Charging the Felony After a Misdemeanor Appeal

This question has come up more than once around here lately, so I thought it would be worth summarizing in a blog post.

The defendant is in district court charged with a routine misdemeanor (e.g., larceny, assault, or DWI). The state has additional evidence that would support pursuing a related felony charge instead (e.g., new information about the value of the stolen property, the severity of the injuries inflicted in the assault, or the defendant’s multiple prior convictions for DWI). The prosecutor and the defense attorney talk it over, and they reach a deal: the state will not bring the higher felony charge, but only if the defendant pleads guilty to the misdemeanor – right now, as charged, take it or leave it.

The defendant agrees and enters a guilty plea. Then, a few days later, the defendant gives notice of appeal to superior court for trial de novo on the misdemeanor. May the state now prosecute the felony charge in superior court?

This post walks through the legal arguments for and against it, and then offers a few suggestions on how the state can avoid getting caught in this trap in the first place, including one option whose persistent absence from North Carolina criminal practice really puzzles me: a basic appeal waiver.

The Two Easy Answers We Don’t Have

The facts in the example described above fall into a gray area between two alternative scenarios that would offer a clear yes or no answer.

1. Felony was charged, but pled down to a misdemeanor:

If the defendant is already charged with felony larceny, felony assault, or habitual DWI, and then pleads guilty to a reduced charge or a lesser-included misdemeanor as part of a deal in district court, there is no doubt that the state may reinstate and pursue the felony charge after the defendant appeals to superior court. See, e.g., G.S. 15A-1431; G.S. 7A-271 (on appeal of a misdemeanor conviction, the superior court has jurisdiction over the charges “in the form and to the extent that they subsisted in the district court immediately prior to entry of the defendant and the State of the plea arrangement”); State v. Fox, 34 N.C. App. 576 (1977) (“Where a defendant elects not to stand by his portion of a plea agreement, the State is not bound by its agreement to forego the greater charge.”).

2. Plea to a misdemeanor, then state charges a new felony:

Conversely, if the defendant pleads guilty to a charged misdemeanor, gives notice of appeal to superior court, and then the state “retaliates” by bringing new and higher charges in superior court based on the exact same conduct, our appellate courts have found that to be a presumptive due process violation because of the chilling effect that such “vindictiveness” would have on deterring defendants from exercising their right to pursue a legitimate misdemeanor appeal and ask for trial de novo. See Blackledge v. Perry, 417 U.S. 21 (1974) (“a person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one”); State v. Bissette, 142 N.C. App. 669 (2001) (“we believe Blackledge clearly controls the instant case and, therefore, hold that defendant’s felony larceny conviction in superior court was a violation of her due process rights and must be vacated”).

Which One Is This:  Broken Plea Bargain or New Felony Retaliation?

On the issues of vindictiveness and retaliation, the United States Supreme Court has said that the “Blackledge presumption is rebuttable.” Thigpen v. Roberts, 468 U.S. 27 (1984), fn. 6; United States v. Goodwin, 457 U.S. 368 (1982) (presumption of vindictiveness “may be overcome only by objective information in the record justifying the increased sentence”); see also Bordenkircher v. Hayes, 434 U.S. 357 (1978) (not a due process violation for prosecutor to threaten a more serious charge during plea negotiations, if that charge is warranted by the facts).

The state’s argument that there was no vindictiveness in its felony charging decision makes intuitive sense for a fact pattern like the one in our example, because the prospect of facing a felony charge was an integral part of the misdemeanor plea discussion. So in theory, it should be possible for the state to rebut the presumption by showing that the felony charge was already a factor in district court. Ideally, that would be accomplished through documentation like an email or a written plea offer which clearly shows that the state was already planning to charge the felony unless the defendant pled guilty to the misdemeanor. See also State v. Dixon, 238 So.3d 1088 (La. App. 2d Cir. 2018) (explaining how a prosecutor could rebut the presumption of vindictiveness).

Unfortunately for the state, North Carolina’s appellate cases on this issue have repeatedly rejected any attempts to pursue a previously uncharged felony in superior court after a misdemeanor conviction in district court, regardless of the prosecutor’s motivations or justifications, based on Blackledge and due process. See, e.g., State v. Bissette, 142 N.C. App. 669 (2001) (barring felony larceny prosecution after misdemeanor larceny conviction – applying Blackledge, court noted that “this result did not depend upon a showing of actual retaliatory motive on the part of the prosecutor, since it was the mere potential for vindictiveness entering into the two-tiered appellate process which constituted a violation of the defendant’s rights”); State v. Phillips, 38 N.C. App. 377 (1978) (barring felony burglary prosecution after misdemeanor breaking and entering conviction); State v. Mayes, 31 N.C. App. 694 (1976) (barring felony assault prosecution after misdemeanor assault conviction – even though the original misdemeanor charging instrument included the word “feloniously” as surplusage, arguably putting the defendant on notice of the felony).

Additionally, although Blackledge characterized the issue as one of “due process,” the Court also referenced its double jeopardy analysis from prior cases and noted that it “aptly describes the due process right upon which our judgment is based” and found that the “practical result is to prevent a trial from taking place at all.” Id., 417 U.S. at 31. Double jeopardy generally precludes instituting a second prosecution for the same offense after a conviction, so in the absence of a statutory exception that allows for a “resumption” of the more serious prosecution after a conviction in district court, double jeopardy potentially bars the state from filing a new charge for the same underlying conduct on appeal to superior court. See generally State v. Corbett, 191 N.C. App. 1 (2008) (J. Elmore, dissenting). In other words, returning to the example above, the possibility of charging a felony may have been part of the plea conversation, but the fact remains that it was never actually charged – so for double jeopardy purposes it probably represents a second prosecution for the same offense, which is not allowed.

Better Options for the State

Obviously the better solution is to avoid getting pulled into this mess in the first place, but how? I have a few suggestions listed below. If any of these strategies are regularly used in your district, or if you have other suggestions that aren’t listed, please post a comment and share how well they work for you.

1. Indict the Felony

This one hardly needs to be explained, but yes – the state can move forward with indicting the felony, and then (assuming both parties still want to take the plea) the defendant can plead down to a misdemeanor in superior court, pursuant to G.S. 7A-271(a)(1) (plea to a lesser-included misdemeanor) or 7A-271(a)(4) (plea to a misdemeanor “tendered in lieu of a felony charge”). This method takes more time, effort, and court resources, but it’s foolproof.

2. Criminal Information
   

Alternatively, it should be possible for the prosecutor to prepare a Criminal Information charging an H or I felony (e.g., felony larceny or habitual misdemeanor assault) and have the defendant sign a waiver of indictment and agree to proceed on that Information, but then tender a guilty plea to a lesser-included misdemeanor. The district court is authorized to accept H and I felony pleas pursuant to a Criminal Information by G.S. 7A-272(c)(1) and 15A-644.1. Additionally, the district court judge is “authorized to act in these matters in the same manner as a superior court judge would be authorized to act if the plea had been entered in superior court,” which means that the district court judge is permitted to accept a plea to any misdemeanor which is a lesser-included offense of a “felony information as to which an indictment has been properly waived.” See G.S. 7A-272(d); 7A-271(a)(1).

The end result of these statutory gymnastics is a misdemeanor conviction entered in district court, but it’s based on a felony charging instrument. If the defendant thereafter appeals the misdemeanor conviction to superior court, the state should be allowed to “resume” the pre-existing felony prosecution without violating due process or double jeopardy by seeking an indictment.

3. Criminal Summons
   

If the defendant is unwilling to sign a waiver and proceed by Criminal Information (or if the related felony charge is higher than a Class H), the prosecutor might be able to reach the same result with a Criminal Summons. Although it’s more commonly used for misdemeanors, a Criminal Summons can be used to charge any “crime or infraction” based on a showing of probable cause supported by oath or affirmation, and it can be issued by any judicial official who is authorized to issue a warrant for arrest (e.g., a judge, magistrate, or clerk). See G.S. 15A-303; 15A-304(f); 7A-180, 181.

Since the officer who originally charged the misdemeanor is probably present for his assigned day in district court anyway, the prosecutor could ask him or her to present probable cause for the felony to the judge, obtain a Criminal Summons for the felony, and then proceed on the Summons as the new charging instrument for a guilty plea to a lesser-included misdemeanor. As with the Criminal Information, if the defendant later appeals the misdemeanor conviction, the state would only be “resuming” the pre-existing felony prosecution in superior court by seeking an indictment.

The problem with this option is that district court pleas to H and I felonies pursuant to a Criminal Information are specifically authorized by G.S. 15A-272, but I am not aware of a comparable statute that would authorize accepting a misdemeanor plea on a felony charge in district court pursuant to a Criminal Summons. Again, if any readers have helpful insights or practical experience they can share on this topic, please do.

4. Appeal Waiver

Finally, and perhaps most importantly, the prosecutor could simply condition the defendant’s misdemeanor plea offer on his agreement to execute a waiver of his right to appeal to superior court. Jeff Welty wrote this blog post about appeal waivers nearly 10 years ago, and he noted with curiosity that appeal waivers seem to be “vanishingly rare” in state practice. I’ve heard reports of a few districts using them in some cases, but based on my unsuccessful search for any North Carolina appellate cases that mention appeal waivers, they still don’t seem to be a very common occurrence.

That is just astonishing when compared to federal criminal practice, where it is virtually unheard of to have a plea agreement that does not contain an appeal waiver. Federal appellate courts have consistently found appeal waivers to be valid and enforceable terms in a plea agreement, as long as they are entered into by the defendant knowingly and voluntarily. See, e.g., United States v. Archie, 771 F.3d 217 (4th Cir. 2014); United States v. Thornsbury, 670 F.3d 532 (4th Cir. 2012); United States v. Manigan, 592 F.3d 621 (4th Cir. 2010).

An appeal waiver doesn’t have to be fancy or complicated. For example, here’s the full text of the waiver paragraph that was at issue in Archie, in which the defendant, by pleading guilty, agreed:

To waive knowingly and expressly all rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence is imposed, including any issues that relate to the establishment of the advisory Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to 28 U.S.C. §2255, excepting an appeal or motion based upon ground of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant’s guilty plea. The foregoing appeal waiver does not constitute or trigger a waiver by the United States of any of its rights to appeal provided by law.

A district court prosecutor could modify that language to indicate that the defendant is waiving his right to appeal the misdemeanor conviction to superior court under statutes like G.S. 7A-271, 7A-290 and 15A-1431. If the defendant knowingly and voluntarily signed that waiver as part of his district court plea but then tried to appeal anyway, the superior court judge could enforce the waiver by remanding the case back to district court for entry of judgment per the original plea and sentence.

Well, that’s the theory anyway….  A state bar ethics opinion from all the way back in 1993 (RPC 129) concluded that such a waiver would be proper, but it looks like we are still waiting on a test case to go up to the Court of Appeals and find out for sure.