How Many Times Makes a Habit? Part 2- Habitual Breaking and/ or Entering

This blog recently posted about the changes to the Habitual Felon sentencing structures, as well as the changes to DWI sentencing for repeat offenders. This blog will discuss the addition of a habitual breaking and entering status.

The new law, defined in G.S. 14-7.25-7.31, states that a person can be charged, convicted , and sentenced as a habitual status offender upon the second (or subsequent) conviction of “breaking and entering”.  Felonies included as “breaking and entering” include:

  • First degree burglary (G.S. 14‑51);
  • Second degree burglary (G.S. 14‑51);
  • Breaking out of dwelling house burglary (G.S. 14‑53);
  • Breaking or entering buildings generally (G.S. 14‑54(a));
  • Breaking or entering a building that is a place of religious worship (G.S. 14‑54.1);
  • Any repealed or superseded offense substantially equivalent to any of the offenses listed above;
  • Any offense committed in another jurisdiction substantially similar to any of the offenses above.

The new habitual Breaking and Entering status operates much like the habitual felon status. It is important to remember that it is a status, not a crime. Having a prior Breaking and Entering felony is not enough to trigger prosecution as a habitual felon. Once convicted of a second Breaking and Entering felony, the status offender parts of the sentencing provisions attach.

The primary differences between habitual Breaking and Entering and habitual felony status offenses are the Breaking and Entering apply to a smaller selection of charges (see list above), and that Breaking and Entering habitual status goes into effect on the second conviction, as opposed to the fourth.

The habitual Breaking and Entering offender will be sentenced under Class E guidelines. How much of a punishment enhancement this is depends on the principal crime for which the defendant has been convicted. For one of the lower level crimes, felony breaking or entering buildings, this is a three class enhancement- conviction without the habitual status would have been at sentencing level Class H, exposing the defendant to approximately triple the sentence.  First-degree burglary and breaking out of a dwelling house burglary are sentenced as Class D, which is more severe than the habitual offender Class E guidelines. These offenses were included for the purpose of qualifying prior felonies, not for sentencing principal felonies after the changes to the law go into effect. However, convictions used to establish whether an offender is habitual are not counted when determining the offender’s prior record level.

When sentenced under the new law for habitual Breaking and Entering, be aware that sentences must run consecutively to any other sentences being served. In similar statutes, for instance the “regular” habitual felon statute, this requirement has been interpreted so that convictions sentenced at the same time may run concurrently. The requirement for consecutive sentences, when applied to suspended sentences, has not yet been clarified.

The new law seems to give a break to youthful offenders. To use the language of the statute itself, “felony offenses of breaking and entering committed before the person is 18 years of age shall not constitute more than one felony of breaking and entering.” G.S. 14-7.26. While the law makes a second conviction of Breaking and Entering into a habitual status, for someone under the age of 18, all of their Breaking and Entering felonies will count as one. On a practical level, this means that someone with multiple Breaking and Entering felonies at ages 16 and 17 will not have their “second”, or triggering, Breaking and Entering felony until they are 18.

Procedurally, the Breaking and Entering habitual felon status is almost identical to the existing habitual felon law. The habitual status offense charge must be brought in an indictment separate from the principal Breaking and Entering charge. The defendant is also entitled to the twenty day waiting period before being tried on the charge.

This change to existing Breaking and Entering laws will carry a cost. The Justice Reinvestment Act’s fiscal note projects that over 1,000 prison beds will need to be added over the next five years, in addition to anticipated costs of over $30 million being added. However, while these projections can be made by the Justice Reinvestment Act authors, there is no way to accurately predict the savings achieved by a successful deterrent to property crime.

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