There are essentially seven steps in determining the sentence for a felony. These steps (with the appropriate sources to consult shown in parentheses) are as follows:
Identify the offense class for each felony conviction (punishment charts).
Calculate the prior record level for the defendant (Tables 3a and b).
Calculate any aggravating and mitigating factors (Tables 4a and b).
Determine the minimum sentence from the applicable minimum sentence ranger (Table 1).
Determine the maximum sentence (tables 2a and b).
Determine the sentence disposition (active, intermediate, or community) (Table 1).
Consider the appropriateness of restitution (Table 6).
Each of these steps is summarized below. The main exceptions are also noted below under the heading “special Provisions for Felonies.”
Offense Class for Felonies
Generally
The first step in determining the appropriate sentence for a felony is to identify the class of the felony. There are ten classes of felonies under structured sentencing: from most to least serious, the classes of felonies are A, B1, B2, C, D, E, F, G, H, and I).
Attempt, Conspiracy, Solicitation and Accessory after the Fact
Unless a different classification is stated in the statute governing the offense, conspiracy or attempt to commit a felony is punishable one class lower than the felony the defendant conspired or attempted to commit. See G.S. 14-2.4(a) (conspiracy), 14-2.5 (attempt). For example, pursuant to this rule, attempted common-law robbery is a Class H felony, which is one class lower than the classification of common-law robbery, a Class G felony under G.S. 14-87.1. Attempted armed robbery, however, is the same class of offense as armed robbery, a Class D felony, because the statute governing armed robbery, G.S. 14-87, so provides.
Similarly, unless a different classification is stated, solicitation to commit a felony or accessory after the fact to a felony is punishable two classes lower than the completed offense. See G.S. 14-2.6(a) (solicitation), 14-7 (accessory after the fact).
Prior Record Level for Felonies
The second step is to determine the defendant’s prior record level. A defendant is assigned to one of six prior record levels (I through VI) based on the number of points he or she receives under structured sentencing. For example, a defendant with 5 to 8 points is in prior record level III. The six prior record levels, and the point ranges for each level, are indicated in Table 3a and b at the end of this introduction. A defendant can receive points in one of the three ways discussed below.
Prior Convictions
Point values. If a defendant has any prior convictions, points are assigned to each conviction based on the offense class of the conviction. For example, a prior conviction for a Class H felony carries two points. The point values for each offense class are indicated in table 3a.
Prior misdemeanors. Although all felonies count as prior convictions, prior convictions for Class 2 and 3 misdemeanors do not count for purposes of felony sentencing; nor do misdemeanors of any class under Chapter 20 of the General Statues except the following, which carry one point:
Misdemeanor death by vehicle under G.S. 20-41.4(a2),
Regular impaired driving under G. S. 20-138.1, and
Commercial impaired driving under G.S. 20-138.2.
See G.S. 15A-1340.14(b); see also State v. Scercy, 159 N.C. App. 344, 583 S.E.2d 339 (2003) (trial court erred in assigning points to class 2 misdemeanor in determining sentence for felony).
Criminal Contempt. Although criminal contempt is characterized as a crime, an adjudication of criminal contempt that is punishable by a maximum of thirty days imprisonment does not constitute a prior conviction for purposes of structured sentencing. See State v. Reaves, 142 N.C. App. 629, 544 S.E.2d 253 (2001) (court so holds but declines to decide whether adjudication of criminal contempt with greater maximum punishment constitutes prior conviction); also generally Blue Jeans Corp. v. Amalgamated Clothing Workers of America, 275 N.C. 503, 508, 169 S.E.2d 867, 870 (1969) (criminal contempt is sui generis, i.e., one of a kind).
Current classification of prior convictions. A prior offense is classified according to the classification assigned to that offense at the time the current offense was committed. For example, if the defendant has a prior conviction for second-degree burglary, the points assigned to that conviction would depend on its current classification (now Class G), not on the classification in effect at the time the conviction occurred. See G.S. 15A-1340.14(c); see also State v. Rice, 129 N.C. App. 715,501 S.E.2d 665 (1998) (finding that 1972 kidnapping conviction was substantially similar to second-degree kidnapping, a Class E felony, and conviction was properly treated as that class of offense in assigning points). N.C. App. 715,501 S.E.2d 665 (1998) (finding that 1972 kidnapping conviction was substantially similar to second-degree kidnapping, a Class E felony, and conviction was properly treated as that class of offense in assigning points).
Multiple prior convictions. If the defendant was convicted of more than one offense in a single superior court during one calendar week, only the conviction with the highest number of points in counted in determining prior conviction points. If the defendant was convicted of more than one offense during a single session (that is, day_ of district court, only the most serious conviction is counted. See G.S. 15A-1340.14(d).
Convictions from other jurisdictions. Unless the prosecutor or defendant proves otherwise, a conviction from another jurisdiction is classified as a Class I felony (which carries two points) if that jurisdiction classifies the offense as a felony. Unless the prosecutor proves otherwise, a conviction from another jurisdiction is classified as a Class 3 misdemeanor (which carries no points for purposes of felony sentencing) if the other jurisdiction classifies the offense as a misdemeanor. See G.S. 15A-1340.14(e); see also State v. Morgan, __ N.C. App. __. 595 S.E.2d 804 (2004) (state failed to show that out-of-state misdemeanor conviction was similar to Class A1 or 1 misdemeanor or that out-of-state felony conviction was similar to Class F felony); State v. Hanton, 140 N.C. App. 679, 540 S.E.2d 376 (2000) (defendant’s stipulation to existence of conviction from another jurisdiction did not resolve offense class of conviction); State v. Rich, 130 N.C. App. 113, 502 S.E.2d 49 (1998) (relying on statutes from other states in determining classification of out-of-state convictions).
Effect of pending appeal. G.S. 15A-1340.11(7) provides that a conviction in superior court counts as a prior conviction regardless of whether it is on appeal to the appellate division, but a conviction in district court does not count if the case is on appeal. G.S. 15A-1340.11(7) does not distinguish between appeals from district court misdemeanor convictions and appeals from district court felony convictions. (The district court has jurisdiction to accept a plea of guilty or no contest to a Class H or I felony with the consent of the presiding judge, prosecutor, and defendant. See G.S. 7A-272(c).) Clearly, a misdemeanor conviction that is being appealed to superior court for a trial de novo may not be counted under structured sentencing. See also State v. Sparrow, 276 N.C. 499, 507, 173 S.E.2d 897m 902 (1970) (Misdemeanor conviction appealed to superior court “is completely annulled and is not thereafter available for any purpose.”). The courts could conclude, however, that a district court felony conviction may be counted during the pendency of an appeal because the appeal is to the appellate division and is limited to whether the sentence is supported by the evidence. See G.S. 7A-272(d) (appeal of felony plea entered in district court is to appellate division); G.S. 15A-1444(a1) (describing issues that may be appealed).
Reversals and pardons. A conviction that is reversed may not be used as a prior conviction in calculating the defendant’s prior record level. If a sentence is based on a conviction that is later overturned, the defendant is entitled to be resentenced. See State v. Bidgood, 144 N.C. App. 267, 550 S.E.2d 198 (2001).
The courts have held under the Fair Sentencing Act that a pardoned conviction, whether a full pardon of innocence or conditional pardon of forgiveness, may not be used as an aggravating factor at a sentencing. See State v. Clifton, 125 N.C. App. 471, 481 S.E.2d 393 (1997). If this reasoning applies to structured sentencing, a pardoned conviction may not be used in determining prior record level.
Convictions without judgment. An adjudication of guilt, or plea of guilty or no contest, without entry of judgment has been found in some circumstances to constitute a conviction for purposes of determining prior record level. In State v. Hasty, 133 N.C. App. 563, 516 S.E.2d 428 (1999), the court considered the effect of “probation without conviction: under G.S. 90-96(a). That section authorizes the court to place the defendant on probation without entering judgment for certain drug offenses; if the defendant fulfills the terms of probation, the case is dismissed and is not considered a conviction. In Hasty, the defendant pled guilty to a felony drug offense and was placed on “probation without conviction” under G.S. 90-96(a); however, while still on probation for the drug offense, the defendant committed new offenses and, at the time of sentencing for those new offenses, the prior drug offense had not been dismissed. In these circumstances, the court found it proper to count the prior drug offense as a conviction.
In State v. Hatcher, 136 N.C. App. 524, 524 S.E.2d 815 (2000), the court held that an offense for which the defendant pled no contest and received a prayer for judgment continued (PJC) constituted a prior conviction for purposes of determining the defendant’s sentence for a subsequent offense. Accord State v. Canellas, __ N.C. App. __, 596 S.E.2d 889 (2004). This line of decisions departs from previous decisions in North Carolina, which held for various purposes that a “true” PJC—that is, one that effectively terminates the proceedings and does not impose any conditions other than a requirement that the defendant pay costs or obey the law—does not constitute a conviction. See State v. Southern, 314 N.C. 110,331 S.E.2d 688 (1985) (PJC, not being conviction, cannot be used as aggravating factor in sentencing for subsequent offense under Fair Sentencing Act); State v. Cheek, 31 B,C, Aoo, 379, 229 S.E.2d 227 (1976) (PJC was not final judgment, and defendant had no right to appeal); compare State v. Sidberry, 337 N.C. 779, 448 S.E.2d 798 (1994) (defendant pled guilty to no offense, and judge continued proceedings for sentencing; court held in that context that in trial for another offense state could cross-examine defendant about guilty plea); State v. Brown, 110 N.C. App. 658, 40 S.E.2d 433 (1993) (particular conditions imposed upon entry of PJC amounted to punishment, converting PJC to final judgment).
Time limit. A prior conviction is counted for prior record level purposes regardless of how long ago it may have occurred. See State v. Rich, 130 N.C. App. 113, 502 S.E.2d 49 (1998) (finding that structured sentencing statutes contain no time limit on use of prior convictions for this purpose).
Proof of conviction. G.S. 15A-1340.14(f) provides that the state may establish a prior conviction by stipulation of the defendant, court or agency records, or other method found reliable by the court. See State v. Bell, __ N.C. App. __, 602 S.E.2d 13 (2004) (defendant’s testimony at trial was sufficient proof of prior convictions for sentencing); State v. Riley, 159 N.C. App. 546, 583 S.E.2d 379 (2003) (prior record worksheet not sufficient proof in absence of records showing convictions or stipulation by defendant); State v. Barley, 156 N.C. App. 490, 577 S.E.2d 319 (2003) (prosecutor’s statements not sufficient proof); State v. Eubanks, 151 N.C. App. 499, 565 S.E.2d 738 (stipulation by defendant to worksheet was sufficient proof); State v. Rich, 130 N.C. App. 113, 502 S.E.2d 59 (1998( (Division of Criminal Information printout was sufficient proof); see also State v. Maddox, 159 N.C. App. 127, 583 S.E.2d 601 (2003) (record check handed to judge but not admitted in evidence was sufficient to show defendant was on probation at time of offense).

Other Points
In addition to points for prior convictions, a defendant can receive prior record points in the following two ways. (As noted in the introductory section above on p. 1, recent U.S. Supreme Court decisions may impose additional procedural requirements for use of factors that increase a defendant’s sentence.) A defendant can receive one point if all the elements of the resent offense are included in a prior offense—that is, if the current offense is the same as or a lesser-included offense of a prior offense for which the defendant has been convicted. This additional point may be counted “whether or not the prior offense or offenses were used in determining prior record level.” See G.S. 15A-1340.14(b)(6). Thus, if a defendant has a prior felony breaking and entering conviction (a Class H felony) and the current conviction is for felony breaking and entering, the defendant could receive two points for the prior Class H felony and one additional point because the current offense is the same as the prior offense.
A defendant also can receive one point if, at the time the current offense was committed, he or she was: (1) on probation (supervised or unsupervised), parole, or post-release supervision; (2) serving an active sentence of imprisonment; or (3) on escape while serving a sentence of imprisonment. See GS. 15A-1340.14(b)(7). A defendant does not receive a point if he or she committed the current offense while in training school (now called a youth development center). See State v. Tucker, 154 N.C. App. 653, 573 S.E.2d 197 (2002).

Aggravating and Mitigating Factors for Felonies
Table 1, the sentencing grid, contains three ranges of imprisonment for felonies: presumptive, aggravated, and mitigated. See G.S. 15A-1430.16 (describing aggravated and mitigated sentences). The range in which a defendant is sentenced depends on consideration of aggravating and mitigation factors. If aggravating factors outweigh mitigating factors, the court may depart from the presumptive range of imprisonment contained in table 1 and impose a term of imprisonment from the aggravated range. (As noted in the introductory section above on p. 1, recent U.S. Supreme Court decision may impose additional procedural requirements for use of factors that increase a defendant’s sentence.) If mitigating factors outweigh aggravating factors, the court may impose a term of imprisonment from the mitigated range. The statutory aggravating factors are set forth in Table 4a. The statutory mitigating factors are set forth in Table 4b.
G.S. 15A-1340.16(c) provides that if the court selects a term from outside the presumptive range, the court must make written findings, regardless of whether it imposes an active or suspended term of imprisonment. See also State v. Bright, 135 N.C. App. 381, 520 S.e.2d 138 (1999) (court must make written findings when imposing sentence outside presumptive range pursuant to plea agreement). If the court imposes a term of imprisonment from the presumptive range, it need not make written findings. See State v. Caldwell, 125 N.C. App. 161, 479 S.E.2d 282 (1997); see also State v. Young, __ N.C. App. __, 602 S.E. 2d 374 (2004) (although sentence within presumptive range is presumed regular, presumption is not conclusive; court improperly impose sentence in presumptive range in retaliation for defendant’s exercise of right to jury trial).

Minimum Sentence for Felonies
Once the class of felony, prior record level, and aggravating and mitigating factors are determined, the court must select a minimum term of imprisonment from Table 1. To determine the minimum term, the court must locate the class of felony along the left-hand side of the grid and the appropriate prior record level along the top of the grid. The cell in which the felony class and prior record level intersect shows the possible sentences that the court may impose. The court then must determine whether to impose a term of imprisonment from the presumptive, aggravated or mitigated ranges (expressed in months) shown in the particular cell. Las, the court must select a minimum term of imprisonment from within the applicable range. For example, if a person is convicted of a Class E felony and is in prior record III, the presumptive range of minimum terms if from 27 to 34, as the minimum term of imprisonment.

Maximum Sentence for Felonies
The judgment of the court must contain a maximum term of imprisonment. The maximum term is set by statute based on the minimum term imposed by the court. For Class B1 through E felonies, the maximum term of imprisonment is 120 percent of the minimum term rounded to the next highest month, plus nine months. For Class F through I felonies, the maximum term of imprisonment is 120 percent the minimum term rounded to the next highest month. See G.S. 15A-1340.17(d), (e), (e1); State v. Parker, 143 N.C. App. 680, 550 S.E.2d 174 (2001) (once judge determines minimum sentence for offense, length of maximum is mandated by statute and is not subject to judge’s discretion).
Minimum/maximum tables containing these calculations are shown as tables 2a and 2b. Table 2a lists the maximum sentences for Class B1 through E felonies, Table 2b lists the maximums for Class F through I felonies. The numbers in each table to the left of the dash represent the minimum term of imprisonment imposed by the court, expressed in months. The numbers to the right of the dash represent the corresponding maximum term required by statute.

Sentence Disposition for Felonies
The next step is to determine the sentence disposition, prescribed in Table 1. Each cell on the grid contains a sentence disposition, signified by the letter “A”, “I”, or “C,” or by a combination of these letters. “A” represents active punishment; “I,” intermediate punishment; and “C,” community punishment. The court must impose the sentence disposition indicated in the applicable cell. If a cell contains two possible dispositions (for example, I/A), the court may impose either.

Active Punishments
If the court imposes an active punishment, the minimum and maximum term of imprisonment previously determined by the court must be activated. Ordinarily if the only disposition prescribed in a particular cell is “A,” the court must impose an active term of imprisonment. Upon a finding of extraordinary mitigation, the court may impose an intermediate punishment even when only an active punishment is prescribed. Extraordinary mitigation is authorized only if the offense is a Class B2, C, or D felony; the defendant is in prior record level I or II; and the offense is not a drug-trafficking offense under G.S. 90-95(h) or conspiracy to commit a drug-trafficking offense under G.S. 90-95(i). See G.S. 15A-1340.13(g), (h); State v. Messer, 142 N.C. App. 515, 543 S.E.2d 195 (2001) (defendant who was convicted of Class C felony in prior record level IV was not eligible for extraordinary mitigation; when extraordinary mitigation is available, sentencing judge is only authorized to impose intermediate instead of active punishment, not a shorter minimum term of active sentence than otherwise would be required for class of offense and prior record level).
The defendant is entitled to credit for any time already served, which is deducted from both the minimum and the maximum term of imprisonment. See G.S. 15-196.1. The maximum term of imprisonment also may be reduced to, but not below, the minimum term by any earned time credit, which is awarded by the Department of Correction or local jail. See G.S. 15A-1340.13(d). A defendant who receives an active term of imprisonment for a felony is ordinarily committed to the custody of the Department of Correction; but, on request of the sheriff or board of county commissioners of a county, the court may commit the defendant to a local jail in that county. See G.S. 15A-1352(b).
If a defendant is convicted of a Class B1 through E felony, he or she is automatically released from prison nine months before the end of his or her maximum term of imprisonment and is placed on post-release supervision. See G.S. 15A-1368.2. Thus, although the maximum term of imprisonment for a Class B1 through # felony is 120 percent of the minimum plus nine months, the defendant is released from prison once he or she serves 120 percent of the minimum. (The defendant may be released sooner if he or she has any earned time credit or credit for time served.) The period of post-release supervision is nine months for most defendants convicted of a Class B1 through E felony. But a defendant is subject to a far longer period of supervised release—five years—of he or she has been convicted of a Class B1 through E felony and is required to register as a sex offender pursuant to G.S. Chapter 14, Article 27A. The offenses for which a person is required to register as a sex offender are identified in the “punishment Chart for Crimes,” notes 21, 33, 93, and 97.
The period of post-release supervision may be reduced by earned time credit. See G.S. 15A-1368.2(d). If the defendant violates a condition of post-release supervision—during either the shorter or longer period of supervised release—he or she may be returned to prison “up to the time remaining on his [pr her] maximum imposed term”. G.S. 15A-1368.3(c)(1).
When sentencing a defendant for multiple offenses, the court may consolidate sentences, run them consecutively. If the court consolidates offenses for sentencing, the most serious offense is the controlling one—the sentence disposition and the minimum and maximum terms of imprisonment must conform to the structured sentencing rules for that offense. If the court imposes consecutive sentences, the minimum term of imprisonment is the sum of the minimum terms imposed for the offenses, and the maximum term is the sum of the maximum terms for the offenses. See G.S. 15A-1340.15,-1354.
Intermediate Punishments
If the court imposes an intermediate punishment, it must suspend the minimum and maximum term of imprisonment and impose a period of supervised probation with at least one of the conditions described in G.S. 15A-1340.11(6). For intermediate punishments for felonies, the court is authorized to impose a period of probation from 18 to 36 months; the court may depart from this range upon finding that a longer or shorter period is necessary. See State v. Hughes, 136 N.C. App. 92, 524 S.E.2d 63 (1999) (court must make findings to depart from presumptive length of probation for intermediate punishment). The maximum initial period of probation that may be imposed is five years. See G.S. 15A-1343.2(d); see also State v. Canady, 153 N.C. App. 455, 570 S.E.2d 262 (2002) (although court may order probation to begin after active term of imprisonment is served, court may not run terms of probation consecutively and thereby exceed five-year limit).
The authorized conditions for intermediate punishments are

? special probation,
? assignment to a residential program,
? house arrest with electronic monitoring,
? intensive probation,
? assignment to a day-reporting center, and
? assignment to a drug treatment court program
(effective July 26, 2004)

Special probation involves a period of imprisonment but is still a form of intermediate punishment. Under special probation, also known as a split sentence, the court suspends the term of imprisonment, places the defendant on probation, and requires him or her to submit to a period of imprisonment as a condition of probation. For offenses committed on or after December 1, 2004, the period of imprisonment pursuant to special probation may not exceed one-fourth of the maximum term of imprisonment imposed. (Before these revisions took effect, the period of imprisonment could not exceed six months or one-fourth of the maximum term of imprisonment imposed, whichever was less.) The confinement may be for continuous or noncontinuous periods, such as weekends, to be served within two years of conviction. See G.S. 15A-1351(a). If the defendant’s probation is later revoked and the original term of imprisonment is activated, the defendant must be given credit for any time served as a condition of special probation. See State v. Farris, 336 N.C. 552, 444 S.E.2d 182(1994); G.S. 15-196.1; see also North Carolina v. Pearce, 395 U.S. 711 (1969) (punishment already exacted for offense must be fully credited against sentence).

Community Punishments
A community punishment is defined as any sentence that does not include an active or intermediate punishment. See G.S. 15A-1340.11(2). The court must suspend any term of imprisonment; it may not impose an active term of imprisonment or special probation requiring a period of imprisonment.
A community punishment may include unsupervised or supervised probation with any authorized condition other than one defined as an intermediate punishment. Community service and outpatient drug and alcohol treatment are examples of permissible conditions. For community punishments for felonies, the court is authorized to impose a period of probation from 12 to 30 months; the court may depart from this range upon finding that longer or shorter period is necessary. See G.S 15A-1343.2(d)(3); see also State v. Mucci, 163 N.C. App. 615, 594 S.E.2d 411 (2004) (court must make findings to depart from presumptive length of probation for community punishment). A community punishment also may consist of a fine only, without probation. See G.S. 15A-1340.17(b).

Fines
The court may impose a fine as part of any disposition, whether active, intermediate, or community. Unless otherwise provided by statue, the amount of the fine for a felony is in the court’s discretion. See G.S. 15A-1340.17(b).
Restitution for Felonies
The last step is to consider the appropriateness of restitution. Article 81C of G.S. Chapter 15A-1340.34 through -1340.38) governs restitution in all criminal cases. The restitution requirements differ, however, depending on whether the offense is subject to the Crime Victims’ Rights Act (G.S. 15A-830 through -841). The felonies subject to the Crime Victims’ Rights Act are

? any Class A through e felony,
? a Class F through I felony if it is in violation of certain statutes (listed in Table 6 at the end of this part), and
? an attempt to commit one of the above felonies if the attempt is punishable as a felony.


The discussion below outlines the main differences in restitution between offenses subject to the Crime Victims’ Rights Act and other criminal offenses. The statute governing a particular offense may contain more specific restitution requirements. See, e.g., G.S. 14-107 (court may require person convicted of worthless check offense to make restitution for certain service and processing charges).
For offenses subject to the Crime Victims’ rights Act, the court must order restitution to the victim or victim’s estate and, if probation is imposed, must make it a condition of probation. See G.S. 15A-1340.34(b). Even if the defendant is sentenced to active imprisonment, the court apparently must order restitution to the victim or victim’s estate. Compare State v. Salmon, 140 N.C. App. 567, 537 S.E.2d 829 (2000) (recognizing that for certain crimes restitution is mandatory but vacating order against defendant who received active sentence because offense occurred before effective date of Crime Victims’ Rights Act); State v. Hughes, 136 N.C. App. 92, 524 S.E.2d 63 (1999) (for offenses committed before enactment of Crime Victims’ Rights Act, sentencing judge lacked authority to require restitution from defendant who received active sentence). If a restitution order to a victim is for more than $250, it is enforceable as a civil judgment and in some circumstances is subject to immediate execution. See G.S. 15A-1340.38.
In cases not subject to the Crime Victims’ Rights Act, the court must consider whether restitution is appropriate but is not required to order it. See G.S. 15A-1340.34(a),(c). The court may make restitution a condition or probation. The court also may impose restitution as part of a sentence of active imprisonment; but in cases not subject to the Crime Victims’ rights Act, a restitution order is not enforceable as a civil judgment. Although the victim or victim’s estate may bring a civil suit for damages resulting from the crime (see G.S. 15A-1340.37(a)), the amount of restitution imposed is not admissible in evidence, and the defendant has the right to contest the amount of damages claimed. See G.S. 1-15.1.
In both kinds of cases, if the defendant is sentenced to active imprisonment, the court also must consider whether to recommend to the Department of Correction that restitution be made from any work-release earnings. See G.S. 15A-1340.36(c). For Class B1 through E felonies, restitution is a mandatory condition of post-release supervision. See G.S. 15A-1340.34(b) (restitution must be condition of post-release supervision in cases subject to Crime Victims’ Rights Act, which include all Class B1 through E felonies).
the losses and injuries for which restitution may be ordered are described in G.S. 15A-1340.35. See also State v. Wilson, 158 N.C. App. 235, 580 S.E.2d 386 (2003) (court may not order restitution for pain and suffering). In determining the amount of restitution, the court must have adequate proof of the injuries or losses claimed and must take into account the defendant’s ability to pay. See G.S. 15A-1340.36. The court also may order restitution to individuals other than the victim or to organizations as provided in G.S. 15A-1340.37.

Special Provisions for Felonies
A number of provisions depart from the basic structured sentencing scheme for felonies. The principal exceptions are described below.

Class A Felonies
There are two Class A felonies under structured sentencing: first-degree murder, which is punishable by death or life imprisonment without parole (See G.S. 14-17), and injuring a person with a weapon of mass destruction, which is punishable by life without parole (see G.S. 14-288.22(a)). These punishments apply regardless of the defendant’s prior record level.
For offenses committed before December 1, 1998, a defendant sentenced to life without parole is entitled to seek review of the sentence by a superior court judge after serving twenty-five years in prison. The judge then must recommend to the governor whether the sentence should be altered or commuted. See G.S. 15A-1380.5. This procedure has been repealed and does not apply to offenses committed on or after December 1, 1998. The repeal does not affect the power of the governor, under Art. III, Sec. 5(6), of the North Carolina Constitution, to grant pardons and commute sentences.

Habitual Offender Laws
Habitual Felons. A defendant found to be a habitual felon (this is, convicted of a felony for a fourth time pursuant to the procedures in G.S. 14-7.1 through -7.3) is sentenced as though convicted of a Class C felony (unless the offense is a Class A, B1, or B2 felony). For example, if a defendant is convicted of felony breaking and entering (a Class H felony) and is found to be a habitual felon, he or she is sentenced as though convicted of a Class C felony. Additional sentencing rules apply in such cases, which are discussed in the “Punishment Chart for Crimes,” G.S. 14-7.1 through -7.6 and accompanying note.
Special rules govern the calculation of the prior record level of a person found to be a habitual felon. If a prior conviction is used to establish the defendant’s status as a habitual felon, the conviction may not be used to determine the defendant’s prior convictions under structured sentencing. See G.S. 14-7.6; State v. Lee, 150 N.C. App. 701, 564 S.E.2d 597 (2002) (by alleging five felony convictions in habitual felon indictment, state was precluded from using any of those convictions in calculating defendant’s prior convictions); see also State v. Cates, 154 N.C. App. 737, 573 S.E.2d 208 (2002) (permissible for state to select which convictions to use for habitual felon status and which to use for prior record level).
There are some exceptions to this prohibition on double-counting of convictions. Thus, if two convictions have been consolidated for judgment in a prior case (ordinarily treated under structured sentencing as a single conviction), one conviction may be used to establish habitual felon status and the other conviction may be used to determine the defendant’s prior convictions. See State v. McCare, 124 N.C. App. 664, 478 S.E.2d 210 (1996). Also, a defendant may receive one point if the current offense is the same as or a lesser offense of a prior conviction, even though the prior conviction is used to establish habitual felon status; and a defendant may receive one point if he or she committed the current offense while on probation for a prior conviction, even though the prior conviction is used to establish habitual felon status. See State v. Bethea, 122 N.C. App. 623, 471 S.E.2d 430 (1996).
If a defendant is found to be a habitual felon and is later convicted of another felony, the number of points assigned to the earlier habitual felon case depends on the class of the underlying offense. For example, if the defendant is convicted of felony breaking and entering, I found to be a habitual felon, and is later convicted of another felony, the prior conviction is treated as a Class H felony, the offense class of felony breaking and entering, not a Class C felony. See State v. Vaughn, 130 N.C. App. 456, 503 S.E.2d 110 (1998), aff’d per curiam, 350 N.C. 88, 511 S.E.2d 638 (1999).
Violent Habitual Felons. A defendant convicted for the third time of a violent felony within the meaning of G.S. 14-7.7 through -7.12 must be sentenced to life without parole, regardless of the defendant’s prior record level (except where the death penalty is imposed). Additional sentencing rules apply in such cases, which are discussed in the “Punishment Chart for crimes,” G.S. 14-7.7 to -7.12 and accompanying note.
For offenses committed before December 1, 1998, a person found to be a violent habitual felon and sentenced to life without parole is entitled to seek review of the sentence by a superior court judge after serving twenty-five years in prison. This procedure and its repeal are discussed above in connection with sentencing for Class A felonies.
Habitual Impaired Driving. A defendant convicted of habitual impaired driving under G.S. 20-138.5 a Class F felony, must be sentenced to an active term of imprisonment of at least twelve months. Although structured sentencing (which applies to habitual impaired driving) sometimes allows a suspended sentence for Class F felonies, the twelve-month term of imprisonment may not be suspended.
Although G.S. 20-138.5 does not specifically address the issue, the courts have found that a prior conviction used to establish habitual impaired driving may not be used in calculating the defendant’s prior record level. See State v. Gentry, 135 N.C. App 107. 519 S.E.2d 68 (1999).

Sentence Enhancements
Firearm Enhancement. G.S. 15A-1340.16A contains a sixty-month sentence enhancement for the use of a firearm in certain circumstances. The state may see the enhanced sentence if the defendant (1) committed a Class A through E felony by using, displaying, or threatening the use or display of a firearm, and (2) actually possessed the firearm about his or her person. See G.S. 15A-1340.16A(c); see also State v. Williams, 127 N.C. App. 464, 490 S.E.2d 583 (1997) (enhancement not proper for second-degree kidnapping because evidence established that object displayed was not actually firearm). The state must allege the pertinent facts in the indictment or information for the underlying Class A through E felony, and unless the defendant pleads guilty or no contest to those facts, the state must prove those facts beyond a reasonable doubt to the jury. See G.S. 15A-1340.16A(d), (e). If the firearm enhancement is imposed, the minimum term of imprisonment is increased by sixty months, and the maximum term is calculated based on the increased minimum. See general description above (p. 5) regarding calculation of maximum sentence for felonies.
The firearm enhancement is inapplicable if (1) the person is not sentenced to an active term of imprisonment, or (2) the evidence of the use, display, or threatened use or display of a firearm is necessary to prove an element of the felony. See G.S. 15A-1340.40.16A(f); see also G.S. 15A-1340.16(d) (evidence necessary to establish firearm enhancement may not be used to prove any aggravating factor). The applicability of the second exception would seem to turn on the facts of each case; by its terms the exception concerns whether evidence of the use, display, or threatened use or display of a firearm is necessary to prove an element of the offense. See State v. Brice, 126 N.C. App. 788, 486 S.E.2d 719 (1997) (defendant convicted of second-degree kidnapping; enhancement improper on facts); State v. Smith, 125 N.C. App. 788, 481 S.E.2d 425 (1997) (defendant convicted of voluntary manslaughter; enhancement improper on facts); State v. Evans, 125 N.C. App. 301, 480 S.E.2d 435 (1997) (defendant convicted of first-degree kidnapping; enhancement permissible on facts); but see State v. Ruff, 349 N.C. App. 213, 505 S.E.2d 579 (1998) (court finds firearm enhancement permissible for second-degree kidnapping because use of firearm is not essential element of that offense); State v. Boyd, 148 N.C. App. 304, 559 S.E.2d 1 (2002) (relying on Ruff, court finds firearm enhancement permissible for second-degree kidnapping but vacates enhancement because pleading and proof procedures did not comply with Lucas, discussed above, note 11).
For summaries of firearm enhancement cases, see Robert L. Farb, Appellate Cases: Structured Sentencing Act and Firearm Enhancement (July 6, 2004), posted at http://ncinfo.iog.unc.edu/programs/crimlaw/faculty.htm.
Other Enhancements. Subject to certain exceptions, G.S. 15A-1340.16B requires a sentence of life imprisonment without parole for a Class B1 felony if the defendant committed the felony against a person thirteen years of age or younger and the defendant has one or more prior convictions of a Class B1 felony; G.S. 15A-1340.16C provides that a person is guilty of a felony one class higher than the felony committed if the defendant was wearing or had in his or her immediate possession a bulletproof vest; and, effective for offenses committed on or after December 1, 2004, G.S. 15A-1340.16D provides that a person’s sentence must be increased by twenty-four months if the offense involved the manufacture of methamphetamine and certain other conditions are present. All three statutes contain pleading and proof procedures comparable to those for the firearm enhancement, discussed above.

Drug- trafficking Offenses
Drug trafficking is punished according to a separate table of punishments containing minimum and maximum terms of imprisonment that depart from the structured sentencing grid and do not depend on the defendant’s prior record. Minimum fines also are prescribed for these offenses. The minimum and maximum terms of imprisonment for drug-trafficking offenses appear in note 214 of the “Punishment Cart for Crimes.” Also discussed in that note are additional rules governing sentencing for drug-trafficking offense. For example, the court may reduce the fine, impose a prison term less that the applicable minimum, or suspend the prison term in some circumstances. The minimum fines for drug-trafficking offense vary with the substance, which are indicated in the body of the “Punishment Chart for Crimes,” G.S. 90-95(h)(1) through -95(h)(4b).
the same mandatory minimum and exceptions apply to a conspiracy to commit a drug-trafficking offense. See “Punishment for Crimes,” G.S. 90-95(i) and accompanying note. These punishments do not apply to an attempt to commit a drug-trafficking offense, however. See “Punishment Chart for Crimes,” G.S. 90-98 and accompanying note.

Misdemeanors

The focus of structured sentencing for misdemeanors is the statutory table of punishments in G.S. 15A-1340.23(c) (Table 5 at the end of this part). There are essentially five steps in determining the appropriate sentence for a misdemeanor. These steps (with the appropriate sources to consult) are a follows:

? Determine the offense class for each misdemeanor conviction (punishment charts).
? Determine the prior conviction level for the defendant (Table 5).
? Determine the sentence length from the appropriate sentence (Table 5).
? Determine the sentence disposition (active, intermediate, or community) (Table 5).
? Consider the appropriateness of restitution (Table 6).

The only misdemeanors not subject to structured sentencing are violations of health control measures under G.S. 130A-25 (see “Punishment Chart for Crimes” for the applicable punishment) and the following offenses involving driving and the consumption of alcohol or drugs; impaired driving under G.S. 20-138.2; and a second or subsequent conviction of a zero tolerance offense under G.S. 20-138.2A (commercial drivers) and G.S. 20-138.2B (school bus and child care vehicle drivers). See “Punishment Chart for Motor Vehicle Offenses,” G.S. 20-138.1 and accompanying note, for the applicable punishments. For a further discussion of sentencing under North Carolina’s impaired driving laws, see Ben F. Loeb Jr. & James C. Drennan, Motor Vehicle Law and the Law of Impaired Driving in North Carolina (2000); see also introductory above (p. 1) noting that recent U.S. Supreme Court decisions may impose additional procedural requirements with respect to sentencing.

Offense Class for Misdemeanors

Generally
The first step in determining the appropriate sentence for a misdemeanor is to identify the class of the misdemeanor (from most to least serious, the classes of misdemeanors are A1, 1,2, and 3). For each misdemeanor listed in the punishment charts in this book, the class of the offense is indicated. For example, a violation of G.S. 14-34 (assault by pointing gun) is a Class A1 misdemeanor. A violation of G.S. 20-217 (passing a stopped school bus) is a Class 2 misdemeanor.

Misdemeanors without Classification/Punishment
Some misdemeanor offense in the General Statutes may have neither a classification nor a punishment listed. Under G.S. 14-3(a), such offenses ordinarily are considered Class 1 misdemeanors. If a misdemeanor has no classification and no specified punishment and the offense is infamous, done in secrecy and malice, or committed with deceit and intent to defraud, it may be punished as a Class H felony. For cases discussing this punishment enhancement, see “Punishment Chart for Crimes,” G.S> 14-3(b) and accompanying note.
Some misdemeanor offenses have a punishment but no classification listed. Under G.S. 14-3(a), these offenses are classified as follows: as Class 1 misdemeanors if punishable by more than six months imprisonment; as Class 2 misdemeanors if punishable by more than thirty days but not more than six months imprisonment; and as Class 3 misdemeanors if punishable by imprisonment of thirty days or less or by a fine only.
Some misdemeanors are common-law offenses and do not appear at all in the General Statues—for example, common-law obstruction of justice. By operation of G.S. 14-3(a), these offenses ordinarily are treated as Class 1 misdemeanors because they have no classification or punishment. If infamous, done in secrecy and malice, or committed with deceit and intent to defraud, a common-law misdemeanor may be punished as a Class H felony by virtue of G.S. 14-3(b).

Attempt, Conspiracy, Solicitation, and Accessory after the Fact
Unless a different classification is stated in the statute governing the offense, conspiracy or attempt to commit a misdemeanor is punishable one class lower than the misdemeanor the defendant conspired or attempted to commit. Unless a different classification is stated, conspiracy or attempt to commit a Class 1 felony is a Class 1 misdemeanor and thus is subject to misdemeanor sentencing rules; and conspiracy or attempt to commit a Class 3 misdemeanor is a Class 3 misdemeanor. See G.S. 14-2.4 (conspiracy), 14-2.5 (attempt).
Unless a different classification is stated, solicitation to commit a Class H felony is a Class 1 misdemeanor, solicitation to commit a misdemeanor is a Class 3 misdemeanor. See G.S. 14-2.6. Although G.S. 14-2.6 establishes a punishment for solicitation to commit a misdemeanor, it does not identify the circumstances in which solicitation to commit a misdemeanor is a crime under North Carolina law. The North Carolina courts have upheld convictions for solicitation to commit common-law obstruction of justice. See Robert L. Farb, North Carolina Crimes: A Guidebook on the Elements of Crime 34 (5th ed. 2001); 2 Wayne R. LaFave, Substantive Criminal Law § 11.1(b), at 190-91 (2d ed. 2003) (in absence of statute providing otherwise, general rule is that misdemeanor solicited must involve breach of peace, obstruction of justice, or injury to public welfare).
G.S. 14-7 establishes the crime of accessory after the fact to a felony. It provides that unless a different classification is otherwise stated, accessory after the fact to a Class H felony is a Class 1 misdemeanor, and accessory after the fact to a Class I felony is a Class 2 misdemeanor. G.S. 14-7 does not make it a crime to be an accessory after the fact to a misdemeanor. See also 2 Wayne R. LaFave, Substantive Criminal Law § 13.6(a), at 400, 405 (2d ed. 2003) (in absence of statue providing otherwise, person may not be convicted of being accessory after fact to misdemeanor); Rollin M. Perkins & Ronald N. Boyce, Criminal Law 726 (3d ed. 1982) (to same effect).

Prior Conviction Level for Misdemeanors
The second step is to determine the defendant’s prior conviction level. A defendant is assigned to one of three prior conviction levels (I through III) based on the total number of prior felony and misdemeanor convictions. The three prior conviction levels and the number of convictions applicable to each level are indicated in Table 5.
Each conviction, whether for a felony or a misdemeanor (including misdemeanors under Chapter 20), counts as one conviction. If the defendant was convicted of more than one offense in a single week of superior court, only one of the convictions counts. If the defendant was convicted of more than one offense during a single session (that is, day) of district court, only one of the convictions counts. Infractions do not count. See G.S. 15A-1340.21.
A prior offense may be counted as a conviction only if the offense is classified as a felony or misdemeanor at the time the defendant committed the current offense. For example, if an offense has been changed from a misdemeanor to an infraction (for example, driving 50 mph in a 35-pmh zone), a prior conviction for that offense would not count in misdemeanor sentencing. See G.S. 15A-1340.21(b).
G.S. 15A-14340.21(c) describes the method of proving prior convictions, which is essentially the same as under the felony sentencing provisions. See also “Prior Record Level for Felonies: Prior Convictions” (pp. 2—4 above), discussing cases on what constitutes conviction and sufficiency of proof.

Sentence Length for Misdemeanors
Once the class of misdemeanor and prior conviction level are determined, the court must determine the length of any term of imprisonment. (If the court selects a community punishment as the sentence disposition, discussed below, it may impose a judgment consisting of a fine only; in those circumstances, it would be unnecessary for the court to specify any term of imprisonment.) To determine the length of the term of imprisonment, the court must locate the class of misdemeanor along the left-hand side of Table 5 and the prior conviction level along the top of Table 5. The cell in which the misdemeanor class and prior conviction level intersect shows the possible terms of imprisonment (expressed in days) that the court may impose. The court must select a single term of imprisonment from the range shown in the applicable cell; unlike felony sentencing, there is no minimum and maximum term of imprisonment.

Sentence Disposition for Misdemeanors
The next step is to determine the sentence disposition, which is prescribed in Table 5. Each cell in Table 5 contains a sentence disposition, signified by the letter “A,” “I,”, or “C,” or by a combination of these letters. “A” represents active punishment; “I,” intermediate punishment; and “C,” community punishment. The court must impose the sentence disposition indicated in the applicable cell. If a cell authorizes more than one possible disposition (for example, C/I/A), the court may impose any of the indicated dispositions.

Active Punishments
If the court imposes an active punishment, the term of imprisonment determined by the court must be activated. The defendant must receive credit for time already served. See G.S. 15-196.1. A defendant’s term of imprisonment also may be reduced by earned time credit of up to four days per month of incarceration (awarded by the Department of Correction or local jail). See G.S. 15A-1340.20(d).
The court may sentence a defendant to “time served”—that is, a term of imprisonment equal to the amount of time the defendant spent in jail before trial. A sentence of time served is technically a form of active punishment because it involves a term of imprisonment; however, the court may impose a sentence of time served for any misdemeanor, regardless of whether an active punishment would otherwise be authorized for that class of misdemeanor and prior conviction level. See G.S. 15A-1340.20(c1).
When sentencing a defendant for multiple misdemeanors, the court may consolidate sentences, run them concurrently, and, subject to certain limitations, impose consecutive sentences. If the court consolidates offense for sentencing, the most serious offense is the controlling one—the sentence disposition and the term of imprisonment must conform to the structured sentencing rules for that offense.
If the court imposes consecutive sentences for misdemeanors, the length of the term of imprisonment (active or suspended) may not exceed twice the longest term of imprisonment authorized for the most serious misdemeanor conviction. Consecutive sentences may not be imposed if all the convictions are for Class 3 misdemeanors. See G.S. 15A-1340.22, -1354(a).
For example, assume the defendant is convicted of three misdemeanors—Class 1, 2, and 3—and is in prior conviction level III. If the court elects to impose consecutive sentences, the cumulative term of imprisonment may not exceed 240 days, which is twice the longest possible term for a Class 1 misdemeanor, the most serious misdemeanor conviction in this example. However, the longest term of imprisonment that actually could be imposed in this example would be 200 days—120 days for the Cass 1 misdemeanor, 60 days for the Cass 2 misdemeanor, and 20 days for the Class 3 misdemeanor.

Intermediate Punishments
If the court imposes an intermediate punishment, the court must suspend the term of imprisonment and impose a period of supervised probation with at least one of the conditions described in G.S. 15A-1340.11(6). For intermediate punishments for misdemeanors, the court is authorized to impose a period of probation ranging from 12 to 24 months; the court may depart from this range upon finding that longer or shorter period is necessary. See State v. Mac Cardwell, 133 N.C. App. 496, 516 S.E.2d. 388 (1999) (court must make findings to depart from presumptive length of probation). The maximum initial period of probation that may be imposed is five years. See G.S 15A-1343.2(d).
The permissible intermediate punishments for misdemeanors are the same as for felonies (special probation, assignment to a residential program, house arrest with electronic monitoring, intensive probation, assignment to a day-reporting center, and, effective July 26, 2004, assignment to a drug treatment court program). If the court imposes special probation as an intermediate punishment, the period of imprisonment is limited in the same manner as for felonies—it may not exceed one-fourth of the maximum term of imprisonment imposed, and it may be for continuous or noncontinuous periods (such as weekends), to be served within two years of conviction. See G.S. 15A-13519(a). If the defendant’s probation is later revoked and the original term of imprisonment is activated, the defendant must be given credit for any time served as a condition of special probation. See State v. Farris, 336 N.C. 552, 444 S.E.2d 182 (1994); G.S. 15-196.1; see also North Carolina v. Pearce, 395 U.S. 711 (1969).

Community Punishments
A community punishment is defined as any sentence that does not include an active or intermediate punishment. See G.S. 15A-1340.11(2). The court must suspend any term of imprisonment; it may not impose an active term of imprisonment or special probation requiring a period of imprisonment.
A community punishment may consist of unsupervised or supervised probation with any authorized condition other than one defined as an intermediate punishment. Community service and outpatient drug and alcohol treatment are examples of permissible conditions. For community punishments for misdemeanors, the court is authorized to impose a period of probation ranging from 6 to 18 months; the court may depart from this range upon finding that a longer or shorter period is necessary. See G.S. 15A-1343.2(d)(1); State v. Love, 156 N.C. App. 309, 572 S.E.2d 709 (2003) (court must make findings to depart from presumptive length of probation). A community punishment also may consist of a fine only, without probation. See G.S. 15A-1340.23(b).

Fines
The court may impose a fine as part of any disposition, whether active, intermediate, or community. Unless otherwise provided by statute, the maximum fine for each class of misdemeanor is as indicated in Table 5. For example, although the maximum fine for a Class 3 misdemeanor is ordinarily $200, a violation of G.S. 14-118.5 (unauthorized interception of cable television service) is punishable by a fine of up to $500, while a violation of G.S. 14-140.1 (burning material without a watchman) is punishable by a fine of up to $50 only.

Restitution for Misdemeanors
The last step is to consider the appropriateness of restitution. The restitution requirements in G.S. 15A-1340.34 through -1340.38, discussed above in connection with felonies, apply equally to misdemeanors. Thus the sentencing court must determine whether a misdemeanor is subject to the Crime Victims’ Rights Act (G.S. 15A-830 through -841), which for certain offenses mandates restitution to the victim and allows enforcement of the restitution order as a civil judgment. For misdemeanors not subject to the Crime Victims’ Rights Act, the court must consider the appropriateness of restitution but is not required to order it.
The main difference between restitution in misdemeanor and felony cases is that far fewer misdemeanors are subject to the Crime Victims’ Rights Act. Only the following misdemeanors are covered:
• assault with a deadly weapon,
• assault inflicting serious injury,
• assault on a female,
• assault by point a gun,
• domestic criminal trespass, and
• stalking.

The Crime Victims’ Rights Act applies to the above misdemeanors only if the defendant and victim were in one of six different “personal relationships” (for example, as current or former spouses) described in G.S. 50B-1(b). Table 6 at the end of this chapter lists the offenses subject to the Crime Victims’ Rights Act.