For our last official criminal justice class, we heard from five more teams of students about their research projects. (At the students’ request, we also scheduled an extra evening session to watch the third best movie ever made about the law and lawyers—answer at the end of this post.) Once again, the students worked on a wide range of topics and, once again, I learned from the students. Here are some quick takeaways along with a brief discussion of one of the topics—double jeopardy, or more accurately, the absence of double jeopardy protections in the UK. Continue reading
Category Archives: Sentencing
What do the topics in the title of this blog post have in common? They were the focus of the students’ criminal justice presentations this week. Nine teams of students, two on each team, have been researching and preparing their presentations throughout the semester. Here are some of my takeaways from the first set of presentations. Continue reading →
In a previous post I wrote about State v. McNeil, a case that resolved the question of how to count prior convictions for possession of drug paraphernalia, in light of that crime’s 2014 division into Class 1 (non-marijuana) and Class 3 (marijuana) offenses. Today’s post is about prior convictions for second-degree murder—split into Class B1 and Class B2 varieties in 2012—in light of State v. Arrington, a case recently decided by the supreme court. Continue reading →
A judge can order special probation (a split sentence) at sentencing or in response to a violation of probation. If a judge does both, what is the maximum amount of time the defendant may be incarcerated? Continue reading →
In recent years North Carolina has made several reforms in the field of collateral consequences, expanding opportunities for expunctions of convictions, authorizing courts to issue certificates of relief to limit collateral consequences, and requiring that licensing agencies consider whether a nexus exists between applicants’ criminal conduct and their prospective duties, among other factors. See G.S. 93B-8.1. The changes are helpful but incremental. Our most recent criminal justice class challenged the extensive reliance on collateral consequences in the U.S., the effectiveness of current remedies, and ultimately barriers to reintegration into society of people who have previously been convicted of a crime. Continue reading →
A recent case from the court of appeals answers a question we’ve been wondering about for four years: How should a person’s prior conviction for possession of drug paraphernalia (PDP) count toward his or her prior record level after the General Assembly created a new offenses of possession of marijuana paraphernalia?
I wrote about this general issue back in 2014 (here), when G.S. 90-113.22A first came into effect. Under that law, effective December 1, 2014, possession of drug paraphernalia related to marijuana was created as a Class 3 misdemeanor. The existing PDP offense, G.S. 90-113.22(a), remained a Class 1 misdemeanor, but was amended to say that it applied to possession of paraphernalia related to controlled substances other than marijuana.
In State v. McNeil, the defendant was convicted in 2017 for a felony committed in 2016. He had a prior PDP conviction from 2012—back when the only version of the offense was the Class 1 misdemeanor. It was treated as a Class 1 misdemeanor, counting for 1 point. That point gave him 14 total points, making him Prior Record Level V.
On appeal, the defendant argued that his 2012 PDP conviction ought to have been treated as a Class 3 misdemeanor. Under G.S. 15A-1340.14(c), the classification of a prior offense is the classification assigned to it as of the offense date of the crime now being sentenced. Because McNeil’s present offense was committed in February 2016, he maintained that his prior PDP should be updated to a Class 3 misdemeanor in the absence of any proof by the State that it did not involve marijuana.
The court of appeals agreed. There was no proof in the record indicating whether the PDP conviction involved marijuana or some other drug, and the defendant didn’t stipulate one way or the other. With that in mind, the unanimous panel concluded that “the State failed to prove whether that charge was related to marijuana or another drug,” slip op. at 5, and therefore the trial court erred by treating it as a Class 1 misdemeanor. The court remanded the case to the trial court for the defendant to be resentenced at Prior Record Level IV.
McNeil will likely lead to resentencing for many felony defendants sentenced for offenses committed on or after December 1, 2014, who had PDP convictions from before that date on their record. The case doesn’t have any impact on defendants presently sentenced for misdemeanors, since all convictions count the same for misdemeanor prior conviction level purposes.
Going forward, if the State wants a pre–12/1/2014 PDP conviction to count for a felony sentencing point, it will apparently need to present information to the court sufficient for the judge to find that the crime was not related to marijuana. It seems to me that will sometimes be a difficult negative to prove given the records readily available for a low-level crime of that vintage. Even if records were available, the paraphernalia in question might not always be tied to a specific drug, or at least any single drug.
It also appears to be permissible to resolve the issue by stipulation of the defendant. That’s essentially what happened in State v. Arrington, a case recently decided by the Supreme Court of North Carolina on how prior second-degree murders should count for points in light of the 2012 bifurcation of that offense into Class B1 and Class B2 varieties. I’ll write more about Arrington in a future post.
In February 1843, Daniel M’Naughten was tried in London for the murder of Edward Drummond, the private secretary to Prime Minister Robert Peel. M’Naughten was laboring under the delusion that Prime Minister Peel was part of a system that was persecuting him. Only by shooting Peel could he end the torment. Drummond became the victim of these delusions when M’Naughten mistook him for Peel. The trial of M’Naughten, the verdict of insanity, and the aftermath made legal history. Continue reading →
Last week Shea led a North Carolina Judicial College class on DWI Procedures for Judges and Magistrates. One day of the program included a field trip to DART Cherry in Goldsboro, North Carolina’s substance abuse treatment program for male probationers. The group was kind enough to let me tag along. Today’s post gives a short trip report and addresses some frequently asked questions related to DART Cherry. Continue reading →
Post-release supervision is a lot more common than it used to be. There were about 2,000 on post-release supervision back in 2011 before the Justice Reinvestment Act added PRS for lower-level (Class F–I) felons. Today there are over 12,500 people on post-release supervision, and PRS revocations account for more entries to prison than probation revocations. Nevertheless, some aspects of PRS still seem unfamiliar. Today’s post takes a quick look at a frequently asked question related to what happens when a person is returned to prison for a violation of PRS. Continue reading →
Last year was a difficult one for North Carolina’s prison system. One correctional officer was killed by an inmate at Bertie Correctional Institution. Four staff members were killed during an attempted escape at Pasquotank. Today’s post summarizes some of the statutory and regulatory changes made in response to those incidents. Continue reading →