by School of Government faculty members Jamie Markham and Alyson Grine
Suppose Ronald is convicted of six counts of communicating threats, a Class 1 misdemeanor. Ronald has three prior convictions, making him prior conviction level II. The facts are bad and the sentencing judge wants to max Ronald out with the longest sentence allowable. What is it?
A. 270 days
B. 240 days
C. 90 days
Here’s a link to the misdemeanor sentencing grid, in case you don’t have it memorized.
Under G.S. 15A-1340.22(a), when the court elects to impose consecutive sentences for two or more misdemeanors, the cumulative length of the sentences of imprisonment must not exceed twice the maximum sentence authorized for the class and prior conviction level of the most serious offense.
If you forgot about the “twice the maximum for the most serious offense” rule, you might have answered A (270 days), thinking the court could just stack six 45-day sentences.
If you answered B (240 days), you remembered the twice-the-maximum rule, but you thought it capped consecutive sentences at twice the absolute maximum anyone – not just Ronald – could get for a Class 1 misdemeanor. The longest sentence in the Class 1/Level III cell is 120 days, and 2 x 120 is 240.
But G.S. 15A-1340.22(a) refers to the “maximum sentence authorized for the class and prior conviction level of the most serious offense.” That language – particularly the reference to prior conviction level – requires the judge to look not to the hypothetical maximum for the worst-case offender, but rather the maximum faced by a particular defendant based on where he or she falls on the grid. In our example, the maximum sentence authorized for Ronald’s class (Class 1) and prior conviction level (Level II) is 45 days. Double that to get 90 and you’ve got the correct answer, C.
[As an aside, a judge should use the hypothetical, worst-case maximum when advising defendants of the consequences of a guilty plea under G.S. 15A-1022(a)(6). That statute requires the court to inform the defendant of the “maximum possible sentence on the charge for the class of offense for which the defendant is being sentenced, including that possible from consecutive sentences.” It does not contain the reference to prior conviction level found in G.S. 15A-1340.22(a), which makes sense when you consider that a person’s record level could theoretically increase based on new convictions obtained between acceptance of a plea and entry of judgment. So, when accepting a felony guilty plea, the judge should use the maximum sentence that corresponds to the highest possible minimum sentence for a Class VI defendant sentenced in the aggravated range.]
Sometimes we’re asked how the twice-the-maximum this rule applies when the judge decides to suspend some or all of the misdemeanor sentences imposed. In other words, does the rule apply only to convictions that receive active punishment from the get-go? In our hypothetical case above, for example, could the judge give Ronald probation with a 270-day suspended sentence? Or perhaps stack two of the convictions to yield 90 days active with the rest of the convictions each sentenced to 45 days suspended, to run consecutively in the event of revocation? No. Under G.S. 15A-1340.20(b), even suspended sentences have a term of “imprisonment” assigned. The maximum number of days of imprisonment the court has to work with – active or suspended – in a misdemeanor sentencing episode is twice the maximum authorized for the class and record level of the most serious offense.