Consecutive Sentences for Misdemeanors (a Quiz!)

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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.

4 comments on “Consecutive Sentences for Misdemeanors (a Quiz!)

  1. Prior to the establishment of the fair sentencing grids in the early to mid 90’s, how was the sentencing for multiple misdemeanors defined in the N.C. General Statutes? I’m having difficulty in figuring this out…

  2. Under pre-Fair Sentencing law, a judge had inherent discretion to run sentences concurrent with or consecutive to one another. State v. Whaley, 263 N.C. 824 (1965). That discretion was codified in G.S. 15A-1354 (1977), which also codified the rule that a judgment silent on the issue should run concurrently with any sentence imposed at the same time or already being served. The same rule continued under Fair Sentencing in the 1980s and early 1990s.

    If this question stems from a new conviction based on old behavior, is there a statute of limitations issue (GS 15-1)?

  3. No, I was simply researching what convictions looked like prior to Fair Sentencing laws. It seems that in your example, Ronald should be glad that he is being sentenced after 1993…prior to that, instead of the maximum of 90 days afforded to him by Fair Sentencing, he could have received a maximum sentence of 3 years. What a difference!

  4. […] prior posts (here and here) I have discussed Structured Sentencing’s limit on consecutive sentences for […]

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