Consecutive Sentences for Misdemeanors Sentenced at Different Times

In prior posts (here and here) I have discussed Structured Sentencing’s limit on consecutive sentences for misdemeanors. The basic rule, set out in G.S. 15A-1340.22, is that the cumulative length of the sentences of imprisonment for consecutive misdemeanor sentences may not exceed twice the maximum sentence authorized for the class and prior conviction level of the most serious offense. If all of the convictions are for Class 3 misdemeanors, the sentences must run concurrently. Those prior posts have addressed some of the most frequently asked questions about the law, but I’ll recap briefly. First, given the statute’s reference to the “class and prior conviction level of the most serious offense,” the sentence-length cap is driven by the maximum sentence that a particular defendant could have received—not by the hypothetical worst-case (i.e., Level III) defendant. Second, the rule applies regardless of whether the defendant is also subject to felony sentences. See State v. Wheeler, 202 N.C. App. 61 (2010) (applying the rule to a defendant with misdemeanor sentences set to run consecutively to a felony sentence). And third, the rule applies regardless of whether some or all of the sentences in the stack of consecutive judgments are suspended. See id. at 70 (remanding for resentencing when two 45-day suspended sentences were set to run consecutively to a 75-day active sentence, because the total maximum allowable period of imprisonment under G.S. 15A-1340.22 was twice 75, or 150 days).

An aspect of the rule that I haven’t discussed on the blog, but that comes up from time to time, is whether the limit on consecutive misdemeanor sentences only applies to misdemeanors sentenced at the same time. The issue generally arises in one of two circumstances. First, when a person already subject to a suspended misdemeanor sentence is being sentenced for yet another misdemeanor and the judge wants to know if he or she may run the new sentence consecutive to the existing one(s). And second, when a person subject to multiple suspended misdemeanor sentences that were imposed at different times is about to have his or her probation revoked, and the judge wants to know whether the consecutive-sentence limit applies to all of the judgments, or just those entered in the same session of court.

My sense is that most people read G.S. 15A-1340.22 as a rule for sentences entered at the same time. I’ve even heard that some misdemeanor plea arrangements call for multiple judgments to be entered on different days to get around the rule (with no objection from the defendant, who is probably happy to avoid felony charges by pleading guilty to the elongated string of misdemeanors). The language of the statute itself supports that view, to a certain extent. It says that the rule applies when the “court elects to impose consecutive sentences for two or more misdemeanors” (emphasis added). The easiest reading of that clause is that the judge only “imposes” sentences for “two or more” misdemeanors when he or she actually imposes both (or all) of them together. Prior sentences, on the other hand, have already been “imposed,” and so the rule does not does not literally require that they be taken into account. That reading also makes some sense as a policy matter. To read the law otherwise would render some defendants already subject to multiple suspended sentences effectively “judgment proof” against any additional imprisonment for subsequent misdemeanor offenses.

All that being said, I think there is a plausible argument that the rule is cumulative—by which I mean that even judgments entered at different times must be taken into account when figuring a misdemeanant’s maximum permissible consecutive sentence. The statute never explicitly says that it only applies to sentences entered at the same time, but another part of the very same statute—subsection (b), setting out a judge’s authority to consolidate multiple offenses—does. G.S. 15A-1340.22(b) (“If an offender is convicted of more than one offense at the same session of court, the court may consolidate the offenses for judgment . . . .”).  As the argument often goes, if the General Assembly had wanted to limit the consecutive-sentence rule to convictions arising at the same session of court, it obviously knew how to do it. As a policy matter, limiting a person’s exposure to imprisonment for misdemeanors sentenced at different times is not really all that different from limiting his or her exposure for things sentenced together.

If the issue arises at a probation revocation hearing, I think an additional wrinkle comes into play. As I discussed in this prior post, a judge has authority at a probation violation hearing to run activated sentences consecutively even if they had initially been set to run concurrently in the original sentencing judgment. See G.S. 15A-1344(d). When a judge activates sentences in a manner other than as set in the original judgment(s), the court of appeals has characterized the revocation hearing as the imposition of a new sentence. See State v. Hanner, 188 N.C. App. 137, 141–42 (2008). With that in mind, it seems that even suspended sentences originally entered in different sessions of court would be subject to the consecutive-sentence limitation if the judge elects for the first time at the point of revocation to run them consecutively.

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