A short opinion issued recently by the Court of Appeals, State v. J.C., ___ N.C. App. ___ (Sept. 19, 2017), concerns two open questions about appellate review of a trial judge’s expunction decision. How can a party obtain appellate review? And, how can the person who petitions for an expunction make sure that the records of the appellate proceeding remain confidential? The Court’s opinion does not expressly address those issues, but the case provides guidance on both. Continue reading
Tag Archives: appeal
No, Justice Ervin didn’t use the words hot mess. But anyone who slogs their way through the tortured procedural swamp that led to State v. Miller, __ N.C. __ (March 18, 2016), is bound to agree that the procedures adopted in 2006 for appeals in DWI cases have created a nearly impenetrable bog for the parties involved. I’m going to do my best here to succinctly explain what happened in Miller. Then I’ll share an idea for freeing litigants and judges from the procedural muck in which they are currently mired. Continue reading →
When a person is convicted and sentenced, the sentence generally starts right away. G.S. 15A-1353(a). The judge can delay the start of the sentence, as discussed in this prior post, but that is the exception to the rule. About the only other thing that can put the brakes on the start of a sentence is an appeal. Today’s post discusses the rules for staying probation (including special probation) upon appeal.
When a defendant appeals a misdemeanor conviction in district court, all portions of the district court judgment are stayed under G.S. 15A-1431(f1). The stay includes any active punishment imposed and any probation or special probation. That is in line with the general principle that an appeal from district court wipes the slate clean pending trial de novo in superior court. Julie Ramseur Lewis & John Rubin, North Carolina Defender Manual (Vol. 2, Trial), at 341.
For defendants sentenced to probation, a probation officer will track the progress of the appeal during the stay, but the officer should not be supervising the defendant. (Probation policy, §D.0409, notes that distinction.) The defendant is not on probation at that time, and thus not subject to supervision fees or any other condition of supervision. The defendant may, however, be subject to conditions of pretrial release during the pendency of the appeal. G.S. 7A-290; 15A-1431(e). If the appeal is withdrawn and the case is remanded, probation will begin when the case arrives back in district court for execution of the original judgment (or, in the case of an implied consent offense, upon resentencing as required by G.S. 20-38.7). State v. Smith, 359 N.C. 618 (2005).
Occasionally a defendant will manage to violate probation during the first few days of his or her district court probation, before the time for appealing the case to superior court (ten days) has expired. If the defendant appeals, the probation will at that point be stayed. If the defendant proceeds with the trial de novo and receives a sentence in superior court, I think those quickly-obtained district court violations disappear under the clean slate theory noted above.
Appeals of superior court convictions (and Class H and I felonies pled in district court) are governed by a different statute, but the general rule for stays is similar—at least as far as probation is concerned. Notice of appeal of a superior court conviction stays probation, including special probation. G.S. 15A-1451(a)(4). Based on questions I have received, the automatic stay of superior court split sentences sometimes catches people off guard. That’s probably because other confinement ordered in superior court is stayed only when the judge imposes release conditions under G.S. 15A-536. G.S. 15A-1451(a)(3). It does not follow, however, that the court may impose conditions of release only upon appeal of an active sentence. To the contrary, G.S. 15A-536 empowers the trial judge to impose release conditions during the appeal of a stayed probationary sentence—including conditions that may be very similar to the stayed probation itself. See State v. Howell, 166 N.C. App. 751 (2004) (affirming the trial judge’s imposition of a release condition barring computer use while a similar probation condition was stayed on appeal). As with appeals from district court, a probation officer should not supervise the defendant during the pendency of an appeal to the appellate division.
There are frequently asked questions, and then there are very frequently asked questions. Regarding Justice Reinvestment, there has been no more frequently asked question than this: Can you appeal a CRV? We learned this morning that you cannot. The court of appeals held in State v. Romero that there is no right to appeal from a period of confinement in response to violation imposed under G.S. 15A-1344(d2).
Mr. Romero was a felony probationer who committed technical violations of probation in 2012. In response, the court ordered a 90-day CRV. The defendant appealed, but the State filed a motion to dismiss the appeal on the grounds that there is no statutory right to appeal a CRV.
The court of appeals agreed. The court noted that G.S. 15A-1347 allows a probationer to appeal only when the court “activates a sentence or imposes special probation.” Because CRV is neither of those things, and because a defendant’s right to appeal is purely a creation of state statute, the court concluded that there is no right to appeal a CRV. The court rejected the defendant’s argument that imposition of a CRV is a final judgment of a superior court, generally appealable under G.S. 7A-27(b).
In a footnote, the court declined to express any opinion about whether a different rule would apply to a so-called terminal CRV—that is, one that uses up the defendant’s entire remaining suspended sentence. Slip op. at 6 n. 1. Mr. Romero had additional time left to serve on his 6–8 and 18–22 month felony sentences, and so the court didn’t need to consider whether his 90-day CRV was a “de facto revocation” for purposes of G.S. 15A-1347.
Romero involved an appeal from superior court to the appellate division, but the same rationale would seem to preclude de novo appeals from district to superior court. The same statute (G.S. 15A-1347) governs, and it likewise allows appeals from district to superior court only when the district court judge “activates a sentence or imposes special probation.” On the other hand, given the typical length of suspended sentences for misdemeanors, district court CRVs are much more apt to be terminal CRVs, and thus may constitute the type of “de facto revocation” on which the court of appeals expressly reserved judgment in Romero.
Notwithstanding Romero, I continue to think that other avenues of review may be possible for some errors related to CRV. I discussed those briefly in this prior post (FAQ number 14), and on pages 72–73 of the Justice Reinvestment Act book.
Update: The court of appeals has withdrawn this opinion.
I’ve had quite a few questions about the court of appeals’ recent decision in State v. Braswell, a case that imposes new procedural requirements on the state in certain misdemeanor appeals. This post will summarize and assess Braswell and will briefly address the prospects for further review.
The defendant in Braswell was driving while impaired, hit another vehicle, and sped off. He was eventually apprehended and charged with DWI and leaving the scene of an accident. He pled guilty to the DWI in district court, in exchange for dismissal of the hit and run charge. He appealed to superior court, the hit and run charge was reinstated, and he was convicted of both offenses. The defendant then sought review in the court of appeals.
The portion of the court of appeals’ ruling that has generated controversy is the holding that the hit and run charge was not properly before the superior court: “The State, Defendant and the trial court proceeded as if the State had indicted Defendant on the charge of leaving the scene of the accident, however, there is no such indication in the record. Our reading of [State v. Fox, 34 N.C. App. 576 (1977)] requires the State to, if it wishes to proceed on this charge, indict Defendant on the charge that was formally dismissed pursuant to the plea agreement.” Based on the foregoing, the court of appeals vacated the hit and run conviction. Interestingly, the jurisdictional issue was not raised in the defendant’s brief, nor was it addressed in the state’s brief. I don’t know whether it was addressed at oral argument.
In order to assess the court’s reasoning, it’s important to understand what happened in Fox. In that case, the defendant was charged with two counts of felony breaking or entering and two counts of felony larceny. In district court, the defendant pled guilty to two counts of misdemeanor breaking or entering in exchange for the dismissal of the larceny charges. He gave notice of appeal to superior court, but the superior court judge ruled that he had waived his right to appeal by virtue of his guilty plea in district court. The defendant appealed that ruling, and the court of appeals ruled (1) that even a defendant who pleads guilty in district court may appeal for trial de novo in superior court, and (2) that “[w]here a defendant elects not to stand by his portion of a plea agreement, the State is not bound by its agreement to forego the greater charge.” Expanding further on (2), the court stated, “[i]f the State elects to do so, the district attorney may send bills of indictment to the Grand Jury charging defendant with felonious breakings and enterings and felonious larcenies, as were charged in the two original arrest warrants. If one or more true bills are returned, the State may try defendant upon the felony charges or any included lesser offenses.” It was the reference to indictments in the last quoted passage from Fox that caused the court in Braswell to conclude that the hit and run charge was not properly before the superior court.
The Braswell court did not mention either of the statutes that address appeals to superior court following district court guilty pleas. Both statutes were enacted in 1980, apparently in response to the decision in Fox. See S.L. 1979, 2nd Sess., Ch. 1328. G.S. 15A-1431(b) provides that “[u]pon the docketing in the superior court of an appeal from a judgment imposed pursuant to a plea arrangement between the State and the defendant, the jurisdiction of the superior court over any misdemeanor dismissed, reduced, or modified pursuant to that plea arrangement shall be the same as was had by the district court prior to the plea arrangement.” And G.S. 7A-271(b) states that “[t]he jurisdiction of the superior court over misdemeanors appealed from the district court to the superior court for trial de novo is the same as the district court had in the first instance, and when that conviction resulted from a plea arrangement between the defendant and the State pursuant to which misdemeanor charges were dismissed, reduced, or modified, to try those charges in the form and to the extent that they subsisted in the district court immediately prior to entry of the defendant and the State of the plea arrangement.”
Putting all of this together, Braswell appears to have been decided in error. The indictment language in Fox makes sense because the charges that the state wanted to revive were felonies. It doesn’t make sense to require an indictment for a misdemeanor offense like the hit and run charge in Braswell, and in fact it isn’t clear that it is even permissible for the state to indict a misdemeanor with no transactional connection to a felony. Certainly there does not appear to be a jurisdictional need for an indictment in light of G.S. 15A-1431(b) and G.S. 7A-271(b), which expressly confer jurisdiction on the superior court. As far as I am aware, the practice in most districts has been that when a defendant appeals to superior court after a district court plea, the prosecutor notifies the clerk that the state wishes to reinstate any misdemeanor charges that were dismissed as part of the plea bargain, and the clerk places the revived misdemeanors on the superior court’s docket as part of the appeal. That procedure appears to be adequate. If any readers view Braswell differently and think that the court’s reasoning may have been correct, please say so. In the meantime, the state has moved for a temporary stay in Braswell. The motion indicates that the state intends to ask the court of appeals to reconsider its ruling. Stay tuned.
I’ve written before about the General Assembly’s enactment of G.S. 20-38.7 to prevent defendants from manipulating the procedure for appealing district court convictions to superior court in order to escape enhanced punishment in impaired driving cases based upon prior convictions. G.S. 20-38.7(c) provides that “for any implied‑consent offense that is first tried in district court and that is appealed to superior court by the defendant for a trial de novo as a result of a conviction, the sentence imposed by the district court is vacated upon giving notice of appeal.” When an appeal is withdrawn or a case is remanded back to district court, the district court must hold a new sentencing hearing and must consider any new convictions.
The first item of note related to this provision is that it purports to apply to all implied consent offenses, not just to those offenses sentenced under G.S. 20-179 ((i) impaired driving under G.S. 20-138.1, (ii) impaired driving in a commercial vehicle under G.S. 20-138.2, (iii) a second or subsequent conviction for operating a commercial vehicle after consuming alcohol under G.S. 20-138.2A, and (iv) a second or subsequent conviction for operating a school bus, school activity bus, or child care vehicle after consuming alcohol under G.S. 20-138.2B). This broad application is surprising given that the manipulation to which it was addressed occurred in connection with sentencing under G.S. 20-179, which sets forth a graduated punishment scheme that significantly increases a defendant’s punishment if the defendant has a qualifying prior conviction. A qualifying prior conviction renders a defendant subject to punishment at Level II, which requires a minimum term of imprisonment of not less than seven days and a maximum term of not more than 12 months. Because each qualifying prior conviction counts as a grossly aggravating factor, a defendant with two qualifying prior convictions is subject to punishment at Level I, which requires a minimum term of imprisonment of not less than 30 days and a maximum term of not more than 24 months. A defendant with three prior convictions is subject to punishment at Level A1, which requires that the defendant be sentenced to a term of imprisonment that includes a minimum term of not less than 12 months and a maximum term of not more than 36 months. For misdemeanor implied consent offenses sentenced under structured sentencing, the impact of a single prior conviction is far less. See 15A-1340.21(b) (providing that a defendant who has at least one, but not more than four, prior convictions is a prior conviction level II). Given the impetus for the provision and its internal references G.S. 20-179, see G.S. 38.7(d), it is unclear whether the legislature intended for the statute to apply to implied consent offenses sentenced under the Structured Sentencing Act. And, as a practical matter, I’m not sure it ever is applied to implied consent offenses other than those sentenced under G.S. 20-179.
G.S. 20-38.7(d) provides for a limited right to appeal following a new sentencing hearing. It is unclear whether the General Assembly’s intent was to allow a defendant to appeal for trial de novo or instead to appeal only the sentence imposed. The statute permits a defendant to appeal to superior court only if (1) the new sentence is based upon additional facts considered by the district court that were not considered in the previously vacated sentence, and (2) the defendant would be entitled to a jury determination of those facts “pursuant to G.S. 20-179.” G.S. 20-38.7(d). Because the fact of a prior conviction is determined by a judge, not a jury, see G.S. 20-179(c), the finding of any new convictions (that is, convictions that became final after the date of the earlier sentencing) at the new sentencing hearing does not trigger a statutory right to appeal. Clearly, however, the statute contemplates that a judge might base a sentence imposed at a new sentencing hearing on factors other than new convictions regardless of whether those factors were considered in the previously vacated sentence. Notwithstanding the broad language of the statute, a judge’s ability at a new sentencing hearing to find additional sentencing factors that result in a more severe sentence is constrained by a defendant’s right to due process. The United States Supreme Court held in North Carolina v. Pearce, 395 U.S. 711, 726 (1969), that due process requires that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must affirmatively appear [and] [t]hose reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” G.S. 15A-1335, applicable to re-sentencing in superior court after appellate review, embodies generally the rule of Pearce, but is more restrictive in that it does not allow imposition of a more severe sentence at re-sentencing based upon aggravating factors that occurred after the date of the original sentence. See State v. Mitchell, 67 N.C. App. 549, 551 (1984).
New sentencing hearings conducted pursuant to G.S. 20-38.7 are not controlled by G.S. 15A-1335 and occur in a procedurally different context from the sentencing at issue in Pearce in that re-sentencing under G.S. 20-38.7 does not follow a new trial or a reversal of the trial judge’s earlier determinations. Instead, a new sentencing hearing follows a defendant’s withdrawal of his or her appeal to superior court. This distinction is of dubious significance, however, as Pearce concerned the unconstitutionality of penalizing a defendant for exercising the right to appeal—a right that must be “free and unfettered.” 395 U.S. at 724 (internal citations omitted).
If Pearce controls, and if aggravating factors in impaired driving cases are indeed sentencing factors and not elements of the offense (an issue discussed here), the district court upon re-sentencing under G.S. 20-38.7 may make “fresh determination of the presence in the evidence of aggravating and mitigating factors,” see State v. Mitchell, 67 N.C. App. 549, 551 (1984), but “in the process of weighing and balancing the factors found, ” see id., may not impose a sentence greater than the original sentence unless the increase results from a finding of convictions that became final after the date of the initial sentencing or the harsher sentence is statutorily mandated. Cf. State v. Williams, 74 N.C. App. 728 (1985) (determining that G.S. 15A-1335 did not apply to bar imposition of higher sentence after retrial where higher sentence was statutorily mandated).
So, a judge could not, at re-sentencing, sentence a defendant previously sentenced under G.S. 20-179 to a term of six months imprisonment for a Level Three DWI to 12 months imprisonment for a Level Two DWI based upon the judge’s determination at the new sentencing hearing that a child was in the vehicle at the time of the offense. A judge, could, however, impose at a new sentencing hearing a Level One sentence that required a term of imprisonment of 30 days, the minimum term required by G.S. 20-179(g), upon a defendant initially sentenced to a term of imprisonment of 15 days for a Level One DWI.
I’d love to hear from readers in the know about whether G.S. 20-38.7 is applied to implied consent offenses generally and whether Pearce-based arguments are being made in district court to prevent harsher sentences based upon factors other than subsequent convictions.