There Is a Tolling Donut Hole

Last year, I wrote this post asking whether the probation tolling law in former G.S. 15A-1344(d) survived a 2009 statutory change. In State v. Sitosky, decided on the last day of 2014, the court of appeals held that it does not.

In the probation context, tolling means (or, rather, meant) that time stopped running on a person’s probation period when he or she had pending charges for a new offense that could result in revocation upon conviction. From the late 1970’s until 2009, North Carolina’s tolling law was set out in G.S. 15A-1344(d). In 2009, the tolling law was moved from G.S. 15A-1344(d) to new G.S. 15A-1344(g), and modified to provide that if the charge that tolled a person’s probation was acquitted or dismissed, the person would receive credit for the time spent under supervision during the tolled period. In 2011, the tolling law was repealed.

Based on that recent history, I used to say that there were probably three categories of probationers when it came to tolling: (1) those placed on probation on or after December 1, 2011, for whom there is no tolling; (2) those placed on probation before December 1, 2011, for an offense committed on or after December 1, 2009, who are subject to “credit-back” tolling under G.S. 15A-1344(g); and (3) those placed on probation before December 1, 2011, for an offense committed before December 1, 2009, who are still subject to the original tolling law under G.S. 15A-1344(d).

Crystal Sitosky fell—at least in part—in the third category. Some of the cases for which she was on probation were based on crimes that occurred back in 2007, for which she was placed on probation in 2008. In 2013 and 2014, her probation officer filed a series of violation reports, alleging, among other things, that she committed the new offense of driving while her license was revoked. Her probation violation hearing took place in 2014, and her probation was revoked.

On appeal, the defendant argued that the trial court lacked jurisdiction to revoke her probation in these older cases because the old tolling law—the only thing that was keeping her on probation at the time of the 2014 hearing—no longer existed as applied to her. The argument is based on a close reading of the effective date clause in the 2009 legislation discussed above, S.L. 2009-372. Section 11(a) of that act, which removed the old tolling language from G.S. 15A-1344(d), was made effective for “hearings held on or after December 1, 2009.” Because the defendant’s revocation hearing was held in 2014, the defendant argued that the old tolling provision disappeared. And the new tolling law enacted in G.S. 15A-1344(g) did not apply to her because the effective date for that provision, set out in Section 11(b) of the act, said that it only applied to offenses committed on or after December 1, 2009. She thus fell into what I described in the prior post linked above as a “donut hole” in the tolling law. The State, for its part, argued that the legislature did not intend to eliminate tolling for these older cases, noting that the “hearings held” portion of the effective date was probably directed at other changes made in Section 11(a) of the act, not the tolling part.

The court of appeals agreed with the defendant, concluding that the plain language of the effective date clause for Section 11(a) foreclosed any speculation about what the General Assembly may have intended. The court even analogized—to my admitted personal delight—to the other donut hole recently discussed on this blog and confirmed by the court: the absconding donut hole. (Speaking of which, I beamed with pride when I learned that a law firm softball team in Western North Carolina has adopted the Absconding Donut Holes moniker. I even managed to get my hands on one of their jerseys. Those little broken handcuffs on the Munchkin®—genius! As far as I know, the Tolling Donut Hole name is still available for your team. I’m envisioning the donut hole as the clapper in a bell, or something along those lines. It’s a work in progress.)

Unwilling to “rewrite the effective date” of the 2009 law, the appellate court vacated the judgments revoking probation in the older cases. As for the defendant’s other cases, which were based on offenses committed after December 1, 2009, the court remanded them for other reasons that are also pretty interesting, but I won’t discuss them in today’s post.

The appellate court’s conclusion about tolling under G.S. 15A-1344(d)—assuming it survives any appeal—will have implications beyond Ms. Sitosky. Initial indications are that approximately 1,500 persons are still on probation in North Carolina for offenses committed before December 1, 2009 solely by virtue of tolling for a pending criminal charge. Does Sitosky mean their probation should end immediately? Perhaps not, as the Section 11(a) effective date pulling the G.S. 15A-1344(d) rug out from under them is triggered only when an actual hearing is held. Tricky, and illustrative of the poor fit between the effective date and the substantive change to which it was applied.