G.S. 90-96(a) Is Mandatory Unless both the Judge and the State Say No

I wrote a post in July asking whether conditional discharge under G.S. 90-96(a) is discretionary or mandatory for a consenting defendant. A case decided this week offers some clarification.

The prior post, here, walked through the recent legislative history of G.S. 90-96(a). Long story short: whether or not to grant a conditional discharge for an eligible defendant used to be within the discretion of the trial judge. In 2011, as part of the Justice Reinvestment Act, the law was made mandatory for consenting defendants. The law was revised again in 2013, ostensibly—according to the language of the bill title—to “provide that a court has the discretion to determine whether to grant a conditional discharge.” S.L. 2013-210. But the revised law does not say that exactly. Instead, it says that conditional discharge is mandatory “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.” G.S. 90-96(a). So, the question is, is whether or not to grant a conditional discharge under G.S. 90-96(a) really within the discretion of the trial judge?

State v. Dail, decided by the court of appeals on Tuesday, put the revised statute to the test. In Dail, the defendant pled guilty to possession of LSD in November 2015 for an offense committed in April 2015. (So, to be clear, the defendant was covered under the most recent version of G.S. 90-96 described above.) When the plea was entered, defense counsel noted that the defendant was eligible for conditional discharge under G.S. 90-96 and asked (three times) for the court to allow him to participate in it.

The trial court denied the request, noting that other charges (including drug charges) had been dismissed as part of the defendant’s plea. Significantly, the State didn’t offer any opinion about the conditional discharge, one way or the other. The court sentenced the defendant to supervised probation (regular probation, not conditional discharge probation), but did not check box 12 on the probationary judgment to indicate that the defendant was inappropriate for a conditional discharge.

After an MAR, a petition for writ of certiorari, and a quick shuffle between the court of appeals and the supreme court, the case wound up before the court of appeals, with the defendant arguing that the trial court erred by not entering a conditional discharge.

The court of appeals agreed. The court noted that the terms of the plea agreement did not unambiguously show that the defendant had agreed as part of his plea that he would not receive a conditional discharge. The agreement said only that the defendant would be “placed on probation,” which could apply in both G.S. 90-96 and regular post-conviction cases. So, it could not be said that the defendant didn’t consent to G.S. 90-96. Indeed, recall that he asked the court for it three times.

That being the case, the court went on to agree with the defendant’s reading of G.S. 90-96(a) that the court “shall” grant it unless the court, with the agreement of the district attorney, determines that the defendant is inappropriate for it. Here, the State offered no objection to the defendant receiving a conditional discharge. To the contrary, the assistant district attorney actually said in a later court filing that she “[did] not agree that the defendant is an inappropriate candidate for 90-96 probation.” Slip op. at 7.

That reading of the law makes clear that the 2013 amendment to G.S. 90-96(a) did not return it to the pre–Justice Reinvestment status quo where it was truly within the discretion of the trial court. Instead, it has become some sort of Bizarro World two-key missile launch system, where the conditional discharge “launches” unless both the State and the judge say no. (I wasn’t a missileer when I was in the military, but I’ve seen Crimson Tide and therefore know how these things work.)

The State’s final argument on appeal was that the defendant should not receive a conditional discharge because he did not meet his burden of proving that he was eligible for it. The court of appeals disagreed and, by analogy to the rules for proving a defendant’s prior record level, concluded that “the burden is on the State to establish that defendant is not eligible for conditional discharge by proving defendant’s prior record.” Slip op. at 9.

Part of the proper procedure for establishing a defendant’s eligibility is completing form AOC-CR-237, the form that triggers a query of the AOC’s confidential files to determine whether the defendant has had a prior conditional discharge that resulted in an expunction. Because that form was not completed in Mr. Dail’s case, and because the “trial court did not afford either party the opportunity to establish defendant’s eligibility or lack thereof,” the court of appeals vacated the defendant’s sentence and remanded the case for a proper determination of the defendant’s eligibility for conditional discharge.

I suspect there are hundreds if not thousands of defendants who have been sentenced for offenses committed on or after December 1, 2013, that might have been eligible for conditional discharge under G.S. 90-96, but for whom box 12 went unchecked. In light of Dail, those judgments may be ripe for challenge—either on the theory that the State did not meet its burden of proving the defendant’s ineligibility for conditional discharge, or that the judgment did not memorialize that both the State and the court agreed that the defendant was inappropriate for it.

Going forward, the parties may wish to heed Judge Bryant’s advice, offered in her Dail concurrence, to make their intentions with respect to G.S. 90-96 clear in their plea agreements. Trial judges, meanwhile, may wish to heed her advice to be vigilant as to the terms of bargain, to avoid getting “sandbagged” into a plea that leads mandatorily to a conditional discharge because the prosecutor fails to register his or her objection to it.