Surprise Post-Release Supervision

I get a lot of mail from inmates. Lately, many of them have written to express their surprise upon being told by prison officials—for the first time—that they will have to complete a term of post-release supervision when they get out of prison. Sex offenders—especially Class F–I sex offenders, including those convicted of indecent liberties—are very surprised to learn that they will be on PRS for five years. Is it a problem that nobody mentioned PRS earlier?

I can understand the inmates’ frustration. The judge was not required (statutorily, at least) to mention it when accepting a guilty plea, G.S. 15A-1022, and it’s not obvious from the sentence itself. Sure, if you knew exactly how Structured Sentencing works, you might surmise that the maximum sentence had an extra nine, twelve, or 60 months baked in for PRS. But that’s pretty subtle. And for Class B1–E sex crimes committed between December 1, 1996 and December 1, 2011, and Class F–I sex crimes committed on or after December 1, 2011, the extra time included in the maximum sentence (9 months in each case) doesn’t match the length of the supervision period (60 months). You’d have to dig into G.S. 15A-1368.2(c) to figure that out.

All of this raises the question of whether a failure to advise a defendant about PRS might call his or her guilty plea into question. In general, a defendant must be advised of the direct consequences of his or her plea, which are those that have a “definite, immediate and largely automatic effect on the range of the defendant’s punishment.” State v. Bozeman, 115 N.C. App. 658, 661 (1994).  PRS is mandatory and pretty clearly direct.

As noted above, G.S. 15A-1022 does not require the judge accepting a plea to advise the defendant about post-release supervision. It does, however, require the judge to advise on the maximum possible sentence for the charge. To the extent that the PRS term is no longer than the advised-upon maximum (for non–sex offenders, they are the same length), the defendant is advised of a more serious deprivation of liberty (imprisonment) than the PRS supervision period, and thus arguably not prejudiced by the lack of information about the supervision period itself. For sex offenders, though, the five-year PRS term is far longer than the advised-upon maximum. And so for them the argument is strongest that the lack of information about PRS undermines the voluntariness of the plea.

Several other jurisdictions have grappled with this issue, most notably New York. In a string of cases beginning about a decade ago, New York’s appellate courts concluded that mandatory post-release supervision in that state is a direct consequence of a criminal conviction, and therefore something about which a defendant must be advised when pleading guilty. See People v. Catu, 825 N.E.2d 1081 (N.Y. 2005) (“Because a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction.”).

The persistent failure to advise on post-release supervision resulted in so many potentially invalid pleas that the legislature stepped in to retroactively excise the PRS for defendants who weren’t told about it. N.Y. Penal Law § 70.85. Without that fix, the only proper remedy would have been to vacate all the pleas. People v. Boyd, 908 N.E.2d 898 (N.Y. 2009). With the New York experience in mind, North Carolina judges may wish to advise defendants of the PRS term associated with their sentence when accepting a plea—especially for sex offenders.

A related concern in the realm of surprise post-release supervision is that the PRS term does not appear anywhere on the judgment imposing sentence. In Early v. Murray, 451 F.3d 71 (2d Cir. 2006), a defendant challenged a five-year PRS term administratively added to his sentence by the state prison system when the sentencing judge failed to add it. The Second Circuit rejected New York’s argument that because the PRS term was legally required, it became part of the inmate’s sentence by operation of law despite sentencing judge’s failure to mention it. To the contrary, the court held, PRS is a deprivation of liberty that must be ordered in the judgment of the court. Id. at 75.

New York’s PRS law is different from North Carolina’s, but Early suggests that PRS is no mere matter of behind-the-scenes sentence administration. Unlike an inmate’s assignment to a particular correctional institution or the award of sentence reduction credits—things generally thought to be squarely within the purview of the executive agency administering a sentence—PRS may be something that needs to be ordered in the defendant’s presence and incorporated into the judgment of the court.