Many parts of the Justice Reinvestment Act, including most of the changes related to “front-end” sentencing, were made effective for offenses occurring on or after December 1, 2011. It takes some time for those offense-date based changes to show up in court for sentencing, but it’s starting to happen. Especially on the early end of the transition from prior law to new law, many offenders will be before the court for sentencing on multiple offenses, some of which will have occurred before December 1, and some on or after that date. And so questions will surely arise about how those convictions may relate to one another. One question I’ve already been asked is whether a post–December 1, 2011 offense may be consolidated with one that occurred before December 1.
Under G.S. 15A-1340.15(b), if an offender is convicted of more than one offense at the same time, the court may consolidate the offenses for judgment and impose a single judgment for the consolidated offenses. That single judgment shall contain a sentence for the class of offense and prior record level of the “most serious offense.”
But can acts sentenced under different versions of Structured Sentencing be consolidated for judgment? There’s some authority to suggest that they may not. In State v. Branch, 134 N.C. App. 637 (1999), the court of appeals considered whether it was permissible to consolidate an offense sentenced under Fair Sentencing with a Structured Sentencing offense. The defendant in the case initially received a consolidated Structured Sentencing judgment (12–15 months) for breaking or entering and larceny committed in September 1994 and breaking or entering and larceny committed on October 4, 1994. The offense dates spanned the Fair Sentencing/Structured Sentencing divide; Structured Sentencing was made effective for offenses committed on or after October 1, 1994. After being informed by the Department of Correction that Fair Sentencing and Structured Sentencing cases could not be combined, the trial court resentenced the defendant, entering two separate judgments under the law applicable to each. The defendant argued on appeal that there was no prohibition on consolidating offenses committed before and after the implementation of Structured Sentencing. The court of appeals disagreed, saying that each crime should be sentenced according to its own rules and, implicitly, a separate judgment must be entered for each.
It’s not clear that the Fair Sentencing/Structured Sentencing issue resolved in Branch controls the old-Structured/new-Structured question posed here. The differences between pre–December 1 and post–December 1 Structured Sentencing cases are not as great as the differences between a Structured Sentencing case and a Fair Sentencing case. Structured Sentencing cases on either side of the December 1 divide would fall under Article 81B of Chapter 15A, and would thus both be subject to the same version of G.S. 15A-1340.15(b) regarding consolidation. That being the case, I could distinguish Branch and make an argument that consolidation of pre– and post–December 1 offense dates is permissible.
But even if there’s no legal prohibition, some difficulties arise. Principally, how do you figure out which offense is the most serious offense? For offenses sentenced under the same law, I would generally say that you look at offense class to determine which crime is the most serious offense. Under the changes brought about by Justice Reinvestment, however, it may not be that simple. For example, in light of the additional time added onto maximum sentences for post-release supervision, a post–December 1 Class I felony might have a longer maximum sentence (6–17 months) than a pre–December 1 Class G offense (13–16 months) sentenced at the same prior record level. Which is more serious? The Class I carries a longer maximum, but it would count for fewer prior record points in the sentencing of any future crime. Does the fact that the post–December 1 crime is eligible for post-release supervision weigh in the analysis? More extreme examples are possible if you consider the 60 months added onto maximum sentences for post–December 1 Class B1–E reportable sex crimes.
Another possible issue relates to the different conditions of probation that apply to offenses committed before and after December 1, 2011. The Justice Reinvestment Act changes many things about probation supervision—including the very definitions of community and intermediate punishment—and allows different forms of confinement and delegated authority for offenses committed on or after December 1. Another law, S.L. 2011-62 (discussed here) makes changes to the regular conditions of probation, including adding regular absconding and drug-screen conditions. Presumably the law applicable to the most serious offense in a consolidated judgment dictates the version of probation that will apply—and there’s not necessarily anything wrong with that. But if the judge wants to be clear about his or her intentions and to give effect to the terms and conditions applicable to each individual case, he or she will need to enter separate judgments (using the appropriate judgment forms) for each offense.
There is no issue with the court’s authority to run pre– and post–December 1 cases concurrently or consecutively. The judge may do either (unless otherwise provided by law for a particular crime). There is likewise no change regarding the interplay between Structured Sentencing cases and convictions sentenced under G.S. 20-179. Shea Denning discussed that issue recently here.
Given the practical concerns set out above, it seems that the safest path may be for the court to avoid consolidating old cases and new. Consolidating them may not be illegal, and it almost certainly will not result in total protonic reversal—but perhaps it’s best not to cross the streams.
Jamie, I have always thought that the seriousness of the offense was determined first by the class to which it was assigned by the legislature. Using that logic, we would only run into an issue when the defendant is pleading guilty to the same offense committed pre- and post- Justice Reinvestment. Then it would seem logical that the longer sentence for the post-Justice Reinvestment offense makes it the more serious offense. That would have the added benefit of transitioning more quickly to a prison population sentenced under the new law. Do you think that reasoning would stand up on review?