State Of North Carolina v. Whitaker

• Decision Date: 08 October 2010
• Docket Number: No. 21A10.,21A10.
• Citation: 700 S.E.2d 215,364 N.C. 404
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Douglas Dwayne WHITAKER.

364 N.C. 404

700 S.E.2d 215

STATE of North Carolina

v.Douglas Dwayne WHITAKER.

No. 21A10.

Supreme Court of North Carolina.

Oct. 8, 2010.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, --- N.C.App. ----, 689 S.E.2d 395 (2009), reversing in part and finding no error in part in judgments entered 10 June 2008 by Judge Lindsay R. Davis, Jr. in Superior Court, Moore County. Heard in the Supreme Court 7 September 2010.

Roy Cooper, Attorney General, by E. Michael Heavner, Assistant Attorney General, for the State.

Law Office of Bruce T. Cunningham, Jr., by Bruce T. Cunningham, Jr. and Amanda S. Zimmer, Southern Pines, for defendant-appellant.

BRADY, Justice.

This case requires us to determine whether the 2004 amendment to N.C.G.S. § 14-415.1, which prohibits convicted felons from possessing any firearm in any location, violates state and federal constitutional protections against ex post facto laws or is an unconstitutional bill of attainder. We hold that the amended statute is not an impermissible ex post facto law or bill of attainder. Accordingly, we affirm the decision of the Court of Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Douglas Dwayne Whitaker, a convicted felon with an extensive criminal record, was informed by Detective Sergeant George K. Dennis of the Moore County Sheriff's Office in June of 2005 that he could no longer possess the firearms currently in his residence because of a recent change in the law that bans felons from possessing any firearm. Defendant was also advised on 11 April 2006 by his probation and parole officer, Connie Burns, that according to the rules and regulations of his probation, he could not possess firearms. Despite these warnings, defendant failed to divest himself of his firearms, and on 27 April 2006, a search of defendant's bedroom revealed four rifles and seven shotguns, a total of eleven firearms. Defendant was not arrested and charged at that time, but voluntarily surrendered to authorities on 8 May 2006, when he was charged with eleven counts of possession of a firearm by a felon in violation of N.C.G.S. § 14-415.1.

Following the presentation of evidence and instruction by the trial court, the jury returned verdicts of guilty on all eleven charges. The trial court entered judgment on one count, sentencing defendant, who had a prior record level of V, to 18 to 22 months of imprisonment. The trial court arrested judgment on the other ten counts. Defendant appealed to the Court of Appeals, which in a divided decision reversed the ten convictions on which judgment had been arrested, but found no error in defendant's conviction upon which he was sentenced. State v. Whitaker, --- N.C.App. ----, ----, 689 S.E.2d 395, 406 (2009). The Court of Appeals held, inter alia, that the amended N.C.G.S. § 14-415.1 is not an ex post facto law or bill of attainder. Id. at ----, 689 S.E.2d at 405. An opinion concurring in part and dissenting in part would have held that the amended statute is an unconstitutional ex post facto law and an impermissible bill of attainder. Id. at ----, 689 S.E.2d at 407-08 (Elmore, J., concurring in part and dissenting in part). Defendant appealed as of right to this Court based on the dissenting opinion below.

ANALYSIS

A. Ex Post Facto

The United States and North Carolina Constitutions preserve the right of the people to be free from ex post facto laws. The United States Constitution provides that “[n]o State shall ... pass any ... ex post facto Law.” U.S. Const. art. I, § 10, cl. 1. Moreover, the North Carolina Constitution states: “Retrospective laws, punishing acts committed before the existence of such laws and by them only declared criminal, are oppressive, unjust, and incompatible with liberty, and therefore no ex post facto law shall be enacted.” N.C. Const. art. I § 16. This Court has articulated that “both the federal and state constitutional ex post facto provisions are evaluated under the same definition.” State v. Wiley, 355 N.C. 592, 625, 565 S.E.2d 22, 45 (2002) (citation omitted), cert. denied, 537 U.S. 1117, 123 S.Ct. 882, 154 L.Ed.2d 795 (2003).

[A]ny statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.

Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 70 L.Ed. 216 (1925).

Defendant asserts that the 2004 amendment to N.C.G.S. § 14-415.1 is an unconstitutional ex post facto law. In 1975 our General Statutes prohibited

the possession of “any handgun or other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches” by persons convicted of certain felonies, mostly of a violent or rebellious nature, “within five years from the date of such conviction, or unconditional discharge from a correctional institution, or termination of a suspended sentence, probation, or parole upon such conviction, whichever is later.” Act of June 26, 1975, ch. 870, sec. 1, 1975 N.C. Sess. Laws 1273.

Subsequently, in 1995 the General Assembly amended N.C.G.S. § 14-415.1 to prohibit the possession of such firearms by all persons convicted of any felony, without regard to the date of conviction or the completion of the defendant's sentence. Act of July 26, 1995, ch. 487, sec. 3, 1995 N.C. Sess. Laws 1414, 1417. The 1995 amendment did not change the previous provision in N.C.G.S. § 14-415.1 stating that “nothing [therein] would prohibit the right of any person to have possession of a firearm within his own house or on his lawful place of business.” However, in 2004 the General Assembly amended N.C.G.S. § 14-415.1 to extend the prohibition on possession to all firearms by any person convicted of any felony, even within the convicted felon's own home and place of business. Act of July 15, 2004, ch. 186, sec. 14.1, 2004 N.C. Sess. Laws 716, 737.

Britt v. State, 363 N.C. 546, 547-48, 681 S.E.2d 320, 321 (2009). ¹ It should be noted that the trial court's judgment against defendant was not for any prior act but was consistent with defendant's possession of a firearm in 2006, over two years after N.C.G.S. § 14-415.1 was amended to prohibit such action. In the strictest sense, defendant's conviction is for an offense that he committed after his actions were deemed criminal, namely the possession of any firearm by a felon. The question then becomes whether the 2004 amendment to N.C.G.S. § 14-415.1 is an ex post facto law, not because it imposes punishment for future acts, but because it prohibits the possession of firearms by a convicted felon, which defendant asserts operates as a form of enhanced punishment for his prior felonies. ²

Defendant does not assert, and we do not hold, that the General Assembly's express or implied intent was to impose further punishment upon convicted felons by prohibiting them from possessing firearms. See Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (stating that an ex post facto analysis begins by considering whether “the intention of the legislature was to impose punishment” (citing Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997))). Thus, we move to the second phase of ex post facto analysis, which requires us to determine whether the 2004 amendment to N.C.G.S. § 14-415.1 is “so punitive either in purpose or effect as to negate” the legislature's civil intent. Id. at 92, 123 S.Ct. 1140 (quoting Hendricks, 521 U.S. at 361, 117 S.Ct. 2072) (internal quotation marks omitted). The Supreme Court of the United States has laid out several factors that are instructive but not exhaustive.

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment[,] whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment-retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry....

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) (footnotes omitted). Of these factors, defendant argues that the statute is not rationally related to the legislature's nonpunitive intent and that the scope of the 2004 amendment is excessive when compared with the purpose of protecting public safety. We disagree.

It is clear that the General Assembly's nonpunitive intent is to protect the public from future violent actions of those it has deemed by its classification of offenses to be either most dangerous or to have demonstrated a heightened disregard for the law. Thus, the question is whether prohibiting convicted felons from possessing firearms that do not fall under the definition of antique firearms is rationally connected to the purpose of public safety. The Supreme Court of the United States asserted that a legislature's “judgment that a convicted felon ... is among the class of persons who should be disabled from dealing in or possessing firearms because of potential dangerousness is rational.” Lewis v. United States, 445 U.S. 55, 67, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (discussing the federal ban on possession of firearms by convicted felons in the context of the equal protection clause). Moreover, the Court emphasized that questioning the legislature's judgment on this issue “seems plainly inconsistent with the deference that a reviewing court should give to a legislative determination that, in essence, predicts a potential for future criminal behavior.” Id. at n. 9. Moreover, the Supreme Court of the United States has...