In case you missed it, there is a new method of obtaining relief from criminal monetary obligations. Rule 28 of the North Carolina General Rules of Practice was adopted in December of last year and became effective on Jan. 1, 2022. The rule is titled “The Equitable Imposition of Monetary Obligations in Criminal and Infraction Cases Based on the Defendant’s Ability to Pay.” It directs trial courts to determine the defendant’s ability to pay before imposing any discretionary monetary obligations in covered cases. The Administrative Office of the Courts has rolled out a new form, AOC-CR-415, to assist with implementation. The new rule and form provide a pathway to relief for a substantial number of current and past defendants. I have created a webinar discussing the details here, which can be viewed for free or for a small fee if CLE credit is desired. In the spirit of the rule, the .75 hour of CLE credit is offered at a discounted rate. Check it out or read on for some frequently asked questions about the rule.
Sentencing
North Carolina’s Decriminalization of Most Local Ordinance Violations
Senate Bill 300 was an omnibus criminal justice reform bill passed last year. One of its provisions presumptively decriminalizes most violations of local ordinances. In this post, I’ll address some of the questions that have arisen about that provision.
Possession of Fentanyl (2022 Update)
In an earlier post, I wrote that simple possession of fentanyl was a misdemeanor Schedule II offense under then-current law. No more. Effective Dec. 1, 2021, fentanyl possession in any amount is treated as a felony. I have been receiving calls about the change and thought a brief post would be useful. Read on for the details.
Report from Sentencing Commission Analyzes DWI Dispositions in 2020
Recently I was asked to teach about sentencing in impaired driving cases. I thought the audience might want to know not just the law governing sentencing for impaired driving but also what sentences typically are imposed in those cases. For the latter, I turned to the North Carolina Sentencing and Policy Advisory Commission’s Fiscal Year 2020 Statistical Report on Driving While Impaired convictions. There one can find information about the percentages of impaired driving convictions sentenced at each of the six levels of punishment under G.S. 20-179, the types of sentences imposed by sentencing level, average sentence length for active and suspended sentences, and the average days of special probation (imprisonment) ordered by punishment level — among other data. Read on for highlights from the report, which contains data about convictions under G.S. 20-179 from July 1, 2019 through June 30, 2020.
Revisions to North Carolina’s Satellite-Based Monitoring Law
After years of litigation concerning the constitutionality of satellite-based monitoring (SBM) of sex offenders, the General Assembly has amended the law pretty dramatically. Today’s post describes those changes.
Plea Bargaining with the Judge
The case is ready for trial and all parties are present. From the bench, the judge makes a final attempt to resolve the case by saying “if we need to do a trial that’s fine, and I can call for a jury right now — but I’m just letting you all know that if the defendant was willing to plead to count 1 and state was willing to dismiss count 2, I’d be inclined to give supervised probation and we could get this case wrapped up today.”
Of course every county and every judge is unique, but most criminal attorneys have at least occasionally experienced some type of participation from the bench in working out a plea. So we know that it happens, but is it actually authorized by our statutes? Should it be? If it is, what are the limits, and what’s fair game for negotiation? Are the judge’s terms binding?
Case Summary: Jones v. Mississippi
In Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court held that a person who commits a homicide when he or she is under 18 may not be mandatorily sentenced to life without parole; the sentencing judge must have discretion to impose a lesser punishment. In Montgomery v. Louisiana, 577 U.S. 190 (2016), the Court held that Miller applies retroactively. When Montgomery was decided, I wondered (here) whether it did more than merely address Miller’s retroactive application. Language in the case indicated that a sentence of life without parole would be constitutionally permissible for only the most the most troubling young defendants—“those whose crimes reflect permanent incorrigibility.” Id. at 209. In Jones v. Mississippi, 593 U.S. ___ (2021), decided last week, the Court made clear that the Constitution does not require a sentencer to make a separate factual finding of permanent incorrigibility before sentencing a defendant to life without parole.
Jail Credit for Consolidated Sentences
My colleague Jamie Markham and I have received quite a few questions lately about jail credit for consolidated sentences. Jamie has written several blog posts over the years explaining the various jail credit laws. However, there are no statutes or case law that govern the peculiar scenarios that come up regarding consolidated sentences.
The Impact of COVID-19 on Sentencing
While the suspension of jury trials caused by the pandemic has slowed the work of the criminal courts, judges across the state continue to sentence defendants who enter guilty pleas. The prospect of their clients facing prison time during the pandemic has spurred defense attorneys to consider what arguments might be made during sentencing proceedings with respect to the heightened danger of a defendant contracting COVID-19 in a correctional facility.
New AOC Form for Relief from Monetary Obligations
The Administrative Office of the Courts has issued a new form, AOC-CR-415, through which a person can make a motion for relief from costs, fines, and other monetary obligations. The form also doubles as the order through which a judge can rule on the motion.