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.
A typical fact pattern: a probationer is behind on the payment of his monetary obligations and needs more time to pay. The probation officer asks the probationer if he will consent to an extension of probation.
If he will, the officer prepares a motion to modify—form AOC-CR-609 in a regular probation case, or AOC-CR-622 in a deferral or conditional discharge case. It will be styled as a “motion to modify the defendant’s probation without charge of violation.” If the probationer and prosecutor will sign it, the officer will proceed to get it signed by a judge, with the judge indicating that he or she has, “upon consent of the State and the defendant,” found “good cause” to modify the original judgment suspending sentence. The order is entered, probation is extended, and that’s that. The same process applies to other consensual modifications, like the removal of electronic house arrest equipment, or a requirement to attend treatment.
There’s nothing wrong with modifying probation without first finding a violation; G.S. 15A-1344(d) specifically says that probation may be modified or extended “for good cause shown.” The statute also says, however, that such modifications and extensions may be done after “notice and hearing.”
G.S. 15A-1344(d) goes on to say that if a probationer violates probation, the court may, “in accordance with the provisions of G.S. 15A-1345,” modify or revoke probation. Subsection (e) of G.S. 15A-1345 says that a before probation may be revoked or extended in response to a violation, the court must hold a hearing. The statute then sets out a pretty detailed set of procedural rights, including the right counsel. Unlike G.S. 15A-1344(d), however, G.S. 15A-1345(e) expressly notes that the probationer may waive the right to a violation hearing.
Why am I being so nit-picky about the precise wording of these two statutory subsections, and when each of them applies? Well, one, because I’m like that. And two, because questions have recently emerged about the propriety of modifications and extensions done in chambers without a hearing. Most of these questions are focused on the statutory language, because probation modifications and extensions aren’t generally deemed to raise the same constitutional due process protections that would apply when revocation is on the line. See, e.g., United States v. Cornwell, 625 F.2d 686 (5th Cir. 1980) (“The nature of the interest and the loss resulting from extension simply do not parallel the fundamental nature of the interest or the seriousness of the loss [i.e., revocation] involved in Morrissey [v. Brewer] and Gagnon [v. Scarpelli].”). So what are the issues?
First of all, as noted above, the “good cause” portion of the modification statute (-1344(d)) doesn’t say anything about the possibility of waiving the hearing. The only mention of a waiver is in the violation hearing statute (-1345(e))—even though in practice essentially all in-chambers modifications are done without formal allegation of violation. Of course it would make sense as a policy matter that if you can waive a hearing on a violation, then you can waive whatever notice and hearing you’re entitled to before a modification or extension for good cause. But the statutes don’t actually say that. Only the violation hearing statute mentions waiver.
Second, even if the violation hearing statute is read broadly enough to apply to modifications and extensions for good cause, you run into issues about how the waiver must be memorialized. Does the indication on the modification order that the modification is being entered “upon the consent of the State and the defendant” do the trick? Maybe.
But consider unpublished State v. Lawrence, 197 N.C. App. 630 (2009). In Lawrence, the defendant was initially placed on 24 months of supervised probation. Just before it expired, the defendant signed a consensual modification order allowing the probation to be extended for 12 months so he could pay his outstanding costs and fees.
The relevant portions of the 2006 version of the AOC-CR-609 used back then looked pretty much like the ones used today:
A judge signed the order without a hearing.
The defendant violated probation during the extended period and got revoked. On appeal of his revocation, he argued that the revocation court was without jurisdiction to act because the earlier out-of-court extension was improper. The court of appeals agreed.
There was no evidence in the record that:
- The court conducted a hearing (because it didn’t);
- The defendant waived his right to a hearing; or
- That the extension was for the limited purposes set out in G.S. 15A-1343(a)—the “special purpose extension” statute that allows certain extensions to be done by consent (because it wasn’t).
The defendant’s signature on the portion of the form saying he “agree[d] to” the modifications set out on the form apparently was not a sufficient waiver of his right to a hearing on the issue. Absent evidence of a waiver, the court of appeals concluded that the extension was improper, and therefore vacated the later revocation for lack of jurisdiction.
A final issue, not discussed in Lawrence, is the right to counsel articulated in G.S. 15A-1345(e). If a defendant has a statutory right to counsel at the hearing that must be held (unless waived) before probation is revoked or extended, does a waiver of that hearing also need to include a waiver of the right to counsel? Who accepts that waiver, and how? And does it need to be memorialized with something more than the check-box at the top of the modification order?
All interesting questions—to me, anyway, and perhaps to the three or four of you that read this far. Lawrence is unpublished, of course, but its outcome may be cause for concern in light of the many similar modifications and extensions that happen in North Carolina each year. If nothing else, the case highlights the importance of indicating on the present-day modification order whether an extension is an ordinary or special purpose extension (a distinction discussed here). Often the box next to the “1.” is checked without any further selection of option “a.” or “b.”
If the extension is indeed a special purpose extension and box “b.” is checked, Lawrence suggests that it would be deemed valid without any evidence of notice or a hearing, because the special purpose extension statutes don’t require notice and a hearing, just consent.