All the Possible Sentences

Let’s brainstorm all the possible sentences for a Prior Record Level I defendant convicted of two Class H felonies. I’ll go first, listing my thoughts roughly from most to least severe (from the defendant’s point of view).

The defendant falls in the lone C/I/A cell on the felony sentencing grid. That means all dispositional options—community, intermediate, and active—are available to the court. Let’s assume there are no aggravating or mitigating factors, so the term of imprisonment (if any) will come from the presumptive range.

Consecutive active sentences. The court may, in its discretion, run the defendant’s sentences consecutively. G.S. 15A-1340.15(a). The longest presumptive active sentence for each conviction would be 6–17 months. With consecutive 6–17 month sentences, the defendant would wind up with an aggregate sentence of 12–25 months (this video explains the statutory rule for aggregating felony sentences). That translates to 12–16 months in prison (with the precise release date depending on how much earned time the defendant accrues), followed by 9 months of mandatory post-release supervision (PRS) upon release (this video explains how felony sentences are served).

Contingent sentence (active sentence followed by probation). Under G.S. 15A-1346(b), the court may run a period of probation consecutively to an active sentence. More details about that type of sentence, including some of the common pitfalls, are available here. Assuming both sentences come from the presumptive range, a contingent sentence would look something like this:

Judgment A: 6–17 months, active.

Judgment B: 6–17 months, suspended. 36 months of supervised probation, to begin when the defendant is released from incarceration in Judgment A.

In plain English, the defendant would be in prison for 6–8 months and then on probation for 3 years. He or she would also be on PRS for the first 9 months of probation.

Concurrent active sentences. The court could impose two active sentences but allow them to run concurrently. Terms of imprisonment run concurrently by default. G.S. 15A-1340.15(a). If the court imposed concurrent 6–17 month sentences, the defendant would be in prison for 6–8 months and then on PRS for 9 months.

Consolidated sentences. The court may consolidate the offenses for judgment and impose only one sentence. Consolidation is functionally similar to concurrent sentences, but probably better from the defendant’s point of view, for the reasons discussed here.

Advanced Supervised Release. If the court imposes an active sentence, it may—if the prosecutor does not object—also set an Advanced Supervised Release (ASR) date. This would allow the defendant to be released from prison early if he or she completes risk reduction incentives in prison. This video describes how the law works.

The ASR date for any presumptive-range regular sentence is the lowest permissible sentence the defendant could have received from the mitigated range. So, in this case, assuming a regular sentence of 6–17 months, the ASR date would be 4 months. In plain English: if the defendant does what he or she is supposed to do in prison, he or she would be released from prison to post-release supervision after 4 months. The time remaining on the maximum sentence (probably around 12 months at that point) would hang over his or her head during a 9-month term of post-release supervision.

Split sentence(s). The quintessential “intermediate” punishment is special probation—better known as a split sentence. Here, if the court imposed and suspended a 6–17 month term of imprisonment, the longest permissible split sentence would be 4.25 months (one-fourth the maximum imposed sentence, as provided in G.S. 15A-1351(a)). The court could order the split sentence confinement to be served all at once, or in noncontinuous intervals (like weekends).

If the court imposed judgments for both of the defendant’s convictions, it could probably order split sentences in both cases and run the splits consecutively. I discussed that possibility here.

Supervised probation. The court may suspend the defendant’s term of imprisonment and place the defendant on supervised probation. If the punishment is intermediate, any probation imposed must be supervised. The probation may be up to 5 years long, provided the court makes the findings described in G.S. 15A-1343.2(d).

If the court imposes probation for both convictions, the supervision periods must run concurrently (the court could not, for example, stack the probation periods such that the defendant would be under supervision for 10 years). G.S. 15A-1346(a). The court may, however, state that the suspended terms of imprisonment should run consecutively in the event of revocation. By default, those terms will run concurrently, and the eventual revoking judge generally will have discretion to change whatever decision the sentencing judge may have made on that point, as described here.

Of course, the category of “supervised probation” could itself be divided into many different subcategories, depending on the length of the supervision period and the particular conditions imposed. For instance, the defendant could be ordered to a full-time residential program like TROSA or DART-Cherry, subject to electronic house arrest or a curfew, or merely required to check in with the supervising officer from time to time.

Unsupervised probation. Because a community punishment is authorized, this defendant may be placed on unsupervised probation.  That might make sense if the court’s priorities were to have the defendant complete community service or comply with various monetary conditions.

Fine only. Because a community punishment is authorized, this defendant may be sentenced to a fine only, with no suspended sentence or probation. If the defendant failed to pay that fine, the court could respond as provided in G.S. 15A-1364 (in a nutshell: show cause hearing and possible imprisonment not to exceed 30 days).

Restitution. Restitution could be ordered in addition to any of the punishments set out above.

Those are the sentencing possibilities that come to my mind. Post a comment if you can think of others.

My broader point is that every one of the sentences described above is lawful for a defendant convicted of these felony offenses. And aside from the requirement to make a finding to order a period of probation outside the statutory default range, the judge is not required to make a single finding of fact or conclusion of law in support of his or her decision to choose among the listed options. Suffice it to say there is flexibility, even before you introduce aggravating and mitigating factors. And I haven’t even mentioned the possibility of various “non-sentences”—conditional discharge under G.S. 15A-1341(a4), prayer for judgment continued (PJC), and deferred prosecution—that, to varying degrees, might give the defendant an opportunity to avoid formal punishment altogether.

Sure, this defendant happens to fall in the grid’s only “C/I/A” cell, and there are more options here than you would have in other cells. But it’s not like this situation is uncommon. According to the N.C. Sentencing and Policy Advisory Commission, in fiscal year 2013/14, courts imposed over 3,500 sentences from this cell, making it the second most frequently used cell on the grid.

If you’re wondering, the “average” sentence for a defendant in this cell was 5–15 months. About 10 percent of them were active.