Deferred Prosecution: Who Steers the Ship?

The district attorney decides when to defer prosecution. But if that deferral includes probation under G.S. 15A-1341(a1), the court has a role in the process—including what to do in response to a violation of the deferred prosecution agreement. Sometimes the State and the judge are on the same page. Sometimes they aren’t.

Granting deferred prosecution. Under G.S. 15A-1341(a1), a person charged with a misdemeanor or a Class H or I felony may be placed on deferred prosecution probation on motion of the defendant and the prosecutor if the court makes the factual findings set out in G.S. 15A-1341(a1)(1)–(5). Those findings include an indication that the deferral has “the approval of the court”—meaning the court apparently may disapprove. In that case, the State may still defer prosecution if it wants to, but it will have to be an informal arrangement, without the benefit of probation.

Conditions of deferred prosecution probation. As discussed in this prior post, my general view is that deferred prosecution probation is subject to all the same types of conditions as post-conviction probation. G.S. 15A-1341(a1) says the probation is “as provided in this Article”—Article 82, Probation—and so, to the extent possible, all the regular rules apply. That is what the court of appeals has said about probation under a G.S. 90-96 conditional discharge. State v. Burns, 171 N.C. App. 759 (2005) (“In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under [G.S.] 90-96.”). Some conditions would seem to be off limits, however. For example, the court could not impose a split sentence, because there is not yet any suspended sentence in the bank from which to borrow up to one-fourth of the maximum.

As for financial conditions, Article 1, Section 23 of the North Carolina Constitution says that a person may “not be compelled to . . . pay costs . . . unless found guilty”—something that obviously hasn’t yet happened if prosecution has been deferred. Nevertheless, the General Statutes are written with the understanding that certain fees will apply even in deferral cases, unless they are remitted. G.S. 15A-1343(c1) (“Supervision fees must be paid to the clerk of court for the county in which . . . the deferred prosecution agreement was filed . . . .”); -1343(c2) (same for electronic monitoring fees). I suppose that is fine constitutionally, to the extent that the defendant is not “compelled” to participate in a deferred prosecution.

Violations of deferred prosecution probation. Under G.S. 15A-1342(a1), violations of a deferred prosecution agreement “shall be reported to the court . . . and to the district attorney in the district in which the agreement was entered.” There must be a violation hearing—the State may not unilaterally resume prosecution in response to what it deems to be a breach of the agreement. Violations must be timely filed and heard in the same manner as a violation in a post-conviction case.

What happens when the court finds that the defendant committed a willful violation?

One view is that the court’s role is merely as neutral tribunal for the alleged violation, and that once the violation is found, the State may simply reinstate the proceedings and prosecute the case. See G.S. 15A-932(e).

That may be permissible in informal arrangements, but that is not how G.S. 15A-1344(d) is worded for formal, statutory deferrals. To the contrary, it says “[i]f a probationer violates a condition of probation . . . , the court . . . may continue the defendant on probation, with or without modifying the conditions, . . . or may order that charges as to which prosecution has been deferred be brought to trial . . . .” (emphasis added). So, even in the face of a violation, the court may continue probation or modify probation. (I do not think the court should use Confinement in Response to Violation or quick dip confinement in deferral cases; again, there is not yet any suspended time in the bank from which to borrow.) The court may also extend probation (to as much as two years), G.S. 15A-1342(a), or terminate probation at any time, G.S. 15A-1342(b). If a deferral case proceeds to expiration or termination, “the defendant shall be immune from prosecution on the charges deferred.” G.S. 15A-1342(i). Thus, by terminating or allowing the case to expire, the judge effectively ends the prosecution. (The judge does not, however, actually dismiss the charge. The prosecutor does that. Only in conditional discharge cases does the judge actually do the dismissing for successful defendants—and that is a dismissal of a conviction, not a pending charge. Options 3(a) and 3(b) in the Order block on Page One, Side One of the AOC-CR-622 reflect the appropriate options for deferred prosecution and conditional discharge cases, respectively.

My sense is that judges do not generally extend or terminate deferred prosecution probation over the objection of the prosecutor. It is a deferred prosecution, after all, and the State is entitled to some deference in the way it manages its program. On the other hand, if the State wants the help of probation in managing those cases, it gives up a degree of control under our statutes. Of course, in the long run, the State may be less inclined to defer prosecution in the first place if it feels that its agreements aren’t enforceable. A judge is not wrong to chart his or her own course, but there is a systemic incentive to find common ground.

I should also note that I occasionally hear about the opposite situation, where the judge wants to revoke a deferred prosecution probationer whom the State would be content to give more time. I think the State can have the last say there, as the prosecutor could still dismiss the case even after the court orders it back for trial.

After the revocation. When deferred prosecution is revoked and the case is “brought to trial,” there must be a trial or plea before the defendant is sentenced. I wrote about that issue here. An unpublished case decided in the interim supports my sense that it would be wrong to have taken the plea beforehand. State v. Baker, No. COA15-600, 2016 WL 1743595 (N.C. Ct. App. May 3, 2016) (unpublished) (“Because defendant’s plea agreement provided that ‘[t]he prosecutor will take a voluntary dismissal upon compliance with this Agreement,’ but dismissal of these charges was not possible on account of defendant’s accepted guilty plea, defendant’s plea agreement ‘was not the product of informed choice and did not provide him the benefit of his bargain . . . .’”). If you want to do the guilty plea first, you should be doing conditional discharges, not deferred prosecutions.