Can a district court judge enter a deferred prosecution order or conditional discharge for a defendant charged with a felony?
As most readers of this blog know, the district court has jurisdiction to accept a plea of guilty or no contest to a Class H or I felony with the consent of the presiding district court judge, the prosecutor, and the defendant. G.S. 7A-272(c) (discussed here). According to the N.C. Sentencing and Policy Advisory Commission, 27 percent of all Class H and I felony convictions in Fiscal Year 2016 were pleas entered in district court.
A question that comes up from time to time is whether that grant of jurisdiction to the district court to accept guilty pleas includes the authority to place a defendant charged with a felony on probation as part of a statutory deferred prosecution under G.S. 15A-1341(a1) or a conditional discharge under G.S. 15A-1341(a4) or G.S. 90-96. The short answer, I think, is that the court has clear authority to enter the conditional discharge, but perhaps not the deferred prosecution.
Deferred prosecution. G.S. 7A-272(c) grants to the district court jurisdiction “to accept a defendant’s plea of guilty or no contest to a Class H or I felony” as provided in that section. The district court also has jurisdiction under G.S. 7A-272(b) to “conduct preliminary investigations and to bind the accused over for trial upon waiver of preliminary examination or upon a finding of probable cause, making appropriate orders as to bail or commitment.” The question is whether placing a defendant charged with a felony on probation as part of a deferred prosecution agreement is covered by either of those grants of jurisdiction. Otherwise, it would fall to superior court, which has exclusive, original jurisdiction over all criminal actions not assigned to the district court division. G.S. 7A-271(a).
We know that a deferred prosecution does not happen as part of the acceptance of a plea. If the plea is accepted, the prosecution has not been deferred. Rather, it is over—the person has been convicted. I discussed that issue here. And we learned in unpublished State v. Baker (mentioned here) that a purported deferred prosecution that requires a guilty plea is no deferred prosecution at all; the defendant will be able to have the plea vacated later. So, if G.S. 7A-272(c) only confers authority to accept a plea, it’s not clear that it also gives the court jurisdiction over a deferred prosecution.
As for G.S. 7A-272(b), the issue is whether entering a deferred prosecution order falls within the “preliminary investigation” and “binding over” authorized by that subsection. Again, it’s not clear to me that it does. In context, it appears to refer to the district court duties set out in Subchapter VI of Chapter 15A—conducting the first appearance, appointing counsel, reviewing conditions of release, and making probable cause determinations (if not waived). The law never makes a clear connection to the type of order described in G.S. 15A-1341.
I can imagine arguments to the contrary. There is no express statutory prohibition on the district court entering a felony deferred prosecution order, and the power to do the “greater” act of accepting a plea could be viewed as including the “lesser” act of deferring the matter. It may also make good policy sense as a matter of efficiency and timing to handle deferrals in district court. But G.S. 7A-272 is so specific about its allocation of jurisdiction to the district court—including with respect to the supervision of probation in drug treatment and therapeutic court deferred prosecutions entered in superior court—that the lack of an express authorization for the district court to order felony deferred prosecution is conspicuous in its absence. To be clear, though, it is an open question; I’m not aware of any appellate cases on point.
Conditional discharge. The district court’s authority to place a person on probation as part of a felony conditional discharge seems more straightforward. (Incidentally, I’m not sure I’ve ever used the words “conditional discharge” and “straightforward” in the same sentence.) Unlike a deferred prosecution, a conditional discharge does not begin until a person is convicted. If a defendant pleads to a Class H or I felony in district court under G.S. 7A-272(c), and the defendant is eligible for a conditional discharge, I think the district court judge can order it. Upon acceptance of the plea, the broader grant of authority in G.S. 7A-272(d) to “act in the same manner as a superior court judge” would kick in, allowing the district court judge to place the defendant on conditional discharge probation.