If you’ve noticed an uptick in probation hearings on extensions, today’s post may help explain why. As of last month, Community Corrections will no longer seek ordinary extensions of probation without notice and a hearing. In other words, they will no longer seek “in chambers” extension orders, even when the defendant consents to them.
As noted many times on this blog (first in 2009, here, and later in video form, here, among others), there are two types of probation extensions in North Carolina. I couldn’t tell you exactly why there are two types of extensions, and if I had my druthers there probably wouldn’t be, but there are, and they are governed by different statutory subsections.
Ordinary extensions. Under G.S. 15A-1344(d), after notice and hearing and for good cause shown, the court may extend probation up to the maximum allowed under G.S. 15A-1342(a), which is five years for a regular post-conviction probation case and two years for a person on probation as part of a deferred prosecution or conditional discharge.
Special purpose extensions. Under G.S. 15A-1342(a) and, for Structured Sentencing cases, G.S. 15A-1343.2(d), probation may be extended by up to three years beyond the original period of probation as long as three things are true:
- The extension is done within the last six months of the original (i.e., not previously extended) period of probation;
- The probationer consents to it; and
- The extension is necessary to complete a program of restitution or to complete medical or psychiatric treatment.
The probation modification order includes two checkboxes for the court to identify which type of extension it is ordering—1.a. for ordinary extensions, 1.b. for special purpose extensions.
As noted in this prior post, many probation extensions happen without a hearing. Or at least they used to. Effective July 10, pursuant to this administrative memorandum, probation officers are directed not to seek ordinary extensions outside of a hearing before the court. Why the change?
It was prompted mainly by an unpublished decision of the court of appeals, State v. Craig, 798 S.E.2d 438 (2017) (unpublished). In Craig, the defendant was placed on probation for 24 months in August 2012. In August 2014, a couple of weeks before probation expired, a judge extended the defendant’s probation by 12 months to August 2015. When the trial court revoked his probation based on violations filed during the extended period, the defendant appealed, challenging the validity of the extension.
The thrust of the defendant’s argument was that this was an extension under G.S. 15A-1344(d) (an ordinary extension) done without the “notice and hearing” and counsel required by that statute.
The court of appeals agreed with him. The court said that for a trial court to have jurisdiction to extend probation, the defendant must be given notice of a hearing, that hearing must be conducted, and the defendant’s right to counsel must be protected. Slip op. at 9. Here, there was no indication on the modification order (available on page 47 of the record) that the extension happened after notice and a hearing, and no clear indication that the defendant waived his right to notice and a hearing. The defendant signed the form, but neither box was checked near the bottom of page two, side two of the AOC-CR-609, to indicate whether the defendant’s agreement was obtained before the order was entered or after a hearing.
Additionally, there was no indication that the defendant had (or had waived) counsel. With that in mind, the court deemed the extension invalid, and thus concluded that the trial court was without jurisdiction to revoke probation when it did.
Would the extension have been proper if the court had checked the box indicating that the defendant agreed to it before it was entered? Maybe (there is no published appellate case saying it wouldn’t be). But recall unpublished State v. Lawrence, 197 N.C. App. 630 (2009), discussed here, which held that even a properly completed form noting the defendant’s “agreement” to the extension did not constitute a valid waiver of the statutorily required hearing.
With Craig (and perhaps also Lawrence) in mind, Community Corrections has decided that it will no longer pursue extensions out of court. Instead, officers seeking ordinary extensions are instructed to file a form DCC-170, Notice of Hearing for Extension of Probation, and then to seek the desired extension at the ensuing hearing, in open court. It’s a cautious approach—and it may tie up some time in court and increase the costs of counsel—but it should help address what I suspect is a very common issue (which is to say, I’ll bet a lot of probationers have been extended via orders that look pretty much like the one deemed invalid in Craig).
Note that this new directive does not apply when the officer is seeking a special purpose extension. That is because the special purpose extension statute does not mention the requirement of notice or a hearing, and it expressly says that the extension may be done by consent. That consent is memorialized by checking box 1.b. near the top of page one, side two of the AOC-CR-609. That distinction makes it all the more important to indicate on the form which type of extension the officer is pursuing, and to fill the form out in its entirety.