Sitosky Update: The Latest on Probation Tolling

The continued supervision or imprisonment of hundreds of probationers and inmates is in question in light of State v. Sitosky, __ N.C. App. __, 767 S.E.2d 623 (2014), petition for discretionary review denied, __ N.C. __, 768 S.E.2d 847 (2015), and its interpretation of the probation tolling law. This post summarizes some of the latest developments related to the case.

You can review the details of the Sitosky opinion in this prior post. I’ll sum it up briefly here.

Defendants placed on probation before December 1, 2011 for an offense committed before December 1, 2009 are subject to probation tolling under G.S. 15A-1344(d). Tolling in that context means that you stop the clock on the person’s probation period any time he or she has a new criminal charge pending for anything other than a Class 3 misdemeanor. Time resumes running on the probation period when the new charge is resolved.

When the General Assembly amended the tolling law in 2009, G.S. 15A-1344(d) was removed from the law, effective for hearings held on or after December 1, 2009. S.L. 2009-372. The result of that unfortunate choice of effect dates, in light of Sitosky, is as follows (forgive me in advance, because it is a mouthful). If you hold a probation hearing on or after December 1, 2009 for a person placed on probation before December 1, 2011 for an offense committed before December 1, 2009, you negate the effect of any tolling that applied during the life of the probation case. If the probation period (that is, the original probation period, plus any extensions properly entered) would have expired but for the effect of tolling, the court does not have jurisdiction to act in the case.

Things are starting to happen for inmates, post-release supervisees, and probationers affected by Sitosky.

Inmates. Somewhere in the neighborhood of 200 inmates arrived in prison via revocation hearings that may have been improper in light of Sitosky. Last week, the Division of Adult Correction (DAC) sent a letter to each inmate, copying his or her lawyer, the district attorney, and the senior resident superior court judge to inform them of the issue. Among other things, these inmates may be able to make a valid motion for appropriate relief under G.S. 15A-1415(b)(2) that the trial court lacked jurisdiction to revoke.

Post-release supervisees. A small number of defendants in the affected class had already been released from prison onto post-release supervision. My understanding is that the Parole Commission terminated their PRS, effective immediately, last week.

Probationers. Probationers make up the largest and most complicated portion of the affected class of defendants. Well over 1,000 probationers are affected. The tricky thing is that many of them are, because of tolling, still properly on probation now, but if you tried to hold a hearing on them, you’d pull the statutory tolling rug out from under them and deprive the court of jurisdiction to act.

With that uncertainty in mind, DAC has directed its local judicial district managers to confer with the district attorney about how to move forward. What should the court system do with these cases?

To be clear, nobody has to do anything. Assuming any charges pending against the affected probationers are resolved at some point, tolling would end and the cases would eventually expire. It is understandable, though, that Community Corrections might prefer a swifter resolution of the issue. It would be a challenge for them to continue to supervise a group of offenders who, because of the jurisdictional flaw that would materialize if you tried to hold a hearing, can’t readily be held to account for their violations.

Assuming something is to be done, what are the options?

Expiration. In some cases the only proper action for the court may be to confirm that probation has already expired. If a hearing—any hearing—has been held in the case since December 1, 2009, any purported tolling would be negated, and without it the case is likely already over at this point. Defense counsel may wish to review the record carefully for any prior hearings in an affected case, to identify the earliest possible point at which the tolling under G.S. 15A-1344(d) would have become inapplicable.

Termination. In some cases the court may wish simply to terminate probation. That is permissible at any time before expiration under G.S. 15A-1343(b), and it would bring a speedy end to the matter.

Violation? In some cases, a careful review of the chronology of the case may reveal that a violation report was filed during the ordinary (that is, untolled) period of probation. In that circumstance, the court may still have power to act on the violation under G.S. 15A-1344(f). If the violation report was filed after the untolled probation period would have expired, then the court has no jurisdiction to act on it (even though the person was properly on probation until the hearing was held—which is one of the strange things about the Sitosky case itself). State v. Sanders, __ N.C. App. __, 770 S.E.2d 749 (2015); State v. Moore, No. COA14-665, 2015 WL 1529788 (N.C. Ct. App. Apr. 7, 2015).

Money. In each scenario the court may have to confront complicated issues related to money remaining owed in the case. The analysis and proper result may vary depending on the type of obligation in question. For example, attorney fees will be docketed as a civil judgment (for the balance still due) automatically when probation expires or is terminated, G.S. 7A-455(c), whereas it may be too late to enter the findings required to execute on a civil judgment for restitution in a Victims’ Rights Act case, G.S. 15A-1340.38(c) (background here). On the other side of the ledger, I’ve already heard of at least one defendant asking for a refund of the supervision fees he paid for each month after his untolled probation period would have expired.