Is G.S. 90-96(a) Mandatory or Discretionary?

Whether or not to grant a conditional discharge for an eligible defendant under G.S. 90-96(a) used to be within the discretion of the trial judge. In 2011, Justice Reinvestment made G.S. 90-96(a) mandatory for eligible defendants who consented to it. Two years later, it was once again made discretionary. Or was it?

Readers of this blog are probably familiar with the general mechanics of a conditional discharge under G.S. 90-96(a). The law applies to eligible defendants (those with no prior felony convictions or misdemeanor drug or drug paraphernalia convictions) convicted of a qualifying offense (any misdemeanor or felony drug possession crime or a drug paraphernalia offense under G.S. 90-113.22 or, as of July 12, 2017, G.S. 90-113.22A). Defendants granted a conditional discharge are placed on probation without the court actually entering judgment in the case. If the defendant violates probation, the court can—after a probation violation hearing—enter an adjudication of guilt and sentence the defendant according to regular sentencing rules. If the defendant fulfills the terms and conditions of the probation, the court discharges the defendant and dismisses the conviction. Thus, the law allows a person who does well on G.S. 90-96 probation to keep his or her record clean.

The question is, which eligible defendants get the benefit of G.S. 90-96(a)? And which defendants must get it? (To be clear, I’m talking here only about subsection (a) of G.S. 90-96. The separate conditional discharge available under G.S. 90-96(a1) is now and has always been discretionary.)

Before Justice Reinvestment, whether to grant a conditional discharge under G.S. 90-96(a) was clearly within the discretion of the trial judge. The law said that, for eligible defendants, the court “may, without entering a judgment of guilt and with the consent of [the defendant], defer further proceedings and place him on probation . . . .” The Justice Reinvestment Act, S.L. 2011-192, changed that “may” to a “shall,” requiring the court to grant a conditional discharge to any eligible, consenting defendant convicted on or after January 1, 2012.

Fully mandatory G.S. 90-96(a) pretty quickly raised some issues. First, it was sometimes hard to determine who was actually eligible for it. There was always a possibility that a person with an apparently clean record would have had a prior conditional discharge, succeeded, and then gotten the dismissed conviction expunged. Ruling out that possibility required a query of the AOC’s confidential file of expunctions. Second, there was a sense that mandatory conditional discharge impinged on the district attorney’s ability to shape his or her deferral program.

So the law was amended again in 2013. The title of the act (S.L. 2013-210) indicated that it was intended to “provide that a court has the discretion to determine whether to grant a conditional discharge for a first offense of certain drug offenses.” But the legislation did not change the “shall” in G.S. 90-96(a) back to a “may.” Instead, the “shall” remained in place, but with a new exception: “unless the court determines with a written finding, and with the agreement of the District Attorney, that the offender is inappropriate for a conditional discharge for factors related to the offense.” The legislation made that “shall . . . unless” construct applicable for offenses committed on or after December 1, 2013.

Since the change came into effect, every criminal judgment form includes a place for the court to find that the defendant was not granted a conditional discharge under G.S. 90-96(a), either because the defendant didn’t consent, or because the court found, with the agreement of the district attorney, that the offender was inappropriate for a conditional discharge for factors related to the offense. If that box goes unchecked for an otherwise eligible defendant, questions could arise about why he or she did not receive a conditional discharge that is mandatory in the absence of findings.

Is a checked box enough to satisfy the statute’s requirement for a written finding of the defendant’s inappropriateness for a conditional discharge? No reported appellate cases have considered the question. An analogy that comes to mind is the “specific findings” the court must make before imposing a probation period longer than the defaults set out in G.S. 15A-1343.2. In State v. Wilkerson, 223 N.C. App. 195 (2012), the court of appeals concluded that that statute did not require a “detailed rationale.” On the other hand, the language in G.S. 90-96(a) specifically mentions “factors related to the offense,” which arguably calls for a more explicit explanation of the reasons behind the finding.

There is also the requirement that the finding of inappropriateness be made “with the agreement of the District Attorney.” With that in place, G.S. 90-96(a) cannot be said to be purely discretionary on the part of the trial judge. If the State does not agree that an eligible defendant is inappropriate for conditional discharge, then a consenting defendant shall get it. I suspect the State and the court are generally on the same page about the defendant’s appropriateness. But if they aren’t, the “shall . . . unless” structure of the revised law means an eligible defendant must get the conditional discharge.

2 thoughts on “Is G.S. 90-96(a) Mandatory or Discretionary?”

  1. Since the DA’s consent is necessary to find a client to be inappropriate for 90–96(a), we often include that as part of our plea negotiations. Defendant will plead guilty if the State agrees that client is appropriate …


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