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Jail Credit for Consolidated Sentences

My colleague Jamie Markham and I have received quite a few questions lately about jail credit for consolidated sentences. Jamie has written several blog posts over the years explaining the various jail credit laws. However, there are no statutes or case law that govern the peculiar scenarios that come up regarding consolidated sentences.

When a defendant is convicted of more than one offense at the same time, the court may consolidate the offenses for judgment. The sentence for that judgment is driven by the “most serious offense” among the consolidated convictions. G.S. 15A-1340.15(b). Jamie wrote a blog post here describing the 2015 legislative change to incident-based crediting. Under that change, a defendant must receive credit for all confinement “as a result of the charge that culminated in the sentence or the incident from which the charge arose.” G.S. 15-196.1. The statute requires crediting of time confined on a charge even when the person is convicted of a different charge that is not a lesser included offense, so long as the charge and conviction are part of the same incident. For example, a person initially charged with rape but later convicted of indecent liberties with a child based on the same conduct must get credit for the time spent confined on the rape charge.

Jail credit can be applied fairly simply when several charges are consolidated into one judgment and all of the charges are part of the same incident. For example, let’s say a person is served with a misdemeanor breaking or entering charge on 1/1/21 and is later served with one count of felony larceny and one count of theft of a firearm on 3/20/21, all arising from the same incident. If the person pleads guilty to all charges and they are all consolidated for one judgment, the person should get credit for time spent in jail since 1/1/21 because the felonies are still part of the incident from which the initial charge arose.

Some scenarios are not so simple. What happens when several distinct but factually similar incidents are consolidated into one judgement? What happens when lesser crimes are consolidated into a judgment for a different, unrelated felony?

Distinct, but similar. Suppose a person commits a series of larcenies over a span of several weeks. The person is served with misdemeanor larceny on 9/22/20 and is later served with two counts of felony possession of stolen goods and two counts of habitual larceny on 1/20/21, each count arising from a separate incident. If the person pleads guilty to all charges and they are consolidated into one judgment, can he get credit for time starting on 9/22/20?

First, it’s not clear that the “incident” language of G.S. 15-196.1 is broad enough to cover a related series of transactions or events. The way it has been applied over the years tends to be for a defendant to get credit for confinement on a charged crime even when it isn’t a lesser included offense of the convicted crime, so long as the charge and conviction are part of the same incident.

But could it be said that the misdemeanor charge “culminates in a sentence”? If it can, even though it is not the “lead offense” in the judgment, G.S. 15-196.1 arguably still allows the judge to apply the credit. The consolidation statute, G.S. 15A-1340.15(b), says that a consolidated judgment gets one sentence driven by the offense classification and prior record level of the most serious offense, but that doesn’t necessarily mean that the non-lead offenses aren’t factoring into the sentence. For example, a judge would determine the grid cell based on the most serious offense but might give a sentence at the top of the presumptive range in part because of the many lesser offenses consolidated for judgment, and so those convictions arguably culminate in a sentence too. Cf. State v. Skipper, 214 N.C. App. 556 (2011) (“N.C. Gen. Stat. § 15A–1340.15(b) supercedes [sic] the “equally attributable” rule, rendering it irrelevant to the case at hand.”). I’m not aware of an appellate case that says a judge may not apply credit for the non-lead offenses in that scenario. I’m likewise unaware of a case that says the judge should apply the credit. The point is that it’s an open question, and under G.S. 15-196.4 the trial judge should make the call.

Different, unrelated crimes. Similarly, suppose a person spends two months in jail on a misdemeanor charge which is then consolidated into a different, unrelated felony for which the person spent only six days in jail. Would that person lose the two months credit?

Yes, if that misdemeanor did not culminate in the felony sentence, even though it is a factually different scenario. However, with there being no statutory or case law on the matter, it is hard to say for certain, and it could go either way for a defendant. If the judgment is not consolidated, the defendant could potentially face consecutive sentences for the misdemeanor and larceny and be in jail for a longer period of time. On the other hand, a defendant with a consolidated sentence could risk forfeiting jail credit, the effect of which is felt more if the defendant was held for a long time or on several charges.

Again, it ultimately comes down to the discretion of the sentencing judge. For fairness, some judges tend to give the credit for the two months spent in jail, even if the charge was unrelated to the conviction. However, there are no statutory mandates nor are there any statutory prohibitions to a person receiving credit for charges that are part of consolidated sentences. If the judge believes the statute doesn’t allow jail credit for previous confinement but nonetheless wants to acknowledge the time the defendant has already served, he or she could just give a shorter sentence, perhaps finding as a mitigating factor that the defendant has served previous time not creditable to any sentence.

Nevertheless, defendants may continue enjoy this discretionary crediting until there is a statutory amendment or an appellate case that clarifies the law surrounding credit for consolidated sentences. I welcome your thoughts and invite your comments. If you have questions, please feel free to send me an email at bwilliams@sog.unc.edu.