defendant completes the risk reduction incentives, he or she will be
released on the ASR date. If DOC determines that the defendant is unable to complete the incentives through not fault of the
defendant, it shall release the defendant at the ASR date. A defendant who fails to complete the risk reduction incentives, or
who violates DOC rules or regulations after completion but prior to the ASR date, shall be released based on the original
sentence. A defendant released on ASR is subject to post-release supervision (PRS). If the defendant has been returned to
prison for three three-month periods of confinement for violating PRS, a subsequent violation will result in the defendant
serving the remainder of the maximum sentence.
On April 8, 2011, the Commission reviewed a similar provision in HB 642 [Ed.1] and found G.S. 164-41 to be inapplicable.
A finding that the structure is not applicable does not imply support for, or opposition to, the bill.
FINDINGS
Bill is consistent with G.S. 164-41.
Bill is inconsistent with G.S. 164-41.
G.S. 164-41 is not applicable.
House Bill 642 changes some of the aspects of structured sentencing and, therefore, it is not possible to apply the current
structure to determine consistency. A finding that the structure is not applicable does not imply either support for or
opposition to the bill itself.
DATE REVIEWED: 06/03/11 IMPACT ANALYSIS NOT REQUESTED YET
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
49
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE CLASS OF AN EXISTING OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 674 – Amend Habitual Felon Law [Ed.1]
STATUTE
§ 14-7.1. Persons defined as habitual felons.
DESCRIPTION
A person who
1. commits a felony of Class G or higher
2. after being convicted of 3 prior felony offenses
a. of Class G or higher, or the equivalent thereof, and
b. committed within 15 years of the date of the principal felony.
OFFENSE CLASS
CURRENT: Class C felony (G.S. 14-7.6).
PROPOSED: One class higher than the principal felony, except where the person has been sentenced as
a Class A, B1, or B2 felon (G.S. 14-7.6).
ANALYSIS
Currently, any class of felony may qualify as the principal felony or any of the three prior felony
convictions used to establish a person’s habitual felon status. G.S. 14-7.1.
Currently, there is no 15-year time limit on the use of prior felony convictions to establish habitual felon
status. G.S. 14-7.1.
Structured Sentencing takes account of a felon’s prior convictions through the Prior Record Level.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 BILL CONTINUED ON NEXT PAGE
50 A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE CLASS OF AN EXISTING OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 674 – Amend Habitual Felon Law [Ed.1] (cont’d)
STATUTE
§ 15A-1340.16E. Enhanced sentence if defendant has at least three prior convictions of Class H or I
felonies.
DESCRIPTION
A person who
1. commits a Class H or I felony
2. after being convicted of 3 prior felony offenses
a. of Class H or I, or the equivalent thereof, and
b. committed within 10 years of the principal felony.
OFFENSE CLASS
CURRENT: Sentenced as a Class C felon. (G.S. 14-7.6).
PROPOSED: Sentenced to a minimum term of 20 months of active punishment and a maximum term
of 25 months. Upon completion of the active sentence, the person shall be released onto post-release
supervision for a period of 12 months (notwithstanding G.S. 15A-1368.2).
ANALYSIS
Currently, any class of felony may qualify as the principal felony or any of the three prior felony
convictions used to establish a person’s habitual felon status. G.S. 14-7.1.
Currently, there is no 10-year time limit on the use of prior felony convictions to establish habitual felon
status. G.S. 14-7.1.
A sentence of 20 to 25 months is not authorized under Structured Sentencing. G.S. 15A-1340.17(c)-(e).
Structured Sentencing takes account of a felon’s prior convictions through the Prior Record Level.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE OF REVIEW: 06/03/11 IMPACT ANALYSIS NOT REQUESTED YET
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
51
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CHANGE THE CLASS OF AN EXISTING OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 690 – Supervise RE Closings/Settlement Funds [Ed.3]
STATUTE
§ 84-8. Punishment for violations.
DESCRIPTION
A person, corporation, or association of persons that
1. without a license to practice law,
2. appears for another
a. in any bankruptcy or insolvency proceeding,
b. in any action or proceeding involving the appointment of a receiver,
c. in any matter involving an assignment for the benefit of creditors, or
d. to present or vote any claim of another
3. in violation of G.S. 84-9.
PROPOSED OFFENSE CLASS
Class 1 misdemeanor.
ANALYSIS
The Sentencing Commission recommended classifying offenses which reasonably tend to result or do result in
serious injury to property, or serious injury to society as Class 1 misdemeanors.
It is currently a Class 1 misdemeanor for a person, corporation, or association of persons to violate any of the
following statutes governing the unlicensed practice of law:
G.S. 84-4. Persons other than members of State Bar prohibited from practicing law.
G.S. 84-4.1. Limited practice of out-of-state attorneys.
G.S. 84-4.2. Summary revocation of permission granted out-of-state attorneys to practice.
G.S. 84-5. Prohibition as to practice of law by corporation.
G.S. 84-5.1. Rendering of legal services by certain nonprofit corporations.
G.S. 84-6. Exacting fee for conducting foreclosures prohibited to all except licensed attorneys.
G.S. 84-8.
FINDINGS
Bill is consistent with the Offense Classification Criteria.
Bill is inconsistent with Offense Classification Criteria.
Offense Classification Criteria are not applicable.
DATE PREPARED: 06/03/11 IMPACT ANALYSIS ON NEXT PAGE
52 SOURCE: NC Sentencing and Policy Advisory Commission, FY 2009/10 Structured Sentencing Simulation Data.
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
HB 690: SUPERVISE RE CLOSINGS/SETTLEMENTS FUNDS
PREPARED: APRIL 14, 2011
ADDITIONAL PRISON POPULATION ABOVE THAT PROJECTED
UNDER STRUCTURED SENTENCING
The bill amends G.S. 84-8, Punishment for violations. In new subsection (a), the bill reclassifies the
punishment for engaging in the unlicensed practice of law in violation of G.S. 84-4 through G.S. 84-6
from a Class 1 misdemeanor to a Class I felony, except as provided in new subsection (b), which retains
the current Class 1 misdemeanor classification for violations that are due solely to person’s law license
being inactive for failure to timely pay annual State Bar dues or to comply with continuing legal
education requirements. The bill also renders the offense in G.S. 84-8 inapplicable to violations of G.S.
84-7, District attorneys, upon application, to bring injunction or criminal proceedings.1
The Administrative Office of the Courts (AOC) currently does not have a specific offense code for
violations of G.S. 84-8. Therefore, the number of convictions under G.S. 84-8 in FY 2009/10 is
unknown. The lack of an AOC offense code indicates that this offense is infrequently charged and/or
infrequently results in convictions.
It is not known (1) how many current Class 1 misdemeanor convictions would be eliminated through the
bill’s decriminalization of G.S. 84-7 violations, or (2) how many Class 1 misdemeanor convictions
would be reclassified as Class I felonies under the bill’s amendments to G.S. 84-8. The Structured
Sentencing Simulation Model typically cannot be used to project the impact of misdemeanor to felony
reclassifications. In FY 2009/10, 17% of Class I convictions resulted in active sentences, with an
average estimated time served of 7 months. Using threshold data, if, for example, 10 convictions were
reclassified from Class 1 to Class I, this would result in the need for one additional prison bed the first
year and three additional prison beds the second year.
1 Section 84-7 imposes a duty on district attorneys “to indict any person, corporation, or association of persons upon the
receipt of information of the violation of the provisions of G.S. 84-4 to 84-8.”
A finding that a bill is either consistent or inconsistent with the Sentencing Commission’s Offense Classification
Criteria does not imply either support for or opposition to the bill itself.
53
NORTH CAROLINA SENTENCING AND POLICY ADVISORY COMMISSION
ANALYSIS OF BILL TO CREATE A NEW OFFENSE
(PREPARED PURSUANT TO G.S. 164-43)
BILL NUMBER/SHORT TITLE: HB 696 – Assault on Officer/Serious Injury/Penalty [Ed.2]
STATUTE
§ 14-34.7. Assault inflicting serious injury on a law enforcement, probation, or parole officer or on a
person employed at a State or local detention facility.
DESCRIPTION
Subsection (c):
A person who
1. assaults and
2. inflicts “physical injury” upon
a. a law enforcement, probation, or parole officer , or
b. a person employed at a State or local detention facility
3. while the officer or employee is discharging or attempting to discharge official duties.
PROPOSED OFFENSE CLASS
Class I felony.
ANALYSIS
The Sentencing Commission classified offenses which reasonably tend to result o