Today’s post is the last for the week since the School of Government is closed Thursday and Friday for the Thanksgiving holiday. In honor of the occasion, I want to recognize five criminal-law-related institutions, programs, and people for which I am particularly grateful. Continue reading
Tag Archives: district court
Suppose that when a criminal defendant appears in court, he is advised of the right to have counsel appointed if indigent, tells the judge he wants to hire his own lawyer, and signs a written waiver of his right to appointed counsel. When the defendant next appears in court, he does not have a lawyer. May the judge rely on the waiver of appointed counsel to require the defendant to proceed, without inquiring whether the defendant wants the assistance of counsel? Continue reading →
A few election seasons ago, a campaign sign advocating “Denning for Judge” was posted in our neighborhood. My son noticed it on the way home from school and said, “Mom: Is Dad running for judge?” “No, he isn’t,” I said. Then, in a moment of pique, I said, “Actually, your dad isn’t qualified to be a judge. But I am.” Since I’ve obviously done such a great job teaching civics (and equal rights) to my children, I thought I’d share a bit with you about the selection, qualifications, and work of a North Carolina district court judge—a group of judicial officials with whom I frequently work. Continue reading →
Have you ever been convicted of or pleaded nolo contendere (no contest) to any violation of the law other than minor traffic tickets?
Millions of people, many of whom were convicted of petty crimes, must answer this question (a favorite of employers) in the affirmative. Indeed, the Wall Street Journal reported in a recent article on the processing of misdemeanor crimes that nearly 1 in 3 Americans has a criminal record. While those records are based on arrests, not convictions, a substantial percentage of people charged with misdemeanor offenses are convicted. North Carolina’s district courts, for example, disposed of more than 450,000 misdemeanor (non-traffic) criminal cases in the 2013-2014 fiscal year. A third of those cases resulted in convictions. Continue reading →
In State v. Friend, ___ N.C. App. ___, 724 S.E.2d 85 (2012), the Court of Appeals addressed the district court’s authority when, after the court refuses to allow a continuance, the State takes a voluntary dismissal and subsequently refiles the case. In Friend, the State voluntarily dismissed an impaired driving charge after the district court denied the State’s motion for a continuance; and when the State filed a new impaired driving charge nine days later based on the same incident, the district court dismissed the charge in light of its earlier refusal to grant the State a continuance. The Court of Appeals found that dismissal was not a proper remedy. The court found that the State’s taking of a voluntary dismissal and reinstitution of the charges after the district court’s denial of a continuance did not interfere with the district court’s authority over the calendar and therefore did not constitute a separation of powers violation. The court also found in the circumstances of the case that proceeding with prosecution of the charges did not violate the defendant’s speedy trial and due process rights. My colleague Shea Denning summarized the case here.
In State v. Sheppard, ___ S.E.2d ___ (Feb. 19, 2013), the Court of Appeals in an unpublished opinion further considered the problem of delay in district court, this time upholding dismissal of the charges on speedy trial grounds. In Sheppard, as in Friend, the defendant was charged with impaired driving. Also as in Friend, when the district court denied the State’s request for a continuance (in this case after an 11-month delay following arrest), the State took a voluntary dismissal and, later the same day, refiled the charges and rearrested the defendant. The district court denied the defendant’s motion to dismiss for a speedy trial violation, and the defendant was tried and convicted in district court, but on appeal for a trial de novo the superior court granted the motion to dismiss for a speedy trial violation. The Court of Appeals affirmed the superior court’s ruling, holding that the fourteen-month delay from the defendant’s arrest to her trial in district court supported the motion. In reaching its conclusion, the Court of Appeals rejected the State’s argument that the defendant waived her speedy trial right by objecting to the chemical analyst’s affidavit and asserting her right to confront the analyst at trial, recognizing that a defendant may not be required to give up one constitutional right to assert another.
The general takeaways from Friend and Sheppard on calendaring in district court can be summarized as follows:
1. The district court has ultimate authority over its calendar and may refuse to grant a request for a continuance by the State. Friend recognized this authority in light of Simeon v. Hardin, 339 N.C. 358 (1994), which addressed the limits on prosecutorial control over the criminal calendar, and Sheppard reinforces the principle. See also Michael Crowell, Control of the Calendar in Criminal District Court (UNC School of Government, July 2010). (Note that G.S. 20-139.1(e2) contains special provisions on continuances in impaired driving cases involving testimony by a chemical analyst; the statute was not directly at issue in either case.)
2. If the district court refuses to grant a continuance, the State must proceed with the case or take a voluntary dismissal. Because the court has ultimate authority to manage cases on its calendar, the State may not ignore the court’s order denying a continuance and unilaterally reschedule the case to a different date. See generally Crowell at 4. If the State does not take a voluntary dismissal, the district court may order the State to call its first witness and, if the State does not proceed, may acquit the defendant for a failure of proof. See State v. Watts, 35 So.3d 1, 7 (Ala. Crim. App. 2009); People v. Mooar, 416 N.E.2d 81, 84 (Ill. App. Ct. 1981).
3. If the State takes a voluntary dismissal and subsequently refiles the charges, the district court may not dismiss the case solely because the court previously denied the State’s request for a continuance. Although refiling of the charges may seem in derogation of the court’s previous scheduling orders, Friend found that refiling does not unconstitutionally interfere with the court’s authority over the calendar.
4. A district court has the authority to dismiss a case after refiling if prosecution of the charges violates other of the defendant’s rights. (Note that G.S. 20-38.6 contains special provisions on dismissal motions in impaired driving cases.) Thus:
- If the two-year statute of limitations for misdemeanors has run (measured from the offense date to the refiling date), the defendant is entitled to dismissal. See generally State v. Madry, 140 N.C. App. 600 (2000).
- If there was delay in prosecution of the case before the State took a dismissal, the district court may consider that delay along with any delay after refiling of the case in ruling on a motion to dismiss for violation of the right to a speedy trial. See United States v. Columbo, 852 F.2d 19, 23–24 (1st Cir. 1988) (“Were it otherwise, the government would be able to nullify a defendant’s speedy trial right by the simple expedient of dismissing and reindicting whenever speedy trial time was running out on its prosecution.”). In Friend, the court stated that it did not need to consider the delay in district court because the defendant did not make a speedy trial demand until after he appealed for a trial de novo in superior court; therefore, only the delay in superior court was relevant. This interpretation seems inconsistent with the four-factor analysis for speedy trial claims in Barker v. Wingo, 407 U.S. 514 (1972), under which a request for a speedy trial is one factor and not determinative. (Notwithstanding its initial statement, the court in Friend went on to consider the entire delay in assessing and ultimately rejecting the defendant’s speedy trial claim.) Friend’s view of the applicable period of delay was not at issue in Sheppard, in which the defendant made eight speedy trial requests in district court and another four requests in superior court.
- A due process violation may also provide grounds for dismissal. In Simeon v. Hardin, 339 N.C. at 377–78, a civil action for declaratory and injunctive relief, the Court found that the plaintiff’s allegations about the district attorney’s calendar practices were sufficient to state a claim of a due process violation (and potentially other constitutional violations), and the case was remanded for further proceedings. The plaintiffs alleged that the practices included, among other things: manipulating the calendar to exact pretrial punishment on incarcerated defendants and pressure defendants to plead guilty; calling cases for trial without adequate notice, thereby impairing the quality of representation; and calendaring cases repeatedly and causing defendants unnecessary expense and inconvenience. Friend found no violation of due process; Sheppard did not address the issue.
5. If the State refiles the charges after taking a voluntary dismissal and issues an arrest warrant rather than a criminal summons, rearrest may lend support to a claim of a speedy trial violation per the prejudice factor in Barker v. Wingo or a due process violation per Simeon v. Hardin. While the court probably could not dictate the criminal process to be used by the State should it decide to refile, the court certainly could unsecure any bond for a defendant if rearrested.
Friend and Sheppard are probably not the last words on calendaring in district court, but they advance our understanding of the applicable principles and procedures.
Under G.S. 7A-272(c), the district court has jurisdiction to accept a defendant’s plea of guilty or no contest to a Class H or I felony in certain circumstances. The law extending this limited jurisdiction to the district court came into effect in 1996 (S.L. 1995-725), and it has been used more and more over time. In FY 2000-01, for instance, 16 percent of all Class H and I felonies were pled in district court; in FY 2009-10, that number was up to 25 percent. (Those statistics came from the North Carolina Sentencing and Policy Advisory Commission’s annual statistical reports, available here—a data goldmine that’s definitely worth a look.)
Today’s post briefly covers some of the technicalities related to taking Class H and I felony pleas in district court, including the rules for appeals and probation violation hearings.
A defendant may only enter a plea to a Class H or I felony in district court with the consent of the presiding district court judge, the prosecutor, and the defendant. G.S. 7A-272(c). If the defendant has not yet been indicted and the case is still pending in district court, the prosecution must charge the defendant by information under G.S. 15A-644.1. After indictment, the case may—with the consent of the State, the defendant, and the presiding superior court judge—be transferred back to the district court under G.S. 15A-1029.1. G.S. 7A-272(c). When a plea is accepted in district court the trial judge must require that a true, complete, and accurate record be made of the proceeding. G.S. 7A-191.1. In general, a district judge accepting a felony plea is authorized to act in the same manner a superior court judge would be authorized to act if the plea had been entered in superior court. Authorized appeals of the conviction are to the appellate division. G.S. 7A-272(d).
If a felony case pled in district court is sentenced to probation (and many of them are), the superior court has default jurisdiction over all probation violation hearings held pursuant to G.S. 15A-1345(e). The district court may, however, hear those matters with the consent of the State and the defendant (technically, the judge doesn’t get a vote). G.S. 7A-271(e). If the revocation hearing is held in district court and the court activates a sentence or imposes special probation, the appeal of that revocation is to superior court. It’s not obvious that that would be the case; as mentioned above, G.S. 7A-272(d) says “appeals that are authorized in these matters are to the appellate division.” However, the Supreme Court of North Carolina held in State v. Hooper, 358 N.C. 122 (2004), that the requirement in G.S. 15A-1347 that “[w]hen a district court judge . . . activates a sentence or imposes special probation, the defendant may appeal to the superior court for a de novo revocation hearing” trumps G.S. 7A-272(d). So, Class H and I revocations in district court get a de novo appeal to superior court—perhaps lessening the likelihood that everyone will agree to hold the initial violation hearing in district court in the first place.
The jurisdiction and appeal rules for Class H and I felony probation matters handled in district court are different from the rules for felony drug treatment court or therapeutic court judgments supervised in district court. Under legislation passed in 2009 (S.L. 2009-452 and S.L. 2009-516) and 2010 (S.L 2010-96), those cases may, with the consent of the chief district court judge and the senior resident superior court judge (and no input from the defendant or the State), be supervised by the district court—which is good, because they were sometimes being supervised there before the law expressly allowed it. G.S. 7A-272(e). The district court can modify or extend probation judgments in those cases, but jurisdiction to revoke probation is in the superior court—unless the chief district court judge and the senior resident superior court judge agree that it is in the interest of justice to hold the revocation proceeding in district court (again, no vote for the State or the defendant). Appeals of revocations in those cases are—you guessed it—to the appellate division. G.S. 7A-271(f).
I regularly am asked questions about criminal case calendaring. There are relatively detailed statutory provisions regarding the calendaring of superior court cases. As to district court cases, however, the statutes are much less clear, and the practice around the state appears to vary, with prosecutors generally playing the leading role, but judges, defense lawyers, clerks, and magistrates participating to some extent in some districts.
A particularly recurrent issue is the extent of the court’s control over the calendaring of district court cases. For example, when a defendant’s motion to continue is allowed, can the court set the next court date, or does the authority to determine that date lie with the district attorney? Or, to what extent may a court adopt rules that constrain the district attorney’s exercise of his or her calendaring power?
Fortunately, my colleague Michael Crowell has written a paper entitled Control of the Calendar in Criminal District Court, available here as a free PDF, that sheds light on these issues. It’s less than four pages long, and is well worth a read if you are ever involved in district court cases.
Editor’s note: This post has been revised slightly in response to a helpful comment from a reader.
A district court session usually lasts one day, so many court actors have gotten in the habit of thinking that a district court session is a day as a matter of law. Some North Carolina publications refer to this day-long rule as if it were a foregone conclusion. However, “session” is not defined statutorily and there is authority to suggest that a district court session may span days. For those of you who can’t stand the suspense, see the last paragraph. For those of you who are less intrigued, this is not an academic exercise! Consider how the definition of “session” comes into play in sentencing.
Under G.S. 15A-1340.21(d), if a defendant is convicted of more than one offense in a single session of district court, only one of the convictions can be used to determine the prior conviction level for misdemeanor sentencing. By way of illustration, let’s say Donald Defendant’s record reflects that he was convicted of 8 counts of misdemeanor larceny on August 11, 2009, and has no other prior convictions. He is being sentenced today for Assault on a Government Official, a Class A1 misdemeanor. Donald is a prior conviction level II; only one of the larcenies can be used because he was convicted of all of them in a single session of court. He can therefore receive a sentence of up to 75 days. If the district court judge erroneously counted the larcenies as 8 prior convictions and treated Donald as a prior conviction level III, he could receive an active sentence of 150 days, twice as many days.
The rule for calculating multiple prior convictions could have even more impact if Donald were being sentenced for a felony in superior court a few weeks from today. In the context of determining prior record level for felony sentencing, the same rule applies: only one conviction counts where the defendant was convicted of more than one offense in a single session of district court. G.S. 15A-1340.14(d). New legislation tweaking the felony sentencing grid provides that for offenses committed on or after December 1, 2009, an offender with either 0 points or 1 point will be considered a Prior Record Level I for felony sentencing. S.L. 2009-555, amending G.S. 15A-1340.14(c) and 15A-1340.17(c). So, if Donald is in superior court on December 1 for sentencing on a felony, he would be sentenced as a prior record level I in spite of the 8 counts of misdemeanor larceny on his record. Assuming Donald were being sentenced for Assault with a Deadly Weapon Inflicting Serious Injury, a Class E felony, the statutory change would reduce his potential sentence by about 6 months. Rather than facing 36 to 53 months imprisonment as a Prior Record Level II, he faces 31 to 47 as a Record Level I. If the superior court judge were unfamiliar with G.S. 15A-1340.14(d) and mistakenly determined that the 8 larcenies constituted 8 points, Donald could face 42 to 60 months as a Prior Record Level III.
Here is a question that is arising as a result of innovative district court calendaring practices. Some chief district judges are scheduling week-long sessions of DWI court for efficiency purposes. How will multiple prior convictions be calculated in this scenario? Assume Donald is hailed into district court on Tuesday where he is convicted of DWI 1, and is hailed in again on Wednesday, where he is convicted of DWI 2. Does this count as one prior conviction because both offenses were handled in one district court session spanning multiple days? I think the answer has to be yes. Defendants are placed on notice that their case will be reached some time during the DWI court week making these sessions analogous to week-long sessions of superior court, and only one conviction can be used from a given week of superior court to determine the conviction or record level. G.S. 15A-1340.21(d); G.S. 15A-1340.14(d). As we have seen, the answer will have a big impact for any future sentencing Donald may confront. Taking this scenario to an extreme, a person with five prior convictions of DWI could potentially be treated the same for felony sentencing purposes as a person who has no prior convictions, after December 1.
The DWI court model leaves me wondering: 1) Are there other district court scheduling practices that give rise to an argument that we are in fact dealing with one session spanning multiple days? Maybe other specialized courts, such as domestic violence court, function similarly in that one judge is assigned to the session and defendants are noticed that their case will be heard on “Monday or Tuesday,” or whatever may be the case; and 2) How in the world are defenders going to determine whether their clients’ prior convictions occurred in one extended session of district court or multiple single-day sessions? Do defenders have an obligation whenever they see that their client had two convictions in one calendar week to investigate the nature of the session(s)? Is it possible to make a person’s record reflect that two district court convictions on different days were actually part of the same session?
What authority supports that a session of district court session may last multiple days? In this bulletin, “Out-of-Term, Out-of-Session, Out-of-County,” School of Government faculty member Michael Crowell notes that a day of district court is commonly considered a session because chief district judges, who have the authority to arrange schedules and assign district judges under G.S. 7A‑146(1), typically assign judges by the day. However, Crowell cites Routh v. Weaver, 67 N.C. App. 426 (1984), in support of the proposition that a chief district judge may also assign a district judge to hear a particular motion or case. “[T]he hearing of that single case, however long it lasts, constitutes a session as well.” Crowell at 1. The Routh court adopts the following expansive definition of “session” from Black’s Law Dictionary:
The sitting of a court, Legislature, council, commission, etc., for the transaction of its proper business. Hence, the period of time, within any one day, during which such body is assembled in form, and engaged in the transaction of business, or, in a more extended sense, the whole space of time from its first assembling to its prorogation or adjournment.
Routh at 431. So, how long is district court in session? In the absence of any parameters from the chief district judge, the answer appears to be “until it is over.”