Misdemeanor Reclassification, the Right to Counsel, and the Budget

The legislature has agreed on a budget, and it contains some provisions that will impact misdemeanor sentencing and the appointment of counsel — potentially in tens of thousands of cases each year.

Status of the budget. The current budget bill is S 402. It is available here. The accompanying “money report,” which provides narrative explanations of some of the provisions of the budget, is available here. Republican leaders in both chambers have endorsed the bill. The General Assembly is expected to approve it in the next two days, and Governor McCrory is expected to sign it.

Change to Structured Sentencing grid. Section 18B.13.(a) of the budget changes the misdemeanor Structured Sentencing grid as follows, effective for offenses committed on or after December 1, 2013:

This is the first change to the misdemeanor grid since 1995.

Fine only for many Class 3 misdemeanors. The same section states that “[u]nless otherwise provided for a specific offense, the judgment for a person convicted of a Class 3 misdemeanor who has no more than three prior convictions shall consist only of a fine.” Fines for Class 3 misdemeanors generally may not exceed $200. G.S. 15A-1340.23(b).

One question about this provision is whether it applies to a defendant who has three or fewer prior convictions that may be counted separately for Prior Conviction Level purposes, but who has four or more total prior convictions. (For example, a defendant who incurred several convictions in a single week or session of court. See generally G.S. 15A-1340.21(d).) The new fine-only provision appears in the General Statutes amidst the discussion of the Prior Conviction Level determination, so maybe so. But it does not expressly refer to or incorporate the Prior Conviction Level rules, so maybe not.

Reclassification of offenses. In addition to changing the punishments for Class 3 misdemeanors, the budget also creates more of them. Section 18B.14 reclassifies a number of misdemeanors – most currently Class 2 – as Class 3 offenses. The new Class 3 misdemeanors include:

  • Obtaining property by worthless check, G.S. 14-106
  • Simple worthless check, G.S. 14-107
  • Failure to return hired property, G.S. 14-167
  • Conversion by bailee, G.S. 14-168.1
  • Failure to return rental property with purchase option, G.S. 14-168.4
  • DWLR, G.S. 20-28 (unless revoked for DWI, then still Class 1)
  • Certain motor vehicle misdemeanors that were Class 2 under G.S. 20-35, including:
    • Most NOLs, G.S. 20-7
    • Failure to tell DMV of address change by driver, G.S. 20-7.1
    • Allowing vehicle to be driven by unlicensed person, G.S. 20-34
  • Certain motor vehicle misdemeanors that were Class 2 under 20-176, including:
    • Failure to carry registration card in vehicle, G.S. 20-57(c)
    • Failure to sign registration card, G.S. 20-57(c)
    • Failure to tell DMV of address change by vehicle, G.S. 20-67
  • Certain license plate/registration violations, G.S. 20-111
  • Window tinting violations, G.S. 20-127(d)
  • Misdemeanor speeding, G.S. 20-141(j1)
  • No insurance, G.S. 20-313(a)
  • Repeat fishing without a license, G.S. 113-135(a) (referring to 113-174.1 and -270.1B)

Also, section 18B.15 of the budget reclassifies a number of boating safety offenses from Class 3 misdemeanors to infractions.

Ineligibility for appointed of counsel. It seems that one goal of these provisions was to save money on appointed counsel. The money report states that IDS’s budget will be reduced by $2,000,000 annually because the budget “[r]eclassifies low-level misdemeanors that rarely result in incarceration as Class 3 misdemeanors or infractions and modifies the sentencing structure for Class 3 misdemeanors so that the first three [editor’s note: probably should read “four”] charges are fineable offenses. With no possibility of incarceration, these offenses do not require legal counsel.”

In other words, the changes made by the budget will provide that a defendant charged only with a Class 3 misdemeanor, and who has no more than three prior convictions, will be facing a potential sentence of a fine of $200 or less. Constitutionally, an indigent defendant is entitled to appointed counsel when facing incarceration, Argersinger v. Hamlin, 407 U.S. 25 (1972), or even a suspended sentence, Alabama v. Shelton, 535 U.S. 654 (2002), but not a fine alone, Scott v. Illinois, 440 U.S. 367 (1979). Nor does a defendant facing a small fine have a right to counsel under the North Carolina statute governing appointment of counsel. It extends only to cases in which “imprisonment, or a fine of five hundred dollars . . . or more, is likely to be adjudged.” G.S. 7A-451(a)(1).

Note that if a defendant is sentenced to a fine but does not pay it, “the court, upon the motion of the prosecutor or upon its own motion, may require the defendant to appear and show cause” for his failure to pay, and if he cannot, may imprison the defendant for up to 30 days. G.S. 15A-1364. I don’t know how common these show cause proceedings are, but a defendant would appear to be entitled to counsel at any such hearing.

Administering the new provisions. It will be interesting to see how these changes work in practice. For example:

  • Who will be responsible for determining how many prior convictions the defendant has? The prosecutor? The clerk?
  • How thoroughly will the responsible party research the defendant’s prior record? Will an ACIS check of the county in which the charges are pending be the norm? A statewide ACIS check? Will CJLEADS or other systems be used for this purpose?
  • Will judges err on the side of appointing counsel in order to protect defendants’ rights, or to preserve the possibility of a sentence other than a fine? Will that remove some of the anticipated cost savings?

As always, I’m interested in readers’ thoughts about the upcoming changes in the law. Given the number of cases affected, the changes appear to be quite significant.