G.S. 90-96 Probation

I wrote previously (here) about the post–Justice Reinvestment rules for determining whether a defendant is eligible for a conditional discharge under G.S. 90-96. Those rules are complicated, but my sense is that districts around the state are getting the hang of how to manage the new, mandatory G.S. 90-96. But even after you’ve run the eligibility gauntlet, questions remain about what G.S. 90-96 probation is supposed to look like. This post addresses some of the questions I have been asked about G.S. 90-96 probation, including the conditions of the probation, permissible responses to violations, and, ultimately, revocation.

At the outset, a general rule of thumb is that probation under G.S. 90-96 is subject to the same rules as any probation case unless there is some statutory provision to the contrary. 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.”). In Burns, for example, the court of appeals held that the jurisdictional rules for violation hearings held after a period of probation has expired apply in G.S. 90-96 cases just as they do in regular probation cases. So, when in doubt, apply the regular rules.

There are, however, a few provisions in G.S. 90-96 that depart from the regular probation rules. And those departures are not consistent between G.S. 90-96 subsection (a) and subsection (a1).

Probation under G.S. 90-96(a)—the now-mandatory conditional discharge for certain defendants—is mostly left to the discretion of the trial judge. The law says that the court is to place G.S. 90-96(a) defendants on probation “upon such reasonable terms and conditions as it may require.” There are no mandatory conditions. The law does, however, state that the court “may allow” the defendant to participate in a drug education program or in the Treatment for Effective Community Supervision (TECS) Program (the statutory successor to the Criminal Justice Partnership Program (CJPP)). Note that the reference to drug education programs in G.S. 90-96(a) is different from the reference to drug education schools in subsection (a1), which I’ll discuss in a moment. As far as what TECS programming might be available, the Division of Adult Correction is still in the process of awarding TECS contracts for community-based programs. When programs are in place, G.S. 90-96 probationers are apparently intended to be eligible for services, with G.S. 90-96 felons flagged by law as a “priority population” regardless of their assessed risk and needs. G.S. 143B-1154. The latest version of the preprinted G.S. 90-96(a) order from the Administrative Office of the Courts, AOC-CR-619C, includes all regular conditions of probation by default and then includes space for the judge to check or add special conditions in his or her discretion.

Probation under subsection (a) may be supervised or unsupervised and may apparently be for any duration the court would like, up to 5 years. It is unclear whether the default rules on probation length applicable in Structured Sentencing cases (e.g., not less than six months nor more than 18 months for community-punished misdemeanor), set out in G.S. 15A-1343.2(d) apply in G.S. 90-96 cases. Those rules only apply to persons “sentenced” under Structured Sentencing, G.S. 15A-1343.2(a), and, strictly speaking, persons on probation under G.S. 90-96 have not yet been sentenced. To be safe, however, a judge wishing to impose a period of probation longer than the G.S. 15A-1343.2(d) default should probably make a finding that a longer period is required. On a related note, uncertainty about whether G.S. 90-96 cases are covered by G.S. 15A-1343.2 also calls into question whether delegated authority (set out in G.S. 1343.2(e) and (f)) can ever apply in those cases.

Probation under G.S. 90-96(a1)—the discretionary form of conditional discharge that may be used for certain defendants—is a bit more demanding than subsection (a). That law requires that any probation imposed be for at least one year. It must also include as a condition that the defendant enroll in, pay the $150 fee for, and successfully complete the program of instruction at a drug education school approved by the Department of Health and Human Services under G.S. 90-96.01 within 150 days. The court may omit the drug education school condition only if there is no school within a reasonable distance or if there are extenuating circumstances making it likely that the defendant would not benefit from it. Form AOC-CR-627C incorporates the conditions and findings applicable to G.S. 90-96(a1).

Next is the question of how the court should respond to violations of G.S. 90-96 probation. A threshold question in that regard is where a G.S. 90-96 violation hearing should be held. Subsection (a) doesn’t say anything about the proper venue, and so it would seem under Burns that the regular rules of G.S. 15A-1344(a) would kick in and allow the hearing to be held in the district of origin, the offender’s place of residence, or the place where alleged violation occurred. As a practical matter, though, it may be best for the case to be returned to the district of origin—something the court is empowered to do in any probation case under G.S. 15A-1344(c)—because that is the court that will ultimately need to enter judgment and sentence the defendant if the court decides to revoke. Subsection (a1) specifically provides that a person may obtain a hearing “before the court of original jurisdiction” before probation is revoked, nudging things toward the district of origin.

I am sometimes asked whether the court may impose a split sentence in a 90-96 probation case, either at the outset or in response to a violation. My answer is that it may not, because there is no suspended sentence in place to serve as a benchmark for determining the permissible length of the active portion of the split under the one-fourth rule of G.S. 15A-1351(a). More generally, I have reservations about using any confinement-based probation condition in a G.S. 90-96 case—with no suspended sentence in place, there’s no time in the bank from which to borrow. But, to be clear, there is no explicit statutory prohibition.

On what basis can the court revoke G.S. 90-96 probation? Subsection (a) says that “[u]pon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided.” I take that to mean to that any violation may serve as a basis for revocation of G.S. 90-96 probation. In other words, I don’t think G.S. 90-96 probation is subject to the post–Justice Reinvestment rule that a person has to receive two periods of confinement in response to violation (CRV) before the court is empowered to revoke the probation for a technical violation. In fact, I think there’s a decent argument that the court should not be imposing CRV in G.S. 90-96 cases at all. The CRV law, G.S. 15A-1344(d2), requires the court to consider how much time remains on the defendant’s maximum imposed sentence when determining the length of the CRV and, again, there is no imposed sentence in a G.S. 90-96 case.

Subsection (a1) doesn’t say anything about violations generally, but it does say that a person’s “failure to complete a program of instruction at a drug education school” shall constitute grounds to revoke. The subsection defines that failure broadly to include failing to attend classes without an excuse, failing to complete the course in a timely fashion, or failing to pay the required fee. If the court receives an instructor’s report about a person’s failure to complete the drug education school, it must revoke the probation.

For cases under both subsection (a) and (a1), the court may use Form AOC-CR-622 to revoke or modify G.S. 90-96 probation, or to dismiss the case when a defendant has successfully fulfilled the terms and conditions of the probation.

A final question that arises from time to time—and which will no doubt arise more frequently now that G.S. 90-96 is mandatory—is whether a person’s conviction for a drug or drug paraphernalia possession offense counts for prior record points while he or she is still on G.S. 90-96 probation. In State v. Hasty, 133 N.C. App. 563 (1999), the court of appeals said that until the conviction is discharged and dismissed, it counts. A defendant has necessarily pled or been adjudged guilty before being placed on G.S. 90-96 probation, and under G.S. 15A-1331(b) it is that adjudication of guilt that counts as a conviction for sentencing purposes. If person ultimately succeeds on the G.S. 90-96 probation and the conviction is dismissed, then it would not count for points. If it had already been counted for points in a new case in the interim but was later dismissed, the defendant might have an argument for resentencing of that new case under State v. Bidgood, 144 N.C. App. 267 (2001) (holding that it would be “unjust to permit an enhanced sentence to stand where . . . the Prior Record Level has been erroneously calculated due to a subsequent reversal of a conviction on appeal”).