               IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 455PA16

                                 Filed 6 April 2018

STATE OF NORTH CAROLINA

              v.
WILLIAM SHELDON HOWELL



      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 792 S.E.2d 898 (2016), reversing a

judgment entered on 9 December 2015 by Judge Mark E. Powell in Superior Court,

Transylvania County, and remanding for resentencing. Heard in the Supreme Court

on 11 December 2017.


      Joshua H. Stein, Attorney General, by Tracy Nayer, Assistant Attorney General,
      for the State-appellant.

      Edward Eldred for defendant-appellee.


      MORGAN, Justice.


      In this case we are called upon to determine whether language in N.C.G.S. §

90-95(e)(3) of the North Carolina Controlled Substances Act (“the Act”), which

provides that a Class 1 misdemeanor “shall be punished as a Class I felon[y]” when

the misdemeanant has committed a previous offense punishable under the Act,

procedurally enhances punishment for the misdemeanor offense or instead creates a

substantive felony offense. Relying on our reasoning in State v. Jones, 358 N.C. 473,
                                  STATE V. HOWELL

                                  Opinion of the Court



598 S.E.2d 125 (2004), we conclude that the General Assembly intended for

subdivision (e)(3) to establish a separate felony offense rather than merely to serve

as a sentence enhancement of the underlying misdemeanor.

      On 27 October 2014, defendant William Sheldon Howell was indicted for

several offenses alleged to have been committed on 10 October 2014, including

possession with intent to sell or deliver approximately fifteen grams of marijuana,

maintaining a dwelling used for keeping and selling marijuana, and knowingly

possessing with the intent to use drug paraphernalia. Also on 27 October 2014,

defendant was indicted for attaining the status of habitual felon. One of the three

underlying felonies listed in the habitual felon indictment was a 27 August 2003

conviction in Buncombe County for felonious possession with intent to sell or deliver

marijuana. As a result of the events of 10 October 2014, on 15 June 2015, defendant

was further indicted for (1) possessing over one-half ounce but less than one and one-

half ounces of marijuana, a Class 1 misdemeanor under N.C.G.S. § 90-95(d)(4) of the

Act, and (2) having been previously convicted of an offense under the Act, namely,

the above-referenced August 2003 conviction in Buncombe County.

      On 9 December 2015, defendant entered into a plea agreement with the State,

in which defendant would (1) plead guilty to the N.C.G.S. § 90-95(d)(4) marijuana

possession charge, (2) acknowledge his prior convictions in violation of the Act, and

(3) admit his habitual felon status in exchange for the State’s dismissal of other

pending charges. In the Superior Court, Transylvania County, Judge Mark E. Powell



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                                     Opinion of the Court



accepted defendant’s plea and entered a consolidated judgment on the charges, noting

that, although the marijuana possession charge was “a Class 1 misdemeanor, . . . I’m

treating it as a Class I felony because of the prior conviction. And that Class I felony

because of the habitual felon status is punished as a Class E felony.”1 The trial court

sentenced defendant to an active term of twenty-nine to forty-seven months,

suspended the period of incarceration, and placed defendant on supervised probation

for thirty-six months.

       Defendant appealed to the North Carolina Court of Appeals, where he argued

that the trial court erred by enhancing his sentence for misdemeanor possession of

marijuana to a Class I felony due to his prior conviction under the Act and then from

a Class I felony to a Class E felony based on his habitual felon status. In an opinion

filed on 6 December 2016, the Court of Appeals agreed, reversing and remanding the

case for resentencing. State v. Howell, ___ N.C. App. ___, 792 S.E.2d 898 (2016). The

Court of Appeals reasoned that, “while defendant’s Class 1 misdemeanor [was]

punishable as a felony under the circumstances present here, the substantive offense

remain[ed] a Class 1 misdemeanor” and defendant’s “habitual felon [status could not]

be used to further enhance a sentence that [wa]s not itself a substantive offense.” Id.

at ___, 792 S.E.2d at 901.



       1  The habitual felon statute provides that a person convicted of a felony who has
attained habitual felon status “must . . . be sentenced and punished as an habitual felon.”
N.C.G.S. § 14-7.2 (2017). In turn, a defendant punished as an habitual felon receives a
sentence four classes higher than the principal felony for which the person was convicted. Id.
§ 14-7.6 (2017).


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                                   STATE V. HOWELL

                                   Opinion of the Court



      The State sought discretionary review of the Court of Appeals decision, and

this Court allowed the State’s petition by order entered on 16 March 2017. When this

Court looks at a determination of the Court of Appeals by way of discretionary review,

our task “is to determine whether there is any error of law in the decision of the Court

of Appeals and only the decision of that court is before us for review.” State v. Brooks,

337 N.C. 132, 149, 446 S.E.2d 579, 590 (1994) (citations omitted).

      The State contends that, in failing to discuss and apply this Court’s opinion in

Jones, the reasoning of which the State asserts is controlling here, the Court of

Appeals erroneously determined that N.C.G.S. § 90-95(e)(3) does not create a

substantive felony offense.      We agree with the State’s interpretation of the

applicability of our decision in Jones to the case at bar.

      An explanation of our resolution of the issue in this appeal is facilitated by a

brief review of three subsections of section 90-95 of the Act: N.C.G.S. § 90-95(a), (d),

and (e). The first subsection contains general provisions that criminalize making,

selling, delivering, and possessing controlled substances and counterfeit controlled

substances. N.C.G.S. § 90-95(a)(1), (2) (2017). Pertinent to this case, the third

subdivision of subsection (a) makes it unlawful “[t]o possess a controlled substance.”

Id. § 90-95(a)(3) (2017).

      The second of the cited subsections sets forth how violations of N.C.G.S. § 90-

95(a)(3) are punished based upon what type of controlled substance is possessed.

Under N.C.G.S. § 90-95(d), “any person who violates G.S. 90-95(a)(3) with respect to:”



                                           -4-
                     STATE V. HOWELL

                     Opinion of the Court



(1) A controlled substance classified in Schedule I shall be
    punished as a Class I felon. However, if the controlled
    substance is MDPV and the quantity of the MDPV is 1
    gram or less, the violation shall be punishable as a
    Class 1 misdemeanor.

(2) A controlled substance classified in Schedule II, III, or
    IV shall be guilty of a Class 1 misdemeanor. If the
    controlled substance exceeds four tablets, capsules, or
    other dosage units or equivalent quantity of
    hydromorphone or if the quantity of the controlled
    substance, or combination of the controlled substances,
    exceeds one hundred tablets, capsules or other dosage
    units, or equivalent quantity, the violation shall be
    punishable as a Class I felony. If the controlled
    substance is methamphetamine, amphetamine,
    phencyclidine, or cocaine and any salt, isomer, salts of
    isomers, compound, derivative, or preparation thereof,
    or coca leaves and any salt, isomer, salts of isomers,
    compound, derivative, or preparation of coca leaves, or
    any salt, isomer, salts of isomers, compound, derivative
    or preparation thereof which is chemically equivalent
    or identical with any of these substances (except
    decocanized coca leaves or any extraction of coca leaves
    which does not contain cocaine or ecgonine), the
    violation shall be punishable as a Class I felony.

(3) A controlled substance classified in Schedule V shall be
    guilty of a Class 2 misdemeanor;

(4) A controlled substance classified in Schedule VI shall
    be guilty of a Class 3 misdemeanor, but any sentence
    of imprisonment imposed must be suspended and the
    judge may not require at the time of sentencing that
    the defendant serve a period of imprisonment as a
    special condition of probation. If the quantity of the
    controlled substance exceeds one-half of an ounce
    (avoirdupois) of marijuana or one-twentieth of an
    ounce (avoirdupois) of the extracted resin of marijuana,
    commonly known as hashish, the violation shall be
    punishable as a Class 1 misdemeanor. If the quantity
    of the controlled substance exceeds one and one-half


                             -5-
                                      STATE V. HOWELL

                                      Opinion of the Court



                   ounces (avoirdupois) of marijuana, or three-twentieths
                   of an ounce (avoirdupois) of the extracted resin of
                   marijuana, commonly known as hashish, or if the
                   controlled substance consists of any quantity of
                   synthetic          tetrahydrocannabinols             or
                   tetrahydrocannabinols isolated from the resin of
                   marijuana, the violation shall be punishable as a Class
                   I felony.

Id. § 90-95(d) (2017). Thus, possession of marijuana falls under subdivision (d)(4),

which mandates that possession of more than one-half but less than one and one-half

ounces of that controlled substance—the amount defendant here pleaded guilty to

possessing—is “punishable as a Class 1 misdemeanor.” Id. § 90-95(d)(4). But, the

provisions of subdivision (d)(4) are subject to modification by subsection (e), which

specifies different punishments for possession of controlled substances under certain

conditions,2 including when a defendant has been previously convicted for a violation

of the Act:

                     (e) The prescribed punishment and degree of any
              offense under this Article shall be subject to the following
              conditions, but the punishment for an offense may be
              increased only by the maximum authorized under any one
              of the applicable conditions:

                      ...

                      (3) If any person commits a Class 1 misdemeanor
                          under this Article and if he has previously been
                          convicted for one or more offenses under any law

       2 Other conditions listed in subsection (e) include, inter alia, that the sale or delivery
of the controlled substance was by an adult to a person under age sixteen or to a pregnant
woman (subdivision (e)(5)), by an adult near a school or child care center (subdivision (e)(8)),
or on the grounds of “a penal institution or local confinement facility” (subdivision (e)(9)).
N.C.G.S. § 90-95(e) (2017).


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                                      STATE V. HOWELL

                                       Opinion of the Court



                           of North Carolina or any law of the United States
                           or any other state, which offenses are punishable
                           under any provision of this Article, he shall be
                           punished as a Class I felon. The prior conviction
                           used to raise the current offense to a Class I
                           felony shall not be used to calculate the prior
                           record level.

Id. § 90-95(e)(3) (2017) (emphases added). There is no dispute between the parties

that, under this subdivision and in light of his plea agreement, defendant was subject

to punishment as a Class I felon for possession of marijuana. Instead, the contested

issue is the effect of subdivision (e)(3) on the offense for which defendant was

convicted—whether the offense was a Class I felony or only a Class 1 misdemeanor

with the sentence enhanced to the level of a Class I felon.

       In Jones this Court considered an analogous question with regard to possession

of a different controlled substance: “whether the North Carolina General Assembly

classifie[d] the offense of possession of cocaine as a misdemeanor or a felony under

N.C.G.S. § 90-95(d)(2).” 358 N.C. at 474, 598 S.E.2d at 126. The defendant had been

indicted for and acknowledged the status of, inter alia, being an habitual felon, with

one of the three underlying felonies being a 12 November 19913 conviction for



       3  As the State notes, the 1991 conviction for possession of cocaine by the defendant in
Jones “was governed by a prior version of section 90-95(d)(2).” Jones, 358 N.C. at 477 n.5,
598 S.E.2d at 127 n.5 (citing N.C.G.S. § 90-95(d)(2) (Supp. 1991) (amended 1993)). However,
because “the text of the statute relevant to the issue presented by [the Jones] appeal
remain[ed] the same . . . as it appeared in November 1991,” the Court “refer[red] only to the
[then] current version of section 90-95(d)(2) in [its] opinion.” Id. at 477 n.5, 598 S.E.2d at 127
n.5. Despite additional amendments to section 90-95 in the years since Jones was decided,
the critical language of subdivision (d)(2)—providing that, generally, a person who possesses
a Schedule II controlled substance is “guilty of a Class 1 misdemeanor,” but that a conviction


                                               -7-
                                   STATE V. HOWELL

                                   Opinion of the Court



possession of cocaine. Id. at 474, 598 S.E.2d at 126. “Pursuant to his plea agreement,

[the] defendant preserved a right to appeal the trial court’s denial of his . . . motion

to dismiss his habitual felon indictment.” Id. at 475, 598 S.E.2d at 126. On appeal,

the defendant

             contended that his habitual felon indictment was
             insufficient because . . . the 1991 conviction for possession
             of cocaine[ ] was classified as a misdemeanor under
             N.C.G.S. § 90-95(d)(2). A panel of the Court of Appeals
             unanimously agreed based upon its conclusion that in 1991
             N.C.G.S. § 90-95(d)(2) “plainly” classified possession of
             cocaine as a misdemeanor.

Id. at 475, 598 S.E.2d at 126 (citation omitted). Cocaine is a Schedule II controlled

substance. N.C.G.S. § 90-90(1)(d) (2017). As noted above, subdivision 90-95(d)(2)

states that, while generally a person in possession of a specified amount of “[a]

controlled substance classified in Schedule II . . . shall be guilty of a Class 1

misdemeanor,” if the controlled substance possessed is cocaine, “the violation shall be

punishable as a Class I felony.” Id. § 90-95(d)(2).

      In Jones the defendant made a very similar argument to the one advanced by

defendant in the present case:

             that under the plain language of section 90-95(d)(2), the
             offense of possession of cocaine is a misdemeanor. . . .
             [because] cocaine [is] a Schedule II controlled substance,
             and the first sentence of section 90-95(d)(2) . . . states that
             a person in possession of a “Schedule II, III, or IV”
             controlled substance is “guilty of a Class 1 misdemeanor.”
             According to [the] defendant, the statute’s third sentence,


for possession of the Schedule II controlled substance cocaine is “punishable as a Class I
felony”—has remained unchanged. See N.C.G.S. § 90-95(d)(2) (2017).


                                           -8-
                                   STATE V. HOWELL

                                   Opinion of the Court



             providing that a conviction for possession of cocaine is
             “punishable as a Class I felony,” does not serve to classify
             possession of cocaine as a felony for determining habitual
             felon status. Rather, that phrase simply denotes the
             proper punishment or sentence for a conviction for
             possession of cocaine.

358 N.C. at 477, 598 S.E.2d at 127-28 (internal citations omitted). This Court firmly

rejected that construction of the statute, holding that the more specific exceptions set

forth in the third sentence of N.C.G.S. § 90-95(d)(4) controlled over the general rule

set out in the first sentence, since “the phrase shall be ‘punishable as a Class I felony’

does not simply denote a sentencing classification, but rather, dictates that a

conviction for possession of the substances listed therein, including cocaine, is

elevated to a felony classification for all purposes.” Id. at 478, 598 S.E.2d at 128.

Further, the Court “acknowledge[d] that the General Assembly utilizes differing

terminology to classify criminal offenses as felonies,” while still rejecting the

“defendant’s argument that these differences indicate the General Assembly’s intent

to create a special felony sentencing classification for possession of cocaine.” Id. at

484, 598 S.E.2d at 132. Pertinent to the instant appeal, the court in Jones also

observed:

                    The General Assembly routinely uses the phrases
             “punished as” or “punishable as” a “felony” or “felon” to
             classify certain crimes as felonies. See, e.g., N.C.G.S. § 14-
             18 (2003) (providing that “[v]oluntary manslaughter shall
             be punishable as a Class D felony, and involuntary
             manslaughter shall be punishable as a Class F felony”);
             N.C.G.S. § 14-30 (2003) (stating that a person who commits
             the crime malicious maiming “shall be punished as a Class
             C felon”); N.C.G.S. § 14-39(b) (2003) (noting that first-


                                           -9-
                                    STATE V. HOWELL

                                    Opinion of the Court



              degree kidnapping “is punishable as a Class C felony” and
              that second-degree kidnapping “is punishable as a Class E
              felony”); N.C.G.S. § 14-52 (2003) (stating that “burglary in
              the first degree shall be punishable as a Class D felony, and
              burglary in the second degree shall be punishable as a
              Class G felony”); N.C.G.S. § 14-58 (2003) (providing that
              first-degree arson “is punishable as a Class D felony” and
              that second-degree arson “is punishable as a Class G
              felony”); N.C.G.S. § 14-202.1(b) (2003) (stating that
              “[t]aking indecent liberties with children is punishable as
              a Class F felony”); N.C.G.S. § 20-106 (2003) (providing that
              a person guilty of receiving or transferring stolen vehicles
              “shall be punished as a Class H felon”); N.C.G.S. § 20-
              138.5(a), (b) (2003) (noting, pursuant to the habitual
              impaired driving statute, that if a person drives while
              impaired and has been convicted of three or more offenses
              involving impaired driving as defined by N.C.G.S. § 20-
              4.01(24a) within the previous seven years, that person
              “shall be punished as a Class F felon”).

Id. at 484-85, 598 S.E.2d at 132 (brackets in original). This Court noted that these

examples and “other statutes contain a structure similar to N.C.G.S. § 90-95(d)(2), in

which a crime is classified as a misdemeanor, but elevated to a felony by the language

‘punishable’ or ‘punished’ as a ‘felony’ or ‘felon’ where special circumstances exist.” Id.

at 485, 598 S.E.2d at 132 (emphasis added). This Court then concluded that, under

subdivision (d)(2), “the offense of possession of cocaine is classified as a felony for all

purposes.” Id. at 486, 598 S.E.2d at 133.

       Here the critical language in subdivision (e)(3) is “shall be punished as a Class

I felon.” N.C.G.S. § 90-95(e)(3). As we held in Jones, the effect of such phrases is to

elevate an offense that would otherwise be a misdemeanor to a felony when the

specified conditions are met. We further note that the General Assembly’s intent is



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                                    STATE V. HOWELL

                                    Opinion of the Court



even clearer in this case in light of the explicit wording of the applicable subsection.

Subsection (e), by its plain language, addresses how specific conditions, like a

misdemeanant’s prior convictions under the Act, affect two determinations: “[t]he

prescribed punishment and degree of any offense under this Article . . . .” Id. § 90-

95(e) (emphasis added).      The emphasized phrase denotes that the subsequent

provisions of the statute affect not only the designated punishment but also the

degree of the offenses discussed when the listed conditions are present. Likewise, the

final sentence of subdivision (e)(3) states that “[t]he prior conviction used to raise the

current offense to a Class I felony shall not be used to calculate the prior record level,”

indicating that the General Assembly intended the effect of the conditions listed in

the subdivision to not simply enhance the punishment of a misdemeanor as defendant

contends but rather “to raise the current offense to a Class I felony.” See id. § 90-

95(e)(3) (emphasis added).

      In conclusion, we hold that, under the reasoning of Jones and in light of the

plain language of N.C.G.S. § 90-95(e)(3), possession of more than one-half but less

than one and one-half ounces of marijuana in violation of N.C.G.S. § 90-95(d)(4) by a

defendant with a prior conviction for an offense punishable under the Act “is classified

as a [Class I] felony for all purposes.” Jones, 358 N.C. at 486, 598 S.E.2d at 133.

Accordingly, the Court of Appeals erred in determining that “the substantive offense

remain[ed] a Class 1 misdemeanor” and that, as a consequence, defendant’s “habitual

felon [status could not] be used to further enhance a sentence that [wa]s not itself a



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                                   STATE V. HOWELL

                                   Opinion of the Court



substantive offense.” Howell, ___ N.C. App. at ___, 792 S.E.2d at 901. The trial court

here properly elevated defendant’s possession of marijuana offense to a Class I felony

on the basis of his prior conviction under the Act, and then correctly punished that

substantive Class I felony as a Class E felony on the basis of defendant’s habitual

felon status.

      Accordingly, we reverse the decision of the Court of Appeals on this issue and

instruct that court to reinstate the trial court’s judgment.

      REVERSED.




      Justice BEASLEY dissenting.

      In this case the conduct for which defendant was sentenced was his possession

of between one-half ounce and one and one-half ounces of marijuana. The majority’s

statutory interpretation affirms a sentence that first elevates a Class 1 misdemeanor

to a Class I felony due to defendant’s past conduct and second, based on this “felony,”

further enhances defendant’s sentence to a Class E felony also due to defendant’s past

conduct. I dissent from the majority opinion because I do not believe this Court’s

opinion in State v. Jones controls the interpretation of this statutory provision, and

furthermore, under the majority’s interpretation of how these provisions work

together, the sentence is not proportional to the crime and is excessive in light of

defendant’s charged conduct.



                                          -12-
                                      STATE V. HOWELL

                                     Beasley, J., dissenting



       First, Jones is distinguishable from this case because in Jones, the Court

interpreted an entirely different provision in N.C.G.S. § 90-95. See generally State v.

Jones, 358 N.C. 473, 598 S.E.2d 125 (2004) (interpreting N.C.G.S. § 90-95(d)(2) to

conclude that the possession of cocaine is classified as a Class I felony rather than

enhanced from a Class 1 misdemeanor to a Class I felony). The Court’s interpretation

in Jones of N.C.G.S. § 90-95(d)(2) should not control how we interpret N.C.G.S. § 90-

95(e)(3). In Jones the provision at issue stated, “If the controlled substance is . . .

cocaine . . . the violation shall be punishable as a Class I felony.” 358 N.C. at 476-77,

598 S.E.2d at 127 (quoting N.C.G.S. § 90-95(d)(2) (2003) (emphasis added)). The

language and structure of subdivision 90-95(d)(2) as analyzed in Jones are analogous

to subdivision 90-95(d)(4)1 and, in this case, support the majority’s interpretation of

subdivision 90-95(d)(4) to elevate defendant’s Class 3 misdemeanor to a Class 1

misdemeanor just as Jones elevated the defendant’s Class 1 misdemeanor to a Class

I felony.

       But the majority’s next analytical step—the elevation of the substantive

offense from a Class 1 misdemeanor to a Class I felony under subdivision 90-

95(e)(3)2—is not controlled by Jones. Despite this Court’s dicta that the General



       1 This provision states, in relevant part, that “[i]f the quantity of the controlled
substance exceeds one-half of an ounce (avoirdupois) of marijuana . . . , the violation shall be
punishable as a Class 1 misdemeanor.” N.C.G.S. § 90-95(d)(4) (2017).
       2 This section provides that “[t]he prescribed punishment and degree of any offense

under this Article shall be subject to the following conditions, but the punishment for an
offense may be increased only by the maximum authorized under any one of the applicable
conditions:”


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                                     STATE V. HOWELL

                                    Beasley, J., dissenting



Assembly “routinely uses the phrases ‘punished as’ or ‘punishable as’ a ‘felony’ or

‘felon’ to classify certain crimes as felonies,” Jones, 358 N.C. at 484-85, 598 S.E.2d at

132 (citations omitted), a statutory provision using the language “punished as” was

not at issue in Jones. The General Assembly used different language in subdivision

90-95(e)(3) than it used in subdivisions 90-95(d)(2) and 90-95(d)(4). The language at

issue in this case reads: “If any person commits a Class 1 misdemeanor under this

Article and if he has previously been convicted for one or more offenses . . . punishable

under . . . this Article, he shall be punished as a Class I felon,” N.C.G.S. § 90-95(e)(3)

(2017) (emphasis added), while the language at issue in Jones was “[i]f the controlled

substance is . . . cocaine . . . the violation shall be punishable as a Class I felony,”

Jones, 358 N.C. at 476-77, 598 S.E.2d at 127 (emphasis modified from original)

(quoting N.C.G.S § 90-95(d)(2) (2003)). The subject of the phrase at issue in Jones

indicates the focus of the provision is on the violation itself, namely, possession of

cocaine, thus supporting a conclusion that the provision constitutes an escalation of

the classification of the offense, namely, “any person” previously convicted of a drug-


              ...

              (3) If any person commits a Class 1 misdemeanor under this
                  Article and if he has previously been convicted for one or
                  more offenses under any law of North Carolina or any law of
                  the United States or any other state, which offenses are
                  punishable under any provision of this Article, he shall be
                  punished as a Class I felon. The prior conviction used to
                  raise the current offense to a Class I felony shall not be used
                  to calculate the prior record level.

N.C.G.S. § 90-95(e)(3) (2017).


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                                     STATE V. HOWELL

                                     Beasley, J., dissenting



related violation, see N.C.G.S. § 90-95(d)(2) (2017);          however, the subject of the

language at issue here indicates the focus is on the defendant, which supports an

analysis that the provision constitutes a sentence enhancement, see id. § 90-95(e)(3).

Thus, our determination of legislative intent in Jones relating to a different provision

containing different language is not controlling in this case.3

       Because Jones does not control, I believe the interpretation of N.C.G.S. § 90-

95(e)(3) is a matter of first impression.            The plain language of subdivision 90-

95(e)(3)—that “[defendant] shall be punished as a Class I felon”— is subject to two



       3 Additionally, in Jones, the Court was able to defer to the way in which the crime of
cocaine possession has been treated historically; that is, the Court was persuaded that the
legislature intended to treat cocaine possession as a felony because possession of cocaine had
always been a felony rather than a misdemeanor under the North Carolina Controlled
Substances Act, regardless of the quantity of cocaine. See Jones, 358 N.C. at 479-84, 598
S.E.2d at 129-32. Due to the fact that this Court in Jones spent multiple pages discussing
the twenty-five years of legislative deference to our treatment of that crime, I believe this
Court was heavily persuaded by the legislative history of the way cocaine possession has been
treated by the General Assembly. See id. at 479-84, 598 S.E.2d at 129-32. The offense of
marijuana possession carries a markedly different legislative history that supports a
different interpretative result than the one reached in Jones. Since the General Assembly
enacted the Controlled Substances Act in 1971, marijuana possession offenses have always
been classified based on the quantity of marijuana possessed, see, e.g., State v. Mitchell, 336
N.C. 22, 27, 442 S.E.2d 24, 26 (1994), rather than the defendant’s past conduct. Here
defendant’s conviction was for possession of between one-half and one and one-half ounces of
marijuana, a crime that has been considered a misdemeanor since 1985. See Act of July 19,
1971, ch. 919, 1971 N.C. Sess. Laws 1477 (enacting the North Carolina Controlled Substances
Act, classifying marijuana as a Schedule VI substance, and classifying the first and second
offense of possession of marijuana as a misdemeanor regardless of quantity); Act of May 22,
1973, ch. 654, sec. 1, 1973 N.C. Sess. Laws. 967, 968 (changing classification of the offense
of marijuana possession to a felony when the defendant possesses more than an ounce); Act
of July 10, 1985, ch. 675, sec. 1, 1985 N.C. Sess. Laws 873, 873-84 (classifying marijuana
possession as “a general misdemeanor” unless the quantity exceeds one and one-half ounces);
see also N.C.G.S. § 90-95(d)(4) (classifying the offense of marijuana possession as a Class 1
misdemeanor if the quantity does not exceed one and one-half ounces).


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                                   Beasley, J., dissenting



competing interpretations: (1) the provision serves as a sentencing enhancement,

meaning defendant should receive the sentence associated with a Class I felony; or

(2) the provision elevates the substantive conviction from a misdemeanor to a felony.

See N.C.G.S. § 90-95(e)(3). Reasonable minds could differ regarding the meaning of

this provision, based on its plain language. The ambiguity is not helped by the fact

that the final sentence in subdivision (e)(3) states that “[t]he prior conviction [is] used

to raise the current offense to a Class I felony.” Id. The former interpretation is the

argument defendant makes in this case and the view taken by the Court of Appeals,

see State v. Howell, ___ N.C. App. ___, ____, 792 S.E.2d 898, 901 (2016) (only analyzing

the plain language to support the conclusion that the provision is a sentencing

enhancement), while the latter is the interpretation of the State and the majority of

this Court.

      When the provision at issue is read along with other provisions within section

90-95, it is apparent that the General Assembly used three separate phrases to reflect

how defendants should be punished—“the violation shall be punishable as”;

“[defendant] shall be punished as”; and “[defendant] shall be guilty of.” See N.C.G.S.

§ 90-95 (2017). The General Assembly used varying language within subdivision

(e)(3) itself and across its eight provisions, indicating there should be some difference

in how subdivisions (e)(3), (e)(5), (e)(8), and (e)(10) should operate versus subdivisions

(e)(4), (e)(7) and (e)(9). See id. § 90-95(e). Because “different words used in the same

statute should be assigned different meanings,” In re M.I.W., 365 N.C. 374, 379, 722



                                            -16-
                                  STATE V. HOWELL

                                 Beasley, J., dissenting



S.E.2d, 469, 473 (2012) (quoting Ferrell v. Express Check Advance of SC LLC, 591

F.3d 698, 704 (4th Cir. 2010)), I conclude that the General Assembly chose these

specific phrases for different operational purposes, though it is unclear exactly what

was intended. Because the interpretation of these phrases has implications affecting

other statutes, such as the habitual felon statute in this case, we should not assume

they can be used interchangeably. See, e.g., N.C.G.S. §§ 14-7.1 to -7.76 (2017). Since

it is not clear what the General Assembly meant by using these various phrases, and

the dueling interpretations create widely differing results—specifically, this

defendant’s potential maximum punishment of twenty-four versus eighty-eight

months of active jail time—the rule of lenity should apply.

      “The rule of lenity requires interpreters to resolve ambiguity in criminal laws

in favor of defendants. Deferring to the prosecuting branch’s expansive views of these

statutes ‘would turn [their] normal construction . . . upside-down, replacing the

doctrine of lenity with a doctrine of severity.” Whitman v. United States, 135 S. Ct.

352, 353, 190 L. Ed. 2d 381, 382 (2014) (mem.) (statement of Scalia, J.) (alterations

in original) (quoting Crandon v. United States, 494 U.S. 152, 178, 108 L. Ed. 2d 132,

152 (1990) (Scalia, J., concurring in the judgment)) denying cert. to United States v.

Whitman, 555 F. App’x 98 (2d Cir. 2004); accord State v. Hinton, 361 N.C. 207, 211,

639 S.E.2d 437, 440 (2007) (“In construing ambiguous criminal statutes, we apply the

rule of lenity, which requires us to strictly construe the statute.”). The General

Assembly’s choice to separate sub-section 90-95(e) from sub-section 90-95(d) in the



                                          -17-
                                      STATE V. HOWELL

                                     Beasley, J., dissenting



statutory structure indicates the legislature intended these two provisions to operate

differently. In contrast to the language in subdivision 90-95(d)(4), subdivision 90-

95(e)(3) focuses on a defendant’s past conduct—specifically, the defendant’s previous

convictions. Construing the statute according to the rule of lenity, I read subdivision

95-90(e)(3) to have no effect on the substantive classification of the violation (as

subdivision 90-95(d)(4) does). Rather, its sole effect is to enhance a defendant’s

sentence.

       Moreover, under the majority’s interpretation of the provision, subdivision 90-

95(e)(3) is duplicative of the habitual felon statute when applied to defendant’s case.

Compare N.C.G.S. § 14-7.6 (providing that habitual felons4 are “sentenced at a felony

class level that is four classes higher than the principal felony for which the person

was convicted”) with id. § 90-95(e)(3) (”If any person commits a Class 1 misdemeanor

under this Article and if he has previously been convicted for one or more offenses

under any law of North Carolina or any law of the United States or any other state,

which offenses are punishable under any provision of this Article, he shall be

punished as a Class I felon.”). Both statutes target recidivists, raising the level at

which a defendant is sentenced based on the defendant’s past conduct, and reflect the

intent of the legislature “to segregate that person from the rest of society for an

extended period of time” when the individual displays a propensity for recidivism.



       4 An “habitual felon,” under the statute, is “[a]ny person who has been convicted of or
pled guilty to three felony offenses in any federal court or state court in the United States or
combination thereof.” N.C.G.S. § 14-7.1(a).


                                              -18-
                                   STATE V. HOWELL

                                  Beasley, J., dissenting



State v. Kirkpatrick, 345 N.C. 451, 454, 480 S.E.2d 400, 402 (1997) (quoting Rummel

v. Estelle, 445 U.S. 263, 284, 63 L.Ed.2d 382, 397 (1980)).

      Here, however, because the majority’s reasoning allows both the N.C.G.S. § 90-

95(e)(3) and the habitual felon recidivist provisions to apply, defendant is punished

doubly for his past conduct—specifically, his 27 August 2003 conviction for felonious

possession with intent to sell or deliver marijuana—in the instant case. Also, though

not at issue in this case, one could anticipate a situation in which the majority’s

reasoning is applied to a defendant not yet qualified as an habitual felon, to convert

that defendant into an habitual felon by treating a misdemeanor drug offense as a

third and qualifying felony under subdivision 90-95(e)(3). Therefore, in considering

the statutory framework as a whole, subdivision 90-95(e)(3) may have been intended

to increase the punishment for those recidivist defendants who have committed

multiple drug offenses, with the effect of assigning a defendant the same punishment

as that imposed on a felon but not elevating his substantive conviction to a felony.

      Finally, what is troubling about the majority’s interpretation of how these

various sentencing provisions work together is that this interpretation creates a

penalty that is disproportionate in light of defendant’s actual conduct reflected in this

offense. The “deeply rooted” proportionality principle of sentencing, Solem v. Helm,

463 U.S. 277, 284-86, 77 L. Ed. 2d 637, 645-57 (1983) (explaining the history behind

the principle), dictates that “the punishment should fit the crime,” Ewing v.

California, 538 U.S. 11, 31, 155 L. Ed. 2d 108, 124 (2003) (Scalia, J. concurring in the



                                           -19-
                                    STATE V. HOWELL

                                    Beasley, J., dissenting



judgment) (defining the principle before disagreeing with the majority that the

Framers included a proportionality principle within the Eighth Amendment that

applies to noncapital cases).5 “[T]he punishment ought to reflect the degree of moral

culpability associated with the offense for which it is imposed. Trivial offenses should

attract only minor punishment and the most despicable offenses should be punished

severely, with punishment appropriately graduated for offenses that fall between

these extremes.”      Ian P. Farrell, Gilbert & Sullivan & Scalia: Philosophy,

Proportionality, & The Eighth Amendment, 55 Vill. L. Rev. 321, 337 (2010).

Logically, because defendant’s past conduct does not change the nature of the current

crime for which he is being punished, his past criminal history should operate as a

sentencing enhancement under subdivision 90-95(e)(3) rather than to reclassify a

misdemeanor offense as a felony offense.


       5  The U.S. Supreme Court has held that the principle of proportionality is contained
within the Eighth Amendment’s proscription of cruel and unusual punishments, and thus,
the Federal Constitution prohibits sentences that are disproportionate to the crime
committed. Helm, 463 U.S. at 284, 77 L. Ed. 2d at 645; see generally Ewing, 538 U.S. 11, 155
L. Ed. 2d 108 (despite the lack of a majority opinion, seven members of the Court agreed that
a sentence is cruel and unusual within the meaning of the Eighth Amendment if the court
finds it to be grossly disproportionate to the crime). Notably, in Ewing, Helm, and Rummel
(cases all considering recidivists’ sentences under the Eighth Amendment), the underlying
crimes triggering the recidivist statute were substantively felonies. Ewing, 538 U.S. at 18-
19, 155 L. Ed. 2d at 115-16; Helm, 463 U.S. at 279-81, 77 L. Ed. 2d at 642-44; Rummel, 445
U.S. at 265-66, 63 L. Ed. 2d at 385-86. There may be an even more persuasive Eighth
Amendment argument when a crime typically classified and punished as a misdemeanor is
escalated to a felony, triggering the recidivist statute and resulting in a disproportionate
sentence. See Helm, 463 U.S. at 290-92, 77 L. Ed. 2d at 649-50 (applying a three-factor test
to strike down a sentence as significantly disproportionate after considering (1) the gravity
of the offense versus the harshness of the penalty, (2) the sentences imposed on other
criminals in the same jurisdiction, and (3) the sentences imposed for the commission of the
same crime in other jurisdictions).


                                             -20-
                                  STATE V. HOWELL

                                 Beasley, J., dissenting



      In this case the Court of Appeals majority was correct to conclude defendant’s

Class 1 misdemeanor should have been punished as a Class I felony, but the

substantive offense should remain a Class 1 misdemeanor, and therefore, defendant’s

habitual felon status has no effect on his sentence. Howell, ___ N.C. App. at ___, 792

S.E.2d at 901. Because the quantity of the marijuana, and not defendant’s past

conduct, is what controls the classification of the substantive offense under this

statutory framework, and because this punishment does not “fit [defendant’s] crime,”

I respectfully dissent.




                                          -21-
