The New Single Sentence Rule

A while ago I wrote this post about the “single sentence rule,” the statutory directive that tells the Division of Adult Correction (DAC) how to administer consecutive sentences. Under G.S. 15A-1354(b), if a defendant is subject to consecutive sentences, the prison system treats him as though he has been committed for a single, aggregate term. The minimum sentence of that aggregate term is the sum of the minimum terms of all the consecutive sentences. The aggregate maximum sentence is the sum of all the individual maximums, reduced as needed to account for the fact that additional time was added onto the maximum sentence for every post-release supervision–eligible felony. That subtraction is necessary because the defendant will serve only one period of post-release supervision upon his or her release from prison. G.S. 15A-1368.2.

Under the old (pre–Justice Reinvestment) law, the rule was pretty straightforward because there was only one maximum sentence rule for PRS-eligible felonies: all Class B1 through E felonies had an additional 9 months built into their maximum sentence. Thus, if a defendant was subject to consecutive Class B1 through E felonies, G.S. 15A-1354(b) said the aggregate maximum sentence was the sum of all the individual maximums, less nine months for each of the second and subsequent Class B1 through E felonies. The order in which the sentences were imposed didn’t matter. The defendant was released from prison to post-release supervision 9 months before attaining the adjusted aggregate maximum to serve a single nine-month period of supervised release (or a 60-month period of supervised release if under supervision for a reportable sex crime). G.S. 15A-1368.2(c).

Under the new law—effective for offenses committed on or after December 1, 2011—things get more complicated. That’s because all felonies get post-release supervision, and because there are now three maximum sentence rules for PRS-eligible felonies. For Class F–I felonies, the maximum sentence is 120 percent of the minimum (rounded to the next highest month), plus 9 months. For Class B1–E felonies, the maximum is 120 percent of the minimum, plus 12 months. And for Class B1–E crimes that require registration as a sex offender, the maximum is 120 percent of the minimum, plus 60 months (that’s under a change made by S.L. 2011-307, discussed here). G.S. 15A-1340.17(d)–(f). (There is also a fourth type of post-release supervision for Aggravated Level One DWI—discussed here—but let’s leave that aside for now. Please.)

The single-sentence rule and a couple of related provisions were amended to account for these new PRS provisions. Under revised G.S. 15A-1354(b), consecutive sentences will, as under prior law, be considered as a single term. The aggregate minimum sentence of that term will still be the sum of the individual minimums. The aggregate maximum sentence will be the sum of all the individual maximums, “less 12 months for each of the second and subsequent sentences imposed for Class B through Class E felonies, or less 60 months for each second or subsequent [reportable] Class B1 through E felony . . . , and less nine months for each of the second and subsequent sentences imposed for Class F through Class I felonies.” Parallel changes to G.S. 15A-1368.2(a) amend the release-point rule for PRS-eligible felons. That law now says that a felon will be released from prison to PRS on the date equivalent to the “maximum imposed prison term less 12 months in the case of Class B1 through E felons and less nine months in the case of Class F through I felons, less any earned time . . . .” The law goes on to say that any Class B1–E sex offender subject to the 60-additional-month maximum rule will be released on the date equivalent to his or her maximum imposed prison term less 60 months, less earned time. The duration of the supervised release period is governed by G.S. 15A-1368.2(c), which says that the period is 12 months for Class B1–E felons, 9 months for Class F–I felons, and 60 months for any felon under supervision for a crime that requires registration as a sex offender.

If a defendant is subject to multiple felonies of a particular type, the law is still fairly straightforward. For instance, suppose a defendant is subject to four consecutive 6–17 month sentences for Class H felonies.

6–17 months

6–17 months

6–17 months

6–17 months

Applying G.S. 15A-1354(b), the defendant will be treated as though confined for a single, aggregate term. The minimum of that aggregate term will be the sum of all the minimum sentences: 24 months. The aggregate maximum will be the sum of all the individual maximum sentences, 68 months, minus 9 for each of the second and subsequent Class F through I felonies to account for the “extra” time built into each of them. So, 68 – 9 – 9 – 9 = 41. The end result is a 24–41 month sentence—which is about what you’d expect for someone sentenced to a single term with a 24-month minimum (it’s slightly higher than what you’d get based on a 24-month minimum sentence for a single crime because of the rounding up for each individual sentence). The defendant will be released from prison the date equivalent to his maximum imposed prison term less nine months, less earned time. G.S. 15A-1368.2(a). And the period of post-release supervision will be nine months. G.S. 15A-1368.2(c).

But what about when the court imposes consecutive judgments for felonies of different types? Things get a little hairy. Here is an example that illustrates how I am told the law will be applied in practice. Suppose a defendant receives the following active sentences, set to run consecutively:

20–84 months for a Class E reportable sex crime

20–84 months for a Class E reportable sex crime

20–36 months for a Class E non-reportable crime

20–36 months for a Class E non-reportable crime

10–21 months for a Class G crime

10–21 months for a Class G crime

Applying G.S. 15A-1354(b), the defendant will be treated as though confined for a single, aggregate term. The minimum of that aggregate term will be the sum of all the minimum sentences: 100 months.

As for the aggregate maximum, the statute says it is the sum of all the individual maximums, “less 12 months for each of the second and subsequent sentences imposed for Class B through Class E felonies, or less 60 months for each second or subsequent [reportable] Class B1 through E felony . . . , and less nine months for each of the second and subsequent sentences imposed for Class F through Class I felonies.” Following G.S. 15A-1354(b), DAC will subtract from the aggregate maximum all of the “extra” time built into each individual maximum sentence (9, 12, or 60 months) in the string of consecutive judgments, except for the extra time built into the maximum sentence for defendant’s most serious conviction. So, in our example the maximum would be:

The sum of all the maximums, 282 months,

minus 60 months (for the “second” Class E reportable crime)

minus 12 months (for the “subsequent” Class E non-reportable crime)

minus 12 months (for the other “subsequent” Class E non-reportable crime)

minus 9 months (for the “subsequent” Class G crime)

minus 9 months (for the other “subsequent” Class G crime).

That yields a total maximum of 180 months—which, again, is exactly the maximum you’d expect if someone were committed for a single Class B1–E reportable sex crime with a minimum of 100 months (the maximum is 120 percent of the minimum, plus 60 months).

To round out the example, because one of the defendant’s crimes had a maximum established under G.S. 15A-1340.17(f) (the 120 percent plus 60 months rule for Class B1–E sex crimes), he will be released from prison on the date equivalent to his or her maximum imposed prison term less 60 months, less earned time. G.S. 15A-1368.2(a). And, because he is a sex offender, the period of post-release supervision will be 60 months instead of the usual 12 or 9. G.S. 15A-1368.2(c). So, sometime between 100 and 120 months (depending on how much earned time the defendant earns), the defendant will be released from prison to a 60-month term of post-release supervision, with 60 months of imprisonment hanging over his head.

(That is my understanding how DAC is interpreting the law, but it should be noted that other interpretations are possible. First, the law never explicitly says that the most serious felony is “first” and that the lesser felonies are “second and subsequent” to it—a distinction that didn’t matter under the old law because there was only one type of PRS-eligible felony. Second, the law appears to say that you only subtract 60, 12, or 9 months for the second and/or subsequent of each type of felony. That is, in our example above, the statute appears to literally command that you only subtract 60 months for the second Class E reportable crime, 12 months for the second Class E non-reportable crime, and 9 months for the second Class G crime. And finally, there’s an “or” between the 12-month and 60-month rules, suggesting you might only apply one of them in any given string of judgments. Some of those issues stem from the fact that the law was amended twice in two different bills in 2011.)

I have a couple of concluding thoughts for this post that is already far too long. First, remember that G.S. 15A-1354(b) is a rule of sentence administration, not a rule of sentencing. The subtraction described above is something that DAC does, not something that the court should do when imposing a maximum sentence for any particular conviction in a string of consecutive judgments. Each individual sentence must stand on its own, as it is always possible that one or more of them could be set aside in the future.

A related question, though, is the extent to which the court ought to take G.S. 15A-1354(b) into account when advising a defendant of the consequences of a guilty plea. G.S. 15A-1022(a)(6) says that the court must inform the defendant of the maximum possible sentence on the charge being sentenced, including “that possible from consecutive sentences.” If the mandatory effect of the single sentence rule isn’t considered, the “TOTAL MAXIMUM PUNISHMENT” block on the Transcript of Plea form could substantially overstate the defendant’s actual exposure—especially in cases involving Class B1–E sex crimes or many boxcarred judgments. Jessie Smith has kindly agreed to write a future post on the extent to which that overstatement may affect the validity of a plea under G.S. 15A-1022 and Boykin v. Alabama, 395 U.S. 238 (1969).