Pubdate: Sun, 09 Nov 2003
Source: Shelby Star, The (NC)
Copyright: 2003sThe Shelby Star
Contact:  http://www.shelbystar.com/
Details: http://www.mapinc.org/media/1722
Author: Skip Foster

N.C. COURT RULES SIMPLE POSSESSION OF COCAINE A MISDEMEANOR

RALEIGH - The North Carolina Court of Appeals has ruled that simple 
possession of cocaine is a misdemeanor, not a felony, a decision that could 
impact thousands of cases in Cleveland County and many more across the state.

The ruling means that someone could be arrested for having as many as 150 
$20 rocks of cocaine, and be charged with only a misdemeanor, according to 
state and local officials.

The ruling will affect multiple areas of the judicial system - from 
habitual felon prosecutions to sentencing guidelines to cases already 
disposed. And it also applies to different drugs, including PCP and 
methamphetamine, said Robert Farb, professor of public law and government 
at the Institute of Government.

The court's ruling stemmed from a Forsyth County case, State vs. Norman 
Jones, in which the defendant pleaded guilty to possession with intent to 
sell and deliver cocaine. This plea classified Jones as a habitual felon.

Jones appealed and the Court of Appeals ruled that statutes were 
conflicting on the issue of whether possession of cocaine is a felony or 
misdemeanor. The court sided with the defense contention that it is a 
misdemeanor.

The ruling met immediate criticism from Cleveland County's two state 
representatives.

"I'm shocked and I think the court is in error," said Rep. Tim Moore. 
"Hopefully the Supreme Court will overturn this ruling.

"Think of all the cases where people have been convicted as a felon. What 
does this mean, that they'll all have to be reopened? Oh my," Moore said.

Rep. Debbie Clary said her staff is already looking into a legislative 
solution.

"I'm asking for a recommendation from my staff on changing the statute so 
that intent of the statute is followed," Ms. Clary. "I'm very confident the 
intent of the statute" was that possession of cocaine be a felony, she said.

Lt. Joel Shores, with the Cleveland County Sheriff's Office, called the 
decision "outrageous."

"To me, this just means if I catch somebody smoking crack cocaine inside of 
a school, the only charge I have is a misdemeanor charge and that's 
outrageous," Shores said. "These are hard-core drugs and any amount should 
be a felony."

Farb, with the Institute of Government, said the ruling would have other 
implications.

First, it could mean lighter sentences for those convicted of other charges.

Structured sentencing classifies crimes, then uses "points" from a 
defendant's prior record to determine the level of punishment. Under the 
court's ruling, a conviction on possession of cocaine would carry one less 
"point," which could result in a lower sentencing classification. In one 
example Farb used, a sentence could drop from six to 12 months to four to 
10 months.

The ruling will also affect habitual felon prosecutions.

Generally, to be convicted as a habitual felon, a defendant must be tried 
and convicted of three felonies, each of which occurred after the previous 
conviction. Now, if possession of cocaine is one of those three 
convictions, there could be no habitual felon conviction.

Finally, Farb said, all defendants who were convicted and sentenced for 
possession of cocaine could file a "motion for appropriate relief," seeking 
to receive a new sentence.

"How many of those cases are currently in the system, I would have no 
idea," Farb said.

Cocaine possession would only become a felony if it became cocaine 
trafficking, which means the suspect is charged with possessing 28 or more 
grams of the substance. That's about an ounce and equals between 130 and 
150 $20 rocks of cocaine, according to Shores. That amount fluctuates among 
other drugs such as PCP and methamphetamine.

Cleveland County Assistant District Attorney Rick Shaffer estimated his 
office had about 50 cocaine possession cases pending.

"Until we know if the attorney general's office is going to try to address 
it, there's no reason to go forward in any pending case," Shaffer said. "It 
is going to cause a massive migraine headache."

"This is just making it tougher on law enforcement," said Shores.
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