90-96 for Everything

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G.S. 90-96 sets out a conditional discharge option for certain drug offenses. A conditional discharge is different from a deferred prosecution. In a conditional discharge program, the defendant is convicted (either after a trial or by pleading guilty), but then placed on probation without the court actually entering judgment in the case. If the defendant succeeds on probation, the court completes a “discharge and dismissal” and the defendant is left without a conviction. If the defendant fails on probation, the court enters judgment and sentences the defendant—often to probation again, but this time regular, post-conviction probation.

I’ve said it before and I’ll say it again: G.S. 90-96 is complicated. I get as many questions about it as any other law. Justice Reinvestment made G.S. 90-96 mandatory for consenting defendants in 2011, but that requirement turned out to be troublesome enough in practice that the law was made discretionary again in 2013 (as described here).

Despite the waxing and waning of G.S. 90-96, similar conditional discharge options have recently popped up elsewhere in the law. In 2013, a 90-96–style conditional discharge was made mandatory for defendants convicted of prostitution for the first time. G.S. 14-204(b). A bill signed into law week, S.L. 2014-119 (H 369), took things even further, authorizing conditional discharge for any misdemeanor or Class H or I felony that would be eligible for a deferred prosecution. This broad conditional discharge authorization is set out in new G.S. 15A-1341(a4). As under the existing statutory deferred prosecution law, a defendant is eligible for a conditional discharge only when the court finds that (1) all victims have been notified, (2) the defendant has not been convicted of any felony or any misdemeanor involving moral turpitude, (3) the defendant has not previously been placed on probation, and (4) the defendant is unlikely to commit another offense other than a Class 3 misdemeanor. New G.S. 15A-1341(a5) grants similar authorization for defendants eligible for drug treatment court. The new law is effective December 1, 2014, and apparently may be applied to any conviction before the court on or after that date, regardless of the date of offense.

The new law includes some additional technical and conforming changes related to conditional discharges. Under amended G.S. 15A-1342, the probation that accompanies the conditional discharge may not exceed two years. Interestingly, that language is written into a statute that applies to all conditional discharges, not just those authorized by the new law (except those for prostitution under G.S. 14-204, which are subject to a one year maximum term). That means the probation period in G.S. 90-96 cases is now capped at two years. Previously I would have said it could be as long as five years, so the two-year limitation is a big change in theory. It may not make much difference in practice, though; my sense is that 12 months is the typical term of probation in a 90-96 case (please correct me if I’m wrong about that).

A change to G.S. 15A-1342(a1) makes clear that supervised probation is authorized for a conditional discharge imposed under new G.S. 15A-1341(a4) (conditional discharge for any misdemeanor or Class H or I felony), (a3) (conditional discharge for prostitution), and (a5) (conditional discharge for drug treatment court). The law makes no mention of G.S. 90-96, perhaps giving rise to an argument that supervised probation is no longer authorized in those cases. I have always assumed that supervised probation is authorized in G.S. 90-96 cases under the general theory that, unless otherwise provided by law, G.S. 90-96 probation is just like any regular probation case. State v. Burns, 171 N.C. App. 759 (2005) (“In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under [G.S.] 90-96.”). But now that the law makes specific provision for supervised probation for other enumerated types of conditional discharges, G.S. 90-96 becomes conspicuous in its absence. I doubt the legislature intended to de-authorize supervised probation for G.S. 90-96 defendants, however.

Speaking of legislative intent, what was the motivation behind this expansion of the conditional discharge law? I don’t know for sure. An earlier version of the bill styled the change as “conditional discharge in lieu of deferred prosecution,” substituting the former for the latter in G.S. 15A-1341(a1). A benefit of the conditional discharge approach from the State’s point of view—flagged by a legislator in a media report—is that there is a guilty plea in advance “in case they don’t meet the conditions set by prosecutors to have the charge dropped.” In a traditional deferral there is no guilty plea in advance, State v. Ross, 173 N.C. App. 569 (2005)—which sometimes leads to frustration when a defendant who does not satisfy the terms of the agreement ultimately declines to plead guilty. Nevertheless, the final version of the law added the conditional discharge option but left the deferred prosecution option in place, giving prosecutors apparent flexibility to choose between the two options.

I am interested to hear your thoughts on how this broad authorization for conditional discharges might change things in practice. It strikes me as potentially helpful statutory authority to do some of the things people have tried to do with PJCs over the years—sometimes with results that left everyone unhappy. On the other hand, all the sticky questions about revocations and appeals and collateral consequences that arise in the context of G.S. 90-96 will now be expanded to a broader set of cases.

11 comments on “90-96 for Everything

  1. Strange law. Both DWI and low level drug trafficking seem to be eligible offenses. Would this supersede mandatory DWI/trafficking penalties?

  2. I don’t see anything exempting DWI’s, but since the new (a4) requires a joint motion of the Defendant and the Prosecutor, I wonder in how many such motions Prosecutors will be willing to join in DWI cases?

    It also looks to me like the provisions of the new (a4) take effect immediately. Section 14 provides that, except where otherwise provided, the act takes effect when it becomes law, and it became law on September 18. I’ve just been through a 2 week session of District Court. Do I need to go back and try to reopen some of those cases since no-one considered – or apparently even knew of – the new (a4)?

    • Section 2 of the bill has its own effective date. “SECTION 2.(h) This section becomes effective December 1, 2014.”

  3. The statute still requires consent of the prosecutor and judge for a defendant to be placed on deferred prosecution. I doubt prosecutors and judges will agree to deferred prosecution for a DWI, unless they don’t want to be re-elected to another term. Being soft on DWI is one of those traits that is toxic to re-election hopes. Moreover, I think the risks inherent with recidivism are too great to allow a DWI defendant a chance to “to demonstrate his good conduct” per the language of NCGS 15A-1341(a1)(1).

  4. What is the mechanism for getting the Court to issue the ” discharge and dismissal ” after successful completion of probation? The ( appointed ) attorney that represented the defendant and arranged the 90-96 deal now says that he is done with the case and that the defendant now has to hire a different lawyer who ” specializes in the 90-96 thing “. Probation was not only without incident but was ended early and remainder of fines remitted due to exemplary conduct.

    Does the statute mandate a dismissal and dicharge upon nitification of completion or does the defendant have to find funds to hire a new lawyer to file a motion? it does not seem fair that after adhering to all conditions and keeping his end of the bargain that he finds himself with a conviction but also has to somehow find the money for a lawyer when he is financially far below the poverty line. Every defendant should be told by counsel in advance of taking such a deal that at the end he will still have a conviction on his record until he can afford to get the Court to do what was promised at the beginning…any thoughts?

    • Really, IDS would say that the representation is not complete. Calendar the matter for a review date, submit an interim fee application, and finish the job.

  5. Is it mandatory that a judge place the Defendant on probation? Could a judge just impose a fine, community service, etc. without probation? The commas (or lack thereof create a vague area. Anyone with thoughts on the issue?

    • My friendly neighborhood Judge says he has to put defendants on probation so clearly that is what they are being taught at Judge School. I try and have my clients finish their drug class before the first Court date. If the defendant has already completed the class the Judge usually puts the case back on review in 3 months, whereas other defendants get a 6 month review date.

  6. One requirement for conditional discharge is that the defendant cannot have previously been on probation. Does that include unsupervised probation? That does not seem to be the intent, but G.S. 15A-1341(a4) just says probation.

    • Hello, I’ve recently been placed on Supervised probation, following a 90-96 plea deal. Im wondering, If anyone knows what the chances are of being moved to unsupervised probation, if terms of probation are met (community service completed, fines and fees paid, etc.) Any help is greatly appreciated.

  7. I recently had a client who was convicted under the 90-06 laws. He had an acquittal under an active judgment from the Administrative Office of the United States Courts. It was admissible under the Adversary proceeding due to the Affidavit which was affirmed. The Alternate juror provided a Alternative dispute resolution under the Amicus curiae for an appeal. The Appellant made an appeal after the Arraignment with an Article III judge. He decided with case law that a Chapter 7 trustee in common law that there should be Community service in a Concurrent sentence after the Contingent claim. The Court reporter reported the De facto and the De novo of the Declaratory judgment.

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