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Misdemeanor Reclassification, the Right to Counsel, and the Budget

July 23rd, 2013
By Jeff Welty

The legislature has agreed on a budget, and it contains some provisions that will impact misdemeanor sentencing and the appointment of counsel — potentially in tens of thousands of cases each year.

Status of the budget. The current budget bill is S 402. It is available here. The accompanying “money report,” which provides narrative explanations of some of the provisions of the budget, is available here. Republican leaders in both chambers have endorsed the bill. The General Assembly is expected to approve it in the next two days, and Governor McCrory is expected to sign it.

Change to Structured Sentencing grid. Section 18B.13.(a) of the budget changes the misdemeanor Structured Sentencing grid as follows, effective for offenses committed on or after December 1, 2013:

New MDM Grid

This is the first change to the misdemeanor grid since 1995.

Fine only for many Class 3 misdemeanors. The same section states that “[u]nless otherwise provided for a specific offense, the judgment for a person convicted of a Class 3 misdemeanor who has no more than three prior convictions shall consist only of a fine.” Fines for Class 3 misdemeanors generally may not exceed $200. G.S. 15A-1340.23(b).

One question about this provision is whether it applies to a defendant who has three or fewer prior convictions that may be counted separately for Prior Conviction Level purposes, but who has four or more total prior convictions. (For example, a defendant who incurred several convictions in a single week or session of court. See generally G.S. 15A-1340.21(d).) The new fine-only provision appears in the General Statutes amidst the discussion of the Prior Conviction Level determination, so maybe so. But it does not expressly refer to or incorporate the Prior Conviction Level rules, so maybe not.

Reclassification of offenses. In addition to changing the punishments for Class 3 misdemeanors, the budget also creates more of them. Section 18B.14 reclassifies a number of misdemeanors – most currently Class 2 – as Class 3 offenses. The new Class 3 misdemeanors include:

  • Obtaining property by worthless check, G.S. 14-106
  • Simple worthless check, G.S. 14-107
  • Failure to return hired property, G.S. 14-167
  • Conversion by bailee, G.S. 14-168.1
  • Failure to return rental property with purchase option, G.S. 14-168.4
  • DWLR, G.S. 20-28 (unless revoked for DWI, then still Class 1)
  • Certain motor vehicle misdemeanors that were Class 2 under G.S. 20-35, including:
    • Most NOLs, G.S. 20-7
    • Failure to tell DMV of address change by driver, G.S. 20-7.1
    • Allowing vehicle to be driven by unlicensed person, G.S. 20-34
  • Certain motor vehicle misdemeanors that were Class 2 under 20-176, including:
    • Failure to carry registration card in vehicle, G.S. 20-57(c)
    • Failure to sign registration card, G.S. 20-57(c)
    • Failure to tell DMV of address change by vehicle, G.S. 20-67
  • Certain license plate/registration violations, G.S. 20-111
  • Window tinting violations, G.S. 20-127(d)
  • Misdemeanor speeding, G.S. 20-141(j1)
  • No insurance, G.S. 20-313(a)
  • Repeat fishing without a license, G.S. 113-135(a) (referring to 113-174.1 and -270.1B)

Also, section 18B.15 of the budget reclassifies a number of boating safety offenses from Class 3 misdemeanors to infractions.

Ineligibility for appointed of counsel. It seems that one goal of these provisions was to save money on appointed counsel. The money report states that IDS’s budget will be reduced by $2,000,000 annually because the budget “[r]eclassifies low-level misdemeanors that rarely result in incarceration as Class 3 misdemeanors or infractions and modifies the sentencing structure for Class 3 misdemeanors so that the first three [editor’s note: probably should read “four”] charges are fineable offenses. With no possibility of incarceration, these offenses do not require legal counsel.”

In other words, the changes made by the budget will provide that a defendant charged only with a Class 3 misdemeanor, and who has no more than three prior convictions, will be facing a potential sentence of a fine of $200 or less. Constitutionally, an indigent defendant is entitled to appointed counsel when facing incarceration, Argersinger v. Hamlin, 407 U.S. 25 (1972), or even a suspended sentence, Alabama v. Shelton, 535 U.S. 654 (2002), but not a fine alone, Scott v. Illinois, 440 U.S. 367 (1979). Nor does a defendant facing a small fine have a right to counsel under the North Carolina statute governing appointment of counsel. It extends only to cases in which “imprisonment, or a fine of five hundred dollars . . . or more, is likely to be adjudged.” G.S. 7A-451(a)(1).

Note that if a defendant is sentenced to a fine but does not pay it, “the court, upon the motion of the prosecutor or upon its own motion, may require the defendant to appear and show cause” for his failure to pay, and if he cannot, may imprison the defendant for up to 30 days. G.S. 15A-1364. I don’t know how common these show cause proceedings are, but a defendant would appear to be entitled to counsel at any such hearing.

Administering the new provisions. It will be interesting to see how these changes work in practice. For example:

  • Who will be responsible for determining how many prior convictions the defendant has? The prosecutor? The clerk?
  • How thoroughly will the responsible party research the defendant’s prior record? Will an ACIS check of the county in which the charges are pending be the norm? A statewide ACIS check? Will CJLEADS or other systems be used for this purpose?
  • Will judges err on the side of appointing counsel in order to protect defendants’ rights, or to preserve the possibility of a sentence other than a fine? Will that remove some of the anticipated cost savings?

As always, I’m interested in readers’ thoughts about the upcoming changes in the law. Given the number of cases affected, the changes appear to be quite significant.

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12 Responses to “Misdemeanor Reclassification, the Right to Counsel, and the Budget”

  1. Scott Brewer says:

    If an offender can only receive a fine for a class 3 offense, then what happens if they can’t pay immediately as most Judges expect. Can the judge still place the person on supervised probation?

  2. Brennan Aberle says:

    With respect to solely the DWLR provision, I’ve been saying for a while it should be a class three misdemeanor, if not for alcohol, so that is a good thing.
    What I worry about is the fact that I fear more people will just plead guilty to it and take the fine rather than get an attorney who can help clear up their driving record of potential FTA’s on old charges that might have revoked their license in the first place. Not to mention pleading guilty to a DWLR still revokes your license for a year minimum. I think it could potentially lead to more problems for indigent clients trying to get their license back if they don’t have the advice of counsel.
    So how much money will we save on that, if they just become repeat DWLR offenders?

    • Jason M says:

      Check out House Bill 615. It would make non-implied consent DWLRs non-moving violations and not lead to a further revocation. There are many reasons why I think that this is a better way to approach DWLRs, but at the very least I think this would perfectly address your concern about pro se defendants digging themselves into an inescapable hole of revocation without realizing it.

      • Brennan Aberle says:

        Just looked the bill up. That would be a great first step. Do you know the status of it at all? Now if we could find a way for people to get their fines wiped out through community service or something and we might have a society where poor people don’t get punished for driving to work.

        • R. Brian Cloninger says:

          1) HB615 is currently stuck in Seante appropriations. Apparently DMV believes it will cost around $200 K to update their system. It has already passed the House and pssed out of Senate judiciary twice. More work on the Bill is likely during the short session next year.
          2) A way to wipe out peoples fines does not exist currently, but a way to keep these failures to comply from being indefinite suspensions does. A motion under G.S. 20-24.1(b)(4) as well as 15A-1343, 1363, 1364 can lift a suspension for failure to pay money if the court either remits the costs or makes a finding the person is making a good faith effort to pay.
          3) We will see problems with the charging documents re: DWLR after implied consent offense. It must be alleged in the charging instrument that there is a prior implied consent offense causing the revocation to elevate DWLR to a class 1. This is the exactly the same as felonious paraphernalia possession. It is clear that the Indictment or Bill of Information must allege the prior chapter 90 onviciton to elevate possession of paraphernalia from a class 1 misdemeanor. Similarly, simple possession of marijuana to be a class to and eligible for active sentencing, the prior predicate conviciton must be alleged (although this has not yet been litigated to my knowledge). I beleive this third point is strengthened by the SCOTUS opinion in Alleyne v. US.

  3. Brennan Aberle says:

    I think another issue is the class three marijuana charges. If it is a first offense, and no jail time could be awarded (and thus no counsel), how can we make sure that clients are still able to take advantage of mandatory 90-96 programs for deferred dismissals? Is there a possibility more people will just plead guilty and start their lives out with a criminal record because they don’t have anyone to help them get into a diversion program? Most of the DA’s I know here, would get them in anyway, but Guilford County is also a nicer place than some jurisdictions.

    • R. Brian Cloninger says:

      90-96 wil be up to the judge again starting December 1, 2013. “Shall” become “may” once again.

  4. Phil T says:

    It seems to me that the proposed statutory language with respect to DWLR is going to be problematic. The violation is now (as of 12/1/2013) a Class 3 “unless the person’s license was originally revoked for an impaired driving revocation” where it is to remain a Class 1.

    First, with what level of specificity will LEO’s (or ADAs on Misd. Statements) be required to allege the prior impaired driving revocation? Will “such revocation being an impaired driving revocation” suffice? Or will the specific revocation date and reason be necessary.

    Also, how are we to read the word “originally?” If we aren’t to read it as a nullity, then what do we do with defendants who are “originally” revoked for a non-impaired driving revocation, and then, while still revoked for that offense, additionally revoked for impaired driving, and then subsequently charged with DWLR?

    And all that’s assuming we know what in the world is meant by “impaired driving revocation” to begin with. “Impaired Driving LICENSE Revocation” is defined at length in 20-28.2 and includes many offenses that aren’t in fact impaired driving (such as the 12-month revocation for refusing a chemical analysis under 16.2, the 30-day revocation under 16.5, etc… but this statute does not quote the defined term exactly, nor reference 20-28.2. So can prosecutors, LEOs, or judges assume that’s what the legislature meant even if properly alleged as a 20-28.2 revocation.

    • Phil T says:

      And looking at HB615 mentioned above it is clear that the Legislature knows how to reference 20-28.2 when they so intent, as the bill contains the following language:

      “If the person’s drivers license was revoked for an impaired driving license revocation as defined in G.S. 20‑28.2(a)…”

      So it would seem that “impaired driving revocation” in the Budget Act must, as a matter of statutory construction, mean something else.

      • Phil T says:

        And looking at HB615 mentioned above it is clear that the Legislature knows how to reference 20-28.2 when they so intend, as the bill contains the following language:

        “If the person’s drivers license was revoked for an impaired driving license revocation as defined in G.S. 20‑28.2(a)…”

        So it would seem that “impaired driving revocation” in the Budget Act must, as a matter of statutory construction, mean something else.

  5. Jason M says:

    Can a person be arrested on a class 3 misdemeanor when it cannot carry the possibility of jail time? Will it be treated like an infraction? I worry about the rare situation where an officer decides to arrest on a class 3 misdemeanor. Especially with something like a charge of intoxicated and disruptive, an officer will not have an opportunity to consider how many prior points a person has before making the decision to arrest a belligerent and intoxicated person. What should happen with the charge if such a person is arrested and jailed on a secured bond if they cannot be punished with more than a fine?

    It also seems like it will be a problem for people that fail to appear on a class 3. Can an order for arrest be issued for person that fails to appear on a class 3 punishable by a fine only? If not, will someone have to check on each case to determine if an OFA can be issued?

  6. Meghann says:

    Jeff,

    I noticed the SOG Crimes Book doesn’t yet have a supplement updating the reclassification of offenses. Do you know when the new law goes into effect?

    Thanks.

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