I wrote a post in July asking whether conditional discharge under G.S. 90-96(a) is discretionary or mandatory for a consenting defendant. A case decided this week offers some clarification. Continue reading
Tag Archives: 90-96
Whether or not to grant a conditional discharge for an eligible defendant under G.S. 90-96(a) used to be within the discretion of the trial judge. In 2011, Justice Reinvestment made G.S. 90-96(a) mandatory for eligible defendants who consented to it. Two years later, it was once again made discretionary. Or was it? Continue reading →
May probation pursuant to a deferred prosecution or conditional discharge include incarceration? Continue reading →
90-96 for Everything
G.S. 90-96 sets out a conditional discharge option for certain drug offenses. A conditional discharge is different from a deferred prosecution. In a conditional discharge program, the defendant is convicted (either after a trial or by pleading guilty), but then placed on probation without the court actually entering judgment in the case. If the defendant succeeds on probation, the court completes a “discharge and dismissal” and the defendant is left without a conviction. If the defendant fails on probation, the court enters judgment and sentences the defendant—often to probation again, but this time regular, post-conviction probation.
I’ve said it before and I’ll say it again: G.S. 90-96 is complicated. I get as many questions about it as any other law. Justice Reinvestment made G.S. 90-96 mandatory for consenting defendants in 2011, but that requirement turned out to be troublesome enough in practice that the law was made discretionary again in 2013 (as described here).
Despite the waxing and waning of G.S. 90-96, similar conditional discharge options have recently popped up elsewhere in the law. In 2013, a 90-96–style conditional discharge was made mandatory for defendants convicted of prostitution for the first time. G.S. 14-204(b). A bill signed into law week, S.L. 2014-119 (H 369), took things even further, authorizing conditional discharge for any misdemeanor or Class H or I felony that would be eligible for a deferred prosecution. This broad conditional discharge authorization is set out in new G.S. 15A-1341(a4). As under the existing statutory deferred prosecution law, a defendant is eligible for a conditional discharge only when the court finds that (1) all victims have been notified, (2) the defendant has not been convicted of any felony or any misdemeanor involving moral turpitude, (3) the defendant has not previously been placed on probation, and (4) the defendant is unlikely to commit another offense other than a Class 3 misdemeanor. New G.S. 15A-1341(a5) grants similar authorization for defendants eligible for drug treatment court. The new law is effective December 1, 2014, and apparently may be applied to any conviction before the court on or after that date, regardless of the date of offense.
The new law includes some additional technical and conforming changes related to conditional discharges. Under amended G.S. 15A-1342, the probation that accompanies the conditional discharge may not exceed two years. Interestingly, that language is written into a statute that applies to all conditional discharges, not just those authorized by the new law (except those for prostitution under G.S. 14-204, which are subject to a one year maximum term). That means the probation period in G.S. 90-96 cases is now capped at two years. Previously I would have said it could be as long as five years, so the two-year limitation is a big change in theory. It may not make much difference in practice, though; my sense is that 12 months is the typical term of probation in a 90-96 case (please correct me if I’m wrong about that).
A change to G.S. 15A-1342(a1) makes clear that supervised probation is authorized for a conditional discharge imposed under new G.S. 15A-1341(a4) (conditional discharge for any misdemeanor or Class H or I felony), (a3) (conditional discharge for prostitution), and (a5) (conditional discharge for drug treatment court). The law makes no mention of G.S. 90-96, perhaps giving rise to an argument that supervised probation is no longer authorized in those cases. I have always assumed that supervised probation is authorized in G.S. 90-96 cases under the general theory that, unless otherwise provided by law, G.S. 90-96 probation is just like any regular probation case. State v. Burns, 171 N.C. App. 759 (2005) (“In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under [G.S.] 90-96.”). But now that the law makes specific provision for supervised probation for other enumerated types of conditional discharges, G.S. 90-96 becomes conspicuous in its absence. I doubt the legislature intended to de-authorize supervised probation for G.S. 90-96 defendants, however.
Speaking of legislative intent, what was the motivation behind this expansion of the conditional discharge law? I don’t know for sure. An earlier version of the bill styled the change as “conditional discharge in lieu of deferred prosecution,” substituting the former for the latter in G.S. 15A-1341(a1). A benefit of the conditional discharge approach from the State’s point of view—flagged by a legislator in a media report—is that there is a guilty plea in advance “in case they don’t meet the conditions set by prosecutors to have the charge dropped.” In a traditional deferral there is no guilty plea in advance, State v. Ross, 173 N.C. App. 569 (2005)—which sometimes leads to frustration when a defendant who does not satisfy the terms of the agreement ultimately declines to plead guilty. Nevertheless, the final version of the law added the conditional discharge option but left the deferred prosecution option in place, giving prosecutors apparent flexibility to choose between the two options.
I am interested to hear your thoughts on how this broad authorization for conditional discharges might change things in practice. It strikes me as potentially helpful statutory authority to do some of the things people have tried to do with PJCs over the years—sometimes with results that left everyone unhappy. On the other hand, all the sticky questions about revocations and appeals and collateral consequences that arise in the context of G.S. 90-96 will now be expanded to a broader set of cases.
G.S. 90-96 Limbo
The Justice Reinvestment Act made conditional discharge under G.S. 90-96(a) mandatory for eligible, consenting defendants. The law was amended last year to make it discretionary again for offenses committed on or after December 1, 2013. S.L. 2013-210. But while it was mandatory, a lot of defendants were placed on probation under G.S. 90-96(a). Naturally, many of those cases have come to an end. The statute itself envisions two possible conclusions to a G.S. 90-96 case: failure and success.
A person fails his or her G.S. 90-96 probation by violating a condition of supervision. When that happens the court “may enter an adjudication of guilt and proceed as otherwise provided.” The court should use form AOC-CR-622 to find the violation and order entry of judgment for the defendant’s deferred conviction. Then it would enter judgment and sentence the defendant for the conviction using a regular judgment form (active or suspended, as the case may be). In general, violations of G.S. 90-96 probation are subject to the same procedures applicable to ordinary probation cases. See State v. Burns, 171 N.C. App. 759 (2005) (“In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under [G.S.] 90-96.”).
A person succeeds on G.S. 90-96 probation by “fulfilling of the terms and conditions” of his or her probation. When that happens, the court “shall discharge [the defendant] and dismiss the proceedings against him.” G.S. 90-96(a). The discharge and dismissal is mandatory, but not automatic. The court must complete the top portion of form AOC-CR-622 to formally dismiss the conviction and discharge the defendant.
Sometimes a defendant will reach the end of his or her G.S. 90-96 probation without any allegation of violation, but the judge considering the discharge and dismissal may have information indicating that all of the terms and conditions of probation were not actually “fulfilled.” For example, the court may know that the defendant has not paid all the money he or she owed in the case, or that he or she has not completed the assigned course of treatment.
Can the court nonetheless enter the discharge and dismissal? Must the court do so?
I don’t think there’s a clear answer. To the extent that “general probation provisions” of Article 82 apply in G.S. 90-96 matters, it could be argued that the burden is on the State to prove noncompliance, and that fulfillment should be presumed in the absence of a violation. On the other hand, discharge and dismissal in a G.S. 90-96 case requires an affirmative order from the court that isn’t required to bring an ordinary probation case to a successful (from the defendant’s point of view) conclusion. I can understand a judge’s reluctance to order the conditions fulfilled if he or she knows they haven’t been. The problem with that view, however, is that it leaves the defendant in a perpetual middle ground not clearly contemplated by the statute itself.
An approach that may help avoid the issue is to schedule a review hearing near the end of the defendant’s period of supervision. (There is a space to schedule such a review on form AOC-CR-619A/B/C, the form used to place the person on G.S. 90-96 probation at the outset.) The hearing should be scheduled long enough before the case expires that there will be sufficient time to file a violation report on any perceived noncompliance, or to extend the probation as necessary to give the defendant time to complete any condition yet to be fulfilled. By reviewing the probation in this way the court will increase the chances that the case will end as a clear success or failure.
The Justice Reinvestment Act became law in 2011. S.L. 2011-192. Even before its initial effective date it was amended in 2011 by a technical corrections act. S.L. 2011-412. It was amended again by a clarifications act in 2012, making the changes described here. S.L. 2012-188. Two weeks ago it was amended yet again, effective (in part) immediately when the governor signed it on June 12. S.L. 2013-101. Today’s post reviews the latest changes.
The most significant change in the law is an amendment to G.S. 15A-1344(d2) to make clear that periods of confinement in response to violation (CRV, or, as some people call them, dunks) must be served on “consecutive” days. The rule, which applies to both felonies and misdemeanors, was effective immediately on June 12. CRV is the confinement the judge may order for technical violations of probation other than a new criminal offense or absconding. With the change in place, “weekend” or other non-continuous dunks are not allowed.
In my opinion that was probably already the case. In light of State v. Miller, 205 N.C. App. 291 (2009), I had thought that a judge could not order non-continuous confinement without statutory authority to do so. See Markham, The North Carolina Justice Reinvestment Act 68 (2012). Regardless, the answer is now clear as a matter of statute: no weekend dunks. If you would like to arrange for probationary confinement to be served on non-continuous days, it can still be done as a split sentence. G.S. 15A-1351(a) (special probation ordered at sentencing); G.S. 15A-1344(e) (special probation ordered as a modification of probation). Notwithstanding persistent rumors to the contrary, the JRA did not repeal the court’s authority to order split sentences.
All of the other changes to the law are truly technical in nature.
- The “absconding” probation condition that was created in 2011, G.S. 15A-1343(b)(3a), was amended so that it no longer applies to unsupervised probationers. The change, effective June 12, has no real practical effect because unsupervised probationers had no supervision from which to abscond. Nevertheless, the absconding condition appears in the portion of the judgment forms applicable to unsupervised probationers, and those forms will not be amended until the fall. In the meantime, AOC legal counsel has advised that “judges who wish to enter probationary judgments in strict compliance with the letter of the statute . . . simply will need to strike through that condition for unsupervised judgments.” I agree.
- The act removed a provision in G.S. 15-205 requiring probation officers to take supervised probationers on a prison tour during their first 30 days of supervision. A related provision was removed from G.S. 15A-1343 in 2011.
- The act repealed G.S. 143B-1159, which had required the North Carolina Sentencing and Policy Advisory Commission to do an independent biennial recidivism report on offenders accessing programs funded through the Treatment for Effective Community Supervision (TECS) program. A provision in the still-pending budget bill (section 16C.12) would have the Division of Adult Correction—which administers TECS—study itself in that regard.
- The act repealed G.S. 15A-1368.4(e)(14), the statutory condition of post-release supervision referencing “intensive” supervision. (The JRA repealed intensive probation but left intensive post-release supervision in place.) That repeal was effective immediately on June 12.
- Finally, the act corrects three mathematical errors in G.S. 15A-1340.17(e), better known as the back of the felony sentencing grid. The changes are minor, but will nonetheless require the issuance of a new felony sentencing grid this fall. The revised grid is effective for offenses committed on or after October 1, 2013. A separate bill, House Bill 92, would amend the Class A felony line of the sentencing grid to reflect the possibility of a life with parole sentence for a youthful defendant convicted of first-degree murder under G.S. 15A-1340.19B, enacted last year as discussed here.
I generally refrain from discussing pending legislation, but this post seems a suitable place to note another bill related to Justice Reinvestment that is poised to become law. House Bill 641, which has been ratified and presented to the governor for signature, would roll back what turned out to be one of the more complicated aspects of Justice Reinvestment: mandatory G.S. 90-96. The proposed law would return G.S. 90-96(a) to discretionary status in cases where the court, with the agreement of the district attorney, determines that the defendant is “inappropriate for a conditional discharge for factors related to the offense.” The change would be effective for offenses committed on or after December 1, 2013.
G.S. 90-96 Probation
I wrote previously (here) about the post–Justice Reinvestment rules for determining whether a defendant is eligible for a conditional discharge under G.S. 90-96. Those rules are complicated, but my sense is that districts around the state are getting the hang of how to manage the new, mandatory G.S. 90-96. But even after you’ve run the eligibility gauntlet, questions remain about what G.S. 90-96 probation is supposed to look like. This post addresses some of the questions I have been asked about G.S. 90-96 probation, including the conditions of the probation, permissible responses to violations, and, ultimately, revocation.
At the outset, a general rule of thumb is that probation under G.S. 90-96 is subject to the same rules as any probation case unless there is some statutory provision to the contrary. State v. Burns, 171 N.C. App. 759 (2005) (“In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under [G.S.] 90-96.”). In Burns, for example, the court of appeals held that the jurisdictional rules for violation hearings held after a period of probation has expired apply in G.S. 90-96 cases just as they do in regular probation cases. So, when in doubt, apply the regular rules.
There are, however, a few provisions in G.S. 90-96 that depart from the regular probation rules. And those departures are not consistent between G.S. 90-96 subsection (a) and subsection (a1).
Probation under G.S. 90-96(a)—the now-mandatory conditional discharge for certain defendants—is mostly left to the discretion of the trial judge. The law says that the court is to place G.S. 90-96(a) defendants on probation “upon such reasonable terms and conditions as it may require.” There are no mandatory conditions. The law does, however, state that the court “may allow” the defendant to participate in a drug education program or in the Treatment for Effective Community Supervision (TECS) Program (the statutory successor to the Criminal Justice Partnership Program (CJPP)). Note that the reference to drug education programs in G.S. 90-96(a) is different from the reference to drug education schools in subsection (a1), which I’ll discuss in a moment. As far as what TECS programming might be available, the Division of Adult Correction is still in the process of awarding TECS contracts for community-based programs. When programs are in place, G.S. 90-96 probationers are apparently intended to be eligible for services, with G.S. 90-96 felons flagged by law as a “priority population” regardless of their assessed risk and needs. G.S. 143B-1154. The latest version of the preprinted G.S. 90-96(a) order from the Administrative Office of the Courts, AOC-CR-619C, includes all regular conditions of probation by default and then includes space for the judge to check or add special conditions in his or her discretion.
Probation under subsection (a) may be supervised or unsupervised and may apparently be for any duration the court would like, up to 5 years. It is unclear whether the default rules on probation length applicable in Structured Sentencing cases (e.g., not less than six months nor more than 18 months for community-punished misdemeanor), set out in G.S. 15A-1343.2(d) apply in G.S. 90-96 cases. Those rules only apply to persons “sentenced” under Structured Sentencing, G.S. 15A-1343.2(a), and, strictly speaking, persons on probation under G.S. 90-96 have not yet been sentenced. To be safe, however, a judge wishing to impose a period of probation longer than the G.S. 15A-1343.2(d) default should probably make a finding that a longer period is required. On a related note, uncertainty about whether G.S. 90-96 cases are covered by G.S. 15A-1343.2 also calls into question whether delegated authority (set out in G.S. 1343.2(e) and (f)) can ever apply in those cases.
Probation under G.S. 90-96(a1)—the discretionary form of conditional discharge that may be used for certain defendants—is a bit more demanding than subsection (a). That law requires that any probation imposed be for at least one year. It must also include as a condition that the defendant enroll in, pay the $150 fee for, and successfully complete the program of instruction at a drug education school approved by the Department of Health and Human Services under G.S. 90-96.01 within 150 days. The court may omit the drug education school condition only if there is no school within a reasonable distance or if there are extenuating circumstances making it likely that the defendant would not benefit from it. Form AOC-CR-627C incorporates the conditions and findings applicable to G.S. 90-96(a1).
Next is the question of how the court should respond to violations of G.S. 90-96 probation. A threshold question in that regard is where a G.S. 90-96 violation hearing should be held. Subsection (a) doesn’t say anything about the proper venue, and so it would seem under Burns that the regular rules of G.S. 15A-1344(a) would kick in and allow the hearing to be held in the district of origin, the offender’s place of residence, or the place where alleged violation occurred. As a practical matter, though, it may be best for the case to be returned to the district of origin—something the court is empowered to do in any probation case under G.S. 15A-1344(c)—because that is the court that will ultimately need to enter judgment and sentence the defendant if the court decides to revoke. Subsection (a1) specifically provides that a person may obtain a hearing “before the court of original jurisdiction” before probation is revoked, nudging things toward the district of origin.
I am sometimes asked whether the court may impose a split sentence in a 90-96 probation case, either at the outset or in response to a violation. My answer is that it may not, because there is no suspended sentence in place to serve as a benchmark for determining the permissible length of the active portion of the split under the one-fourth rule of G.S. 15A-1351(a). More generally, I have reservations about using any confinement-based probation condition in a G.S. 90-96 case—with no suspended sentence in place, there’s no time in the bank from which to borrow. But, to be clear, there is no explicit statutory prohibition.
On what basis can the court revoke G.S. 90-96 probation? Subsection (a) says that “[u]pon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided.” I take that to mean to that any violation may serve as a basis for revocation of G.S. 90-96 probation. In other words, I don’t think G.S. 90-96 probation is subject to the post–Justice Reinvestment rule that a person has to receive two periods of confinement in response to violation (CRV) before the court is empowered to revoke the probation for a technical violation. In fact, I think there’s a decent argument that the court should not be imposing CRV in G.S. 90-96 cases at all. The CRV law, G.S. 15A-1344(d2), requires the court to consider how much time remains on the defendant’s maximum imposed sentence when determining the length of the CRV and, again, there is no imposed sentence in a G.S. 90-96 case.
Subsection (a1) doesn’t say anything about violations generally, but it does say that a person’s “failure to complete a program of instruction at a drug education school” shall constitute grounds to revoke. The subsection defines that failure broadly to include failing to attend classes without an excuse, failing to complete the course in a timely fashion, or failing to pay the required fee. If the court receives an instructor’s report about a person’s failure to complete the drug education school, it must revoke the probation.
For cases under both subsection (a) and (a1), the court may use Form AOC-CR-622 to revoke or modify G.S. 90-96 probation, or to dismiss the case when a defendant has successfully fulfilled the terms and conditions of the probation.
A final question that arises from time to time—and which will no doubt arise more frequently now that G.S. 90-96 is mandatory—is whether a person’s conviction for a drug or drug paraphernalia possession offense counts for prior record points while he or she is still on G.S. 90-96 probation. In State v. Hasty, 133 N.C. App. 563 (1999), the court of appeals said that until the conviction is discharged and dismissed, it counts. A defendant has necessarily pled or been adjudged guilty before being placed on G.S. 90-96 probation, and under G.S. 15A-1331(b) it is that adjudication of guilt that counts as a conviction for sentencing purposes. If person ultimately succeeds on the G.S. 90-96 probation and the conviction is dismissed, then it would not count for points. If it had already been counted for points in a new case in the interim but was later dismissed, the defendant might have an argument for resentencing of that new case under State v. Bidgood, 144 N.C. App. 267 (2001) (holding that it would be “unjust to permit an enhanced sentence to stand where . . . the Prior Record Level has been erroneously calculated due to a subsequent reversal of a conviction on appeal”).
The New G.S. 90-96
Last year, the Onion (my favorite news satire outfit) ran an article headlined “Nation Shudders at Large Block of Uninterrupted Text.” It’s a pretty funny take on modern society’s overreliance on things like bullet points and YouTube to process information. The headline made me think of G.S. 90-96.
As most readers know, G.S. 90-96 allows for a conditional discharge for certain drug offenders. The statute itself is long and convoluted, but conceptually the law is pretty straightforward. It allows a convicted defendant to be placed on probation without the court actually entering judgment in the case. If the person fulfills the terms and conditions of the probation, the court dismisses the charges and the defendant is left without a conviction. If the person violates a term or condition of the probation, the court may enter an adjudication of guilt and sentence the defendant. Successful defendants under age 22 may apply for an expunction of the dismissed charge under G.S. 15A-145.2(a).
The Justice Reinvestment Act (JRA) (S.L. 2011-192) makes several changes to G.S. 90-96, all of them effective for persons entering a plea or found guilty on or after January 1, 2012. The first set of changes involves subsection G.S. 90-96(a). I’ll get to subsection (a1) and the other portions of the law below.
The JRA both limits and expands eligibility for discharge and dismissal under G.S. 90-96(a). On the one hand, it limits the pool of eligible defendants by excluding anyone previously convicted of any felony under any state or federal law or any controlled substance or drug paraphernalia offense. Existing law excluded only those defendants with prior controlled substance or drug paraphernalia convictions. On the other hand, the law expands G.S. 90-96(a) by allowing discharge and dismissal of any misdemeanor or felony simple possession crime under G.S. 90-95(a)(3), regardless of the substance schedule or amount, and possession of drug paraphernalia under G.S. 90-113.22. Under existing law, the only felony offense eligible for discharge and dismissal under G.S. 90-96(a) was possession of less than one gram of cocaine. (All possession crimes, including felonies, were already eligible for discharge and dismissal under existing G.S. 90-96(a1), but again, I’ll get to it in a minute.)
Those changes are important, but the biggest change to G.S. 90-96(a) under the JRA is that it makes discharge and dismissal mandatory for consenting defendants. The provision saying the court “may, without entering a judgment of guilt . . . defer further proceedings and place [the defendant] on probation,” is changed to say the court “shall” do it. That means any eligible defendant who pleads guilty to or is found guilty of a simple possession offense must, if he or she consents, be placed on probation under G.S. 90-96(a).
I have heard concerns about the mandatoriness of the new provision from both prosecutors and defense lawyers. Prosecutors are expecting an increase in trials on simple possession offenses; a defendant charged with simple possession has nothing to lose by going to trial if probation under G.S. 90-96(a) is mandatory upon conviction. Defense lawyers, meanwhile, have pointed out that probation under G.S. 90-96(a) is, in some senses, worse than other outcomes they might be able to obtain under existing law—like punishment by a fine only, for example. Of course, a defendant can always short-circuit the “mandatory” deferral by refusing to consent to it.
All parties—including judges and clerks—have expressed concerns about the logistical implementation of the new provision. Because discharge and dismissal can occur only once for any defendant, the court must make certain before placing the defendant on a new deferral that records of a prior one haven’t been expunged. And the only way to do that is to ask recordkeeping officials at the Administrative Office of the Courts to review the confidential file maintained in Raleigh, which—understandably—takes time. AOC has designed a new form, AOC-CR-237, to help expedite that process by allowing the parties to ask for an anticipatory review of the confidential file in cases where a conviction for simple possession is possible.
About subsection (a1) of G.S. 90-96. It’s a complicated provision with a strange history that dates back to 1981, but only since 2009 has the law explicitly provided that discharge and dismissal were permissible under subsection (a1) at all. See S.L. 2009-577. For at least the past two years, though, it has been clear that a defendant’s first simple possession offense under G.S. 90-95(a)(3)—regardless of drug schedule or amount—or G.S. 90-113.22 was eligible for deferral under subsection (a1). Subsection (a1) also provided that for the purposes of determining whether a conviction is a person’s first, no prior offense occurring more than seven years before the date of the current offense is considered. In those ways (the broader offense eligibility and the seven year look-back period), subsection (a1) has been broader than subsection (a).
The JRA amends G.S. 90-96(a1) to make it applicable to a first conviction of any offense that qualifies under subsection (a)—which, in light of the JRA’s expansion of offense eligibility under subsection (a), is really no change to subsection (a1) at all. Subsection (a1) continues to be an optional program; the court “may” use it for an eligible defendant. Given that subsections (a) and (a1) cover the same offenses, you might be thinking that there’s no need for discretionary relief under (a1) when relief under (a) is now mandatory. That’s largely true, but subsection (a1) continues to cast a broader net than subsection (a) in terms of defendant eligibility. Subsection (a1) alone includes the seven year look-back window for prior convictions and dismissals. And subsection (a1) does not exclude defendants with prior non-drug felony convictions (it only excludes those with prior convictions under G.S. 90-95(a)(3) and 90-112.22, as well as convictions under 90-95(a)(1), 90-95(a)(2), 90-113.10, 90-113.11, and 90-113.12).
The JRA also amends the expunction provisions in G.S. 90- 96(d) and the corresponding procedure in G.S. 15A-145.2(b) to allow an expunction of any felony possession offense under G.S. 90-95(a)(3) if the charges were dismissed or the person was found not guilty. (The legislation’s effective date—which is based on “persons entering a plea or who are found guilty of an offense”—is unclear as applied to dismissals.) The law also changes the expunction provisions in G.S. 90-96(e) and the corresponding procedure in 15A-145.2(c) to allow an expunction of a conviction of a felony possession offense if the person has no prior convictions specified in those statutes.
My sense is that some districts in North Carolina use G.S. 90-96 a lot and some don’t use it at all. After January 1, everyone will have to come to grips with that large block of uninterrupted text.
G.S. 90-96 is one of the densest, most used, and most misunderstood statutes on the books. Let’s try to unpack it a little bit.
There are two distinct subsections under which cases may fall — subsections (a) and (a1) — and the two subsections are different in scope and in effect. We’ll start with subsection (a). This is the descendant of the original version of G.S. 90-96. (The statute was enacted in 1971, and at that time, applied only to first convictions for possession of schedule III through VI substances — the inclusion of paraphernalia, schedule II substances, and felony cocaine possession all came later.) Subsection (a) applies to folks with no prior drug or paraphernalia convictions who plead guilty to or are found guilty of (1) misdemeanor possession of Schedule II through VI drugs, (2) possession of drug paraphernalia, or (3) felony possession of less than one gram of cocaine. There are a couple of things to note here. First, it is up to the court whether to allow a defendant the benefit of the statute: the court “may” do so, even if the state thinks that it shouldn’t (though the consent of the defendant is necessary), but it isn’t required to do so, even if the state and/or the defendant think that it should. Second, G.S. 90-96 isn’t limited to guilty plea cases: the court “may” allow a defendant the benefit of the statute whether the defendant pled guilty or was convicted after a trial. (Whether a judge is likely to allow a defendant who goes to trial the benefit of the statute is a separate question, of course.) Third, it appears that at least some judges, in at least some cases, are allowing defendants the benefit of the statute in cases outside the statute’s scope. See, e.g., State v. Hasty, 133 N.C. App. 563 (1999) (involving a defendant who was on probation, purportedly under subsection (a), for PWISD cocaine).
If the court decides to proceed under subsection (a), the disposition of the case is relatively straightforward: there is no immediate adjudication of guilt or entry of judgment. Instead, the judge places the defendant on probation, for whatever time period the court sees fit. The probation may, but need not, include drug education as a condition. Historically, there hasn’t been an AOC form for this, and judges have either tried to modify judgment forms or have created their own forms. However, I understand that the AOC will shortly be releasing a new form to be used for this type of order.
If the defendant violates his probation, the court enters an adjudication of guilt and sentences the defendant under Structured Sentencing. If the defendant successfully completes his probation, the court dismisses the charges and the defendant is left without a conviction. Furthermore, as detailed in subsection (b) of the statute, if the defendant was “not over 21 years of age” at the time of the offense, he may apply for an expunction of the charges. This expunction provision is much broader than that allowed under G.S. 15A-145, which applies only to misdemeanors and only if the defendant was under 18 years of age at the time of conviction.
The other leading subsection of G.S. 90-96 is subsection (a1), which was added in 1981, and which is confusingly drafted. The best way to try to understand it is to compare it to subsection (a). Subsection (a1) is considerably broader than subsection (a). It applies to “any offense included in G.S. 90-95(a)(3),” meaning all simple possession offenses, regardless of drug type or quantity, and to drug paraphernalia offenses. Furthermore, although is is limited to “first conviction[s],” it ignores prior offenses that are more than seven years old for purposes of determining whether a defendant is a first offender, again unlike subsection (a).
The confusing part of subsection (a1) is that it doesn’t completely spell out how qualifying cases are to be resolved. It says that the judge “may” place the defendant on probation — apparently, with or without the consent of the defendant — which must be for at least a year, and which must, absent exceptional circumstances, include drug education. (Note that the latter two requirements are absent from subsection (a), so while subsection (a1) is broader, it is also a bit tougher.) This appears to be probation pursuant to an entry of judgment, unlike the probation available under subsection (a). Subsection (a1) is missing the proviso, “without entering a judgment of guilt,” that is included in subsection (a), and subsection (a1) contains no procedure for entering a subsequent judgment after a violation of probation — it simply provides that probation shall be revoked, suggesting that the original imposition of probation is the judgment.
Furthermore, the statute is not explicit about what happens if a defendant sentenced under subsection (a1) successfully completes probation. Unlike subsection (a), it does not mandate that the court “shall . . . dismiss the proceedings.” And subsection (b), which contains the expunction provisions of the statute, refers only to proceedings dismissed “under subsection (a),” not to cases that fall within (a1). Yet it appears that the General Assembly intended that at least some defendants sentenced under subsection (a1) would be somehow eligible for expunctions — if not, why would subsection (a1) say that defendants who fail to complete their drug education classes be “den[ied] application for expunction”?
The bottom line is that subsection (a) is clear, while subsection (a1) is broader, but not as clear. I’d like to know whether, and how, subsection (a1) is being used in practice — are defendants being put on probation prior to judgment a la subsection (a), or are they being put on probation pursuant to judgment? Are they receiving expunctions? Subsection (a1) may merit clarification by the General Assembly so that defendants who fall within it are treated the same way from district to district.
Since this post is already too long, I’m not going to unpack subsection (e), but it’s worth reading. Essentially, it provides for after-the-fact expunctions for folks who would have been eligible under subsection (a). There are a couple of ambiguities in the statute, including whether the court “may” or “shall” grant an expunction to eligible offenders, and whether there’s an age limit for eligibility. For now, suffice it to say that In re Expungement for Spencer, 140 N.C. App. 776 (2000) answers some of these questions and is the leading case on subsection (e).