When a defendant is sentenced for both state and federal crimes, things can get complicated. There are a few traps for the unwary, even when everyone (prosecutor, defendant, and judge) agrees on how the sentences will be served relative to one another. Continue reading
Tag Archives: concurrent
Under G.S. 15A-1346(a), a “period of probation commences on the day it is imposed and runs concurrently with any other period of probation, parole, or imprisonment to which the defendant is subject during that period.” Under that rule, periods of probation may not be stacked. In State v. Canady, 153 N.C. App. 455 (2002), for example, a defendant was convicted of four counts of indecent liberties with a child. The trial court consolidated two of the offenses for judgment and sentenced the defendant to (1) a 16–20 month active sentence; (2) a 20–24 month sentence, suspended for 60 months; and (3) a 20–24 month sentence, suspended for 60 months, with that probation term to run consecutively to the first one. The defendant argued that it was error for the court to boxcar the probation periods. The court of appeals agreed and remanded the case for resentencing. Id. at 460 (“[U]nder the plain terms of G.S. 15A-1346, a trial court is prohibited from imposing a sentence of two consecutive probation periods of five years each.”).
That does not, of course, mean that suspended sentences may not be set up to run consecutively in the event of revocation. They certainly may. In State v. Howell, 169 N.C. App. 58 (2005), the defendant mistakenly believed the court erred by ordering six consecutive 6–8 month terms of imprisonment, all suspended for 60 months. The court of appeals upheld the sentence, noting that “[c]onsecutive probationary sentences would indeed violate G.S. 15A-1346 . . . [but] the defendant here did not receive consecutive probationary sentences.” Rather, he was placed on probation for 60 months total, with the suspended sentences to run consecutively if activated. (Recall that the judge who revokes probation has authority to tinker with the sentencing judge’s decision as to whether activated sentences would run consecutively or concurrently. I wrote about that here.) The court indicates its consecutive/concurrent decision by checking the box about halfway down the first page of a probationary judgment that says:
□ This sentence shall run at the expiration of sentence imposed in file number ___________________.
So, periods of probation may not run consecutively to one another. A court may, however, order a period of probation to run consecutively to a term of imprisonment. G.S. 15A-1346(b). The Division of Community Corrections calls such arrangements “contingent” cases. It strikes me as a handy sentencing tool—a sort of jury-rigged split sentence or post-release supervision that could, among other things, facilitate a defendant’s transition from DOC back into the community. The court orders a contingent probationary period by checking box 3 in the “Suspension of Sentence” block on a probationary judgment, which reads:
□ 3. The above period of probation shall begin when the defendant is released from incarceration in the case referred to below.
This may all be obvious up to this point. But consider box 4, right beneath box 3. It gives the judge yet another option. It reads:
□ 4. The above period of probation shall begin at the expiration of the sentence in the case referred to below.
The effect of that option, as far as I can tell, would be to delay the beginning of the contingent probation case until any term of imprisonment plus any period of supervised release that might follow that imprisonment. An extreme example—based on an actual question I was once asked—would be a defendant sentenced to prison for a Class B1 – E sex crime, with a contingent probation case to follow. If the court checked box 3, the period of probation would begin immediately upon the defendant’s release from prison. If the court checked box 4, it seems that the period of probation wouldn’t begin until the “expiration” of the first sentence, which would include five years of post-release supervision under G.S. 15A-1368.2(c).
I’m not sure that’s permissible. G.S. 15A-1346(b) only allows periods of probation to be run consecutively to a “term of imprisonment.” It never mentions the “expiration of the sentence.” Moreover, G.S. 15A-1368.5 provides that a period of post-release supervision must “run concurrently with any federal or State prison, jail, probation, or parole terms to which the prisoner is subject during the period,” unless the jurisdiction that imposed the first sentence does not allow concurrent crediting of supervised time. North Carolina certainly permits concurrent crediting of supervision time—the first clause of that same sentence and G.S. 15A-1346 require it. With that in mind, I think a “box 4” contingent sentence may only be appropriate if the first sentence comes from a jurisdiction that does not allow any overlap between sentences at all. If you think otherwise, let me know.
Under G.S. 14-7.6, when a defendant is sentenced as a habitual felon, his sentence “shall run consecutively with and shall commence at the expiration of any sentence being served” by the defendant. This language sometimes leads lawyers and judges to think that when a defendant is sentenced as a habitual felon for more than one offense, the sentences for each offense must run consecutively. That’s not right, as a recent court of appeals case helps illustrate.
The reason it isn’t right is that the consecutive sentencing mandate applies only to a “sentence being served” by the defendant. So if a defendant is already serving a sentence for a drug offense, then commits a felonious assault while in prison, and is ultimately convicted of the assault and sentenced as a habitual felon, his sentence for the assault must run consecutively with his sentence for the drug offense. The sentence for the drug offense is a “sentence being served” at the time the defendant is sentenced as a habitual felon for the assault.
By contrast, consider a defendant who isn’t already serving a sentence, but who is charged with, and convicted as a habitual felon of, three counts of obtaining property by false pretenses. The judge may impose concurrent sentences, because none of the sentences are “being served” yet. I suppose one could try to argue that as soon as the first one is imposed, it is “being served,” but that argument’s awfully technical, and similar statutory language in other contexts has been read to allow concurrent sentencing. See, e.g., State v. Walston, 193 N.C. App. 134 (2008) (drug trafficking statute); State v. Thomas, 85 N.C. App. 319 (1987) (former armed robbery statute).
Based on the reasoning and cases above, I stated in my Administration of Justice Bulletin on the habitual felon laws that “a habitual felon sentence may run concurrent with other sentences imposed at the same time, including other habitual felon sentences.” (Page 19 n.16.)
This conclusion was bolstered by the court of appeals this week, when it decided a closely related issue in State v. Haymond. The judge in that case imposed ten consecutive sentences on the defendant, a habitual felon. In the course of holding that the sentence appeared to have been imposed in part to punish the defendant for exercising his right to a jury trial — an aspect of the case about which my colleague Jamie Markham or I may write later — the court made the point that the judge could have imposed a less severe sentence. Specifically, the court held that the judge could have consolidated the ten convictions and imposed a single sentence. It may not quite follow automatically that the judge could have imposed concurrent sentences, but it doesn’t take much of a leap. If this issue wasn’t settled before — and I thought it was — it surely is now.
Under G.S. 15A-1344(d), a “sentence activated upon revocation of probation commences on the day probation is revoked and runs concurrently with any other period of probation, parole, or imprisonment to which the defendant is subject during that period unless the revoking judge specifies that it is to run consecutively with the other period.”
In State v. Paige, 90 N.C. App. 142 (1988), the court of appeals addressed the last clause of that section. The case involved a defendant who was convicted of crime #1 in November of 1986 and given a 1-year sentence, suspended. He was then convicted of crime #2 in January of 1987 and given a 5-year sentence, again suspended. A few months later he violated his probation. At the revocation hearing the judge activated both sentences, ordering the 5-year sentence to begin at the expiration of the 1-year sentence. The defendant argued that the revoking judge could not run these sentences consecutively, but the court of appeals disagreed, pointing to the italicized language above.
The court reaffirmed and extended this rule last year in State v. Hanner, 188 N.C. App. 137 (2008). In that case the defendant pled guilty to 16 crimes which were consolidated (pursuant to a plea agreement) into eight judgments with eight 8-10 month sentences, all suspended. Three of the eight sentences were set by the original sentencing judge to run concurrently in the event of revocation. Nevertheless, when Mr. Hanner was found to have violated his probation, the revoking judge set all of the sentences to run consecutively. Citing to Paige, the court of appeals said this was permissible under G.S. 15A-1344(d).
The rule that emerges from Paige and Hanner is that a revoking judge can change the concurrent/consecutive decision made by the original sentencing judge – even when the original concurrent sentences were entered in the same session of court, and even (apparently) when they were entered pursuant to a plea. As to that last point, the original sentence in Hanner was entered pursuant to a plea, but it appears in the procedural history of the case that the original sentencing court ran certain sentences concurrently even though the defendant had actually agreed that they would run consecutively. In that regard Hanner is not a good case to test whether G.S. 15A-1344 is trumped by a contract theory of plea negotiation – the revoking judge really didn’t do anything the defendant hadn’t agreed to.
Suppose the original plea had explicitly been conditioned on concurrent sentences? Could a revoking judge still decide to run the sentences consecutively? Or would the defendant be entitled to the benefit of his or her bargain? I’m interested to hear your thoughts about that.
Just because judges are empowered to do this does not mean they will. As a matter of comity, I imagine many judges are hesitant to tinker with their colleagues’ sentences, absent a good reason for doing so. In any event, judges (and everyone else) should be aware that silence at revocation does not necessarily mean the activated sentence will run as originally entered. To the contrary, under the command in G.S. 15A-1344(d) that an activated sentence runs concurrently unless the revoking judge specifies that it is to run consecutively, DOC will interpret silence at revocation to mean concurrent, even if the original judgment said consecutive. So, if you want to keep consecutive sentences consecutive upon revocation, be sure to fill in the appropriate boxes at the bottom of the first page of the AOC form.
A number of people have asked me whether the United States Supreme Court’s recent opinion in Oregon v. Ice (07-901) has any impact on North Carolina sentencing law. The short answer is, No. In Ice, the latest chapter in the Blakely v. Washington, 542 U.S. 296 (2004), saga, a 5–4 majority of the Justices held that a judge may impose consecutive sentences based on facts neither found by the jury nor admitted by the defendant.
Under Oregon law, multiple sentences are served concurrently unless the judge finds that the offenses were not part of the same course of conduct and resulted in separate harms. Mr. Ice argued that because his sentence could not be increased without that finding, it ought, under Blakely, to be found by a jury beyond a reasonable doubt. [Recall Blakely’s holding: As a matter of the Sixth Amendment right to jury trial, any fact—other than a prior conviction—that increases the maximum punishment to which a defendant may be sentenced must be admitted by the defendant or proved beyond a reasonable doubt to a jury.] Justice Ginsburg’s majority opinion disagreed, holding that as a matter of historical jury practice and respect for state sovereignty, the Blakely rule applies only to sentences for discrete crimes, not the decision to run sentences concurrently or consecutively. Justice Scalia wrote for the dissenters, arguing that the Court’s decision makes for a “strange exception” to the Blakely rule when you consider that the consecutive/concurrent decision is often the one with the greatest impact on how long a defendant will actually be in prison.
As for North Carolina, aside from the relatively few statutes that require consecutive (e.g., habitual felon sentences) or concurrent (e.g., when all crimes are Class 3 misdemeanors) sentences, a judge’s discretion to run sentences consecutively or concurrently is complete, and need not be supported by any finding whatsoever. So, even if the Supreme Court had ruled for the defendant in Ice, the decision wouldn’t have required a change in our law.