Avoiding Criminal Charges by Not Coming to Court

April 16th, 2014
By Shea Denning

Not showing up for court is, generally speaking, bad trial strategy.  In criminal court, such behavior can result in such unpleasantness as entry of an order for arrest and the revocation of one’s driver’s license.  In civil court, a defendant’s failure to respond can result in a default judgment for the entire sum claimed by the plaintiff. Yet in criminal cases involving charges of violating a domestic violence protective order, some defendants are benefiting from their failure to appear in the civil action leading to entry of the protective order. The defendants argue that because they never appeared for the hearing in the earlier action, they did not know a domestic violence protective order was entered, and thus, could not have knowingly violated its provisions pursuant to G.S. 50B-4.1(a). They contend that they are entitled to dismissal of the charges on this basis, and some trial courts have agreed.

Though our appellate courts haven’t considered this issue, I’m highly skeptical that such arguments have merit when the alleged violations occur after the defendant was served with the 50B complaint and any ex parte order, regardless of whether the defendant actually received a copy of the final protective order.

How DVPOs Come About. A person entitled to relief under Chapter 50B may file a civil action in district court alleging acts of domestic violence and seeking entry of protective order. When such an action is filed, a summons must be issued and served upon the defendant pursuant to Rule 4 of the Rules of Civil Procedure. The summons must require the defendant to answer within 10 days of the date of service.  The complaint, notice of hearing, and any temporary or ex parte order that has been issued must be attached. At the hearing, if the court finds that an act of domestic violence has occurred, the court must enter a protective order restraining the defendant from further acts of domestic violence. G.S. 50B-3. Such an order may, among other types of relief, grant the plaintiff possession of the residence or household and order the defendant to stay away from the residence.  G.S. 50B-3(c) provides that “a copy of any order entered and filed under this Article shall be issued to each party.” The statute does not specify how issuance occurs. It seems clear, however, that personal service under Rule 4 is not required. As a practical matter, if the defendant appears at the hearing, the defendant is handed a copy of the order.  If the defendant does not appear at the hearing, the clerk carries out this directive by mailing a copy to the defendant and noting that service on the order. Sometimes, defendants contend that they moved or for some other reason did not received the mailed order.

Proving a Knowing Violation. The pattern jury instructions for violation of a domestic violence protective order provide that “[w]here a domestic violence protective order has been served on a defendant, you may presume that the defendant knew the specific terms of the domestic violence protective order.” N.C.P.I.—Crim. 240.50. The court of appeals in State v. Branch, 2011 WL 6402713, ___ N.C. App. ___, 720 S.E.2d 461 (2011) (unpublished op.), implicitly sanctioned that instruction when it found no error in a colloquy between the judge and defense counsel after the close of the evidence regarding whether the State had proved service. In Branch, however, the defendant stipulated to service after the State forecast testimony from the victim that the defendant had appeared at the underlying civil proceeding and was present when the order was issued.  This aspect of the factual circumstances in Branch may lead some defendants to argue that the presumption does not apply when the defendant was not personally served with the order.  As I said before, I’m doubtful that this is the case.

Like DWLR. The presumption stated in the jury instruction for violating a domestic violence protective order accords with the manner in which the State must prove knowledge of a license revocation for purposes of G.S. 20-28.  In that context, the courts have held that proof that DMV mailed notice pursuant to G.S. 20-48 raises a rebuttable presumption that the defendant received the notice and thus knew of the revocation. State v. Coltrane, 184 N.C. App. 140, 143 (2007), aff’d, 362 N.C. 284 (2008) (holding that State raised prima facie presumption of receipt and presumption “was clearly not rebutted” when defendant “chose not to present any evidence at trial”).

Purpose of Chapter 50B. More significantly, the very purpose of Chapter 50B—protecting victims of domestic violence—would be undermined by permitting a defendant to avoid prosecution for violating a protective order when the State cannot prove that the order personally was served upon him.  A defendant who is served with a summons for a Chapter 50B action has been notified that the plaintiff is seeking a protective order, since such an order must issue if the court finds that an act of domestic violence occurred.  A defendant ought not be able to thwart the enforcement of a protective order issued in such a proceeding by willfully failing to appear.  In considering similar provisions under Texas Law, the Texas Court of Criminal Appeals has characterized the “evident purpose” of the “requirement [] that the respondent be served with the application and notice of the hearing, without which the protective order is not binding” as ensuring “that the person to whom the protective order applies has knowledge of the order, or at the very least such knowledge of the application for a protective order that he would be reckless to proceed without knowing the terms of the order.”  See Harvey v. State, 78 S.W.3d 368, 371 (Tex. Crim. App. 2002) (stating that “[t]he requirements are only that the respondent be given the resources to learn the provisions; that is, that he be given a copy of the order, or notice that an order has been applied for and that a hearing will be held to decide whether it will be issued” and that “[t]he order is nonetheless binding on the respondent who chooses not to read the order, or who chooses not to read the notice and the application and not to attend the hearing.”); but see Small v. State, 809 S.W.2d 253, 256-57 (Tex. App. 1991) (finding evidence insufficient to sustain conviction for violation of domestic violence protective order where “[a]side from indicating that the appellant was served with notice of the hearing on the protective order, there is no evidence in this record that the appellant agreed to a protective order, attended any hearing or in any way participated, that he was ever served with a copy of the protective order, or that he in any way received notice, formal or informal, of the issuance or existence of the court order in question prior to his coming into the home”).

Have your say. That’s my view.  As always, if you see things differently or have something to add, please send in a comment below.  

RJA Oral Argument

April 15th, 2014
By Jeff Welty

The state supreme court heard oral argument yesterday in two cases concerning the Racial Justice Act. In the first case, Superior Court Judge Gregory Weeks struck down the death sentence imposed on Marcus Robinson under the RJA as enacted in 2009. In the second, Judge Weeks vacated the death sentences imposed on Quintel Augustine, Christina Walters, and Tilmon Golphin, under the original RJA and, in the alternative, under the RJA as amended in 2012.

The cases present important issues about the proper interpretation of the RJA, including the extent to which a defendant may relay on statistical evidence of racial bias that isn’t connected directly to the defendant’s own case. The second case also presents the question of whether defendants who filed their claims under the original RJA are entitled to have their claims adjudicated under the law as it stood at the time of filing, a question that has taken on added importance since the legislature repealed the RJA altogether in 2013. I wrote about some of these issues in the Capital Case Law Handbook, though the chapter on the RJA clearly will need revision after these cases are decided.

I wasn’t able to attend the oral argument, but media reports suggest that the justices asked few questions and didn’t tip their hands. (The Fayetteville Observer story is here, while WRAL’s is here.) One interesting aspect of the proceedings is that Justice Beasley recused herself in the second case because she once helped defend Golphin. The recusal creates the possibility of a tie vote in that case.

As a side note, there was apparently tremendous public interest in the case, with the courtroom completely full and some spectators watching from a remote overflow location. Many people would probably be interested in a more complete understanding of what took place at oral argument than media reports convey. Yet our supreme court doesn’t post recordings or transcripts of oral arguments. The United States Supreme Court does, as do many state supreme courts, including our neighbors Georgia, Virginia, and Tennessee. [Update: A reader notes that WRAL has posted a video of the argument here.]

I will blog about the decisions when they come out.

15A-1335: When Is a Sentence “More Severe”?

April 14th, 2014
By Jessica Smith

G.S. 15A-1335 provides that when a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, that is more severe than the prior sentence less the portion of the prior sentence previously served. In most cases, determining whether the new sentence is more severe than the original sentence is a simple matter. In State v. Holt, 144 N.C. App. 112, 116 (2001), for example, the court of appeals easily concluded that imposition of a life sentence was more severe than the original sentence of 196─245 months in prison. However, I get questions about this issue every now and then. Here is a quick summary of the most common things people ask about.

Life Sentences. Any number of life sentences, even if imposed consecutively, cannot be considered more severe than a single death sentence. State v. Goode, 211 N.C. App. 637 (2011) (no violation of G.S. 15A-1335 when after the defendant’s two death sentences for murder were vacated the trial judge imposed two consecutive life sentences); State v. Oliver, 155 N.C. App. 209, 212 (2002) (same).

Multiple Sentences. Even when multiple sentences are involved, the application of the rule is generally straightforward: The statute bars imposing an increased sentence for any of the convictions, even if the total term of imprisonment does not exceed that of the original sentence. State v. Daniels, 203 N.C. App. 350 (2010) (the defendant was sentenced to consecutive terms of 307─378 months for first-degree rape and 133─169 months for first-degree kidnapping; after a successful appeal, the trial court resentenced the defendant to 370─453 months for first-degree rape and to a consecutive term of 46─65 months for second-degree kidnapping; the resentencing violated G.S. 15A-1335 because the trial court imposed a more severe sentence for the rape conviction; the court rejected the State’s argument that when applying G.S. 15A-1335, the court should consider whether the new aggregated sentences are greater than the aggregated original sentences); see also State v. Oliver, 155 N.C. App. 209 (2002) (“When multiple sentences are involved [G.S.] 15A-1335 bars the trial court from imposing an increased sentence for any of the convictions, even if the total term of imprisonment does not exceed that of the original sentence.”).

Note that the mere fact that the resentencing judge replaces concurrent sentences with consecutive sentences does not automatically make the new sentence more severe, provided neither the individual sentences nor the aggregate sentence exceeds that originally imposed. Oliver, 155 N.C. App. at 211 (no violation occurred when the original sentence included concurrent death sentences and the new sentence consisted of consecutive life sentences); State v. Ransom, 80 N.C. App. 711, 714 (1986) (the defendant initially received a consolidated sentence of twenty years for multiple offenses; after that sentence was overturned, the court sentenced him to six consecutive three-year sentences, for a total of eighteen years; the new sentence did not violate G.S. 15A-1335).

Also, nothing prevents the resentencing court from changing the way the convictions originally were consolidated, provided that the defendant is not sentenced more severely. See Ransom, 80 N.C. App. at 713 (“While G.S. 15A-1335 prohibits trial courts from imposing stiffer sentences upon remand than originally imposed, nothing prohibits the trial court from changing the way in which it consolidated convictions during a sentencing hearing prior to remand.”).

Finding New Sentencing Factors. The fact that a resentencing judge found new aggravating factors does not make the new sentence more severe, so long as those findings are not used to impose a longer sentence. See State v. Hemby, 333 N.C. 331, 334 (1993) (“Although a trial judge may find altogether new aggravating and mitigating circumstances at a resentencing hearing …, such findings cannot justify a sentence which is more severe than the original sentence imposed on the same offense.”); see also State v. Swimm, 316 N.C. 24, 32-33 (1986) (the defendant’s good behavior while in prison during the interval between initial incarceration and resentencing may constitute a mitigating factor; the defendant’s bad conduct during this period may not be used as a basis to increase his or her sentence, but may be found as an aggravating factor to be used in determining whether to impose a sentence not greater than the one originally imposed); State v. Smith, 73 N.C. App. 637, 639 (1985) (“the restriction on resentencing is not against finding new factors in aggravation, but on imposing a more severe sentence than before”).

Imposing Same Sentence When Fewer Aggravating Factors Found. The fact that the resentencing judge imposed the same sentence after finding fewer aggravating factors than were found at the original sentencing hearing does not run afoul of the statute. See State v. Mitchell, 67 N.C. App. 549 (1984) (rejecting the defendant’s argument that it was error for the trial judge to impose an identical sentence on resentencing when six aggravating factors were originally found and only two were found at resentencing).

Non-Binding Recommendations. The fact that the resentencing judge added a non-binding recommendation to the Department of Correction does not violate G.S. 15A-1335. See State v. Hanes, 77 N.C. App. 222, 225 (1985) (trial judge did not violate G.A. 15A-1335 by adding a condition, as a recommendation, that the defendant’s fine and restitution be paid before any early release; the recommendation had no legal effect and was not binding on the Department of Corrections).

News Roundup

April 11th, 2014
By Jeff Welty

Unquestionably the most shocking story of the week comes from Wake County, where an assistant district attorney’s father was kidnapped, apparently at the behest of an inmate the prosecutor had helped put away for life. The father was held for five days while his family received death threats, but he was rescued in Atlanta and is apparently physically unharmed. WRAL has the story here. A year ago, I wrote about the dangers of being a prosecutor, but I didn’t even think to explore the possibility that family members might also be at risk. Scary.

In other news:

Supreme court justice becomes district attorney. Former state supreme court justice Bob Orr has been appointed the interim district attorney in district 24, encompassing Watauga County and four other along the Tennessee line. A local news report is here.

Federal drug sentences to fall. The United States Sentencing Commission voted yesterday to reduce the sentencing guidelines that apply in drug cases, meaning the guidelines will be reduced unless Congress intervenes in the next 180 days, which it is not expected to do. Attorney General Eric Holder has ordered federal prosecutors not to object to defense requests to apply the reduced guidelines right away, even though they have not yet taken effect. The Commission will take up later the question of whether the reduction will apply retroactively. Relevant reading includes this post at Sentencing Law and Policy and this one at Crime and Consequences.

A jurisdiction that really needs to review its juvenile age. In North Carolina, there’s considerable controversy about charging 16- and 17-year-olds as adults. As the Topper from Dilbert would say, that’s nothing! In Pakistan, a nine-month-old baby has been charged with attempted murder in connection with an attack on a police officer, apparently by the child’s father and other relatives and neighbors. The New York Times reports here that “the screaming child was produced in court, and had to be comforted with a milk bottle as a court official recorded his thumbprint.” The infant is “free on bail until his next hearing,” but the reports do not discuss the conditions of his release. Electronic monitoring, perhaps? ABC News states here that the police have told the family that they are “dropping [the] investigation,” though the charges have not yet been dismissed.

Law grads’ job prospects bleak . . . but not any more bleak than last year. The Wall Street Journal Law Blog reports here on the latest batch of employment numbers from the ABA, and it’s a good-news-bad-news kind of thing: only 57% of 2013 graduates had long-term, full-time, J.D.-required jobs, which is terrible. But it isn’t any worse than 2012, and as class sizes shrink in the coming years, that number could improve.

Has marijuana reform gone to the dogs? Finally, Maryland is about to decriminalize the possession of small amounts of marijuana, and a controversial new article suggests that medical marijuana may reduce DWI fatalities. But the Administrator of the DEA testified before Congress that marijuana legalization is bad for dogs, who may ingest the substance and then have difficulty vomiting up other dangerous items that they have ingested. Over at the Volokh Conspiracy, Ilya Somin responds that pot legalization would be good for pets because “every year hundreds or thousands of dogs are needlessly slaughtered in overaggressive police raids undertaken as part of the war on drugs.”

Aggravating Factors in Felony Speeding to Elude Statute Are Elements for Purposes of Double Jeopardy

April 10th, 2014
By Shea Denning

The North Carolina Court of Appeals in State v. Mulder, __ N.C. App. ___,  2014 WL 1016059 (March 18, 2014), held that punishing a defendant for felony speeding to elude based upon the aggravating factors of speeding and reckless driving while also punishing him separately for those same misdemeanor traffic offenses violated double jeopardy.

Facts.  The facts in Mulder are disturbing. The defendant’s former girlfriend, Brenda Swann, obtained a domestic violence protective order against him when their relationship ended.  While the order was in effect, the defendant went to Swann’s home and began to strike her car with a hammer. Swann’s son confronted the defendant, who then attempted to force his way into the house.  Swann called the police, and the defendant left the premises.  A law enforcement officer located the defendant driving in his car shortly afterwards and attempted to pull the defendant over.  The defendant did not stop, and the officer continued to pursue him.  The officer testified that while fleeing, the defendant was swerving “as if he was trying to hit . . . . innocent people on the highway.” Several other officers joined the chase, and the vehicles involved reached speeds of 100 miles per hour.  The defendant swerved toward one officer’s car and eventually rammed into another officer’s vehicle.  An officer then intentionally rammed the defendant’s driver’s side door to force him to stop.  The officer approached the defendant’s car with his gun pointed at the defendant.  He told the defendant to get out of the car.  The defendant reached out of the window, slapped the gun, and said “shoot me, mother[]f*****.”  Rather than complying with the defendant’s request, the officer tried to pull the defendant out of the car. While he was doing so, the defendant shifted the car into reverse and accelerated. The officer with the gun was hanging in the driver’s side window, and another officer was hanging in the passenger side window. The second officer reached into the car, put it into park and shut off the engine.  The defendant continued to struggle and curse as he was pulled from the car and arrested.

Procedural History. The defendant was indicted for, among other crimes, speeding, reckless driving to endanger, and speeding to elude arrest.  He was convicted of those and other crimes.  He was sentenced to 6 to 8 months imprisonment for the consolidated offenses of speeding, reckless driving, speeding to elude arrest, failure to heed light or siren, failure to maintain lane control, and littering.  (He received longer sentences for his five convictions of assault with a deadly weapon on a government officer.)

The defendant appealed, arguing that the trial court erred in failing to arrest judgment on the speeding and reckless driving convictions because each of those offenses is a lesser-included offense of felony speeding to elude, an offense that was raised from a misdemeanor to a felony on the basis that the defendant was speeding and driving recklessly.  Imposing punishment for all three offenses, the defendant contended, violated principles of double jeopardy.

Court of Appeals’ Analysis.  The appellate court applied the Blockburger test, which inquires whether each offense requires proof of a fact that the other does not, to determine whether speeding and reckless driving were the “same offense” as felony speeding to elude for purposes of double jeopardy.

The elements of misdemeanor speeding to elude arrest under G.S. 20-141.5(a) are: (1) operating a motor vehicle (2) on a street, highway, or public vehicular area (3) while fleeing or attempting to elude a law enforcement officer (4) who is in the lawful performance of his duties.  G.S. 20-141.5(a). If the State proves two of eight aggravating factors set forth in G.S. 20-141.5(b), the offense is elevated to a felony.  The two factors found by the jury in Mulder were (1) speeding more than 15 miles per hour over the legal speed limit and (2) reckless driving as proscribed by G.S. 20-140.

The defendant also was convicted of speeding under G.S. 20-141(j1), which prohibits (1) driving (2) a vehicle (3) on a highway (4) more than 15 miles per hour over the speed limit or over 80 miles per hour and reckless driving in violation of G.S. 20-140(b), which prohibits (1) driving (2) a vehicle (3) on a highway or public vehicular area (4) without due caution and circumspection and (5) at a speed or in a manner so as to endanger or be likely to endanger any person or property.

The court reasoned that the factors used to elevate speeding to elude to a felony contained the same elements as the lesser traffic offenses of which the defendant also was convicted.  It then considered whether these factors were properly considered elements of felony speeding to elude.

The State characterized the factors as sentencing enhancements rather than elements. The court of appeals rejected that distinction, noting that since the factors increased the maximum punishment a defendant faced, they were elements for purposes of the Sixth Amendment right to a jury trial.  The court of appeals cited the U.S. Supreme Court’s plurality opinion in Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (2003), for the proposition that that there was no principled reason to distinguish between an offense for purposes of the Sixth Amendment’s jury-trial guarantee and an offense for purposes of the Fifth Amendment’s double jeopardy clause.  The Mulder court concluded, based on this authority, that the lesser included offenses were the “same offense” under Blockburger as felony speeding to elude.

Legislative Intent. The court then proceeded to the next step of the double jeopardy analysis—determining the legislature’s intent.  When a defendant is punished twice in the same trial for a single offense, relief under double jeopardy principles is only available if the legislature did not intend for multiple punishments to be imposed. In ascertaining the legislature’s intent, the court considered its purpose in criminalizing speeding under G.S. 20-141 and reckless driving under G.S. 20-140. Both statutes were enacted to protect against harm to persons and property and in the interest of public safety.  The same concerns apparently motivated the legislature to include these factors among those elevating speeding to elude to felony status. The court considered the codification of each offense in related sections of Chapter 20 to further evidence the General Assembly’s intent to permit alternative, but not cumulative, punishments for lesser traffic offenses used to establish felony speeding to elude.

Thus, the court held that the defendant was unconstitutionally subjected to double jeopardy when he was convicted of speeding and reckless driving in addition to felony speeding to elude based on speeding and reckless driving.  The court arrested judgment on the speeding and reckless driving convictions.  The court also remanded for resentencing, even though the speeding and reckless driving convictions were consolidated with the felony speeding to elude conviction and the defendant was sentenced to a presumptive range sentence.  The court said that it could not assume that the trial court’s consideration of the speeding and reckless driving convictions had no effect on the sentence imposed.

Broader Significance.  Mulder almost certainly means that lesser criminal offenses, such as driving while license revoked, that aggravate a sentence for impaired driving under G.S. 20-179 are the same offense for double jeopardy purposes.  What is less certain is whether the legislature intended to authorize cumulative punishment in the impaired driving context.  I reasoned here that it likely did, but the factors considered in Mulder, namely the purpose of the statutes and place of codification, points to a different conclusion.

Mulder may also revive the Hurt Blocker, a phrase Jamie coined in discussing the court of appeals’ conclusion in State v. Hurt, 208 N.C. App. 1, 702 S.E.2d 82 (2010), rev’d on other grounds, ___ N. C. ___, 743 S.E.2d 173 (2013) (per curiam), that the Confrontation Clause of the Sixth Amendment to the U.S. Constitution applied to the proof at sentencing of sentencing factors that increase the defendant’s sentence beyond the statutory maximum.  Hurt was reversed by the supreme court on the grounds that the defendant’s confrontation rights were not violated by the testifying experts’ reliance on reports prepared by experts who did not testify at trial. ___ N.C. at ___; 743 S.E.2d at 173 (per curiam).

If you foresee other developments (or fall out, depending upon your perspective) following Mulder, please share your thoughts.

New Book on Mike Nifong and the Duke Lacrosse Case

April 9th, 2014
By Jeff Welty

As a criminal lawyer, Durham resident, and Duke alumnus, I followed the Duke lacrosse case with more than a casual interest. Now, years after the fact, there’s a new book about it. The Price of Silence, by William D. Cohen, is available on Amazon for about $25. It purports to be “the definitive, magisterial account of what happens when the most combustible forces in American culture— unbridled ambition, intellectual elitism, athletic prowess, aggressive sexual behavior, racial bias, and absolute prosecutorial authority—collide and then explode on a powerful university campus, in the justice system, and in the media.”

Like the case itself, the book is controversial and divisive. It has received some very positive reviews, both from readers on Amazon and from the press. Publisher’s Weekly describes it as “[t]op-notch investigative journalism,” and Kirkus liked the book as well. But the book also has quite a few detailed one-star reviews, and local media sources, perhaps more familiar with the facts of the case, are less effusive than the national press. The News and Observer reports here that the book is based largely on the author’s interviews with former Durham District Attorney Mike Nifong, whose perspective on the case is presented “at length and virtually unchallenged.” The newspaper then challenges one of Nifong’s claim, namely, his suggestion that Attorney General Roy Cooper’s decision to declare the defendants “innocent” was without the support of the long-time prosecutors who reviewed the case for Cooper. The story quotes one of those prosecutors, Jim Coman, as saying that he was insistent about the players’ innocence and that Nifong’s “characterizations are figments of his imagination.”

I don’t think I’ll read the book. The case was riveting as it unfolded and I was outraged by some of the events that took place. But that feeling has faded with the passage of time. It appears that justice eventually was done, thanks to the excellent work of the defense lawyers involved in the case and to the courage of the Attorney General’s office. For me, what remains is mostly sadness about the damage that the principal complaining witness did to others, to the community, and ultimately to herself. In that vein, the New York Times has a mixed review here, from a reporter who covered the case. His parting thought contrasts the fate of the defendants, who settled with Duke for millions of dollars and went on to professional careers, with that of the complainant, who went on to prison after being convicted of murdering her boyfriend.

The book’s author says that “[t]here are people who don’t want to revisit this [case].” I suppose that I am one of them. But as the New York Daily News put it, for those who do want to dig back in, this book presents an opportunity to do so.

Electronic House Arrest

April 8th, 2014
By Jamie Markham

Today’s post covers some of the nuts and bolts of electronic house arrest (EHA). EHA is fairly self-explanatory: in lieu of traditional incarceration, a person is confined to his or her residence by way of an electronic monitor that signals authorities if he or she departs. The focus here is on EHA as a component of a criminal sentence, not as a condition of pretrial release, although the same technology may be used for that purpose.

Legal background. House arrest with electronic monitoring is a defined term under Structured Sentencing. Under G.S. 15A-1340.11(4a), it is probation in which a person is required to remain at his or her residence. The court may authorize the person to leave for certain purposes (work, education, or treatment, for example), and a probation officer may authorize the person to leave for other purposes not mentioned by the court with the approval of a chief probation officer.  There are actually two statutory conditions that mention EHA—the statutory special condition set out in G.S. 15A-1343(b1)(3c) and the “community and intermediate” condition set out in G.S. 15A-1343(a1)(1)—but there’s no apparent substantive distinction between the two.

For offenses committed before December 1, 2011, EHA was an “intermediate” sanction under G.S. 15A-1340.11(6), meaning it could be imposed only as part of an intermediate sentence. That distinction was repealed for offenses committed on or after December 1, 2011, meaning EHA may now be imposed as part of any probationary sentence. Electronic house arrest is also one of the sanctions a probation officer may add without prior court approval through delegated authority. G.S. 15A-1343.2(e) (for community cases); 15A-1343.2(f) (for intermediate cases).

There is no statutory time limit on how long a probationer may be ordered to EHA; in theory a person could be placed on EHA for every day of a five year probationary term. However, probation policy (§ .0303A(b)(4)) recommends that a period of EHA not exceed 120 days.

Technology. An electronic device monitors an offender’s compliance with EHA. No specific device is required by law, but under G.S. 15A-101.1(3a), any “electronic monitoring” mentioned in Chapter 15A must be done with a device that is not removed from a person’s body that actively monitors, identifies, tracks, and records a person’s location at least once every minute 24 hours a day, with a battery life of least 48 hours. The Division of Adult Correction contracts with a company called BI Incorporated for its electronic monitoring needs. The particular device used in North Carolina is called the BI ExacuTrack® One (with general information and technical specs available online). DAC uses the exact same device for electronic monitoring curfews and satellite-based monitoring of sex offenders.

Cost. A person placed on EHA as a condition of probation must pay a one-time $90 fee and, as of last September, a “daily fee in an amount that reflects the actual cost of providing the electronic monitoring.” G.S. 15A-1343(c2). As of now that daily cost is set at $4.37. (The daily cost of EHA listed on the N.C. Department of Public Safety website is $9.83, but that number probably includes some accounting of the probation officer’s time in addition to the cost of the device itself.) In a judgment imposing EHA, the court should multiply the number of days that the defendant will be subject to EHA by $4.37, add $90, and include that amount as the EHA fee on the judgment. The court may exempt a person from paying the EHA fee “only for good cause and upon motion of the person placed on house arrest.” G.S. 15A-1343(c2). Because the EHA fee is not listed in G.S. 7A-304, it probably does not require a written finding of “just cause” to reduce or remit it for a particular defendant.

Enforcement. A willful failure to abide by EHA obviously is a violation of probation. Any person who removes, destroys, or circumvents the operation of an EHA device, or solicits another person to do it, also commits a crime under G.S. 14-226.3. The offense class of the crime depends on the class of offense for which the person is being monitored: interference with the equipment is a crime one offense class lower than the most serious felony or misdemeanor for which the person is under supervision (a violation by a Class I felon is a Class A1 misdemeanor).

Credit for confinement. Time spent subject to EHA does not qualify for credit under G.S. 15-196.1. State v. Jarman, 140 N.C. App. 198 (2000). That statute is limited to time spent in any “State or local correctional, mental, or other institution,” and a person’s house is not one of those.

Along similar lines, a judge may not commit a person to a residence for service of a sentence of imprisonment. The DWI law used to include a provision allowing a split sentence to be served via house arrest, but that was repealed in 1997. S.L. 1997-379. Likewise, a sheriff may not allow a person committed to his or her custody for a term of imprisonment to serve the sentence on house arrest. The sheriff has some discretion in identifying a person’s place of confinement, but it must ultimately be a place designated by law for such confinement and approved by the Department of Health and Human Services. G.S. 162-56. In general, no person should be imprisoned except in the common jail of the county, unless otherwise provided by law. G.S. 15-6. With that in mind, house arrest should not be used as a substitute for incarceration. See 59 N.C. Op. Atty. Gen. (1989) (concluding that DWI split sentences could not be served through EHA before enactment of the authorizing provision in G.S. 20-179 noted above).

A 2013 Rollback of State Procedural Protections for Defendants

April 7th, 2014
By Jessica Smith

Most folks who are involved in appellate litigation and post-conviction motions know about G.S. 15A-1335. For those who don’t, it is a N.C. statute providing that when a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, that is more severe than the prior sentence less the portion of the prior sentence previously served.

G.S. 15A-1335 generally embodies the rule of North Carolina v. Pearce, 395 U.S. 711 (1969), but is more restrictive than the rule set out in that case. Pearce involved two cases, one of which originated in North Carolina. In the North Carolina case, the defendant was convicted in state court and sentenced to prison for twelve to fifteen years. Later, the defendant initiated a post-conviction proceeding and obtained a new trial. The defendant then was retried, convicted, and sentenced to an eight-year term in prison. When the eight-year term was added to the time the defendant already spent in prison, it resulted in a sentence greater than the one initially imposed. The defendant challenged the more severe sentence on constitutional grounds. The Court held that penalizing a defendant for having successfully pursued a right of appeal or collateral attack violates due process. Id. at 724. It continued, stating that due process “requires that vindictiveness against a defendant for having successfully attacked [a] first conviction must play no part” in the sentence imposed after a new trial and that a defendant must be freed of the apprehension of vindictiveness that might deter exercise of the right to appeal or collaterally attack a conviction. Id. at 725. Because of this, the Court concluded that whenever a judge imposes a more severe sentence after a new trial, “the reasons for his doing so must affirmatively appear.” Id. at 726. Those reasons must be based on “objective information” regarding “identifiable conduct” by the defendant after the original sentencing. Id. Thus, Pearce allows for a more severe sentence based on conduct that occurs after the initial sentencing, provided the reasons are clearly set forth in the record so that the reviewing court can verify that the increased sentence did not result from vindictiveness. Subsequent cases have restricted Pearce’s application. In one such case, in Alabama v. Smith, 490 U.S. 794 (1989), the Court held that Pearce’s presumption of vindictiveness does not apply when the original sentence was entered after a guilty plea.

Unlike Pearce, G.S. 15A-1335 is a blanket prohibition on the imposition of a more severe sentence. Thus, while Pearce permits a more severe sentence to be imposed if articulated factors would support it, G.S. 15A-1335 does not. This means that North Carolina statutory law offers greater protection to defendants than federal constitutional law. Official Commentary to G.S. 15A-1335 (recognizing this point); State v. Mitchell, 67 N.C. App. 549, 551 (1984) (“North Carolina has changed that part of … [Pearce] which would have allowed a more severe sentence”).

In 2013, however, the statute’s protections were limited and it was brought in line with the federal constitutional protection, at least in one respect. Specifically, S.L. 2013-385, sec. 3.1 amended G.S. 15A-1335 to provide that it only applies when the original conviction resulted from a guilty verdict rendered by a jury; the statute no long applies when the original sentence was imposed pursuant to a guilty plea. This statutory change overrides earlier case law holding that the statute applies to such convictions See, e.g., State v. Wagner, 356 N.C. 599, 602 (2002). As discussed above, Smith held that Pearce offers no protection when the original sentence was entered pursuant to a guilty plea. Thus, in this respect the Pearce rule and the amended state statute now provide parallel (non)protection.

News Roundup

April 4th, 2014
By Jeff Welty

WRAL just published this fascinating story, about North Carolina prisoners’ access to reading materials, the grounds on which access to reading materials can be denied – such as that the materials are sexually explicit, encourage gang activity, or promote violence or “disorder” – and the procedure through which such denials may be appealed. There are a ton of interesting links and perspectives. Well worth a read.

In other news:

New supplement to North Carolina Crimes. The 2013 cumulative supplement to North Carolina Crimes is now available for purchase here. The AOC has purchased copies for judges, prosecutors, PDs, magistrates, clerks, and a few others, and should have those copies distributed by the end of this month.

Best Supreme Court justices. Ever. Harvard Law Professor Cass Sunstein just published this piece, ranking the top eight justices ever to serve on the Court. Brennan and Rehnquist both make it so it isn’t too skewed one way or the other, ideologically. Any historians out there care to offer up a similar list of top North Carolina Supreme Court justices?

Marijuana reform news. Marijuana reform is an incredibly interesting criminal law story right now, and this week brought several developments indicate. The most significant may have taken place in New Jersey. The USA Today reports here that “[t]he New Jersey State Municipal Prosecutors Association . . . has come out in favor of legalizing possession of marijuana.” The whole story is worth reading, and cites a Gallup poll finding that 58% of Americans favor legalization. But there’s also news from Colorado, where marijuana legalization hasn’t ended the black market for pot, according to this AP story. Worse, the Denver Post reports here about a college student who “jumped to his death from a hotel balcony after eating marijuana-infused cookies.” This was apparently the first report of a marijuana-linked death in Colorado since legalization, but it is worth noting that the student was 19, so marijuana consumption wasn’t actually legal for him.

Methods of execution. This Slate article is entitled What’s the Best Way to Execute Someone? The article sides with those who believe that lethal injection is done “poorly and carelessly” with the “wrong doses” of the “wrong drugs.” The article ponders the firing squad and the guillotine as alternatives. This post as Sentencing Law & Policy summarizes the article and has a number of interesting comments on the issue from folks on all sides.

Court reporter gone wild. Finally, in New York, a “rogue alcoholic court reporter” has allegedly “wreaked havoc” on the court system by typing “I hate my job” over and over in lieu of actually transcribing the proceedings before him. At least ten appeals have been affected, according to this story at Above the Law. Why aren’t all important proceedings digitally recorded?

Three-Time Felon Charged with Gun Possession Loses Second Amendment Argument

April 3rd, 2014
By Jeff Welty

This week, the court of appeals decided State v. Price, an interesting gun rights and Fourth Amendment case.

Facts. The defendant was standing in a forest, near a deer stand, holding a rifle, in full camouflage, when a wildlife officer approached him. The officer asked the defendant for his hunting license, under the license check authority of G.S. 113-136(f). The officer then asked the defendant whether he was a convicted felon, and the defendant admitted that he was. The officer called another officer for backup, and they seized the defendant’s gun. The defendant was subsequently charged with possession of a firearm by a felon.

Trial court proceedings. The defendant moved to suppress his statement about his criminal record, and his gun, apparently on the basis that the inquiry regarding his record unduly prolonged the license check and that without the admission, there would have been no basis for seizing the gun. The judge agreed with the defendant’s argument but ordered dismissal, rather than suppression, as the remedy. The defendant also argued that the felon-in-possession statute, G.S. 14-415.1, was unconstitutional as applied to him, because his possession of a firearm did not pose a danger to the community. The judge stated that he agreed with that argument, too, but that he was “dismissing [the case] not based on those grounds,” instead relying on the Fourth Amendment violation. Confusingly, the judge eventually signed two written dismissal orders, one based on the Fourth Amendment violation and one based on the Second Amendment claim. The State appealed.

Second Amendment issue. The court of appeals first addressed the defendant’s constitutional challenge to G.S. 14-415.1. The court observed that under Britt v. State, 363 N.C. 546 (2009), and State v. Whitaker, 201 N.C. App. 190 (2009), as-applied challenges to the statute require consideration of the following factors:

  • The type of felony conviction(s) at issue, including whether the conviction(s) involved violence
  • How long ago the conviction(s) took place
  • “The felon’s history of law-abiding conduct since the crime”
  • “[T]he felon’s history of responsible, lawful firearm possession during a time period when possession of firearms was not prohibited”
  • “[T]he felon’s assiduous and proactive compliance with the 2004 amendment” to G.S. 14-415.1 (rendering it applicable to all guns everywhere rather than just handguns outside the home)

The court rejected the defendant’s as-applied challenge, noting that he had three prior felony convictions, two for selling marijuana and one for an attempted deadly weapon assault. The assault conviction was “more recent[],” as it took place in 2003. And, while there was “no evidence . . . that the defendant has misused firearms, there [was] also no evidence” that the defendant had complied with the Felony Firearms Act, as he possessed his hunting rifle in violation of the statute. The court’s discussion is consistent with my general impression that individuals with felony convictions are much more likely to win the argument that they are constitutionally entitled to possess firearms when that argument is made proactively in a lawsuit against the state than when the argument is raised as a defense after being arrested in possession of a gun.

Fourth Amendment issue. The court also reversed on the Fourth Amendment issue, concluding that once the defendant produced his hunting license to the wildlife officer, he was free to leave. Thus, the further discussion regarding the defendant’s criminal record was consensual, not part of a seizure, and was outside the scope of the Fourth Amendment. (And once the defendant admitted to being a felon, the rifle itself was properly seized as evidence of a crime that was in plain view.) This result is generally consistent with the courts’ treatment of traffic stops, where the return of the driver’s license to the driver generally marks the end of the seizure and the beginning of a consensual encounter. My paper on traffic stops – available here – discusses that issue in detail.