More FAQ on PRS

August 20th, 2014
By Jamie Markham

Today’s post picks up where my last post left off, with answers (my answers, at least) to more frequently asked questions about post-release supervision.

What will life on PRS be like? It will be a lot like probation—which is something to keep in mind if the defendant requested an active sentence to avoid probation. The conditions of supervision will be set by the Post-Release Supervision and Parole Commission, not by the court. Every supervisee will be subject to a condition that he or she not commit another crime. G.S. 15A-1368.4(b). The Commission may add other conditions it believes are “reasonably necessary to ensure that the supervisee will lead a law-abiding life or to assist the supervisee to do so.” G.S. 15A-1368.4(d) and (e) set out appropriate reintegrative and controlling conditions, respectively. They include things like having a job, completing treatment, not using drugs, paying court costs, and submitting to warrantless searches by a post-release supervision officer. (Unlike probation, for post-release supervision there is no statutory provision for warrantless searches by a law enforcement officer.) Special conditions apply to sex offenders. G.S. 15A-1368.4(b1).

For what types of violations can I be revoked? As described in this prior post summarizing the PRS violation hearing process, the Justice Reinvestment Act limited the Commission’s authority to revoke PRS in much the same way that it limited judges’ authority to revoke probation. PRS may be fully revoked only for a new criminal offense or absconding, or for any violation committed by a person under supervision for a reportable sex crime. G.S. 15A-1368.3(c)(1). For all other violations, the supervisee may be reimprisoned for three months, and then re-released onto PRS. (DAC and the Commission sometimes refer to those 3-month reimprisonment stints as “CRV,” though that statutory terminology applies only to imprisonment for technical violations of probation.) Reimprisonment tolls the term of supervised release. Id. For example, if a defendant violates PRS 10 months into a 12-month term of supervision and is reimprisoned for three months, he comes out of prison with 2 months remaining on the term of supervision. Time does not run on the supervision period while he is behind bars. However, once the defendant has served his entire maximum term of imprisonment, the sentence is considered terminated, G.S. 15A-1368.2(f), and there is no further release to supervision, G.S. 15A-1368.3(c)(1).

If my PRS is revoked, do I get credit against my remaining term of imprisonment for the time I spent under supervision? No. Unlike some other states, North Carolina does not allow credit for what is sometimes called “street time,” the time a person a person spent under supervision in the community. To the contrary, G.S. 15A-1368.3(c)(2) expressly provides that a supervisee “shall not receive any credit for days on post-release supervision against the maximum term of imprisonment imposed by the court . . . .” So, if you have a 9-month term of PRS with 9 months of imprisonment hanging over your head, and you violate and get revoked in month 8, you go back to prison for 9 months, not 1 month.

How does PRS work if I am serving multiple sentences? In general, a person convicted of multiple felony offenses will serve only one period of post-release supervision upon his or her release. If the sentences were set to run consecutively, one PRS term will remain at the end of the aggregate term by virtue of the single sentence rule, described in detail here. The length of that sole PRS term will be dictated by the longest term applicable to the defendant’s multiple convictions (9, 12, or 60 months, depending on the offense class and whether the defendant is a sex offender). Occasionally a defendant will be subject to concurrent sentences that include a mix of non-PRS (i.e., pre-2011) and PRS-eligible felonies, and for which the term of imprisonment for the non-PRS sentence actually extends beyond the PRS-eligible one(s). If that happens, DAC and the Commission will hold the PRS term for the PRS-eligible offense in abeyance until the defendant is actually released from prison on the non-PRS case. Once a person is on PRS, the PRS term generally runs concurrently with any other federal or State prison, jail, probation, or parole term to which the person becomes subject. G.S. 15A-1368.5.

What is the deal with PRS for drug trafficking crimes committed between December 1, 2011 and November 30, 2012? When the General Assembly amended the felony sentencing grid in 2011, increasing felony maximum sentences to account for the expansion of post-release supervision, it did not increase the statutory terms of imprisonment for drug trafficking set out in G.S. 90-95(h). The legislature fixed the problem for offenses committed on or after December 1, 2012, but when I wrote about the issue here in 2012, I was unsure how DAC and the Commission would treat cases falling in the gap year. I have since learned that if there is not a full complement of “extra” time built into the maximum sentence for PRS (9 extra months for Class F, G, and H trafficking, and 12 extra months for Class C, D, and E trafficking), then they will not give the defendant any post-release supervision at all. I have heard that some judges have addressed the issue by adding extra time to the maximum themselves, but I don’t know of any legal basis for doing that. The applicable statute for that time period prescribed a particular sentence, and I think that’s what the court is obliged to use, even if it makes administration of PRS difficult. I would be interested to hear from readers with practical experience with cases from this time frame to learn more about how things played out.

Court of Appeals in State v. Townsend Beefs Up Prejudice Required for Relief under Knoll

August 19th, 2014
By Shea Denning

No one gets relief any more under State v. Knoll—at least not from the court of appeals.  State v. Townsend, decided today, is the latest in a series of post-Knoll cases in which the defendant failed to establish that he was prejudiced by a magistrate’s alleged statutory violations in setting conditions of pre-trial release, and, thus, failed to establish a basis for dismissal of the charges.

Facts. The defendant in Townsend was arrested at a DWI checkpoint in Charlotte around 11:30 p.m. Forty-five minutes later, he submitted to breath testing in the Breath Alcohol Testing vehicle located at the scene, registering a 0.10 on his first test and a 0.09 on his second. The defendant called his wife to tell her he had been arrested. He told her that he or someone would call her later to come pick him up.  The arresting officer then took the defendant to the Mecklenburg County Jail, where he was admitted at 12:56 a.m.

The record of events gets a bit more confusing from here.  While the opinion states that the defendant appeared before a magistrate at 2:54 a.m. (some two hours after arriving at the jail), it also adopts the trial court’s finding that the defendant signed an implied consent offense notice (form AOC-CR-271) in front of the magistrate at 2:34 a.m., listing his wife’s name and phone number. The implied consent notice form contains a certification from the magistrate that an initial appearance has been held, so it is odd that the form apparently was signed before the initial appearance.

In any event, the magistrate imposed a secured bond—of sorts. The conditions of release form stated that the defendant was subject to a $1,000 secured bond, but also stated that the bond “may be unsecured to sober responsible adult with ID.”  The court of appeals called this an “option bond,” as good a label as any since no such condition is defined in or authorized by statute.

A jail official called the defendant’s wife, who came to the jail.  The defendant was released to the custody of his wife at 4:45 a.m., more than five hours after he was arrested and about four hours after he arrived at the jail.

Procedural History.  The defendant moved to dismiss the charges pursuant to State v. Knoll, 322 N.C. 535 (1988), arguing that he was denied the right to communicate with counsel and friends and that this denial resulted in substantial prejudice.  The defendant specifically complained that the magistrate ordered him held under a $1,000 secured bond without justification, prior to meeting with him, and without making written findings as to why that condition was necessary. The trial court denied the defendant’s motion, and the court of appeals affirmed.

Holding. Though conceding that the magistrate “may have committed a technical statutory violation,” by not making written findings as to its reason for imposing a secured bond, the court of appeals held that the defendant failed to demonstrate how he was prejudiced by that violation.  The court noted that the defendant was not in fact required to post a secured bond.  Instead, he was released on an unsecured bond to his wife’s custody.  Ergo, said the court, he cannot show prejudice.  Moreover, the court said that the defendant had several opportunities to call counsel and friends to observe him and help him to obtain an independent chemical analysis, but failed to do so.  Thus, he was not “denied his rights pursuant to Knoll.”

Food for Thought.  Probably because I regularly teach magistrates about the procedures they must follow in setting conditions of release in impaired driving cases, my reaction to the facts is less sanguine than the court of appeals. For starters, “option bonds” are not a statutory option. Instead, G.S. 15A-534 requires that a magistrate impose at least one of the following conditions of release.

  1. Release the defendant on his written promise to appear.
  2. Release the defendant upon his execution of an unsecured appearance bond in an amount specified.
  3. Place the defendant in the custody of a designated person or organization agreeing to supervise him.
  4. Require the execution of a secured appearance bond in a specified amount.
  5. House arrest with electronic monitoring.

A magistrate must impose condition (1), (2), or (3) above unless he or she determines that such release will not reasonably assure the appearance of the defendant as required, will pose a danger of injury to any person, or is likely to result in destruction of evidence, subornation of perjury, or intimidation of potential witnesses. Upon making the determination, the magistrate must then require a secured bond instead of condition (1), (2), or (3), and must record the reasons for so doing in writing to the extent provided in the policies or requirements issued by the senior resident superior court judge.

Furthermore, the “option bond” imposed in Townsend essentially functioned as an impaired driving hold. It was not, however, accompanied by findings to support such a hold. One could infer that the magistrate imposed the bond to prevent the defendant from gaining immediate release–unless the defendant was released to the custody of a sober, responsible adult. If, however, the magistrate found clear and convincing evidence that the defendant was impaired to the extent he was a danger, the appropriate action would have been to impose an impaired driving hold pursuant to G.S. 15A-534.2 rather than an optional bond. Impaired driving holds are properly recorded on form AOC-CR-270, which contains a place for magistrates to record their findings.

It isn’t clear to me whether there was evidence in Townsend to support such a hold. The defendant’s alcohol concentration was near the per se level, and he was stopped at a checkpoint. Perhaps his alcohol concentration when combined with the signs of intoxication that the officer observed during the field sobriety tests were sufficient to render him dangerous more than three hours after his arrest, but I am somewhat doubtful.

Had the magistrate imposed a written promise or an unsecured bond at the initial appearance, the Townsend defendant would have been released nearly two hours earlier, a difference that may not have affected his ability to gather evidence in any meaningful way. In another case, however, the difference could be significant. A defendant might be held for several hours on an “option bond” when there is no evidence that she is impaired to the extent she is a danger. Conversely, a highly impaired defendant could post bond and gain release without supervision.

Why? I continue to be surprised by the perseverance and prevalence of option bonds. Perhaps they are used to avoid the additional paperwork associated with an impaired driving hold. Perhaps magistrates have decided that statutory procedures must be skirted to protect the public.  Or perhaps old habits just die hard. In any event, State v. Townsend again emphasizes that a defendant must prove far more than a misstep by a magistrate to be entitled to dismissal of impaired driving charges under Knoll.

Ferguson and Cameras

August 18th, 2014
By Jeff Welty

According to the New York Times, the governor of Missouri is now deploying the National Guard in an “effort[] to quell unrest” resulting from a white police officer’s shooting of a black teenager in the city of Ferguson. It seems to me that much of the “unrest” is a result of a lack of factual information about what took place between the officer and the teenager. Many community members believe that the teenager was shot without provocation. The officer hasn’t spoken publicly, to my knowledge, but appears to have told investigators that the teenager, who was very large, was attacking him. As far as I can tell, there are few credible witnesses, and the autopsy results don’t determine conclusively which version of events is correct. As a result, people can and do believe very different things about the incident, making violent disagreement possible.

If the officer had been equipped with a wearable camera, we would have much better information about what happened. Even a dash-mounted camera in the car would have helped. It might or might not have captured video of the interaction, but even an audio recording would be better than nothing.

The lack of a dash-mounted camera is a bit of a surprise. Many, if not most, police departments now have cameras in every patrol car. According to the police chief in Ferguson, “his department has 18 patrol cars. This spring, the department purchased two dashboard cameras and two wearable body cameras, but the equipment hasn’t been installed in vehicles because the department doesn’t have the money to cover that cost.” Hindsight is 20-20, but the costs of dealing with the “unrest” and the forthcoming lawsuit by the teenager’s family will make that cost seem like pocket change.

The incident has led to calls to equip all law enforcement officers with wearable cameras. The Editor in Chief of PoliceOne has a column here entitled Following Ferguson, a body camera on every officer? A columnist at Slate goes even further here, arguing that all public servants, including schoolteachers, should be equipped with recording devices.

There seems to be a strong argument for wider deployment of recording devices among law enforcement, at least when officers are engaged in adversarial interactions. And the reports that I have read suggest that departments that are using wearable cameras have had good experiences. But I’m interested in others’ perspectives. Would you support or oppose a policy that provided officers with wearable cameras and required their use? Would that sour the relationship between law enforcement and the public, or be too intrusive? I welcome responses by email, or of course in the comments section.

News Roundup

August 15th, 2014
By Jeff Welty

This week brought two tidbits of legislative news as the session winds down. First, the General Assembly slightly revised the rules for disposing of weapons seized during criminal investigations, generally making it somewhat easier to order such weapons into the possession of a local law enforcement agency. A helpful AOC memo explaining the changes is here. Second, WRAL ran this article about a provision in the technical corrections bill that allows county jails to sell e-cigarettes to inmates. (Traditional cigarettes are a no-no in jails.)

In other news:

Risk-based sentencing in the news. Attorney General Eric Holder submitted a letter to the Sentencing Commission condemning evidence-based, or risk-based, sentencing. That’s the practice of basing a defendant’s sentence in part on an assessment of the future danger posed by the defendant. The New York Times editorializes its agreement with Mr. Holder here, characterizing the practice as “punishment profiling” and arguing that it is unfair to minorities and the poor. Others argue that defendants should be punished based on what they have done, not what they might do. On the other hand, one possible purpose of sentencing is protecting the public by incapacitating dangerous defendants, and knowing more about how dangerous a particular defendant is likely to be may help to inform that decision. A federal judge argued in favor of the practice on his blog here, and a defense attorney offered a rejoinder here.

ABA review of Stand Your Ground Laws. An ABA task force that reviewed Stand Your Ground laws has concluded that they are unnecessary, increase homicides, and result in racial disparities. The ABA’s website reports on the matter here, while a long Think Progress piece about the committee’s work is here. Other perspectives are possible, of course.

Not to overly emphasize grammar, but . . . readers may be interested in this post at the Volokh Conspiracy, which rocked my world regarding the use of split infinitives. It argues persuasively that they are not only permissible, but fully standard and in fact, in many situations, better than alternative phrasings. I had no idea.

Things are different in Russia. Finally, the Moscow police have adopted new disciplinary policies designed to prevent female officers from altering their uniforms by shortening the skirts. The Moscow Times has the story here, together with a photograph illustrating the issue. Teenage boys across the city are likely distraught.

That Court of Appeals Ballot

August 14th, 2014
By Michael Crowell

In July John Martin, the chief judge of the Court of Appeals, announced his retirement effective August 1st. Given the timing of his decision, state law requires an election in November to fill the seat but no primary in advance to reduce the number of candidates. It appears that everyone who has ever aspired to be an appellate judge sees this as an opportunity to catch the ring, and 19 candidates have filed. One of them will get more votes than the others, though it may not be very many, and will be elected with no run-off. Nineteen candidates, one vote, one time, most votes wins. Some people may think this is not the best way to choose a judge for an eight-year term on North Carolina’s second highest court. How did we end up with such an election?

Nonpartisan elections

Let’s start with North Carolina’s switch from partisan to nonpartisan elections. Until the late 1990s we elected all state judges in partisan elections. Just like the governor and legislators and county commissioners, judicial candidates ran on political party labels. Each party held a primary to determine its candidates and those party nominees faced off in the general election. If a vacancy opened up too late for a primary, as with Judge Martin’s seat, the executive committees of the parties would choose the candidates for the November ballot, one for each party. A nice neat ballot with no undue clutter of candidates.

Starting in 1998, though, North Carolina moved to nonpartisan election of judges. First to be converted were superior court judges in 1998, then district judges in 2002, and finally appellate judges in 2004. Democrats’ and Republicans’ views on the method of selecting judges tend to fluctuate over time, depending on how they think their party will fare. Several events in the 1980s and 90s, when Democrats still controlled the legislature, started the shift toward nonpartisan elections. Election of superior court judges had to be changed — remember when they were nominated in primaries in their districts but were then subject to a statewide general election? — because of two lawsuits. One was a Voting Rights Act lawsuit claiming that the system discriminated against African Americans, and the other a Republican lawsuit contending party discrimination. Add to the litigation the fact that Republicans started winning some statewide elections and the move to nonpartisan elections began.

With nonpartisan elections, of course, the political parties have no role in nominating candidates. In regularly scheduled judicial elections the November ballot is shortened to two candidates per office by having a nonpartisan primary in the spring.  But when a vacancy occurs too late for the primary, as with the Martin seat, the election has to be open to any qualified candidate who wants to run.

Eight-year terms

A second change encouraging candidates to run for vacancies has been the reward of an eight-year term. Until 1995 when a vacancy arose in the middle of a term there would be an election to choose someone to fill the remainder, but only the remainder, of the unexpired term. John Martin was elected to the Court of Appeals in 2008. Under the old system the winner this November would serve only until 2016, that is, just two years, at which time there would be an election for a full eight-year term.

In the early 1990s Governor Jim Martin, taking a different view of the state constitution and statutes on vacancies, issued eight-year commissions to several appellate judges, including Bob Orr, who had been elected to fill unexpired terms. The governor’s position was that constitutionally all elections had to be for eight-year terms. Superior court judge Tony Brannon disagreed and sued when the State Board of Elections did not put Orr’s Court of Appeals seat on the ballot in 1992. The Supreme Court dodged the constitutional issue in Brannon v. North Carolina State Board of Elections, 331 N.C. 335 (1992), but interpreted the statutes to mean a vacancy election was only for an unexpired term. Brannon, thus, won the right to run in 1992. He lost to Orr.

Both political parties — and particularly the appellate judges in both parties — decided the Brannon decision was bad policy, prompting the General Assembly in 1995 to declare that all appellate judicial elections are for eight-year terms, even if prompted by a vacancy. The same rule was extended to superior court vacancies in 1996 (except, for a time, vacancies in some districts that were part of the earlier voting rights litigation).

(If you are wondering, there are no elections to fill vacancies in district court judgeships, which have only four-year terms. Regardless of when the vacancy occurs during the term, the appointed replacement serves the remainder of the term.)

The 2004 election

By 2004, then, the law provided that judicial elections were nonpartisan and that elections to fill vacancies were for full eight-year terms. And under general state law, if a vacancy occurred too late for a primary there would be a single winner-take-all election, most votes wins. When Bob Orr, by this time on the Supreme Court, resigned his seat in the middle of 2004, eight candidates signed up for the November vacancy election. Paul Newby led with 583,000 votes out of almost 2.6 million cast and got a full eight-year term. He had received about 22 percent of the votes.

To some the 2004 result did not seem quite right, that someone should be elected to a full eight years on the state’s highest court with less than a quarter of the votes in a hurry-up election. Consequently the legislature was convinced in 2006 to make a drastic change in voting for such elections.

Instant run-off voting

Instant run-off voting is one of those schemes that delights political scientists but puzzles the average person in the street. As enacted in 2006, if there was a late judicial vacancy there would still be a single election in November open to all qualified candidates. When voters went to the polls, though, they would do something more than just check the name of a single candidate. A voter could place a 1, 2 or 3 next to their top three choices. If no candidate got a majority of 1 votes, the 2s and 3s would be counted in some fashion to figure out who really had the most overall support. The idea of instant run-off voting is to show who might prevail in a run-off without really having a second election. Don’t ask me to explain further.

In 2010 we got to see instant run-off voting in action. When a vacancy arose late for the Court of Appeals, 13 candidates filed. Cressie Thigpen led with 395,000 of the nearly two million votes cast, 100,000 votes ahead of second-place Doug McCullough, but Thigpen was far short of a majority. Consequently, the counting of 2s and 3s kicked in. McCullough ended up the winner, and maybe a few people understood the math.

The 2013 General Assembly

The General Assembly’s recent reworking of election laws included two significant changes in judicial elections. First, the legislature eliminated public funding of appellate judicial elections. Started at the same time as the switch to nonpartisan elections in 2004, public funding allowed appellate candidates who demonstrated a certain level of statewide support through their own fundraising to receive a set amount of public funding — generally just a couple of hundred thousand dollars — in exchange for agreeing not to accept political contributions. The intent was to reduce the influence of special interest groups in judicial elections.

Public funding proved popular with candidates but not with the Republican majority that gained control of the legislature in 2013. The idea of using public funds to pay for individual candidates’ campaigns had always been controversial, and it was repealed.

The second change that was enacted was to eliminate the use of instant run-off voting. There isn’t any clear record why it was dropped. Maybe it just seemed too odd.

The 2014 ballot

For 2014, therefore, we are back to where we were before 2006. We have a reprise of 2004 with a mighty host of candidates competing in a single plurality election for an eight-year appellate term. With 19 people in the field — including two former Court of Appeals judges, one ex-superior court judge, at least one sitting district court judge, a former State Board of Elections member, a prominent ex-legislative staffer, and lots of others — it’s unlikely anyone will come close to a majority.

Given the number of candidates, the short time for campaigning, the low attention paid to judicial races, and the drop-off in voting for judgeships, someone is likely to win with a small percentage of votes. In 2012 about 4.5 million North Carolinians voted for president, and over 4.3 million for superintendent of public instruction, but by the time voters got down the ballot to the Supreme Court only 3.5 million were still voting. The number was lower for the Court of Appeals seats. Those were simple one-on-one judicial elections, fairly easy choices. How many voters will skip the Court of Appeals vacancy when they see 19 unfamiliar names? And what percentage of the total votes will any one candidate get?

There is another possibility for the November election, maybe more worrisome. Because of the large field of candidates and the minimal attention the election will receive, it might take only a modest investment by a special interest group to sway the outcome. With no public funding, candidates must resort to traditional fund raising, and some interest groups may see an opportunity. Furthermore, with restrictions lifted on independent organizations’ spending on campaigns, and corporations allowed to contribute to those efforts, an interest group operating essentially anonymously under a vague name — say, North Carolinians For Real Justice — could put a few hundred thousand dollars into the campaign at the last minute in favor of a single candidate, tipping the race and realizing an outsized dose of influence.

North Carolina has struggled for decades to figure out the best way to elect judges. The 2014 Court of Appeals vacancy may prompt additional debate on the subject.

FAQ on PRS

August 13th, 2014
By Jamie Markham

There are almost 7,000 people on post-release supervision in North Carolina today. That’s up from around 2,000 in 2011, before the law was changed to require post-release supervision for all felonies. As the PRS census increases, so do the questions. Today’s post addresses a few frequently asked questions about post-release supervision, presented from the defendant’s point of view.

Do I have to do post-release supervision? It depends on the date and class of the offense. Sentences for defendants convicted of Class B1–E felony offenses committed on or after October 1, 1994, and any felony committed on or after December 1, 2011, include time for post-release supervision. Defendants who receive active sentences in those date ranges necessarily will be released onto post-release supervision at the conclusion of their active time. Defendants sentenced to probation initially will do PRS only if their probation is revoked.

How long is my term of post-release supervision? Again, it depends on the date and class of offense, and also whether or not the crime requires registration as a sex offender. The following summary is drawn from G.S. 15A-1368.2(c).

Offenses Committed before 12/1/11

  • Class F-I felonies:  No PRS
  • Class B1-E felonies:  9 months PRS
  • Class B1-E sex crime:  5 years PRS

Offenses Committed on or after 12/1/11

  • Class F-I felonies:  9 months PRS
  • Class B1-E felonies:  12 months PRS
  • Any felony sex crime:  5 years PRS

Can I refuse PRS and just serve out the remaining term of imprisonment? No. G.S. 15A-1368.2(b). And a sex offender inmate who willfully refuses to accept PRS can be held in contempt and imprisoned for the refusal, with that imprisonment not counting for credit against the remaining term of imprisonment for the underlying sex crime. Id. (described in this prior post).

Nobody mentioned anything about PRS when I was sentenced, and there’s nothing about it on my judgment. Do I still have to do it? Probably. There is no statutory requirement that a defendant be advised of a term of post-release supervision as a consequence of a guilty plea. G.S. 15A-1022 requires only that the defendant be advised of the maximum possible sentence for the charge. By contrast, federal procedural rules require the judge accepting a guilty plea to advise the defendant of the “maximum possible penalty, including imprisonment, fine, and term of supervised release.” Fed. R. Crim. Proc. Rule 11(b)(1)(H). Other states have similar rules. E.g. Ohio R.C. 2943.032.

Could the failure to advise about PRS raise a constitutional issue regarding whether the defendant’s plea was knowing, voluntary, and intelligent? Maybe. Constitutionally, a defendant must be made fully aware of the direct consequences of his or her plea, which are those that have a “definite, immediate and largely automatic effect on the range of the defendant’s punishment.” State v. Bozeman, 115 N.C. App. 658, 661 (1994). See generally Julie Ramseur Lewis & John Rubin, North Carolina Defender Manual (Vol. 2, Trial), at 65. PRS is mandatory, and thus pretty clearly “direct” (unlike parole eligibility, which is something upon which a defendant need not be advised, State v. Daniels, 114 N.C. App. 501 (1994)). However, when the term of PRS supervision is no longer than the extra time built into the defendant’s maximum sentence (generally 9 months for a Class F–I felon or 12 months for a Class B1–E felon), the judge’s advice about the maximum term of imprisonment may be all that is required. Though qualitatively different from imprisonment, the PRS supervision period will not extend beyond the duration of the advised-upon maximum, because the defendant will automatically be released that same number of months before attaining the maximum. G.S. 15A-1368.2(a). So in some sense the defendant has been advised about the outermost bounds of the punishment.

The type of defendant for whom the failure to advise about PRS seems most troubling is a Class F–I sex offender, who has only 9 extra months of imprisonment built into his or her maximum sentence, but a 5-year term of supervised release. G.S. 15A-1368.2(c). A lack of information about that lengthy, mandatory term of supervision (which extends over four years beyond the maximum term of imprisonment) could, perhaps, call the validity of a guilty plea into question. I’m not aware of any North Carolina case law, but when the issue has come up in other states, it generally has been resolved in the defendant’s favor. See People v. Catu, 825 N.E.2d 1081 (N.Y. 2005) (“Because a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction.”); State v. Johnson, 864 A.2d 400 (N.J. 2005) (vacating a plea when the trial court failed to advise about a mandatory parole period); Helms v. State, 281 P.3d 180 (Kan. Ct. App. 2012) (unpublished) (setting aside a plea when the trial court did not tell the defendant about mandatory postrelease supervision when entering his plea).

Convicted of DWI?  Go Directly to Jail.

August 12th, 2014
By Shea Denning

The General Assembly just made it a whole lot easier to determine whether a defendant imprisoned for a misdemeanor DWI conviction will serve his or her sentence in jail or prison.  Defendants sentenced to imprisonment for misdemeanor impaired driving on or after January 1, 2015 will spend that time in a local confinement facility—a jail—rather than in prison, regardless of the length of the sentence.

Good riddance? We are policy-neutral here at the School of Government, but I’ll own my aversion to laws that I can’t explain.  And, honestly, I cringe every time I have to explain the current rule.  The starting point is G.S. 20-176(c1) (repealed by S.L. 2014-100 (S 744)), which provides:

Notwithstanding any other provision of law, no person convicted of a misdemeanor for the violation of any provision of this Chapter except G.S. 20-28(a) and (b), G.S. 20-141(j), G.S. 20-141.3(b) and (c), G.S. 20-141.4, or a second or subsequent conviction of G.S. 20-138.1 shall be imprisoned in the State prison system unless the person previously has been imprisoned in a local confinement facility, as defined by G.S. 153A-217(5), for a violation of this Chapter.

Thus, the rule generally applicable to sentences for all Chapter 20 offenses (including DWI) is that terms of imprisonment for active sentences, regardless of length, are served in local confinement facilities rather than in the custody of the Division of Adult Correction (DAC). This rule does not apply to a defendant who previously has been imprisoned in a local confinement facility for a Chapter 20 offense. The general rule also does not apply to convictions for certain offenses, among them a second or subsequent conviction of driving while impaired in violation of G.S. 20-138.1.

Have your eyes glazed over yet? Unfortunately, there’s more.

When an exception to the general rule of local confinement in G.S. 20-176(c1) applies, G.S. 15A-1352, which governs the appropriate place of confinement for criminal offenses generally, establishes the framework for where a term of imprisonment may or must be served. Applying that framework to impaired driving sentences became less straightforward after the legislature created a Statewide Misdemeanant Confinement Program for misdemeanor sentences of more than 90 and up to 180 days, but excluded impaired driving sentences from its purview.  The bottom line appears to be that a person sentenced to imprisonment for a second or subsequent DWI has to serve that time in a local jail if the sentence is 90 days or less.  Judges have discretion regarding the place of confinement for sentences of more than 90 and up to 180 days.  And sentences of 181 days or more must be served in a DAC facility.

Yet another set of rules applies to imprisonment served as a condition of special probation. Pursuant to G.S. 15A-1351(a), noncontinuous periods of special probation for DWI as well as other criminal offenses may be served only in local confinement or treatment facilities.  But if the special probation is ordered for a continuous period (say, 30 days), the judge has discretion over whether to order the defendant confined to jail or prison.

The new regime.  New rules apply to misdemeanor impaired driving sentences imposed on or after January 1, 2015.  New G.S. 15A-1352(f) provides that a person sentenced to imprisonment of any duration for impaired driving under G.S. 20-138.1, other than imprisonment required as a condition of special probation, must be committed to the Statewide Misdemeanant Confinement Program (SMCP). Under this program—established in 2011 pursuant to G.S. 148-32.1—the North Carolina Sheriffs’ Association identifies space in local confinement facilities that is available for housing misdemeanants.  The program initially did not apply to sentences for misdemeanor impaired driving or to other misdemeanants serving sentences of more than 180 days.  Sec. 16C.1.(a) of S.L. 2014-100 amends G.S. 15A-1352(a) to require that a person sentenced to imprisonment for a misdemeanor or for nonpayment of a fine for conviction of a misdemeanor must be committed to the SMCP if the sentence is for 91 days or more. Sentences of 90 days or less for such misdemeanor convictions (other than DWI) must be served in a local confinement facility.  The changes applicable to misdemeanor sentences other than DWI apply to persons sentenced to imprisonment on or after October 1, 2014.

The bottom line for active terms of imprisonment for misdemeanor DWI under the new rule is that, no matter their length, they will be served through the SMCP.  That means that defendants will be housed in a local jail, thought it may not be the jail in the county of conviction.

What about special probation?  Under a sentence of special probation, a court may suspend the term of imprisonment and place the defendant on probation, requiring that the defendant submit to a period of imprisonment.  For misdemeanor impaired driving sentences imposed on or after January 1, 2015, all imprisonment imposed as a condition of special probation must be served in a designated local confinement or treatment facility—regardless of whether the imprisonment is for continuous or non-continuous periods.  The same rule applies to special probation for misdemeanors generally for sentences imposed on or after October 1, 2014.

Thus, all special probation (or split sentences) for misdemeanors–DWI and otherwise—will be served in a local confinement facility rather than a DAC facility under amended G.S. 15A-1351(a).

While the jury is out on whether changes to the place of confinement rules will save money, allow for a more efficient allocation of resources, or provide DWI inmates with the treatment and services they need, the amendments undoubtedly make the law easier to explain.

Entrapment

August 11th, 2014
By Jeff Welty

A national, empirical study of defenses found that the defense of entrapment arose in just 0.08% of cases, usually “to little avail.” Stephen G. Valdes, Frequency and Success: An Empirical Study of Criminal Law Defenses, Federal Constitutional Evidentiary Claims, and Plea Negotiations, 153 U. Penn. L. Rev. 1709, 1716 (2005). But every now and again, arguing entrapment is just the right move for a defendant. The court of appeals recently decided an entrapment case with interesting facts that makes a good occasion for a refresher.

Entrapment basics. A defendant is entitled to a jury instruction on entrapment where there is evidence of (1) inducement, i.e., that there were “acts of persuasion, trickery or fraud carried out by law enforcement officers or their agents to induce a defendant to commit a crime,” and (2) origin of intent or lack of predisposition, i.e., that “the criminal design originated in the minds of the government officials, rather than with the . . . defendant. State v. Luster, 306 N.C. 566 (1982) (internal citations and quotation marks omitted). The defendant has the burden of proving entrapment to the satisfaction of the jury. State v. Thompson, 141 N.C. App. 698 (2001). If the evidence of entrapment is sufficiently strong, the defense may be established as a matter of law. State v. Stanley, 288 N.C. 19 (1975).

Facts of Foster. In State v. Foster,__ N.C. App. __, __ S.E.2d __, 2014 WL 3820713 (Aug. 5, 2014), three Charlotte officers “were working undercover at . . . a male strip club . . . investigating a complaint of sexually-oriented business and narcotics violations.” The defendant was a dancer at the club. He and another performer gave the officers lap dances, and one of the officers flirted and joked with the defendant.

In the officer’s version of events, the officer then asked the defendant if he had a “hookup” for cocaine. The defendant said that he did, and followed up that night with text messages to the officer asking the officer exactly what he wanted. According to the officer, he didn’t respond to those texts, but texted the defendant a week later asking him to “hook him up.” The defendant again agreed to do so, and the officer returned to the club to consummate the deal. The defendant’s supplier arrived at the club and the defendant got money from the officer and bought cocaine for him. The defendant was arrested and charged with drug offenses.

The defendant’s version of events, based on his trial testimony, was that he believed that the officer was “interested in him.” The officer asked whether the defendant was single, said that he was “into” the defendant, and gave the defendant a hug at the end of the night. According to the defendant, he did not do drugs but agreed to ask around on the officer’s behalf because he had a crush on him and wanted to impress him. He denied sending several of the text messages referenced by the officer, and testified that he felt “pushed . . . to get [the drugs] or else the interest would have been lost on his part in me.”

Trial court’s ruling. The trial judge declined to instruct the jury on entrapment, for two reasons. First, the judge ruled that the defendant had presented insufficient evidence of entrapment. Second, the judge found that the defendant had failed to give sufficiently detailed pretrial notice of his intent to rely on the defense, as required by G.S. 15A-905.

Sufficient evidence of entrapment. The court of appeals found that the evidence, viewed in the light most favorable to the defendant, was sufficient to require an instruction on entrapment. The officer “falsely led [the] defendant to believe that he was romantically interested in [the] defendant,” then “initiated the conversation regarding drugs” and pursued it again a week later. The court noted that there was no evidence that the “defendant had previously used drugs, engaged in drug dealing,” or had any predisposition to do so until the officer approached him. It characterized the officer’s conduct as “emotional manipulation” of the defendant. However, the court stopped short of finding entrapment as a matter of law.

Discovery sanction too severe. As to the discovery issue, it appears that the defendant notified the State of his intent to claim entrapment months before trial, but did so without providing details about the intended defense. The trial court found that the defendant had not complied with G.S. 15A-905, which requires the disclosure of “specific information as to the nature . . . of the defense,” and as a sanction, declined to instruct the jury on entrapment. The court of appeals ruled that, assuming arguendo that the defendant’s notice was inadequate, the sanction imposed by the trial judge was too severe: there was no evidence of bad faith by the defendant, the State did not press for additional information and was not greatly prejudiced by the defendant’s conduct, and refusing to submit a defense is a “harsh sanction that implicates defendant’s fundamental right to present a defense.”

Based on the foregoing analysis, the court unanimously ordered a new trial for the defendant. He isn’t home free, of course, but he has already gotten more mileage out of the entrapment defense than most defendants ever do.

News Roundup

August 8th, 2014
By Jeff Welty

The headline news this week is that the General Assembly has agreed on a budget, and Governor McCrory has signed it. It is here. Among other provisions, it moves the SBI from the Attorney General’s office to DPS (section 17.1); requires much of the information in attorney fee applications to be made publicly available online (section 18A.1); eliminates four special superior court judgeships and adds two business court judgeships (section 18B.6); provides for $1,000 raises for most court personnel (section 35.3); and gives state employees who earn vacation leave five extra days next year. Magistrates and troopers are subject to special salary provisions that appear to be slightly more favorable.

The accompanying money report reveals that a couple of prisons will close, while a two new CRV facilities will open; IDS’s administrative budget will be cut by almost $500,000; and the AOC’s budget will be cut by almost $3 million, with an additional cut of $500,000 to the IT section.

In other news:

New chief judge for court of appeals. Chief Justice Parker has appointed Linda McGee to be the chief judge of the court of appeals. The News and Observer has the story here.

Sex offender denied physical castration. A Florida judge denied a sex offender’s request to be physically castrated. Florida law does provide for so-called chemical castration in some cases, but the judge noted that he had “never had this request [for physical castration] before.”

Blawg 100, again. I have nearly given up on the ABA ever recognizing this blog in its Blawg 100. Nearly, but not quite! Justice could yet be served! The deadline for nominations is today at 5 p.m. If you care to nominate us, you can fill out a short web form here.

“Guns? Sure I have guns, check ‘em out!” Hat tip to Jim Romenesko for his coverage of a police blotter report from Massachussetts: “[P]olice responded to a report of a man . . . with a gun. . . . [T]he man told them the only ‘guns’ he had were his biceps, which he then flexed for officers.” Boom!

Asserting the Fifth Amendment in Court and the Granting of Immunity to a Witness

August 7th, 2014
By Bob Farb

The first ten amendments to the U.S. Constitution are commonly known as the Bill of Rights and were ratified on December 15, 1791. It is remarkable how many of these amendments are still resilient today throughout the United States. Their individual freedoms against government interference include: the freedom of speech and religion and the right to peaceably assemble (First Amendment); the right to keep and bear arms (Second Amendment); the protection against unreasonable searches and seizures (Fourth Amendment); double jeopardy and due process protections, the prohibition against compelled self-incrimination, and compensation for private property taken for public use (Fifth Amendment); the right to counsel, speedy and public trial, impartial jury, confronting witnesses, and compulsory process to obtain witnesses (Sixth Amendment); and the protections against excessive bail and fines and cruel and unusual punishments (Eighth Amendment). This post focuses on the Fifth Amendment self-incrimination provision in the courtroom and the granting of immunity to a witness to compel testimony.

The Fifth Amendment privilege protects a person against compelled self-incrimination. A similar privilege exists in section 23 of Article I of the North Carolina Constitution, which has not been interpreted more expansively than the Fifth Amendment. While the privilege protects a person against compelled testimony and similar communications, it does not against compelled nontestimonial acts such as submitting to fingerprints, photographs, and sobriety testing, speaking for identification, appearing in lineups, and giving blood samples. See e.g., Schmerber v. California, 384 U.S. 757, 764-65 (1966) (withdrawal and chemical analysis of blood did not implicate defendant’s “testimonial capacities” and thus did not violate Fifth Amendment). The privilege may be invoked in any proceeding, civil or criminal, including a criminal investigation. It protects against any compelled disclosures that a person reasonably believes could be used in a criminal prosecution or could lead to the discovery of other evidence that might be used in a prosecution. Kastigar v. United States, 406 U.S. 441, 444-45 (1972). When a witness invokes the privilege, the trial court must determine whether it may be “reasonably inferred” that the answer may be incriminating, and the invocation should be “liberally construed.”

A criminal defendant has the right under the Fifth Amendment privilege to decline to take the stand. If a defendant decides not to testify, the State or a judge may not call the defendant to the stand, and a codefendant may not call the defendant to the stand at their joint trial. However, a defendant who voluntarily takes the stand and testifies in his or her own behalf cannot invoke the privilege on cross-examination concerning matters made relevant by direct examination. When a defendant exercises his or her Fifth Amendment privilege by not testifying at trial, any reference by the State or the trial court about the defendant’s election not to testify violates the Fifth Amendment.

A witness who is not a criminal defendant has the right under the Fifth Amendment privilege to refuse to answer a question if: (1) the answer may tend to incriminate the witness; (2) the witness is not immune from prosecution; and (3) the witness has timely invoked the privilege in response to a question. However, a witness who testified on direct examination cannot invoke the privilege on cross-examination concerning matters made relevant by direct examination.

A judge has the discretion whether (1) to advise a witness of his or her right not to answer incriminating questions, and (2) to allow the State or the defendant to call a witness to invoke the privilege before the jury.

A witness who invokes the Fifth Amendment privilege against self-incrimination in any criminal or civil hearing or proceeding, including a grand jury, may be ordered to testify or produce other information when the witness has been granted immunity under Article 61 of Chapter 15A. Although an order granting immunity may be issued in any criminal or civil matter, only a district attorney is authorized to apply for an order, and the application must be made before a superior court judge. G.S. 15A-1052(a). Thus, almost all applications involve criminal proceedings.

If the State later prosecutes the immunized witness, it has the burden of proving at the later trial that its evidence was obtained completely independent of the compelled testimony or information provided by the immunized witness. Although the standard of the burden of proof has not been decided by North Carolina appellate courts, they likely would follow federal law and require proof by a preponderance of evidence. United States v. Slough, 641 F.3d 544, 550 (D.C. Cir. 2011).

This has been a brief overview. If you are interested in a more detailed discussion, you may access my recently-published section, “Fifth Amendment Privilege and Grant of Immunity,” in the North Carolina Superior Court Judges’ Benchbook, which is available here.