Several years ago the School obtained a grant from the Z. Smith Reynolds Foundation to create an online, searchable database of the collateral consequences of a criminal conviction in North Carolina. In 2012, after two years of legal and IT work, we launched the Collateral Consequences Assessment Tool, or C-CAT for short, to assist attorneys, reentry professionals, affected individuals, and policymakers in understanding the impact of a criminal conviction. We’re happy to announce we have given C-CAT a new look. It is available, still at no charge, at http://ccat.sog.unc.edu/. Continue reading
Category Archives: Sentencing
The 2016-2017 edition of the North Carolina Sentencing Handbook with Felony, Misdemeanor, and DWI Sentencing Grids, authored by me and Shea, is available from the School of Government. Like previous editions, it contains instructions on felony sentencing, misdemeanor sentencing, and DWI sentencing; the sentencing grids themselves; and various appendices that may be helpful in your work. Continue reading →
Not all changes to a person’s probation happen after a hearing. Many changes are made in chambers (or some other location other than the courtroom), with the consent of the parties. Though it happens all the time, the General Statutes don’t really say much about it. Today’s post covers some of the issues that can arise. Continue reading →
Sometimes there is a delay between when the court pronounces a sentence and when the judgment is actually signed. When that happens, questions can arise about when the sentence begins. Is it when the judge says it, or when he or she signs it?
Under G.S. 15A-101(4a), in criminal matters, “[j]udgment is entered when sentence is pronounced.” That is different from civil matters, where Rule 58 says “a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.” So, aside from delayed active sentences (allowed under G.S. 15A-1353(a), as described here), sentences set to run at the expiration of other sentences, or contingent probation cases (allowed under G.S. 15A-1346(b), as described here), a sentence begins when the judge says it, not when the judgment is signed. State v. Trent, 359 N.C. 583 (2005).
Probationary sentences raise some special concerns. Anecdotally, I hear that it can sometimes take weeks to get a signed probation judgment in some parts of the state. Nevertheless, under G.S. 15A-101(4a) and G.S. 15A-1346(a) (“a period of probation commences on the day it is imposed”), the person is on probation from the moment the court says so in open court. That means time starts ticking toward expiration on that day, not on the day the order is signed. The difference between those dates will sometimes matter at the end of a case, where a court will only have jurisdiction under G.S. 15A-1344(f) if a violation was filed (and stamped) before expiration. So watch out for that.
The delay in getting a signed judgment can cause issues on the front end of a probation case, too. Even though the person technically is under supervision from the time of the court’s oral pronouncement, under G.S. 15A-1343(c), a defendant “must be given a written statement explicitly setting forth the conditions on which he is being released.” In general, a condition is not enforceable until a defendant receives it in writing. See State v. Seek, 152 (2002). Cf. State v. Brown, 222 N.C. App. 738 (2012) (setting forth a limited exception to condition-in-writing rule for the baseline condition that a person report to his or her probation officer in the first place). And so if a violation were to arise shortly after a person was placed on probation and before the judgment was reduced to writing and provided to the defendant, he or she would have a good defense to it. (Probation staff may ameliorate that concern to some extent; their standard practice is to give the defendant a copy of at least the standard conditions of probation before he or she leaves court on the day of sentencing, even if the signed judgment isn’t yet ready.)
Incidentally, the delay between issuance of sentence and receipt of a written judgment really shouldn’t be very long. By statute, when a superior court judge sentences a person to imprisonment, the clerk shall provide the sheriff with a signed order of commitment within 72 hours of the issuance of the sentence. When a district court judge does it, the commitment must be furnished to the sheriff within 48 hours. G.S. 7A-109.3. It’s good for the sheriff and county when that happens promptly, because the person can be moved more quickly from the jail to prison.
If there is any delay in that transfer after the judgment is received, under G.S. 148-29, “[b]eginning on the day after [DAC] has been notified by the sheriff that a prisoner is ready for transfer . . . and continuing through the day the prisoner is received by [DAC],” the state pays the county $40 per day plus the costs of extraordinary medical expenses—the so-called jail backlog fee. Before 1999, the fee began accruing on the sixth day after sentencing, but the law was amended that year to say it would begin accruing the day after the sheriff told DAC to come get the inmate. S.L. 1999-237.
A person convicted of a felony is eligible for an additional prior record point if “the offense was committed while the offender was on supervised or unsupervised probation, parole, or post-release supervision, or while the offender was serving a sentence of imprisonment, or while the offender was on escape from a correctional institution.” G.S. 15A-1340.14(b)(7). I call that point the “under supervision” bonus point. Though part of the defendant’s prior record level, the point is probably best thought of as an aggravating factor. A recent court of appeals case reminds us why. Continue reading →
A defendant charged in district court with the misdemeanor crime of driving while impaired cannot ascertain from the charging document whether he is subject to sentencing at Level A1 (the most serious level) or Level 5 (the least serious). That’s because the aggravating factors that lead to elevated sentencing aren’t considered elements of the offense and thus are not required to be alleged in the charging instrument. Yet because those factors can increase the maximum punishment a defendant may receive, they must be proved beyond a reasonable doubt and, with the exception of prior convictions, be determined by a jury in superior court. And, for most charges of impaired driving prosecuted in superior court, the State must provide notice of its intent to seek aggravating factors. A case decided by the court of appeals last June, however, identifies an exception to this requirement for certain aggravating factors in driving while impaired prosecutions initiated in superior court.
Today’s post is a return to the Sentencing Whiteboard, this time to explain active sentences for aggravated level one DWI. As Shea and I have discussed in earlier posts (here, here, and here, among others), they are different from other DWI sentences. No parole. No good time. Not cut in half. The video explains why, and describes how typical aggravated level one sentences are administered by the county jails through the Statewide Misdemeanant Confinement Program. As you’ll see, sentences for this most serious level of misdemeanor impaired driving are in many cases longer than a felony habitual DWI. I hope you’ll take a look. Continue reading →
Almost all states place some limitation on felons’ right to vote. Those limitations—which can be traced from ancient political traditions of “civil death” for certain crimes to more recent history in the post-Reconstruction United States—vary widely from state to state. They are sometimes controversial. For example, litigation involving Virginia’s restriction was mentioned in the July 29 News Roundup, with a follow-up on the ensuing executive action from the Washington Post here. Politics aside, today’s post covers some of the technical contours of North Carolina’s voting law for felons. Continue reading →