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Contingent Probation Cases

November 9th, 2010
By Jamie Markham

Under G.S. 15A-1346(a), a “period of probation commences on the day it is imposed and runs concurrently with any other period of probation, parole, or imprisonment to which the defendant is subject during that period.” Under that rule, periods of probation may not be stacked. In State v. Canady, 153 N.C. App. 455 (2002), for example, a defendant was convicted of four counts of indecent liberties with a child. The trial court consolidated two of the offenses for judgment and sentenced the defendant to (1) a 16–20 month active sentence; (2) a 20–24 month sentence, suspended for 60 months; and (3) a 20–24 month sentence, suspended for 60 months, with that probation term to run consecutively to the first one. The defendant argued that it was error for the court to boxcar the probation periods. The court of appeals agreed and remanded the case for resentencing. Id. at 460 (“[U]nder the plain terms of G.S. 15A-1346, a trial court is prohibited from imposing a sentence of two  consecutive probation periods of five years each.”).

That does not, of course, mean that suspended sentences may not be set up to run consecutively in the event of revocation. They certainly may. In State v. Howell, 169 N.C. App. 58 (2005), the defendant mistakenly believed the court erred by ordering six consecutive 6–8 month terms of imprisonment, all suspended for 60 months. The court of appeals upheld the sentence, noting that “[c]onsecutive probationary sentences[] would indeed violate G.S. 15A-1346 . . . [but] the defendant here did not receive consecutive probationary sentences.” Rather, he was placed on probation for 60 months total, with the suspended sentences to run consecutively if activated. (Recall that the judge who revokes probation has authority to tinker with the sentencing judge’s decision as to whether activated sentences would run consecutively or concurrently. I wrote about that here.) The court indicates its consecutive/concurrent decision by checking the box about halfway down the first page of a probationary judgment that says:

□ This sentence shall run at the expiration of sentence imposed in file number ___________________.

So, periods of probation may not run consecutively to one another.  A court may, however, order a period of probation to run consecutively to a term of imprisonment. G.S. 15A-1346(b). The Division of Community Corrections calls such arrangements “contingent” cases. It strikes me as a handy sentencing tool—a sort of jury-rigged split sentence or post-release supervision that could, among other things, facilitate a defendant’s transition from DOC back into the community. The court orders a contingent probationary period by checking box 3 in the “Suspension of Sentence” block on a probationary judgment, which reads:

□  3. The above period of probation shall begin when the defendant is released from incarceration in the case referred to below.

This may all be obvious up to this point. But consider box 4, right beneath box 3. It gives the judge yet another option. It reads:

□  4. The above period of probation shall begin at the expiration of the sentence in the case referred to below.

The effect of that option, as far as I can tell, would be to delay the beginning of the contingent probation case until any term of imprisonment plus any period of supervised release that might follow that imprisonment. An extreme example—based on an actual question I was once asked—would be a defendant sentenced to prison for a Class B1 – E sex crime, with a contingent probation case to follow. If the court checked box 3, the period of probation would begin immediately upon the defendant’s release from prison. If the court checked box 4, it seems that the period of probation wouldn’t begin until the “expiration” of the first sentence, which would include five years of post-release supervision under G.S. 15A-1368.2(c).

I’m not sure that’s permissible. G.S. 15A-1346(b) only allows periods of probation to be run consecutively to a “term of imprisonment.” It never mentions the “expiration of the sentence.” Moreover, G.S. 15A-1368.5 provides that a period of post-release supervision must “run concurrently with any federal or State prison, jail, probation, or parole terms to which the prisoner is subject during the period,” unless the jurisdiction that imposed the first sentence does not allow concurrent crediting of supervised time. North Carolina certainly permits concurrent crediting of supervision time—the first clause of that same sentence and G.S. 15A-1346 require it. With that in mind, I think a “box 4” contingent sentence may only be appropriate if the first sentence comes from a jurisdiction that does not allow any overlap between sentences at all. If you think otherwise, let me know.

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One Response to “Contingent Probation Cases”

  1. Christian Clemmer says:

    In reference to the court ordering probation supervision to begin at the “expiration of the sentence (‘box 4′),” could this not be applicable in beginning probation supervision at the expiration of a case with a 9 month post-release? G.S. 15A-1346 (a) states that probation supervision shall run concurrent with “any other period of probation, parole, or imprisonment to which the defendant is subject during that period.” Does the omission of “post-release” in this clause not give the court the ability to impose such an order? It would not make sense to interpret “post-release” as “parole” for this purpose, as the general statues define “post-release” and “parole” as two different types of supervision with two different purposes.

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