A district attorney generally has discretion in structuring his or her approach to deferred prosecutions. The DA could have a broad program, allowing deferrals for all defendants who might be eligible as a matter of law. Or there could be no program at all (aside from the handful of diversions that are mandatory in certain circumstances). Regardless, whatever program the State has must not discriminate against defendants based on an improper classification. Characteristics like religion and race obviously are not permissible bases on which to condition access to a deferral program. A more difficult question, though, is what role a defendant’s financial situation may play in the State’s decision to defer prosecution. Continue reading
Tag Archives: deferred prosecution
Do the Justice Reinvestment Act’s limitations on a judge’s authority to revoke probation apply in deferred prosecution and conditional discharge cases?
Defendants can be placed on probation as part of a deferred prosecution or conditional discharge. The statutes governing that probation don’t spell out every detail of what it looks like. Instead, they typically incorporate by reference the ordinary rules of Article 82 of Chapter 15A—the probation article. See, e.g., G.S. 15A-1341(a1) (“A person who has been charged with a Class H or I felony or a misdemeanor may be placed on probation as provided in this Article . . . .”). We know that “[i]n the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under G.S. 90-96.” State v. Burns, 171 N.C. App. 759 (2005).
One of the most important rules in Article 82 is that the court may revoke probation only for new crimes and absconding. G.S. 15A-1344(a). The court may also revoke probation for felony and DWI probationers who have served two prior periods of confinement in response to violation (CRV), and for misdemeanor probationers who have received two prior quick dips in the jail. G.S. 15A-1344(d2).
Of course, “revocation” means something different in the context of a deferral case than it does in regular post-conviction probation. It is not the activation of a suspended sentence. Rather, in a deferred prosecution case, it is an “order that charges as to which prosecution has been deferred be brought to trial.” G.S. 15A-1344(d). In a conditional discharge case, it is entry of judgment and sentencing. Notwithstanding those conceptual differences, the question remains: are the rules limiting the court’s authority to revoke among the “general probation provisions found in Article 82” that, under Burns, apply in deferral cases, too? Or does some “provision to the contrary” control, allowing probation to be revoked for any violation in deferral cases?
I don’t think there’s a clear answer.
The best argument that probation may be revoked for any violation is probably the language found in various conditional discharge statutes saying that, “upon violation of a term or condition of [conditional discharge probation],” the court may enter judgment and proceed as otherwise provided. Language to that effect appears in G.S. 90-96(a), G.S. 90-113.14(a) (toxic vapors), G.S. 15A-1341(a6) (misdemeanors and Class H and I felonies and drug treatment court), and G.S. 14-204(b)(5) (prostitution). Those laws refer to violation of “a term or condition,” without specifying that it need to be a violation of any particular condition. There is no similar language directly applicable to deferred prosecution probation.
As practical matter, the JRA’s three-strikes approach to technical violations strikes me as a poor fit for deferral cases. In my opinion (outlined here) those cases are ineligible for CRV or quick dips—the sanctions that qualify as strikes one and two. It seems unlikely that the legislature intended deferral cases to be entirely revocation-proof until the defendant committed a new crime or absconded, but no law unambiguously exempts those cases from the general rule.
The one type of conditional discharge that clearly sets out a rule different from the JRA is G.S. 90-96(a1). That lesser-used cousin of G.S. 90-96(a) says that a failure to complete drug education school—something that would be a mere technical violation in the context of a regular post-conviction probation case—“shall constitute grounds to revoke.” Indeed, upon receipt of information that the defendant has failed to complete the program, the court is required to revoke. That’s a departure from the general rule that the court has discretion on whether or not to revoke probation even in the face of a revocation-eligible violation.
Whether or not to grant a conditional discharge for an eligible defendant under G.S. 90-96(a) used to be within the discretion of the trial judge. In 2011, Justice Reinvestment made G.S. 90-96(a) mandatory for eligible defendants who consented to it. Two years later, it was once again made discretionary. Or was it? Continue reading →
The district attorney decides when to defer prosecution. But if that deferral includes probation under G.S. 15A-1341(a1), the court has a role in the process—including what to do in response to a violation of the deferred prosecution agreement. Sometimes the State and the judge are on the same page. Sometimes they aren’t. Continue reading →
Local procedures vary when it comes to deferred prosecutions. In general, there’s nothing wrong with that; the district attorney has broad discretion in the deferred prosecution realm. Lately, though, several people have asked me a particular question related to deferred prosecution procedure: Does the defendant actually plead guilty when the deferral is entered? Continue reading →
If you’ve been dragging your feet about having an old DWI expunged, you had better hurry up. A law enacted last week removes convictions for offenses involving impaired driving from the types of convictions that may be expunged. The change is effective for petitions filed or pending on or after December 1, 2015. So if you are eligible for such an expunction, your window of opportunity is closing fast. Read on to find about the other changes S.L. 2015-150 makes to the state’s DWI laws. Continue reading →
G.S. 90-96 sets out a conditional discharge option for certain drug offenses. A conditional discharge is different from a deferred prosecution. In a conditional discharge program, the defendant is convicted (either after a trial or by pleading guilty), but then placed on probation without the court actually entering judgment in the case. If the defendant succeeds on probation, the court completes a “discharge and dismissal” and the defendant is left without a conviction. If the defendant fails on probation, the court enters judgment and sentences the defendant—often to probation again, but this time regular, post-conviction probation.
I’ve said it before and I’ll say it again: G.S. 90-96 is complicated. I get as many questions about it as any other law. Justice Reinvestment made G.S. 90-96 mandatory for consenting defendants in 2011, but that requirement turned out to be troublesome enough in practice that the law was made discretionary again in 2013 (as described here).
Despite the waxing and waning of G.S. 90-96, similar conditional discharge options have recently popped up elsewhere in the law. In 2013, a 90-96–style conditional discharge was made mandatory for defendants convicted of prostitution for the first time. G.S. 14-204(b). A bill signed into law week, S.L. 2014-119 (H 369), took things even further, authorizing conditional discharge for any misdemeanor or Class H or I felony that would be eligible for a deferred prosecution. This broad conditional discharge authorization is set out in new G.S. 15A-1341(a4). As under the existing statutory deferred prosecution law, a defendant is eligible for a conditional discharge only when the court finds that (1) all victims have been notified, (2) the defendant has not been convicted of any felony or any misdemeanor involving moral turpitude, (3) the defendant has not previously been placed on probation, and (4) the defendant is unlikely to commit another offense other than a Class 3 misdemeanor. New G.S. 15A-1341(a5) grants similar authorization for defendants eligible for drug treatment court. The new law is effective December 1, 2014, and apparently may be applied to any conviction before the court on or after that date, regardless of the date of offense.
The new law includes some additional technical and conforming changes related to conditional discharges. Under amended G.S. 15A-1342, the probation that accompanies the conditional discharge may not exceed two years. Interestingly, that language is written into a statute that applies to all conditional discharges, not just those authorized by the new law (except those for prostitution under G.S. 14-204, which are subject to a one year maximum term). That means the probation period in G.S. 90-96 cases is now capped at two years. Previously I would have said it could be as long as five years, so the two-year limitation is a big change in theory. It may not make much difference in practice, though; my sense is that 12 months is the typical term of probation in a 90-96 case (please correct me if I’m wrong about that).
A change to G.S. 15A-1342(a1) makes clear that supervised probation is authorized for a conditional discharge imposed under new G.S. 15A-1341(a4) (conditional discharge for any misdemeanor or Class H or I felony), (a3) (conditional discharge for prostitution), and (a5) (conditional discharge for drug treatment court). The law makes no mention of G.S. 90-96, perhaps giving rise to an argument that supervised probation is no longer authorized in those cases. I have always assumed that supervised probation is authorized in G.S. 90-96 cases under the general theory that, unless otherwise provided by law, G.S. 90-96 probation is just like any regular probation case. State v. Burns, 171 N.C. App. 759 (2005) (“In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under [G.S.] 90-96.”). But now that the law makes specific provision for supervised probation for other enumerated types of conditional discharges, G.S. 90-96 becomes conspicuous in its absence. I doubt the legislature intended to de-authorize supervised probation for G.S. 90-96 defendants, however.
Speaking of legislative intent, what was the motivation behind this expansion of the conditional discharge law? I don’t know for sure. An earlier version of the bill styled the change as “conditional discharge in lieu of deferred prosecution,” substituting the former for the latter in G.S. 15A-1341(a1). A benefit of the conditional discharge approach from the State’s point of view—flagged by a legislator in a media report—is that there is a guilty plea in advance “in case they don’t meet the conditions set by prosecutors to have the charge dropped.” In a traditional deferral there is no guilty plea in advance, State v. Ross, 173 N.C. App. 569 (2005)—which sometimes leads to frustration when a defendant who does not satisfy the terms of the agreement ultimately declines to plead guilty. Nevertheless, the final version of the law added the conditional discharge option but left the deferred prosecution option in place, giving prosecutors apparent flexibility to choose between the two options.
I am interested to hear your thoughts on how this broad authorization for conditional discharges might change things in practice. It strikes me as potentially helpful statutory authority to do some of the things people have tried to do with PJCs over the years—sometimes with results that left everyone unhappy. On the other hand, all the sticky questions about revocations and appeals and collateral consequences that arise in the context of G.S. 90-96 will now be expanded to a broader set of cases.
Under G.S. 15A-1341(a1), certain defendants may, with court approval, be placed on probation pursuant to a deferred prosecution agreement. To be eligible for this type of deferred prosecution the defendant must have been charged with a Class H or I felony or a misdemeanor, and the court must make findings that:
- Prosecution has been deferred pursuant to a written agreement, with approval of the court, for the purpose of allowing the defendant to demonstrate good conduct;
- Each known victim of the crime has been notified of the arrangement by subpoena or certified mail and has been given an opportunity to be heard;
- The defendant has not been convicted of any felony or of any misdemeanor involving moral turpitude;
- The defendant states under oath that he or she has not previously been placed on probation; and
- The defendant is unlikely to commit another offense other than a Class 3 misdemeanor.
Form AOC-CR-610 guides the court through the requisite findings. The longest permissible term of probation for a deferred prosecution case is two years instead of the usual five. G.S. 15A-1342(a). If the defendant completes the deferred prosecution probation term or it is terminated early by the court, the defendant is immune from prosecution on the deferred charges. G.S. 15A-1342(i).
Prosecutors are also free to enter into non-statutory deferred prosecution agreements with defendants, and my sense is that many do (comments welcome on that front). Non-statutory arrangements may not, however, include supervision by the Division of Community Corrections. State v. Gravette, 327 N.C. 114 (1990).
Based on what I’ve heard, practices vary when a deferred prosecution probationer is alleged to have violated the conditions of his or her supervision. In some districts the alleged violation is reported to the court for a hearing; in others, the defendant is referred directly to the district attorney for prosecution. Changes made to the law in 2009 (S.L. 2009-372) helped clear up what ought to happen. Under the new law, violations of the term of a deferred prosecution must be reported to the court as they are in any ordinary probation case. G.S. 15A-1342(a1). A parallel change in G.S. 15A-1344 makes clear that all probationers must receive notice and a hearing under G.S. 15A-1345 before their probation may be revoked. The change corrected what had previously been a disconnect between the first clause of the sentence in G.S. 15A-1344(d) that began “[a] convicted defendant” and the later reference in the same sentence to “charges as to which prosecution has been deferred”—if charges were “deferred,” we wouldn’t be dealing with a “convicted defendant.” The change applies to hearings held on or after December 1, 2009.
With these changes in mind, deferred prosecution probation matters should be handled just like regular, post-conviction probation cases when it comes to extension, modification, and revocation. That’s what the court of appeals said about cases supervised under G.S. 90-96 in State v. Burns, 171 N.C. App. 759 (2005) (“In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under [G.S.] 90-96.”), and it seems like the same rationale would apply here.