Under amended G.S. 15A-1344(a), for probation violations occurring on or after December 1, 2011, a court may only revoke probation for a violation of the “commit no criminal offense” condition or for violations of the new statutory absconding condition set out in G.S. 15A-1343(b)(3a). For all other probation violations occurring on or after that date, the court may impose Confinement in Response to Violation (CRV, sometimes referred to as a “dunk”) under new G.S. 15A-1344(d2). After a defendant has received two CRV periods, the court may revoke for any violation. I wrote about CRV in this prior post.
The questions about CRV have been pouring in. I thought it might be helpful to collect some of them into a frequently asked question post.
What is the effective date of the limitation on the court’s authority to revoke probation and the grant of authority to impose CRV? The relevant effective date for these provisions was set out in section 4.(d) of the Justice Reinvestment Act (S.L. 2011-192) and then amended by section 2.3.(e) of S.L. 2011-412, which made some technical corrections to the law. The final effective date language said the law was “effective December 1, 2011, and applies to probation violations occurring on or after that date.” I read “probation violations occurring” to refer to the date of the alleged offending behavior—not the date the violation report was filed, not the date the offender was served with the violation, not the date the violation hearing itself is held, or any other triggering event. The court needs to determine the date of the alleged violation and then respond to the old ones (those occurring before December 1, 2011) under the old law and the new ones (those occurring on or after December 1) under the new law. Probation officers, beware: I’m told your computer system isn’t really able to distinguish between pre– and post–December 1 violations, and so it directs you to use the new law for any violation report filed after December 1. Watch out for that and remember that, no matter what OPUS says, a court can revoke but cannot impose CRV for a technical violation that occurred before December 1.
Is the court required to impose CRV for a technical violation? No, the court is never required to impose CRV. Judges can still respond to technical violations using any type of modification, including imposition of a split sentence, or by doing nothing at all. That’s a matter of court discretion, just as it has always been. Some judges and prosecutors may, as a practical matter, be more drawn to CRV than other response options in light of the rule that only after two CRV periods have been imposed can the court revoke for any violation.
Can the court impose a third CRV period in response to a third technical violation? No. Under G.S. 15A-1344(d2), a defendant “may receive only two periods of confinement under this subsection.” The court would either need to revoke probation or respond to the violation in some other way.
Can a probation officer impose CRV through delegated authority? No. For offenders on probation for a Structured Sentencing offense that occurred on or after December 1, 2011, probation officers can impose “quick dips” (unless the court un-delegates the authority to do that). Dips are discussed here. So, a probation officer can impose dips, but not dunks.
Do the CRV rules and the limits on revocation authority apply in DWI cases? Yes.
Where are CRV periods served? Under an amendment to G.S. 15A-1344(d2) in the technical corrections bill mentioned above, a defendant serves CRV “in the correctional facility where the defendant would have served an active sentence.” (By the way, that’s one of those changes that—just barely—didn’t make it into this year’s Lexis Nexis “Red Book,” an issue Shea flagged here.) That means all felony CRV is served in prison. The Division of Adult Correction, or DAC—formerly DOC—has identified six facilities that will house CRV inmates: Dan River, Greene, Odom, Tyrrell, Western Youth Institution and, for women, Fountain Correctional. For misdemeanants, it’s a little more complicated. For those whose underlying sentence was 90 days or less, it’s pretty clear that CRV should be served in the local jail. For those whose underlying sentences fall in the 91–180 day range, the proper place of confinement for an active sentence imposed after January 1, 2011 would appear to be the Statewide Misdemeanant Confinement Program (MCP), discussed here. And thus the proper place to commit them for their dunk is also the MCP. My understanding is that the Sheriffs’ Association will accept a CRV defendant into the program.
Does a defendant earn any sentence reduction credits during a CRV period? No, a CRV period is not reduced by earned time or, in the case of a DWI, good time. I think the Secretary of Public Safety (formerly, the Secretary of Correction) could, through regulations promulgated under G.S. 148-13, allow such credit, but up to this point has chosen not to. (The most recent version of DAC’s credit policy is available here.) Note that under G.S. 148-13(f) the Secretary is statutorily prohibited from awarding credit to split sentences. But dunks are not splits.
Does a probationer’s probation period continue to run during CRV confinement? Yes. So if the offender’s period of probation expires during the CRV period, there is no probation to come back to upon his or her release from jail or prison. That does not, however, mean that the CRV confinement ends when the probation period expires (at least not as the law is being interpreted by DAC). For instance, a person ordered on the next-to-last day of his or her probation period to serve a 90-day CRV period would not be released from prison after 1 day. Rather, he or she would serve the full 90 days and then be released outright. That strikes me as a permissible interpretation. Note that a different rule applies for special probation in response to a probation violation: under G.S. 15A-1344(e), “[n]o [special probation] confinement other than an activated suspended sentence may be required beyond the period of probation.”
Can CRV periods for misdemeanors be “up to 90 days,” or are they required to be for the remainder of the probationer’s suspended sentence? I don’t think there’s a clear answer to that question. G.S. 15A-1344(d2) says a CRV period for a misdemeanor may be up to 90 days. That alone would appear to allow the court to impose a CRV period of any length up to 90 days (1 day, 10 days, 54 days…whatever)—limited, of course, by the amount of time remaining on the defendant’s suspended sentence. The law goes on, however, to say that “[i]f the time remaining on the defendant’s maximum imposed sentence is 90 days or less, then the term of confinement is for the remaining period of the sentence.” Most misdemeanor sentences (about 90 percent of them) are 90 days or less, so if that caveat applies to them, for many misdemeanants, the first CRV period will also be their last one—a “terminal dunk,” if you will. Interpreting the law that way would set up an odd (but not completely irrational) rule that a judge can order CRV of any length up to 90 days for a misdemeanant with a 100-day suspended sentence, but must order a full 85 days if that’s all that remains on the defendant’s suspended sentence. I think there’s an argument that the 90-days-or-less rule is meant to apply only to felonies, in that the law makes reference to the defendant’s “maximum” sentence. In context, though, it appears it was intended to apply to both felons and misdemeanants. And it makes some sense if the idea is to avoid having multiple violation hearings for a person with relatively little time remaining on his or her sentence.
For a defendant on multiple cases of probation, can CRV periods be run consecutively? Generally, no. Under G.S. 15A-1344(d2) (as amended by the technical corrections bill mentioned above—this is another one of those changes that doesn’t appear in your Red Book), CRV periods imposed “on a defendant who is on probation for multiple offenses shall run concurrently on all cases related to the violation.” That rule applies regardless of whether the underlying suspended sentences were set to run consecutively or concurrently in the event of revocation—meaning the CRV law essentially forces at least a part of those sentences to run concurrently if any portion of them is served through dunks. There are probably ways around the rule (for instance, waiting to bring a violation on Case B until the CRV on Case A is complete), but the legislative intent in favor of concurrent CRV periods is pretty clear.
Can a defendant’s suspended sentence be reduced before he or she is dunked? Under G.S. 15A-1344(d) and (d1), a court, “before activating a sentence” can reduce a defendant’s sentence within the same sentencing grid cell and, for a felony, the same sentencing range (presumptive, aggravated, or mitigated) as the initial sentence. That rule allows the court to reduce any misdemeanor sentence to one day at the point of activation. The question is whether the court may do the same thing at the point of imposing CRV. Under prior law, “activate” and “revoke” always went hand in hand, and so the meaning of G.S. 15A-1344(d) was clear. To the extent that CRV can be styled as a partial activation of sorts, perhaps there’s an argument that the authority to reduce the sentence also applies at that point. A cleaner way to accomplish virtually the same thing might be to simply terminate the defendant’s probation upon completion of the CRV period. The court can terminate probation at any time under G.S. 15A-1342(b).
Can CRV be appealed? There is no clear statutory authority for appealing CRV. Under G.S. 15A-1347 and existing case law, there is no right to appeal probation matters other than activation of a sentence or imposition of special probation. State v. Edgerson, 164 N.C. App. 712 (2004) (“Defendant’s sentence was neither activated nor was it modified to ‘special probation.’ Defendant therefore has no right to appeal.” (citations omitted)). Again, there may be an argument that CRV is a partial activation of sorts; if it is, it would be appealable under G.S. 15A-1347. It’s also possible that the court of appeals might find a right to appeal from the superior court to the appellate division under G.S. 7A-27(b). That’s what happened in the context of the satellite-based monitoring law, which also did not include a statutory appeal provision. State v. Singleton, 201 N.C. App. 620, 625–26 (2010).
What does it mean to “commit no criminal offense” for purposes of the probation law? There’s enough to say about that to merit a separate blog post. I wrote about it here, but it’s worth another look in light of some of the recent changes to the law. I’ll do that soon.
What are your other questions?