Does a No Contact Order Apply While the Defendant Is in Jail?

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When setting conditions of pretrial release in domestic violence cases, magistrates and judges often order a defendant not to contact the victim. Those directives clearly apply to a defendant once he is released from jail subject to those conditions. But what about a defendant who remains in jail? Is he also subject to a no contact condition included on a release order? The court of appeals addressed that issue yesterday in State v. Mitchell.

The court in Mitchell concluded that the no contact directive set forth on Mitchell’s release orders (he was charged with more than one crime for allegedly assaulting his girlfriend) applied to Mitchell while he was confined in jail. Thus, Mitchell’s mailing of letters to his girlfriend from jail violated a court order. And because the letters amounted to stalking, Mitchell’s conduct was felonious since there was a court order in effect (the pretrial release orders) prohibiting his conduct.

Facts. Mitchell was arrested for assault on a female on December 26, 2014 after he allegedly punched his girlfriend, “Nancy,” in the face. At his initial appearance, the magistrate wrote on the AOC-CR-200, Conditions of Release and Release Order form, that he was “NOT TO HAVE ANY CONTACT WITH [NANCY].” Mitchell’s release was not authorized that evening because he was charged with a domestic violence offense for which only a judge could set pretrial release conditions during the first 48 hours following his arrest. Two days later, a judge authorized Mitchell’s release upon the posting of a secured bond. The judge, like the magistrate, ordered that Mitchell have no contact with the victim.

A week later, while Mitchell remained in jail, he was charged in an arrest warrant with habitual misdemeanor assault for the alleged December 26 assault of Nancy. The Conditions of Release and Release Order issued in connection with this charge imposed a secured bond and ordered Mitchell “NOT TO HAVE ANY CONTACT WITH [NANCY].” Mitchell did not post bond and remained jailed on both charges.

Mitchell wrote six letters to Nancy from jail while he was subject to conditions of release orders for one or both of these charges. The first letters were “cordial,” but the later letters “escalated to threats when she did not respond or reply.” Slip op. at 5. Nancy also received a letter marked “return to sender” that listed her return address.The letter was addressed to the Federal Building on Fayetteville Street in Raleigh and contained a bomb threat and demand for $1 million, purportedly written by Nancy. The defendant later admitted to writing the letter.

In March 2015, the Wake County District Attorney’s Office received a letter through “jail mail” from the Wake County Detention Center that purported to be written by Nancy. The letter stated that Nancy had falsely accused Mitchell and threatened to place explosives in the Wake County Courthouse. Nancy denied sending the letter.

Mitchell was charged with felony stalking while a court order was in effect for the letters to Nancy and with two counts of felony obstruction of justice based on the letters to the Federal Building and the District Attorney’s office.

Felony stalking. G.S. 14-277.3A defines the offense of stalking, which generally is a Class A1 misdemeanor. If, however, stalking is committed “when there is a court order in effect prohibiting the conduct described under [G.S. 14-277.3A] by the defendant against the victim,” the offense is elevated to a Class H felony.

Defendant’s argument. Mitchell moved to dismiss the felony stalking charges on the basis that he was not subject to the conditions of pretrial release that prohibited him from having contact with Nancy because he never posted his bond. Instead, he remained in jail during the entire time the letters were sent. Since he was not released, he said that the order did not apply to him.

Court’s analysis. Calling Mitchell’s argument “deceptively simple,” the court rejected it.  Slip op. at 9. The court noted that the orders, titled “Conditions of Release and Release Order,” contained more than their title suggested. In addition to establishing conditions of release, the orders committed Mitchell to a detention facility (as required by G.S. 15A-521(a)), noted that he was subject to a domestic violence hold, directed when the defendant was to again be produced before a judicial official (as required by G.S. 15A-521(b) and G.S. 15A-534.1), and, for one of the orders, required that Mitchell provide fingerprints.

Such orders, the court of appeals said, “memorialize[] the trial court’s determinations governing the defendant, whether the defendant is held in a detention facility or released.” Slip op. at 12. Some of the terms of such an order, the court explained, apply whether a defendant is committed or released, while others apply only in one circumstance or another.

The court stated that the directive in the Mitchell orders that Mitchell have no contact with Nancy contained no language indicating that the provision applied only upon Mitchell’s release. Thus, the court concluded, contact with Nancy was barred as long as the orders were in effect. And the orders were in effect until the charges were disposed of, whether Mitchell remained confined in jail or was released.

The stalking enhancement. The court further held that Mitchell’s stalking was felonious because the pre-trial release orders barring Mitchell from contacting Nancy “prohibit[ed] the conduct described under [G.S. 14-277.3A] by the defendant against the victim.”

The court reasoned: Conduct described in G.S. 14-277.3A includes harassment, which requires “[k]nowing contact” that may consist of “written or printed communication.” Mitchell was ordered not to contact Nancy. Because harassment under G.S. 14-277.3A requires contact, the orders prohibited conduct under G.S. 14-277.3A, even though they did not specifically mention stalking.

The court said its view that the no contact order prohibited conduct described in the stalking statute was “in keeping with the intent” of the stalking statute, which provides in part: “‘[T]he General Assembly enacts this law to encourage effective intervention by the criminal justice system before stalking escalates into behavior that has serious or lethal consequences. The General Assembly intends to enact a stalking statute that permits the criminal justice system to hold stalkers accountable for a wide range of acts, communications, and conduct.’” Slip op. at 15 (citing G.S. 14-277.3A(a)).

Practical effect. The Mitchell court did not identify the source of a judicial official’s authority to impose conditions upon a person that apply while the person is detained, but its analysis assumes such authority exists. Cf. Baker v. United States, 891 A.2d 208 (D.C. Cir. 2006) (declining to decide whether trial court that ordered defendant preventatively detained had the authority to issue a no-contact order under the bail statute or pursuant to the court’s inherent authority). That issue has been the subject of considerable debate in the trenches (see Jeff’s post here), so its resolution is significant, particularly given the frequency with which no contact conditions are imposed.

The court also did not address what limitations exist on a judicial official’s authority to impose such conditions. While Mitchell’s post-arrest conduct leaves little doubt about the need for such a restriction in his case, it is not clear what standard judicial officials are to use in crafting general conditions regulating the conduct of a defendant both in and out of jail. Cf. G.S. 15A-534(a) (permitting a judicial official to “place restrictions on the travel, associations, conduct, or place of abode of the defendant as conditions of pretrial release” (emphasis added); G.S. 15A-534.1(a)(2)(permitting a judge to impose, among other “pretrial release” conditions, a condition that the defendant “stay away from the home, school, business or place of employment of the alleged victim”).

Most violations of no contact orders do not, of course, result in statutorily enhanced charges like those in Mitchell. Instead, they are more often addressed through contempt proceedings under Chapter 5A. Cf. Baker, 891 A.2d at 212 (stating that “even assuming for the sake of argument that the trial court’s no-contact order was invalid, Baker’s conviction for contempt must be upheld for his failure to comply with that order” which he did not challenge or appeal). After Mitchell, I expect that magistrates and judges will continue to impose such conditions (though they may wish to specify whether they apply in jail as well as upon release) and that contempt proceedings will continue to be initiated for defendants who do not follow them.

Thanks to my colleague John Rubin for helping me think through the issues in State v. Mitchell and for teaching me everything I know about pretrial release. 

5 comments on “Does a No Contact Order Apply While the Defendant Is in Jail?

  1. Good Afternoon Mrs. Denning,

    I hope this email finds you well. I was reading your post from today regarding the No Contact provisions and have a No Contact Order issue that I cannot resolve.

    My current client holds a 50C Civil No Contact Order for a 1 year period against a neighbor, the Defendant. The Defendant has aggressively ignored the order with a series of violations. Five of the violations were addressed through Motions to Show Cause. However, some of the incidents have been serious damages to property, communicating threats and assault. My client and I attempted to seek criminal relief through the magistrate. The magistrate was immediately dismissive claiming the only remedy is a Show Cause Order. While I do see the Double Jeopardy implications that are possible, I cannot reconcile the clients inability to seek criminal charges in lieu of the contempt proceeding as with 50B orders a client could see the A1 misdemeanor charge or a show cause order.

    Do you or your office have any insight or resources you would recommend to review on this matter? Your articles discussion of Felony Stalking charges caught my attention and I wish to explore this with my client.

    I appreciate the work you and your colleagues do at the School of Government and look forward to reading more of your post.


    Regards,

  2. Looks as if the Defendant’s argument was not only simple but was the correct reading of the law. The release order (AOC-200) lets the defendant know what he must do to get out of jail and remain out of jail pending trial: pay a bond and abide by the listed conditions. Assuming that the judge can order that the Defendant even while in jail have no contact with the accuser, it is obvious that putting that condition in the pretrial release order as a condition for pretrial release does not put Defendant on notice that the no-contact condition applies also as a stand-alone order independently of pretrial release conditions. The judge would have to make it clear that he or she is ordering the Defendant to have no contact whether Defendant bonds out or not. The section of the form in which judges impose no-contact conditions is within the conditions for pretrial release section. There are other sections of the form for other orders such as the “SUPPLEMENTAL ORDERS FOR COMMITMENT” section addressing bringing the Defendant to court again, the “ORDER OF COMMITMENT” section directing someone to hold Defendant in jail, etc. If the judge meant for the no-contact order to apply outside of the conditions of pretrial release he or she should have written the no-contact order outside of the section governing conditions of pretrial release. Put another way: the Defendant was not informed that he was under a no-contact order outside of the no-contact provision of his conditions for pretrial release. That aspect of the order was not communicated to Defendant, so due process requires that that provision be unenforceable. A judge must communicate his order to the Defendant before that order is effective.

  3. […] [Update: The court of appeals ruled in State v. Mitchell (June 5, 2018), that a no-contact provision of a release order was “not conditioned on defendant’s release or commitment [and] was required as long as the Order was in effect,” including while the defendant was in pretrial detention. That condition formed the basis of a felony charge of stalking in violation of a court order. Mitchell is contrary to the analysis below and, unless reversed, is the law. Shea Denning posted about Mitchell here.] […]

  4. I’ve just received an excellent question from a reader. Given that magistrates can’t set conditions of release in DV cases like Mitchell’s during the first 48 hours, the reader asked whether the magistrate had the authority to order no contact at Mitchell’s initial appearance on December 26.

    Since the letters to Nancy were not sent until after the district court judge entered an order prohibiting Mitchell from contacting Nancy, the outcome would be the same even if the magistrate’s no contact order were unenforceable or had not been entered. Even so, the court in Mitchell clearly states that the magistrate’s no contact order that was issued during the time that the magistrate had no authority to set conditions of pretrial release was “in effect.” Slip op. at 12 (stating that “Order 1 was ‘in effect’ as of 26 December 2014 until 29 January 2015”). So I think the court’s analysis assumes that magistrates have the authority to set such conditions even during the 48 hour period. The court does not, as mentioned above, indicate the source of this authority.

    • Shea, that’s the same question I had. But even if as a Magistrate I set a pre-trial (Pre-condition) condition not to have contact with the victim until a judge or magistrate sets their bond how would a violation of that be enforceable?

      As a Magistrate I have no authority to charge someone for the separate crime of “Violation of Court Order” if the condition was set by a magistrate as that would be considered in-direct contempt. I understand that in a normal case where the defendant is out on bail and they commit a violation of a release order the officer would arrest the defendant based on PC that the defendant violated a valid release order and I can modify the release order on the same file number. But if their conditions of release are not set yet, how do I modify something that I don’t have the authority to set until a Judge does it or after 48 hrs? I hope this question makes sense.

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