State v. Johnson

• Decision Date: 05 April 2005
• Docket Number: No. COA03-1123.,COA03-1123.
• Citation: 610 S.E.2d 739,169 NC App. 301
• Parties: STATE of North Carolina v. Carlton P. JOHNSON.
• Court: North Carolina Court of Appeals

610 S.E.2d 739

169 NC App. 301

STATE of North Carolina v. Carlton P. JOHNSON.

No. COA03-1123.

Court of Appeals of North Carolina.

April 5, 2005.

Attorney General Roy Cooper, by Assistant Attorney General Robert C. Montgomery, for the State.

William T. Peregoy, Wilmington, for defendant-appellant. STEELMAN, Judge.

Defendant, Carlton P. Johnson, appeals his conviction for possession of a firearm by a convicted felon. For the reasons discussed herein, we find no error.

I. Background

Defendant was convicted on 31 January 1983 of felonious sale and delivery of cocaine. On 15 December 2001, during a traffic stop, a police officer found a .38 caliber revolver in defendant's possession. Defendant was indicted and found guilty by a jury for the felony of possession of a firearm by a felon pursuant to N.C. Gen.Stat. § 14-415.1. The trial court sentenced defendant to twelve to fifteen months imprisonment, but suspended the sentence and placed defendant on probation. Defendant appeals.

II. Issues

The issues presented on appeal are whether the application of N.C. Gen.Stat. § 14-415.1, as amended in 1995, to defendant: (1) violates the constitutional prohibitions against ex post facto laws; (2) constitutes an unconstitutional bill of attainder; and (3) had the effect of unconstitutionally stripping defendant of a vested right in violation of due process.

III. Felony Firearms Act: N.C. Gen.Stat. § 14-415.1

In 1971, the General Assembly enacted the Felony Firearms Act, N.C. Gen.Stat. § 14-415.1, which made unlawful the possession of a firearm by any person previously convicted of a crime punishable by imprisonment of more than two years. N.C. Gen.Stat. § 14-415.2 set forth an exemption for felons whose civil rights had been restored. 1971 N.C. Sess. Laws ch. 954, § 2.

In 1975, the General Assembly repealed N.C. Gen.Stat. § 14-415.2 and amended N.C. Gen.Stat. § 14-415.1 to ban the possession of firearms by persons convicted of certain crimes for five years after the date of "such conviction, or unconditional discharge from a correctional institution, or termination of a suspended sentence, probation, or parole upon such convictions, whichever is later." 1975 N.C. Sess. Laws ch. 870, § 1. This was the law in effect in 1983 when defendant was convicted of a felony covered by the statute and in 1985 when his conviction was unconditionally discharged.

In 1995, the General Assembly amended N.C. Gen.Stat. § 14-415.1 to prohibit possession of certain firearms by all persons convicted of any felony. 1995 N.C. Sess. Laws ch. 487, § 3. The statute now provides, "[i]t shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm...." N.C. Gen.Stat. § 14-415.1(a) (2004). The current statute applies to "[f]elony convictions in North Carolina that occur before, on, or after 1 December 1995." N.C. Gen.Stat. § 14-415.1(b)(1).

IV. Ex Post Facto Law

In his first assignment of error, defendant contends his conviction for possession of a firearm by a felon, in violation of N.C. Gen.Stat. § 14-415.1, violates the constitutional prohibition against ex post facto laws and should be vacated. Defendant asserts that at the time of his previous felony conviction in 1983, N.C. Gen.Stat. § 14-415.1 permitted him to possess a firearm five years after the date of discharge of the conviction, and thus, his conviction under N.C. Gen.Stat. § 14-415.1 as amended in 1995, violates the ex post facto clauses of the United States and North Carolina Constitutions. He argues the 1995 amendment to the statute changed the law to retroactively deprive him of his formerly restored right and punished him for conduct that was not previously criminal. We disagree.

"The United States and the North Carolina Constitutions prohibit the enactment of ex post facto laws." State v. Wiley, 355 N.C. 592, 625, 565 S.E.2d 22, 45 (2002) (citing U.S. Const. art. I, § 10 which provides "No state shall... pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts...." and N.C. Const. art. I, § 16 which 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"), cert. denied, 537 U.S. 1117, 123 S.Ct. 882, 154 L.Ed.2d 795 (2003). We will consider defendant's state and federal constitutional arguments jointly, as both the state and federal constitutional ex post facto provisions are evaluated under the same standard. Wiley, 355 N.C. at 625, 565 S.E.2d at 45.

The prohibition against the enactment of ex post facto laws applies in four instances:

`1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.2d. Every law that aggravates a crime, or makes it greater than it was, when committed.3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.'

Id. (quoting Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30, 38-39 (1990)) (emphasis in original).

A. Criminalizing An Act That Was Innocent When Committed

The overwhelming majority of courts have held that a statute which forbids possession of a firearm by a convicted felon does not violate the ex post facto clause even when the felony for which the defendant was convicted took place before the enactment of the statute. See United States v. O'Neal, 180 F.3d 115, 124-25 (4th Cir.1999); United States v. Mitchell, 209 F.3d 319, 324 (4th Cir.), cert. denied, 531 U.S. 849, 121 S.Ct. 123, 148 L.Ed.2d 78 (2000) (citing cases); United States v. Brady, 26 F.3d 282, 291 (2d Cir.), cert. denied, 513 U.S. 894, 115 S.Ct. 246, 130 L.Ed.2d 168 (1994); State v. Peters, 261 Neb. 416, 622 N.W.2d 918, 924-25, cert. denied, 533 U.S. 952, 121 S.Ct. 2596, 150 L.Ed.2d 754 (2001); State v. Swartz, 601 N.W.2d 348, 351 (Iowa 1999), cert. denied, 528 U.S. 1167, 120 S.Ct. 1189, 145 L.Ed.2d 1094 (2000); People v. Tice, 220 Mich.App. 47, 558 N.W.2d 245, 247 (1996); Dodson v. Commonwealth, 23 Va.App. 286, 476 S.E.2d 512, 516-18 (1996); Finley v. State, 282 Ark. 146, 666 S.W.2d 701, 703 (1984); Landers v. State, 250 Ga. 501, 299 S.E.2d 707 (1983); State v. Williams, 358 So.2d 943, 946 (La.1978).

The relevant time period to be considered when determining whether a statute creates an ex post facto law is the date on which the criminal offense the defendant is currently being charged with was committed. Wiley, 355 N.C. at 626, 565 S.E.2d at 46. C.f. State v. White, 162 N.C.App. 183, 198, 590 S.E.2d 448, 458 (2004) (holding that although the defendant's conviction requiring him to register as a sex offender occurred in 1995, the legislature's amendment in 1998 to the statutory registration requirement did not create an ex post facto law because the "defendant violated the registration requirements in 2001, three years after the change in the law."); Landers, 299 S.E.2d at 710. Here, the relevant time period is not the date of defendant's prior 1983 felony conviction, but 15 December 2001, the date of the offense charged in this case.

We concur with the majority of jurisdictions that hold the ex post facto clause is not violated under the circumstances in this case. "`It is hornbook law that no ex post facto problem occurs when the legislature creates a new offense that includes a prior conviction as an element of the offense, as long as the other relevant conduct took place after the law was passed.'" State v. White, 162 N.C.App. at 197, 590 S.E.2d at 457 (quoting Russell v. Gregoire, 124 F.3d 1079, 1088-89 (9th Cir.1997),cert. denied, 523 U.S. 1007, 118 S.Ct. 1191, 140 L.Ed.2d 321 (1998)). N.C. Gen.Stat. § 14-415.1 as amended applies to defendant because he has the status of a convicted felon, although he acquired that status in 1983, prior to the amendment. The Felony Firearms Act applies to the possession of a firearm that occurs after the effective date of the statute. Defendant was found guilty of possession of a firearm five years after the 1995 amendment to the statute took effect. By 2001, defendant had more than adequate notice that it was illegal for him to possess a firearm because of his status as a convicted felon, and he could have conformed his conduct to the requirements of the law. Accord Brady, 26 F.3d at 291. Furthermore, defendant's possession of a handgun in violation of N.C. Gen.Stat. § 14-415.1 was neither done before the passing of the law, nor innocent when done.

B. Aggravating a Crime

As stated above, any law that "`aggravates a crime, or makes it greater than it was, when committed'" is prohibited as an ex post facto law. Wiley, 355 N.C. at 625, 565 S.E.2d at 45 (emphasis in original) (citations omitted).

An example of this type of law is discussed in the South Dakota case of State v. Trower, 629 N.W.2d 594 (S.D.2001), which plaintiff relies upon. In 1990, Trower was convicted of a child sex offense. After his conviction that offense was redefined as a "crime of violence." Id. at 597. Under South Dakota law, persons convicted of a crime of violence were prohibited from possessing firearms. The court in Trower held the redefinition of the defendant's prior offense as a "crime of violence" violated the ex post facto clause. Id. at 598 (relying on the case of United States v. Davis, 936 F.2d 352 (8th Cir.1991)).

We conclude this analysis is not applicable to the instant case. Defendant was convicted of a felony, sale and delivery of cocaine, in 1983. There have been no changes in the laws of North Carolina redefining this offense. It was a felony in 1983, it was a...