Special Sentencing Rules

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Aside from a few notable exceptions (impaired driving, drug trafficking, and first-degree murder), most North Carolina crimes are sentenced under Structured Sentencing. Some crimes have additional sentencing wrinkles—a kind of Structured Sentencing plus—that kick in by statute. Today’s post is a noncomprehensive list of some of the most common offense-specific sentencing provisions.

Statutory rape (G.S. 14-27.23) or sexual offense (G.S. 14-27.28) by an adult. These are Class B1 felonies, but with a 300-month mandatory minimum sentence and mandatory lifetime satellite-based monitoring. The statutes also provide for a sentence of up to life without parole with findings of “egregious aggravation,” but that provision is almost certainly unconstitutional as written, as discussed here.

Secretly peeping (G.S. 14-202). For a first conviction, the court may impose a requirement that the defendant obtain a psychological evaluation and comply with any treatment recommended. For a second or subsequent conviction, the court must impose that requirement.

Aggravated felony death by vehicle (G.S. 20-141.4(a5)). This crime is a Class D felony, but with the additional requirement that the court must sentence the defendant in the aggravated range. G.S. 20-141(b)(1a). I understand that rule essentially to convert the aggravated range into the presumptive range for this offense, thus allowing the higher sentence without any findings of aggravating factors.

Felony death by vehicle (G.S. 20-141.4(a1)). Recently made a Class D felony, but with a special authorization for intermediate probation for Prior Record Level I offenders even though the sentencing grid ordinarily calls for active time there. It’s a sort of built-in extraordinary mitigation (minus the requirement for extraordinary findings, of course). G.S. 20-141.4(b)(2).

Habitual impaired driving (G.S. 20-138.5). Class F felony, but with an additional 12-month minimum active term that may not be suspended. Some people read that to allow for an odd kind of split sentence, but Shea and I think the more natural reading of the statute requires fully active time, as we wrote here. The sentence must run consecutively to any sentence being served.

Assault in the presence of a minor on a person with whom the defendant has a personal relationship (G.S. 14-33(d)). A person convicted of this crime who is sentenced to community punishment (which ordinarily allows for unsupervised probation) must be placed on supervised probation in addition to any other punishment. A second or subsequent conviction must receive an active punishment of no less than 30 days in addition to any other punishment.

Falsely representing self as law enforcement officer (G.S. 14-277). Prior Conviction Level One offenders convicted of this Class 1 offense may receive intermediate punishment even though the grid ordinarily calls for mandatory community punishment there.

Stalking (G.S. 14-277.3A). Defendants convicted of this Class A1 misdemeanor who are sentenced to community punishment must be placed on supervised probation.

Littering (G.S. 14-399). For intentional or reckless littering of 15 to 500 pounds, this is a Class 3 misdemeanor, but with a special statutory rule limiting the punishment to a fine of $500 to $2,000 and community service of 24 to 100 hours. A number of special fines and community service requirements apply to other littering offenses, including those that are infractions.

Concealment of merchandise (G.S. 14-72.1). Better known as shoplifting, this crime has a complicated set of special rules. A first offense is a Class 3 misdemeanor, but any term of imprisonment may only be suspended on condition that the defendant complete at least 24 hours of community service. A second offense within 3 years is a Class 2 misdemeanor requiring 72 hours of community service as a part of any probation. A third or subsequent offense within 5 years is a Class 1 misdemeanor that may receive probation only if it includes at an 11-day split sentence. Shoplifting also has a special jail credit rule: no credit is allowed for the first 24 hours of time a defendant spends jailed pending trial.

Worthless check offenses (G.S. 14-107). When imposing any sentence for a worthless check other than an active term of imprisonment, the court must impose special witness fees for each prosecuting witness and restitution covering the amount of the check, any service charges imposed by a bank, and any processing fees imposed by the payee. For a fourth or subsequent violation, if the court places the defendant on probation it must order the defendant not to have a checking account or write a check for three years.

Sale of alcoholic beverage to person under 21 (G.S. 18B-302, -302.1). A Class 1 misdemeanor, but with the additional requirement that if the court does not impose an active punishment, it must impose at least a $250 fine and 25 hours of community service for a first offense, and at least a $500 fine and 150 hours of community service for a subsequent violation within four years of a prior conviction.

Aiding a violation of G.S. 18B-302 if the aider is 21 or older. Another Class 1 misdemeanor, but if the court does not impose an active punishment, it must impose at least a $500 fine and 25 hours of community service for a first violation, and at least a $1,000 fine and 150 hours of community service for a subsequent violation within four years of a prior conviction.

Possession of up to one-half ounce of marijuana, 7 grams of synthetic cannabinoid, or one-twentieth of an ounce of hashish (G.S. 90-95(d)(4)). Any sentence of imprisonment for this Class 3 misdemeanor must be suspended, and at the time of sentencing the judge may not impose a period of imprisonment as special probation.

If there are other special rules that you encounter a lot, please post a comment.

6 comments on “Special Sentencing Rules

  1. Based on this “structured plus” sentencing, would not a defendant with 0-3 prior conviction points charged with concealment be entitled to consideration for court-appointed counsel?

  2. Jamie,

    The special rules for shoplifting and class 3 marijuana possession…..are they not irrelevant now in most situations now that class 3 misdemeanor dispositions can be fine only unless defendant has 4 or more convictions?

  3. Jeff Nieman and James Blanton: John Rubin talked about the intersection of the fine-only rule and offense-specific sentencing rules in this prior post: http://nccriminallaw.sog.unc.edu/a-fine-sentence-for-class-3-misdemeanors/. In particular, John anticipated questions about shoplifting and drug possession in the FAQs:
    “For a first offense of shoplifting in violation of G.S. 14-72.1, a Class 3 misdemeanor, any term of imprisonment may be suspended on condition that the defendant perform community service. Similarly, for possession of 1/2 ounce of marijuana or less in violation of G.S. 90-95(a)(3), any sentence of imprisonment must be suspended. These statutes do not necessarily allow the court to impose a sentence of imprisonment, however. Read in conjunction with the new punishment restrictions in G.S. 15A-1340.23(d), the court may impose a sentence of imprisonment only if the defendant has four or more prior convictions and then would have to follow the provisions on suspending a sentence of imprisonment. Accordingly, the shoplifting and marijuana provisions do not themselves authorize punishment other than a fine.”

  4. I have a question regarding the sentencing grid for a crime committed in 1999. I believe I am looking at the correct grid ***Effective for Offenses Committed on or after 12/1/95***. According to the chart I’m looking at, a person with a prior record level of III who receives an aggravated range B2 sentence will serve between 220-276 months. However, the defendant in the case I am researching received a sentence of 276-341 months. I know all of the facts are accurate because I got them directly from the court notes. Am I missing something here? If this is actually a sentencing error (combined with a failure to obtain the proper plea ‘colloquy’), do you have any idea how this might impact the current sentence if both issues were proven in court? Based on the history of this case, I’m afraid it will neither of these errors will result in a shorter sentence. Several other major errors in this same case (which was actually featured in one of the blogs) were successfully appealed and remanded for re-sentencing, yet no ‘relief’ of any kind has been granted. I don’t understand how so many errors were made and proven, yet the defendant is no better off than he was to begin with!

    • Beth Horne: The grid works like this. The front of the sentencing chart shows the range of permissible *minimum* sentences. 276 is the highest permissible minimum sentence for a defendant in that grid cell. The *maximum* that corresponds to that minimum is on the back of the chart: 341 months. G.S. 15A-1340.17(e). It’s just 120% of the minimum, rounded up, + 9. I can’t speak to the other issues, but 276-341 months is a proper sentence for Class B2/Level III (aggravated).

  5. Still confused on these sentencing guidelines; have a relative who has already been arrested twice; ironically it took over 7 months for the first charge to even be heard in court. She recently was arrested a second time for same charge (shoptlifting-tag price change) about a month after she was in court for the initial charge. Sounds like probation is an easy way out and a slap on the wrist. She is a snake in the grass, and will only continue her stance of crime. I was under the impression a second arrest would automatically mean 72 hours of jail time-period. Also it is crazy that a repeat offender would not have their case heard first (name on docket at top of page) rather than the normal alphabet order listing. I sincerely hope her mother (my sister) was not stupid enough to hire a defense attorney. I would have dealt with it quite differently. Dr Phil would probably throw up his hands at this dysfunction. Thanks for your time. By the way, my niece is 32 yrs old. Sad.

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