There are almost 7,000 people on post-release supervision in North Carolina today. That’s up from around 2,000 in 2011, before the law was changed to require post-release supervision for all felonies. As the PRS census increases, so do the questions. Today’s post addresses a few frequently asked questions about post-release supervision, presented from the defendant’s point of view.
Do I have to do post-release supervision? It depends on the date and class of the offense. Sentences for defendants convicted of Class B1–E felony offenses committed on or after October 1, 1994, and any felony committed on or after December 1, 2011, include time for post-release supervision. Defendants who receive active sentences in those date ranges necessarily will be released onto post-release supervision at the conclusion of their active time. Defendants sentenced to probation initially will do PRS only if their probation is revoked.
How long is my term of post-release supervision? Again, it depends on the date and class of offense, and also whether or not the crime requires registration as a sex offender. The following summary is drawn from G.S. 15A-1368.2(c).
Offenses Committed before 12/1/11
- Class F-I felonies: No PRS
- Class B1-E felonies: 9 months PRS
- Class B1-E sex crime: 5 years PRS
Offenses Committed on or after 12/1/11
- Class F-I felonies: 9 months PRS
- Class B1-E felonies: 12 months PRS
- Any felony sex crime: 5 years PRS
Can I refuse PRS and just serve out the remaining term of imprisonment? No. G.S. 15A-1368.2(b). And a sex offender inmate who willfully refuses to accept PRS can be held in contempt and imprisoned for the refusal, with that imprisonment not counting for credit against the remaining term of imprisonment for the underlying sex crime. Id. (described in this prior post).
Nobody mentioned anything about PRS when I was sentenced, and there’s nothing about it on my judgment. Do I still have to do it? Probably. There is no statutory requirement that a defendant be advised of a term of post-release supervision as a consequence of a guilty plea. G.S. 15A-1022 requires only that the defendant be advised of the maximum possible sentence for the charge. By contrast, federal procedural rules require the judge accepting a guilty plea to advise the defendant of the “maximum possible penalty, including imprisonment, fine, and term of supervised release.” Fed. R. Crim. Proc. Rule 11(b)(1)(H). Other states have similar rules. E.g. Ohio R.C. 2943.032.
Could the failure to advise about PRS raise a constitutional issue regarding whether the defendant’s plea was knowing, voluntary, and intelligent? Maybe. Constitutionally, a defendant must be made fully aware of the direct consequences of his or her plea, which are those that have a “definite, immediate and largely automatic effect on the range of the defendant’s punishment.” State v. Bozeman, 115 N.C. App. 658, 661 (1994). See generally Julie Ramseur Lewis & John Rubin, North Carolina Defender Manual (Vol. 2, Trial), at 65. PRS is mandatory, and thus pretty clearly “direct” (unlike parole eligibility, which is something upon which a defendant need not be advised, State v. Daniels, 114 N.C. App. 501 (1994)). However, when the term of PRS supervision is no longer than the extra time built into the defendant’s maximum sentence (generally 9 months for a Class F–I felon or 12 months for a Class B1–E felon), the judge’s advice about the maximum term of imprisonment may be all that is required. Though qualitatively different from imprisonment, the PRS supervision period will not extend beyond the duration of the advised-upon maximum, because the defendant will automatically be released that same number of months before attaining the maximum. G.S. 15A-1368.2(a). So in some sense the defendant has been advised about the outermost bounds of the punishment.
The type of defendant for whom the failure to advise about PRS seems most troubling is a Class F–I sex offender, who has only 9 extra months of imprisonment built into his or her maximum sentence, but a 5-year term of supervised release. G.S. 15A-1368.2(c). A lack of information about that lengthy, mandatory term of supervision (which extends over four years beyond the maximum term of imprisonment) could, perhaps, call the validity of a guilty plea into question. I’m not aware of any North Carolina case law, but when the issue has come up in other states, it generally has been resolved in the defendant’s favor. See People v. Catu, 825 N.E.2d 1081 (N.Y. 2005) (“Because a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction.”); State v. Johnson, 864 A.2d 400 (N.J. 2005) (vacating a plea when the trial court failed to advise about a mandatory parole period); Helms v. State, 281 P.3d 180 (Kan. Ct. App. 2012) (unpublished) (setting aside a plea when the trial court did not tell the defendant about mandatory postrelease supervision when entering his plea).