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: consecutive
Contingent Probation Cases
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.
The Single Sentence Rule
When an inmate is convicted of multiple crimes and given consecutive active sentences, does the order in which the judge stacks them matter? A number of people have told me they spend considerable time thinking about the way consecutive sentences are ordered, based on a concern that the order affects the way the Department of Correction will calculate sentence reduction credits (for example, that DOC would only apply credit to the last sentence in a string).
Under G.S. 15A-1354(b), when a defendant is sentenced to consecutive terms of imprisonment, DOC must “treat the defendant as though he has been committed for a single term.” The minimum of that single term is simply the sum of all the minimum terms of the consecutive sentences. The corresponding maximum is the sum of all the maximum terms, less nine months for each of the second and subsequent sentences imposed for Class B1 through Class E felonies. That subtraction avoids overextending the maximum based on duplicative post-release supervision periods, which are built into the table of maximum sentences set out in G.S. 15A-1340.17(e)—an inmate serves only one period of post-release supervision, even if convicted of multiple serious felonies.
So, for example, if a person receives two Class F felony convictions of 13–16 months and they are run consecutively, DOC will total the minimums (13 + 13 = 26), total the maximums (16 + 16 = 32), and treat the defendant as though he or she received a single 26–32 month sentence. Depending on his or her disciplinary record, job, and program activity in prison, the defendant will have the opportunity to reduce the sentence from 32 months down to the 26-month minimum through Earned Time and Meritorious Time, described in DOC’s sentence reduction credit policy.
To provide a slightly more complicated example, suppose a person is convicted of multiple felonies and sentenced as follows: two Class C felonies (58–79 months each), a Class D felony (51–71 months), and a Class H felony (5–6 months)—all set to run consecutively. DOC will total the minimums (58 + 58 + 51 + 5 = 172), total the maximums (79 + 79 + 71 + 6 = 235), subtract 9 months each for the second and third Class B1–E felonies (235 – 9 – 9 = 217), and treat the defendant as though he or she has a single 172–217 month sentence. Again, the inmate will have the opportunity to work the sentence down from the maximum to the minimum through Earned and Meritorious time. And this defendant will be released nine months before reaching his or her maximum sentence (less any Earned Time) to serve a single 9-month period of post-release (unless any of the crimes require sex offender registration, in which case the post-release supervision period would be 5 years under G.S. 15A-1368.2(c)).
In both examples, because DOC will treat the aggregate sentence under the single-sentence rule (or, as one person at DOC Combined Records described it to me, a “one sentence theory”), the order in which the judgments are stacked doesn’t matter. The inmate will have a chance to earn credit up to the difference between the aggregate maximum and the aggregate minimum, not just the difference between the maximum and minimum of the last boxcar in the train.
Concurrent Sentencing of Habitual Felons
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.
Improper Periods of Probation
I haven’t done any sort of official tally, but I think the most common sentencing error in North Carolina might be sentencing the defendant to an improper period of probation. It came up again this week in State v. Wheeler, so I thought I’d take the opportunity to write about it.
The basic rule is in G.S. 15A-1343.2(d): “Unless the court makes specific findings that longer or shorter periods of probation are necessary, the length of the original period of probation for offenders sentenced under [Structured Sentencing] shall be as follows:
(1) For misdemeanants sentenced to community punishment, not less than six nor more than 18 months;
(2) For misdemeanants sentenced to intermediate punishment, not less than 12 nor more than 24 months;
(3) For felons sentenced to community punishment, not less than 12 nor more than 30 months; and
(4) For felons sentenced to intermediate punishment, not less than 18 nor more than 36 months.
With the appropriate findings, the court can order probation for up to five years. The suspended sentence judgment forms (AOC-CR-603, for example) include a check-box in the “Suspension of Sentence” block for the judge to record the finding.
In Wheeler, the defendant was placed on probation for 24 months for a community-sentenced misdemeanor, with no judicial finding that a period longer than 18 months was necessary. The court thus remanded the case for findings pursuant to G.S. 15A-1343.2—as it did in State v. Lamond, __ N.C. App. __ (2009), State v. Branch, __ N.C. App. __ (2008), and State v. Cousart, 182 N.C. App. 150 (2007), just to name a few.
If the defendant catches the error right away and appeals, it’s a relatively easy fix: the appellate court will probably reverse the sentence and remand it to the trial court, which can either make a finding that a longer period is necessary or sentence the defendant to a probationary period within the statutory defaults. (That’s what happened in all the cases I cited above, but I don’t think it’s a given that the appellate court will always remand for findings. In other circumstances where a record lacked sufficient evidence to support requisite factual findings, the appellate division has chosen to “conserve judicial resources” by not remanding the case. See, e.g., State v. Bryant, 361 N.C. 100 (2006).) But what happens when the error isn’t discovered until the defendant has already violated probation? And what if the violation occurred after a proper period of probation would have expired?
I don’t see a published case answering that question, but an unpublished case, State v. Lindsay, 645 S.E.2d 229 (2007), provides some guidance. In Lindsay, the defendant was sentenced to 60 months of probation, even though 30 months was the default statutory maximum for her community-sentenced felony. In month 33, her probation officer filed a violation report, and her probation was revoked. The defendant argued on appeal that the revoking court had been without jurisdiction to hear her case because the original sentencing judge failed to make a finding that a period longer than 30 months was necessary, and the violation report was filed after the expiration of the maximum term allowable without a finding.
The court of appeals disagreed, saying the defendant could not collaterally attack her original sentence through the appeal of her probation revocation. Her proper recourse, the court said, would have been to appeal the sentence within 14 days of the original judgment or to petition for writ of certiorari. Another possibility, I think, would be for the defendant to file a motion for appropriate relief under G.S. 15A-1415(b)(8) arguing that the sentence was unauthorized—that’s a ground for an MAR that may be raised at any time. Whatever the procedure, I think it’s clear that the court of appeals was not willing in Lindsay to condone a sort of probationer self-help; she could not simply “abscond probation after thirty months had passed, rather than pursue relief from the improper sixty-month term through proper legal channels.” 645 S.E.2d at *2. Above all else, the Lindsay case demonstrates how messy the downstream effects of an improper period of probation can be.
One additional note about the Wheeler case: as a helpful commenter pointed out, the court of appeals apparently shares my belief, discussed here, that the limits on consecutive sentences for misdemeanors apply with equal force to suspended sentences. In Wheeler, the defendant was sentenced to consecutive terms for three misdemeanors: assault inflicting serious injury, false imprisonment, and a false fire alarm. All the sentences, which totaled 165 days, were suspended. (The court of appeals actually wrote that “the trial court suspended the sentences and placed Defendant on probation for a total of 165 days,” but that must be a typo. As discussed above, Wheeler’s court-ordered period of probation was 24 months.) The Class A1 assault was the most serious offense, punishable by up to 75 days for this Level II offender. Applying the rule from G.S. 15A-1340.22(a) that the cumulative length of the sentences of imprisonment may not exceed twice the maximum sentence authorized for the class and prior conviction level of the most serious offense, the court of appeals said the trial court could only impose consecutive sentences totaling 150 days—even though they were suspended.
Consecutive Sentences for Misdemeanors
A while ago, Alyson Grine and I wrote a post about consecutive sentences for misdemeanors. In it, we discussed the rule that when a court elects to impose consecutive sentences for two or more misdemeanors, the cumulative length of the sentences of imprisonment may not exceed twice the maximum sentence authorized for the class and prior conviction level of the most serious offense. If all the convictions are for Class 3 misdemeanors, consecutive sentences may not be imposed at all. G.S. 15A-1340.22. In that post we also opined about how those rules apply when a judge decides to suspend some or all of the misdemeanor sentences. We wrote that the rules would apply with equal force to suspended sentences, which, under G.S. 15A-1340.20(b)-(c), still include a term of “imprisonment.” Our thought was that the maximum number of days of imprisonment the court has to work with – active or suspended – in a misdemeanor sentencing episode is twice the maximum for the most serious offense.
A recent court of appeals case, State v. Remley, is leading me to rethink what we wrote in that post. The case doesn’t expressly say we were wrong, but it does do the math a little differently than we did. In Remley, the Level II defendant was convicted of 8 counts of Class 1 misdemeanor larceny. The trial court sentenced the defendant as follows, with all sentences to run consecutively:
1. 45 days, active
2. 45 days, active
3. 45 days, suspended, with 10 days active as a condition of special probation
4. 45 days, suspended, with 10 days active as a condition of special probation
5. 45 days, suspended, with 10 days active as a condition of special probation
6. 45 days, suspended, with 10 days active as a condition of special probation
7. 45 days, suspended, with 10 days active as a condition of special probation
8. 45 days, suspended, with 10 days active as a condition of special probation
The defendant complained that this sentence ran afoul of the rule on consecutive misdemeanor sentences described above by exceeding twice the maximum sentence of imprisonment for the most serious offense – 90 days. The court of appeals agreed and remanded for resentencing, but in doing so noted that the sentence was incorrect because the defendant received 150 days [45 + 45 + 10 + 10 + 10 + 10 + 10 + 10] of imprisonment. If you had asked me, I would have said the sentence was incorrect because it imposed 360 days [45 × 8] of imprisonment. That, after all, is the total amount of time the defendant would have faced upon revocation of probation. As mentioned above, I thought the limitation in G.S. 15A-1340.22 on cumulative length of “imprisonment” applied to all sentences imposed in a single episode, active or suspended. The “imprisonment” is still there in a probationary sentence, it’s just suspended. That’s how I read the language of the relevant statutes, and that outcome also makes more sense to me as a policy matter. Why would a defendant who gets fully active sentences out of the gate be exposed to less time behind bars than a defendant for whom some or all sentences are suspended?
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.
by School of Government faculty members Jamie Markham and Alyson Grine
Suppose Ronald is convicted of six counts of communicating threats, a Class 1 misdemeanor. Ronald has three prior convictions, making him prior conviction level II. The facts are bad and the sentencing judge wants to max Ronald out with the longest sentence allowable. What is it?
A. 270 days
B. 240 days
C. 90 days
Here’s a link to the misdemeanor sentencing grid, in case you don’t have it memorized.
Under G.S. 15A-1340.22(a), when the court elects to impose consecutive sentences for two or more misdemeanors, the cumulative length of the sentences of imprisonment must not exceed twice the maximum sentence authorized for the class and prior conviction level of the most serious offense.
If you forgot about the “twice the maximum for the most serious offense” rule, you might have answered A (270 days), thinking the court could just stack six 45-day sentences.
If you answered B (240 days), you remembered the twice-the-maximum rule, but you thought it capped consecutive sentences at twice the absolute maximum anyone – not just Ronald – could get for a Class 1 misdemeanor. The longest sentence in the Class 1/Level III cell is 120 days, and 2 x 120 is 240.
But G.S. 15A-1340.22(a) refers to the “maximum sentence authorized for the class and prior conviction level of the most serious offense.” That language – particularly the reference to prior conviction level – requires the judge to look not to the hypothetical maximum for the worst-case offender, but rather the maximum faced by a particular defendant based on where he or she falls on the grid. In our example, the maximum sentence authorized for Ronald’s class (Class 1) and prior conviction level (Level II) is 45 days. Double that to get 90 and you’ve got the correct answer, C.
[As an aside, a judge should use the hypothetical, worst-case maximum when advising defendants of the consequences of a guilty plea under G.S. 15A-1022(a)(6). That statute requires the court to inform the defendant of the “maximum possible sentence on the charge for the class of offense for which the defendant is being sentenced, including that possible from consecutive sentences.” It does not contain the reference to prior conviction level found in G.S. 15A-1340.22(a), which makes sense when you consider that a person’s record level could theoretically increase based on new convictions obtained between acceptance of a plea and entry of judgment. So, when accepting a felony guilty plea, the judge should use the maximum sentence that corresponds to the highest possible minimum sentence for a Class VI defendant sentenced in the aggravated range.]
Sometimes we’re asked how the twice-the-maximum this rule applies when the judge decides to suspend some or all of the misdemeanor sentences imposed. In other words, does the rule apply only to convictions that receive active punishment from the get-go? In our hypothetical case above, for example, could the judge give Ronald probation with a 270-day suspended sentence? Or perhaps stack two of the convictions to yield 90 days active with the rest of the convictions each sentenced to 45 days suspended, to run consecutively in the event of revocation? No. Under G.S. 15A-1340.20(b), even suspended sentences have a term of “imprisonment” assigned. The maximum number of days of imprisonment the court has to work with – active or suspended – in a misdemeanor sentencing episode is twice the maximum authorized for the class and record level of the most serious offense.
Consecutive Sentences, Not Put on Ice
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.