Organizations around the country have called for bail reform. Here at home, a report by the North Carolina Commission on the Administration of Law and Justice recommended that North Carolina move forward with pretrial justice reform. A recent Fifth Circuit case holding that the bail system in Harris County, Texas violates due process and equal protection may create an impetus for jurisdictions to act: Litigation risk. Continue reading
Tag Archives: bond
This question in the title of this post came up in a recent class. The specific context involved a domestic violence defendant who was in jail waiting for a judge to set conditions of release pursuant to the 48 hour rule established in G.S. 15A-534.1. But a similar issue arises whenever a magistrate sets conditions of release for a defendant who is unable to make bond and so remains in pretrial detention. An example of a common condition is that the defendant not contact the alleged victim. Continue reading →
The decision, handed down April 28, 2017, comes out of Harris County, home to Houston, Texas. If you decide to read the opinion, ODonnell v. Harris County, be prepared to spend some time with it. The opinion is 193 pages long, and one reading may not be enough. Readers will see similarities and differences between the bail practices in Harris County and North Carolina. This post doesn’t undertake to compare the two and instead does a not-so-brief review of the findings, conclusions, and relief ordered by the judge, Chief District Court Judge Lee H. Rosenthal (if you’re wondering, appointed by President George H.W. Bush in 1992). The bottom line is that the decision enjoins Harris County from “detaining indigent misdemeanor defendants who are otherwise eligible for release but are unable because of their poverty to pay a secured money bail.” Slip op. at 181. Continue reading →
In the 2015 legislative session, the General Assembly made two significant changes to the pretrial release statutes: (1) it effectively repealed a “bond doubling” provision for defendants rearrested while on pretrial release, and (2) it expanded the scope of the 48-hour rule for domestic violence cases to include dating couples. Continue reading →
Same sex marriage has been permitted in North Carolina for a couple of weeks. Shea blogged here about one potential criminal law implication: the possibility, discussed in a memorandum from the Administrative Office of the Courts, that magistrates could be charged criminally for refusing to marry same-sex couples. As noted in this recent news article, a number of magistrates have resigned as a result. But the issue I’ve been asked most about is how same-sex marriage relates to our domestic violence laws.
Last session, the General Assembly added a new subsection to the principal pretrial release statute, G.S. 15A-534. The new provision took effect on December 1, 2013, and has proven to be extremely frustrating to magistrates. It also raises some legal issues. The provision states:
When conditions of pretrial release are being determined for a defendant who is charged with an offense and the defendant is currently on pretrial release for a prior offense, the judicial official shall require the execution of a secured appearance bond in an amount at least double the amount of the most recent previous secured or unsecured bond for the charges or, if no bond has yet been required for the charges, in the amount of at least one thousand dollars ($1,000).
Purpose of the provision. The apparent purpose of the provision is to address the problem of defendants who commit new crimes while on pretrial release. Another section of the same bill authorizes the denial of release for defendants who, while on pretrial release for a firearms offense, are charged with a new firearms offense. S.L. 2013-298 (adding new G.S. 15A-533(f)). There’s an intuitive appeal to the idea that if the original release conditions weren’t enough to prevent the defendant from engaging in criminal activity, then more stringent conditions should be imposed.
Determining the “amount of the most recent . . . bond.” A practical problem with the new rule is that it may be difficult for a magistrate to determine what the defendant’s “most recent . . . bond” is. Imagine that Dan Defendant was arrested previously and charged with common law robbery. A $50,000 secured bond was imposed by the magistrate in that case. The release order reflecting that bond is stored in NCAWARE, and the bond amount may also be entered in ACIS and reflected in CJLEADS. (Each of these acronyms represents a criminal justice-related computer system to which magistrates have access.) If Dan is arrested today and charged with possession of cocaine, does the statute require a $100,000 secured bond? Not necessarily, because Dan’s bond on the robbery charge may have been reduced by a judge at a bond hearing, and the statute requires a bond of at least twice the “most recent . . . bond.” The problem is that the practice across the state is inconsistent regarding entering bond reductions into the various computer systems. Some districts update the computers and some don’t, meaning that a magistrate can’t always determine Dan’s most recent bond by checking the computers.
As the AOC notes in this memo, magistrates may be able to address this problem during business hours by calling the clerk’s office to confirm the most recent bond, but that won’t work when Dan is arrested at 2 a.m. Even during the workday, it may be difficult to get a timely response from the clerk’s office on an inquiry of this nature. Another option may be to contact the jail in the county in which Dan was charged with robbery as the jail may have updated release information. But in some cases, a magistrate will be unable to access any information beyond what the computer systems contain. Based on several recent conversations with magistrates, my impression is that some magistrates will impose twice what is reflected in the computer system while others will determine that they have insufficient information with which to apply the new rule and so will set release conditions without regard to the statute. I can’t criticize either approach.
It’s worth noting that this problem becomes even more severe when the defendant has multiple pending charges in multiple districts. Only the “most recent” bond is relevant under the new statute, but it may be difficult to determine which case file contains the most recent release order.
Eighth Amendment concerns. In some instances, the new statute requires a secured bond far beyond what a magistrate would normally impose. Suppose that Donna Defendant is arrested for, and charged with, trafficking in cocaine. With the assistance of a bondsman, Donna posts a $100,000 secured bond. She stays out of trouble and shows up for court. Three months later, Donna gets in a shoving match with her cousin in a parking lot outside a bar and is arrested for misdemeanor simple affray. The magistrate normally would release Donna on a written promise to appear or perhaps a small unsecured bond. But the new statute requires the magistrate to impose a $200,000 secured bond for the affray. Does this run afoul of the Eighth Amendment’s prohibition on excessive bail?
It might. There’s not much case law interpreting the Eighth Amendment, but what there is generally suggests that there should be a relationship between the bond amount and the extent to which the defendant is a flight risk or a danger to the community. Stack v. Boyle, 342 U.S. 1 (1951) (bail is excessive if it exceeds the amount “reasonably calculated” to ensure the defendant’s appearance). Under the circumstances, $200,000 appears to be grossly disproportionate to the state’s interest in the misdemeanor affray charge, and under the Supremacy Clause of the Constitution, the Eighth Amendment trumps any conflicting state statute.
This is an issue about which magistrates may wish to confer with their chief district court judges. The judges may be able to provide more specific guidance about whether and when constitutional concerns warrant departing from the statute. For example, a judge might advise that magistrates disregard the statute when it would call for a bond more than five times higher than the bond recommended in the district’s bond policy. In fact, some guidance on this issue could be incorporated into the bond policy that must be promulgated by the senior resident superior court judge under G.S. 15A-535.
Another practical solution is to ensure that defendants who receive unusually high bonds as a result of the statute appear before a judge quickly. In some districts, misdemeanor defendants do not automatically receive a first appearance in district court in the day or two after arrest – their cases are simply set for the arresting officer’s next court date. But when a magistrate imposes an exceptionally high bond under the doubling statute, it may make sense to set the defendant’s case for the next session of district court so that a judge can review and adjust the bond. The new statute may not apply beyond the original determination of bond by a magistrate, but even if it does, the judge will be able to address any constitutional concerns raised by the bond.
Future of the statute. I have been asked several times whether the General Assembly will revise the statute in light of the difficulties it has created. I don’t know. I have heard some speculation that the statute could be revised so that it would apply only when the previous charge and the current charge involve similar offenses. If that happens, it would likely alleviate the constitutional problem but would not solve the practical difficulty magistrates face in trying to determine the most recent bond imposed on the defendant. If the statute remains in place, the court system may need to alter its record-keeping practices to ensure that current bond amounts are reflected in a computer system to which magistrates have access.
As a general rule, and subject to local bond policy, the law gives judicial officials a great deal of discretion to determine the appropriate conditions of pretrial release. In some situations, however, the law limits that discretion. In my first post in this series I discussed situations where a defendant is not entitled to conditions. This post discusses situations where a defendant is entitled to conditions but the judicial official’s discretion as to when and what conditions may be imposed is limited in some way.
- Probationers. As discussed in my first post, special pretrial release provisions apply when a probationer is arrested for violating probation and either has a pending felony charge or has been convicted of an offense that requires registration under the sex offender registration statutes or that would have required registration but for the effective date of the registration program. In certain circumstances, such a defendant is not entitled to release; in other circumstances such a defendant must be held for a period pending receipt of relevant information. Also, G.S. 15A-534(d2) provides that when conditions of pretrial release are being determined for a defendant who is charged with a felony while on probation for an earlier offense, the judicial official must determine whether the defendant poses a danger to the public before imposing conditions of pretrial release. If the defendant does not pose such a danger, he or she is entitled to release as in all cases. Id. If the defendant poses such a danger, the judicial official must impose a secured bond or a secured bond with electronic house arrest. Id.
- Forty-Eight-Hour Rule Domestic Violence Cases. In certain domestic violence cases, only a judge can determine the conditions of pretrial release in the first forty-eight hours after arrest. G.S. 15A-534.1(a), (b). If a judge does not act within forty-eight hours, conditions must be set by a magistrate. G.S. 15A-534.1(b). This rule is known as the “Forty-Eight-Hour Rule.” A chart listing the offenses covered by the rule is available here. When conditions are set by a judge within the forty-eight hour period or by a magistrate after expiration of that period, the magistrate or judge must obtain and consider the defendant’s criminal history when setting conditions. Upon a determination that the defendant’s immediate release will pose a danger of injury to the alleged victim or another person or is likely to result in intimidation of the alleged victim and that the execution of an appearance bond will not reasonably assure that such injury or intimidation will not occur, a judicial official may retain the defendant in custody for a reasonable period of time while determining conditions of pretrial release. G.S. 15A-534.1(a)(1). Finally, G.S. 15A-534.1(a)(2) sets out special restrictions that may be imposed on defendants charged with the specified domestic violence crimes.
- Cases Involving Child Victims. G.S. 15A-534.4 sets out conditions that must be imposed on defendants charged with certain sex offenses or crimes of violence against child victims.
- Prior Failures to Appear and Bond Doubling. Special provisions apply when a defendant has been surrendered by a surety after a failure to appear (FTA) or arrested on an order for arrest (OFA) after a FTA. G.S. 15A-534(d1) provides if a defendant has failed to appear one or more times on the charges, the judicial official must, at a minimum, impose the conditions recommended in the OFA. If the OFA does not recommend conditions, the judicial official must set a secured bond of at least double the amount of the most recent bond (regardless of whether it was secured or unsecured). G.S. 15A-534(d1). If no bond was in place, the judicial official must set a secured bond of at least $500.00. Id. The judicial official also must impose restrictions on the defendant’s travel, associations, conduct, or place of abode to ensure that the defendant appears as required. Id.
- Communicable Disease Holds. G.S. 15A-534.3 provides that if the judicial official finds probable cause to believe that a person was exposed to the defendant in a manner that poses a significant risk, through a nonsexual contact, of transmission of the AIDS virus or Hepatitis B, the judicial official must order the defendant detained for a reasonable period, not to exceed twenty-four hours, for investigation by public health officials and testing, if required by those officials.
- Impaired Driving Holds. G.S. 15A-534.2 contains a special detention provision that applies during the initial appearance in impaired driving cases. The procedures for implementing such holds are complicated and I won’t summarize them here. If you’re interested in a detailed discussion, see my publication posted here.
- Infractions. A person charged with an infraction may be required to post a bond to secure his or her appearance in court. G.S. 15A-1113(c). However, three exceptions virtually swallow this rule. First, a North Carolina resident charged with an infraction cannot be required to post bond. Id. Second, a person charged with an infraction cannot be required to post a bond if the person is licensed to drive by a state that is a member of the motor vehicle nonresident violator compact, the charged infraction is subject to the compact, and the person executes a personal recognizance required by the compact. Id. Third, certain individuals charged with infractions subject to the Interstate Wildlife Violator Compact cannot be required to post a bond. G.S. 113-300.6. If none of these exceptions apply, a person charged with an infraction can be required to post a bond. G.S. 15A-1113(c). However, if a judicial official finds that the person is unable to post a secured bond, the judicial official must allow the person to be released by executing an unsecured bond. Id.
- Fugitives. A fugitive charged in another state with an offense punishable by death or life imprisonment has no right to pretrial release. Other such fugitives are entitled to “bail by bond, with sufficient sureties.” G.S. 15A-736. Thus, it appears that no other form of release is authorized for these defendants.
In my first post in this series, I addressed the issue of who is entitled to conditions of pretrial release. In this post, I’ll address who can set conditions and what pretrial release options are available.
Who Sets Conditions
Conditions of pretrial release are set by a judicial official G.S. 15A-532(a). Typically, conditions are set by a magistrate or a district or superior court judge, but the term judicial official also includes clerks and appellate judges and justices. G.S. 15A-101(5). However, there are certain situations when only a specific judicial official is authorized to set conditions. Those situations include:
- Forty-Eight-Hour Rule Cases. As Jeff noted in a previous post here, only a judge can set conditions of release for a defendant charged with certain domestic violence crimes in the first forty-eight hours after arrest.
- Capital Offenses. It is within the discretion of a judge (and only a judge) to decide whether a defendant charged with a capital offense will be released before trial. G.S. 15A-533(c). If a person brought before a magistrate is charged with a capital offense, the magistrate must commit the person to jail for a judge to determine the conditions of release at the first appearance.
- Certain Drug Trafficking Offenses. As noted in my first post in this series, G.S. 15A-533(d) provides a rebuttable presumption of no release for drug trafficking offenders if certain findings are made. If the relevant findings are made, only a district or superior court judge may set pretrial release conditions after finding that there is a reasonable assurance that the defendant will appear and that the release does not pose an unreasonable risk of harm to the community. G.S. 15A-533(e).
- Certain Gang Offenses. As noted in my first post in this series, G.S. 15A-533(e) provides a rebuttable presumption of no release for gang-related offenders if certain findings are made. If the relevant findings are made, only a district or superior court judge may set pretrial release conditions after finding that there is a reasonable assurance that the defendant will appear and that the release does not pose an unreasonable risk of harm to the community. G.S. 15A-533(e).
Pretrial Release Options
G.S. 15A-534 provides that in determining conditions of pretrial release, a judicial official must impose at least one of the following five conditions listed immediately below. Because that statute authorizes imposition of at least one of these conditions, multiple conditions may be imposed.
- Release on written promise to appear. This release involves no money. The defendant simply is released on his or her written promise to appear in court. G.S. 15A-534(a)(1).
- Custody release. A custody release is a release to a designated person who or organization that agrees to supervise the defendant. G.S. 15A-534(a)(3). Like a release on a written promise to appear, no money secures this condition of release. G.S. 15A-534(a) provides that if this condition is imposed, the defendant may elect to execute a secured appearance bond instead.
- Release on unsecured appearance bond. G.S. 15A-534(a)(2). An unsecured bond is one that is backed only by the integrity of the defendant; it is not backed by assets or collateral.
- Release on secured appearance bond. A secured appearance bond is one that is backed by a cash deposit in the full amount of the bond, by a mortgage, or by at least one solvent surety. G.S. 15A-534(a)(4).
- House arrest with electronic monitoring. In this form of pretrial release, the defendant is required to remain at his or her residence unless the court authorizes departure for employment, counseling, a course of study, or vocational training. G.S. 15A-531(5a). The defendant must be required to wear a device which permits the supervising agency to electronically monitor compliance with the condition. Id. If this condition is imposed, the judicial official also must impose a secured appearance bond. G.S. 15A-534(a).
Effective February 1, 2011, see S.L. 2010-94, G.S. 15A-534 provides that if a defendant is required to provide fingerprints pursuant to G.S. 15A‑502(a1) or (a2), or a DNA sample pursuant to new G.S. 15A‑266.3A or revised G.S. 15A‑266.4, and (i) the fingerprints or DNA sample have not yet been taken or (ii) the defendant has refused to provide the fingerprints or DNA sample, the judicial official must make the collection of the fingerprints or DNA sample a condition of pretrial release.
Effective December 1, 2011, and applying to offenses committed on or after that date, S.L. 2011-191 added a new subsection to G.S. 15A-534 providing that in addition to any other condition of pretrial release, a judicial official may order a defendant (i) charged with an offense involving impaired driving (as defined by G.S. 20‑4.01(24a)), and (ii) having a prior conviction for an offense involving impaired driving that occurred within seven years before the date of the offense for which the defendant is being placed on pretrial release to abstain from alcohol consumption as verified by an approved continuous alcohol monitoring system for the period of pretrial release or until the condition is removed.
In addition to the forms of release specified above, G.S. 15A-535(b) provides that in any county in which there is a pretrial release program, the senior resident superior court judge may, after consultation with the chief district court judge, order that defendants accepted by such programs for supervision must, with their consent, be released by judicial officials to supervision of such programs, and subject to their rules and regulations, as an alternative to release on a written promise, unsecured bond, or a custody release.
Pretrial release didn’t used to be complicated. But over the last 10 years or so that’s changed, with the addition of exceptions and special procedures. In a series of posts, I’ll address some key issues about pretrial release. This post focuses on the basic question: Who gets conditions of pretrial release?
As a general rule, all criminal defendants are entitled to conditions of pretrial release. However, there are a number of exceptions to this general rule including:
- Certain Fugitives. A fugitive defendant charged in another state with an offense punishable by death or life imprisonment under the laws of that state has no right to pretrial release. G.S. 15A-736. Also, a fugitive arrested on a Governor’s Warrant has no right to pretrial release. State of North Carolina Extradition Manual 22, 26, 29, 41 (Robert L. Farb, ed., 2d ed. 1987). These defendants should be committed to jail without conditions of release. The Governor’s Extradition Secretary takes the position that defendants who have waived extradition should be treated similarly.
- Involuntarily Committed Defendants. There is no right to pretrial release for a defendant who is alleged to have committed a crime while involuntarily committed or while an escapee from commitment. G.S. 15A-533(a). Such a defendant should be returned to the treatment facility where he or she was residing at the time of the alleged crime or from which he or she escaped. Id.
- Violators of Health Control Measures. G.S. 15A-534.5 provides that if a judicial official conducting an initial appearance finds, by clear and convincing evidence, that a person arrested for violating an order limiting freedom of movement or access issued pursuant to G.S. 130A-475 (incident involving nuclear, biological, or chemical agents) or G.S. 130A-145 (quarantine and isolation authority) poses a threat to the health and safety of others, the judicial official must deny pretrial release.
- Methamphetamine Offenses. G.S. 15A-534.6 authorizes judicial officials to deny pretrial release for specified methamphetamine offenses under certain conditions.
- Drug Trafficking Offenses. G.S. 15A-533(d) provides that it is presumed (subject to rebuttal) that there is no condition of release that will reasonably assure the appearance of the defendant as required and the safety of the community if a judicial official finds certain facts.
- Gang Offenses. G.S. 15A-533(e) provides that it is presumed (subject to rebuttal) that no condition of release will reasonably assure the appearance of the person as required and the safety of the community, if a judicial official finds certain facts.
- Military Deserters. A military deserter is not entitled to conditions of pretrial release. 10 U.S.C. 808.
- Parole or Post-Release Supervision Violators. A person taken into custody for a violation of parole or post-release supervision under structured sentencing is not subject to the provisions on pretrial release. G.S. 15A-1368.6 (post-release supervision); G.S. 15A-1376 (parole).
- Probation Violators with Pending Felony Charges or Convictions Requiring Sex Offender Registration. As a general rule, when a defendant has been convicted in North Carolina, put on probation, and later arrested for a probation violation that occurs in North Carolina, he or she is entitled to conditions of release. G.S. 15A-1345(b). There are two exceptions to this general rule. G.S. 15A-1345(b1) provides that if a probationer is arrested for violating probation and either (1) has a pending felony charge or (2) has been convicted of an offense that requires registration under the sex offender registration statutes or that would have required registration but for the effective date of the registration program, the judicial official must determine whether the probationer poses a danger to the public before imposing conditions of release and must record that determination in writing. If the judicial official determines that the probationer poses such a danger, the judicial official must deny the probationer release pending the revocation hearing. If the judicial official finds that the defendant does not pose such a danger, the judicial official determines conditions as usual. If there is insufficient information to determine whether the defendant poses such a danger, then the judicial official must detain the defendant in custody for no more than seven days from the date of the arrest to obtain sufficient information to make that determination. G.S. 15A-1345(b1)(3).
- Out-of-State Probation Violators Covered by the Interstate Compact. The general rule that probation violators are entitled to conditions of release does not apply to defendants who are arrested on out-of-state warrants for probation violations when the state that imposed the probation and is now seeking to violate the defendant has a supervision agreement in place with the State of North Carolina pursuant to the Interstate Compact for Adult Offender Supervision. G.S. Chapter 148, Article 4B. Unlike other out-of-state offenders, out-of-state probation violators covered by Interstate Compact supervision agreements are not dealt with through extradition; rather, the Interstate Compact statutes and rules govern. One of those statutes provides that such a defendant may be detained for up to fifteen days and is not entitled to bail pending the required hearing. G.S. 148-65.8(a).
- Capital Offenses. A person charged with a capital offense is not entitled to conditions of pretrial release. Rather, the decision whether to set conditions for such a defendant is left to a judge’s discretion. G.S. 15A-533(c).
I Want a New Trial! Now What? A District Court Judge’s Authority to Act Following Entry of Notice of Appeal for Trial De Novo (Part II)
Recall from yesterday’s post that we are considering the following scenario:
Jay Jones is charged with possession of drug paraphernalia and given an unsecured bond of $1,000. He is convicted following a bench trial in district court. Noting that Jones is a prior conviction level III and has previously violated probation, the judge imposes an active sentence of 120 days. Jones enters notice of appeal in open court because he wants a jury trial. What may the district court judge properly say at this point?
(1) Bailiff, he’s in your custody to begin serving his active sentence unless and until a different result is reached in superior court.
(2) Mr. Jones, it is your right to appeal. However, I am securing and doubling your bond pending your trial in superior court. Bailiff, he’s in your custody.
(3) Mr. Jones, you are free to leave after the DA notifies you of your court date for superior court. The current bond remains in effect and this court has no power to do anything further in this matter.
Yesterday’s post addressed statement (1). Now, let’s consider the others.
Statements (2) and (3). The issue here is whether the district court judge retains jurisdiction to modify conditions of pretrial release after the defendant has entered notice of appeal. The statutes are not clear on this point. G.S. 15A-534(e)(1) states that a district court judge may modify a pretrial release order at any time prior to the noting of an appeal. This provision suggests that as soon as the defendant utters the words “I appeal” or files notice with the clerk, the district court is divested of jurisdiction to modify conditions of pretrial release.
Other statutes refer to the judge’s authority to modify bond pending appeal. See G.S. 7A-290 (“[t]he original bail shall stand pending appeal, unless the judge orders bail denied, increased, or reduced”); G.S. 15A-1431(e) (“[a]ny order of pretrial release remains in effect pending appeal by the defendant unless the judge modifies the order”); G.S. 15A-1431(f1) (“the judge may order any appropriate condition of pretrial release, including confinement in a local confinement facility, pending the trial de novo in superior court”). The fundamental question is: which judge is “the judge” for purposes of these statutes?
According to the Prosecutor’s Manual, “The enactment of G.S. 15A-1431(f1) cleared up any inconsistency between G.S. 15A-1431(e) and G.S. 15A-534(e) by giving a district court judge the authority to modify the defendant’s conditions of pretrial release after the defendant has given notice of appeal for trial de novo, up to the ten days after the judge entered judgment in district court.” North Carolina Prosecutor’s Trial Manual at 337 (January 2007). The “ten days” in the quoted passage refers to G.S. 15A-1431(c) and G.S. 7A-290, which provide that in cases appealed for a trial de novo the clerk of court transfers the case to superior court ten days after the district court’s judgment if the appeal has not been withdrawn. Prosecutors may argue that during these ten days, the case is not a CRS—it is not in the superior court division; thus, the district court judge is the appropriate judge to modify conditions under G.S. 15A-539(a). Under this theory, a case is not “before the superior court” for purposes of G.S. 15A-534(e), until it has been calendared there. The position that the district court judge retains jurisdiction to modify conditions pending appeal is consistent with the way bond is handled in appeals from superior court to the appellate division. See G.S. 15A-536; G.S. 15A-1453. However, this argument may not carry much weight because appeals to the superior court and appeals to the appellate division “are distinct and are designed to protect different interests and achieve different ends.” State v. Smith, 359 N.C. 618, 621 (2005). When a case is being appealed to the appellate division, there is an incentive to leave jurisdiction with the trial court so that a local judge can hear the matter; this incentive is lacking when a case is being appealed from the district court to the superior court.
Defense attorneys with whom I work do not agree that the language of G.S. 15A-1431(f1) resolves a discrepancy in the statutes. The way they see it, the language of G.S. 15A-534(e)(1) unequivocally deprives the district court of authority to act following notice of appeal. Rules of statutory construction require that G.S. 15A-1431 be read in conformity with the clearly enunciated rule of G.S. 15A-534(e)(1); statutes in pari materia must be interpreted in light of each other with the more specific statute informing the more general one. The language in G.S. 15A-534(e), which refers to “a superior court judge” as the person who may modify bond following entry of notice of appeal is more specific than “the judge” referenced in G.S. 7A-290, and G.S. 15A-1431(e),(f1). Thus, they argue, “the judge” of G.S. 7A-290, and G.S. 15A-1431(e),(f1) is in fact the superior court judge; the district court judge, who is never explicitly mentioned, has no jurisdiction to modify pretrial release conditions once notice of appeal has been entered. The enactment of G.S. 15A-1431(f1) in August of 2005, I have heard it argued, merely served to clarify what portions of the district court sentence were stayed by an appeal in the wake of the Court of Appeals’ opinion in State v. Smith, 165 N.C. App. 256 (2004), reversed, 359 N.C. 618 (2005) (holding that while prior G.S. 15A-1431(f) failed to state that probation was stayed pending appeal, logic required this reading because a defendant remains on pretrial release pending appeal and may not simultaneously be on pretrial release and on probation for the same offense).
In sum, it is not crystal clear that the district court judge has authority to modify pretrial release conditions following entry of notice of appeal in light of the language to the contrary in G.S. 15A-534(e). If G.S. 7A-290 and G.S. 1431 do give a district court judge such authority, it appears that the outside time limit for the judge to act would be ten days after judgment in light of the case transfer provisions in G.S 7A-290 and G.S. 15A-1431(c). Some defenders have adopted a practice of filing written notice of appeal with the clerk on the afternoon of the tenth day after judgment, so that there is no chance for the judge who heard the evidence to penalize the defendant for appealing by setting a high appeal bond.
As a final matter, returning to statement (2), increasing a defendant’s bond upon appeal for a trial de novo raises potential constitutional problems. Suppose the judge had more pointedly said, “Mr. Jones, you are not going to get out of the sentence I imposed by appealing. If you want to appeal, I will secure and double your bond.” Assuming that a district court judge is authorized to modify conditions of pretrial release after notice of appeal and before expiration of the ten-day period following judgment, it is unconstitutional for the judge to use that authority to penalize the defendant for appealing. See generally North Carolina v. Pearce, 395 U.S. 711 (1969) (due process prohibits judge from increasing sentence on retrial to discourage appeal); see also In re Renfer, 345 N.C. 632 (1997) (Judicial Standards Commission recommended removal of district court judge from office for, among other things, improperly raising defendant’s bond in response to appeal).
Thanks to Troy Page, Associate Legal Counsel for the NC Administrative Office of the Courts, for his input on these posts. The conclusions are my own.