State v. Jones - N.C. Supreme Court:

Simple Possession of Cocaine is a Felony

By Staff Attorney Ken Butler

On June 25, 2004 , the North Carolina Supreme Court completed its review of two recent Court of Appeals decisions regarding the status of the crime of simple possession of cocaine. In State v. Jones , 161 N.C. App. 60, 588 S.E.2d 5 (2003), and State v. Sneed, 161 N.C. App. 331, 588 S.E.2d 5 (2003), the Court of Appeals had held that the crime of possession of cocaine was a misdemeanor. The Supreme Court has now reversed those decisions. State v. Jones, No. 591PA03, 2004 N.C. Lexis 671 (N.C., June 25, 2004 ); State v. Sneed, No. 601PA03 (N.C., June 25, 2004 ).

In State v. Jones, the defendant pled guilty to possession with intent to sell and deliver cocaine, and to being an habitual felon. Mr. Jones entered this plea conditionally, with the understanding that he could appeal three issues, including the court's denial of a motion to suppress evidence. The North Carolina Court of Appeals determined that, under the statutes and rules governing a criminal defendant's right to appeal, it only had jurisdiction to consider the appeal of the motion to suppress. Since the defendant had bargained for appellate consideration of three motions and the court could only address one motion, the defendant could not have received the benefit of his plea bargain. However, before sending the case back to the lower court, the Court of Appeals also addressed the issue of jurisdiction concerning the habitual felon indictment.

The defendant had argued that the habitual felon indictment was invalid because one of the three convictions used to classify him as an habitual felon was a conviction for possession of cocaine. According to the law as it existed at the time of the crime:

"any person who violates G.S. 90-95(a)(3) [possession of a controlled substance] with respect to: . . .[a] controlled substance classified in Schedule II, III, or IV shall be guilty of a misdemeanor. . .." N.C. Gen. Stat. 90-95(d)(2) (1991). According to N.C. Gen. Stat. 90-90(a) 4., cocaine is a Schedule II controlled substance. N.C. Gen. Stat. 90-90(a) 4, (1991).

State v. Jones , 2003 N.C. App. LEXIS 1984 *12 . Thus, the defendant argued that possession of cocaine was a misdemeanor and could not be used as a predicate offense for an habitual felon indictment. The State, on the other hand, noted that N.C. Gen. Stat. 90-95(d)(2) provided that possession of cocaine "shall be punishable as a Class I felony," and argued that this meant that possession of cocaine was a felony. After reviewing general principles of statutory construction, including the principle that criminal statutes are to be "strictly construed against the State," the Court of Appeals held that possession of cocaine was a misdemeanor and the defendant's indictment as an habitual felon was defective.

The North Carolina Supreme Court granted discretionary review of these cases shortly after their decision in the Court of Appeals, and issued orders staying the effect of the decisions. The Court heard oral arguments on these cases in February, and filed its opinion on June 25, 2004 .

In addressing how to view the statutes creating the offense and punishments for possession of a Schedule II substance, the Supreme Court stated that:

When interpreting statutes, our principal goal is to effectuate the purpose of the legislature. When the language of a statute is clear and unambiguous, there is no room for judicial construction, and the courts must give it its plain and definite meaning. But where a statute is ambiguous, judicial construction must be used to ascertain the legislative will. Furthermore, where a literal interpretation of the language of a statute will contravene the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of the law shall control and the strict letter thereof shall be disregarded.

State v. Jones , 2004 N.C. Lexis 671, *9 (internal citations and quotations omitted).

The Court reviewed the legislative history of North Carolina's controlled substance and sentencing laws, going back to 1971, in order to find the General Assembly's intent. It was observed that, prior to the 1971 Controlled Substances Act (CSA), possession of cocaine had been a misdemeanor. However, the original language of the CSA suggested that this crime was changed to a felony. Subsequent amendments in 1973 and 1974 provided that possession of a Schedule II substance would generally be a misdemeanor, unless the quantity exceeded a specified amount. In the case of cocaine, the triggering amount was one gram. Where such quantities were present, "the violation shall be a felony punishable by a term of imprisonment of not more than five years, or a fine of not more than five thousand dollars ($5000), or both in the discretion of the court." State v. Jones , 2004 N.C. Lexis 671, *15.

The 1979 enactment of the Fair Sentencing Act resulted in changes to both North Carolina 's general sentencing statutes and specific criminal laws. One change was to N.C. Gen. Stat. 90-95(d)(2), which eliminated the language concerning the specific punishments for felony possession of Schedule II substances but simply asserted that such an offense would be "punishable as" a Class I felony. Later amendments removed the one gram limit, which made possession of any amount of cocaine a felony. The Jones Court further observed that:

The relevant session law was entitled "An Act to Make the Possession of Any Amount of Cocaine or Phenclyclidine a Felony ." Id. (emphasis added). The act's title, making no distinction between a classification for conviction purposes and for sentencing purposes, is further persuasive evidence that the General Assembly intended to classify possession of cocaine as a felony for all purposes.

2004 N.C. Lexis 671, *19.

The Court also took into consideration the fact that it has been the universal practice within the North Carolina criminal justice system for nearly 25 years to treat the possession of cocaine as a felony. Despite the fact that the controlled substances and sentencing laws have been frequently amended during this period, the General Assembly never acted to demonstrate that this interpretation of the law was incorrect. Had the Legislature felt that the courts and prosecutors were misinterpreting the statute, the laws could have been amended to make it clearer that possession of a Schedule II substance was actually a misdemeanor.

Nor was the Court swayed by the fact that the N.C. Gen. Stat. 90-95(d)(2) uses the phrase that possession of a Schedule II is "punishable as" a felony. It noted that "[t]he General Assembly routinely uses the phrases 'punished as' or 'punishable as' a 'felony' or 'felon' to classify certain crimes as felonies." State v. Jones , 2004 N.C. Lexis 671, *25-26. Furthermore, there are other statutes which use language similar to N.C. Gen. Stat. 90-95(d)(2), classifying an offense generally as a misdemeanor but allowing for elevation to a felony upon the existence of special circumstances. 2004 N.C. Lexis 671, *27-28 (citing N.C. Gen. Stat. 14-56.1 (2003) (providing that anyone who breaks into or forcibly opens a coin-or currency-operated machine "shall be guilty of a Class 1 misdemeanor, but if such person has previously been convicted of violating this section, such person shall be punished as a Class I felon."))

Finally, the Court observed that the Jones and Sneed opinions reached an opposite decision from another panel of the Court of Appeals which had previously held that possession of cocaine is a felony. See State v. Chavis, 134 N.C. App. 546, 555, 518 S.E.2d 241, 248 (1999) (concluding that N.C.G.S. § 90-95(d)(2) "clearly states that the possession of any amount of cocaine is a felony"), appeal dismissed and disc. rev. denied , 351 N.C. 362, 542 S.E.2d 220 (2000). The Supreme Court stated that "[i]n so doing, the two panels ignored a well-established rule of appellate law: 'Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.'" State v. Jones, 2004 N.C. Lexis 671, *31 (citing In re Appeal from Civil Penalty Assessed for Violations of Sedimentation Pollution Control Act , 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)).

Since the initial decisions by the Court of Appeals last year, many North Carolina prisoners have written to NCPLS about the Jones and Sneed cases. There was a prospect that these decisions might provide some basis for challenging convictions or sentences, particularly in the case of people convicted as habitual felons where cocaine possession was used as a predicate offense. That prospect has been extinguished by the North Carolina Supreme Court's interpretation of the law.