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.


7 thoughts on “Sitosky Update: The Latest on Probation Tolling”

  1. For what it’s worth, I had a case today that pretty much matched Sitosky. I brought it up to the ADA and the next thing I knew, probation had reviewed it and they came to court with a dismissal of the pending violations. The case then terminated. Thanks for these updates and blogs which I had in my case file and was prepared to argue from along with the case.

  2. I have successfully argued that if personal and subject matter jurisdiction over the probaton case is lacking, then there is no jurisdiction for entry of any financial judgment awards to the state or anyone else. I argue that it isn’t really a case of probation being terminated, since that would presuppose some exercise of jurisdiction, it is really a dismissal of the violation for lack of jurisdiction. In the civil context, if personal and subject matter jurisdiction is absent, then no money judgment could be forthcoming. If there is some automatic entry of a judgment in favor of the State, I would want to see if it was still based on the existence of jurisdiction.

  3. Yesterday the COA followed Sitosky in my case, State v. McKinney, No. COA14-1245, and has remanded my case for resentencing to reflect that one of my client’s suspended sentences should not have been revoked because he fell into the “tolling donut hole.” Luckily this will actually help my client, as he is still in jail and hasn’t served this time yet. A rarity in these probation appeals!

  4. Many individuals in the Sitosky class of defendants have concurrent sentences and at first blush it may appear as though these individuals do not benefit greatly from the Sitosky ruling. However, depending on where their sentence fell on the sentencing grid, it may be worth arguing for resentencing of the remaining charge in light of the fact that the sentencing judge misapprehended the fact that the individual had violated probation. In support of resentencing, a defense lawyer could cite State v. Wortham, 318 N.C. 669, 674, 351 S.E.2d 294, 297 (1987). In Wortham our Supreme Court remanded a case for resentencing after determining that one of two consolidated sentences was invalid. In doing so, our Supreme Court found that “since it is probable that a defendant’s conviction for two or more offenses influences adversely to him the trial court’s judgment on the length of the sentence to be imposed when these offenses are consolidated for judgment, we think the better procedure is to remand for resentencing when one or more but not all of the convictions consolidated for judgment has been vacated.” Id.

  5. Hello my name is candy Bolton I live in Brown summit,NC my husband Stephen Bolton is in prison on probation revoked for a case that had expired in 2008 the Judge said he keeps getting into trouble witch is not true my husband and I has been together for 3yrs been married 11mths of this time we are buying our home at the time of his revolution he was starting his own business with the company he was working for as a delivery man we attend our church which is his family church in Reidsville,NC he has two kids 9 and 7yr olds,the Judge never look at the fact that the case was 8yrs old and he has turned his life around for his self and his family when I told family and friends that they put him back in prison they asked why and all I could say was I don’t know because I don’t he was paying his money sometimes he didn’t have a dime in his pocket cause he wanted to make sure he paid something so he could continue his life but what good did it cause he back in prison but this time for nothing in asking if someone can just look into his case..because we need him home I’m working over 65hrs a week to keep from losing our home…i can only see our little girl n help her mom take care of her…his sons mom is trying to take his rights cause she don’t receive any money from Stephen anymore and will not let me help her…so now this is effecting the kids and they don’t deserve it nor do I…i just found out that I have first stage of Brest cancer and I cannot tell my husband because it will kill him that not only is he in prison for nothing after almost 9yrs but he is losing his son and might lose his wife….im not asking for legal help I’m asking if someone could look at his case because it is unjust and not fare we have wrote over 14teen letter in his behalf telling the Judge this is not a man who gets or want trouble in his life he don’t have time for foolish things we live for God and our family not trouble..
    . Thank you for your time my name is Candy Bolton my husband is Stephen a.Bolton (0862416)

  6. My son was sent to prison because of a probation violation. He had pulled all is time but two months when he received a letter stating that he fell under the state vs Sitosky also stated that a copy had been sent to the judge in this case and the public defender. I tried to get some ansewers about this for two months before they finally got him released. I am wondering what he can do about this if anything as far as restitution. I am also wondering about the money he has already paid the probation office and the money they are still trying to collect.

  7. I was released from incarceration and placed on a 5 year probation. I had a 9 month post release. After being free for 2 years, my probation was violated for no reason and with no evidence of a violation other than the fabricated story of an over zealous ppo. I was sent back to prison and served out the 9 month post release. While incarcerated, The Superior Court terminated the remainder of the probation. Yet upon my release, the parole commission insisted that I would be required to remain on supervised probation. To and including all of the probation terms. Is this legal or a violation of my civil rights?


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