Jail Credit for Probation Contempt

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As I traveled around the state teaching about the Justice Reinvestment Act, I had lots of discussions about the various types of confinement that can now be ordered in response to a probation violation (splits, dips, dunks, and so forth—they’re all catalogued here). That conversation almost always included a discussion of jail credit. The general rule that I passed along is that a probationer who ultimately gets revoked is entitled to credit against his or her suspended sentence for any prior time spent confined in response to a violation, regardless of the precise basis for that confinement. At almost every session, someone would ask if that rule included contempt ordered under G.S. 15A-1344(e1)? It does.

Under G.S. 15A-1344(e1) the court may, in response to a willful violation of probation, hold a defendant in criminal contempt as provided in Article 1 of Chapter 5A of the General Statutes. Looking at Article 1 of Chapter 5A, the maximum period of imprisonment that may be ordered for the contempt is 30 days. G.S. 5A-12. Under G.S. 5A-15, the judge must hold a plenary hearing on the violation to determine whether the defendant is guilty or not guilty of the alleged violation, based on facts established beyond a reasonable doubt. In that sense the contempt hearing is more formal and demanding than a typical probation violation hearing, where the facts need only be shown to the judge’s reasonable satisfaction. State v. White, 129 N.C. App. 52 (1998). The contempt punishment is in lieu of revocation and does not revoke the probation.

On the question of whether a probationer gets credit against his or her suspended sentence for any time spent imprisoned for contempt, the leading case is State v. Belcher, 173 N.C. App. 620 (2005). In Belcher, a felony probationer was held in contempt for a series of violations and ordered to serve 30 days in jail. She was later revoked for subsequent violations. At her violation hearing the court refused to allow credit against the defendant’s 8-month sentence. On appeal the defendant argued that she was entitled to credit for the contempt imprisonment under G.S. 15-196.1.

The court of appeals agreed. The court cited to State v. Farris, 336 N.C. 552 (1994), in which the supreme court held that, upon revocation of probation, a defendant is entitled to any time served pursuant to a split sentence. Belcher never explicitly reasons through any argument that contempt confinement might be governed by a different rule—but that’s because the issue wasn’t really contested. The defendant argued in her brief that “[c]learly, there is no rational distinction between time served as a condition of special probation because of a willful violation of probation and time served when held in contempt because of a willful violation of probation. The label that a trial judge chooses to put on the ‘taste of incarceration’ he gives a defendant in response to a willful violation of probation cannot arbitrarily dictate whether the defendant receive [sic] jail credit for the time served if his probation is ultimately revoked.” Defendant-Appellant’s brief at 9. The State essentially agreed, noting that although this case involved contempt and not special probation, “the rationale set forth in Farris . . . would appear to dictate that credit be given for anything relating to confinement and the State is unable to distinguish the instant fact situation in a meaningful way.” Brief for the State at 5. Absent any real dispute, the court of appeals remanded the case for award of the 30 days of credit.

There may have been some basis for a meaningful distinction. The probation-contempt provision was first added to the law in 1993 as G.S. 15A-1344(g). As originally enacted, the provision explicitly provided that a “person imprisoned under this subsection for contempt shall be given day-for-day credit on any sentence of imprisonment for the underlying offense, if the offender’s probation is subsequently revoked.” That provision was repealed the following year and replaced by G.S. 15A-1344(e1), which was (and still is) silent on the issue of credit. S.L. 1994 (extra session), Ch. 19. The shift from subsection (g) to subsection (e1) probably indicated a legislative intent to eliminate the credit provision—a move perhaps designed to give courts and probation officers a little more leverage over defendants with short suspended sentences under then-new Structured Sentencing. Counting the time for credit arguably frustrates that purpose.

Moreover, it wouldn’t be out of line with our standard thinking about contempt punishment to construe it as a separate “sentence” within the language of G.S. 15-196.1. Criminal contempt is, after all, its own quasi-criminal thing—proved beyond a reasonable doubt even in the context of a probation violation—aimed more at vindicating the authority of the court than punishing the defendant for the underlying crime for which he or she is on probation. See North Carolina v. Carr 264 F. Supp. 75, 79 (W.D.N.C. 1967) (noting that contempt proceedings are “brought to vindicate the dignity and authority of the court” and are considered “criminal in their nature and are generally governed by the rules applicable to criminal cases”). But the court of appeals did not go down that path in Belcher, and the rule is that contempt time counts for credit against any later-activated sentence.

A different rule applies for contempt confinement ordered by the Post-Release Supervision and Parole Commission under G.S. 15A-1368.2(b). Under that law, discussed here, contempt confinement ordered by the Commission for a sex offender who refuses to accept or comply with post-release supervision does not, notwithstanding any other provision of law, count for credit for time served against the underlying sentence.

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