The continued supervision or imprisonment of hundreds of probationers and inmates is in question in light of State v. Sitosky, __ N.C. App. __, 767 S.E.2d 623 (2014), petition for discretionary review denied, __ N.C. __, 768 S.E.2d 847 (2015), and its interpretation of the probation tolling law. This post summarizes some of the latest developments related to the case. Continue reading
Tag Archives: donut hole
Last year, I wrote this post asking whether the probation tolling law in former G.S. 15A-1344(d) survived a 2009 statutory change. In State v. Sitosky, decided on the last day of 2014, the court of appeals held that it does not. Continue reading →
I wrote previously (here and here) about the “donut hole” in the probation law regarding absconding. In short, due to a wrinkle in legislative effective dates, persons on probation for an offense committed before December 1, 2011 who abscond after that date cannot be revoked for absconding. Today’s post considers whether a similar phenomenon arises in the context of probation tolling.
(Incidentally, I have learned that some judges do not like it when people use the undignified term “donut hole,” which I borrowed from a coverage gap in Medicare, to describe the absconding issue linked above. With that in mind you may wish to use a different description in court. But I stand by it—and continue to think the Absconding Donut Holes would be a great name for your office softball team. My trademark application for this logo concept is pending, but I’d probably let you use it with my express written consent.)
Back to tolling. Tolling in the probation context was a law that stopped the running of a person’s probation period when he or she had pending charges for an offense which, upon conviction, could result in revocation—so, essentially, anything other than a Class 3 misdemeanor. I first described the law, as codified in G.S. 15A-1344(d) between the late 1970’s and 2009, here. The law was amended in 2009, as described here (page 8). The 2009 amendment moved the tolling provision to G.S. 15A-1344(g), and added a provision stating that if the charge that tolled a person’s probation was acquitted or dismissed, the person would receive credit for the time spent under supervision during the tolled period. Finally, the tolling law was repealed outright for persons placed on probation on or after December 1, 2011.
With that recent legislative history in mind, I generally say there are three categories of probationers when it comes to tolling: (1) those placed on probation on or after December 1, 2011, for whom there is no tolling; (2) those placed on probation before December 1, 2011, for an offense committed on or after December 1, 2009, who are subject to tolling under G.S. 15A-1344(g) with the benefit of the credit-back provision for dismissed or acquitted charges; and (3) those placed on probation before December 1, 2011, for an offense committed before December 1, 2009, who are subject to “old school” tolling (another phrase to avoid in court, perhaps) under G.S. 15A-1344(d), with no credit back against the probation period even if the charge that tolled the probation does not result in a conviction.
Because people can be on probation for a long time, there are still many of probationers in each category. And sometimes which tolling law (if any) applies to them matters a lot—particularly when a violation is alleged near the end of their probation period, and the particular brand of tolling will resolve the threshold question of whether or not the court still has jurisdiction to act in the case.
All of that background brings us to today’s real topic, which is the possible donut hole in the tolling law. The issue is that the effective date clause of the 2009 amendments to the law (moving it from -1344(d) to -1344(g), etc.) arguably left nothing of G.S. 15A-1344(d) for probationers with offense dates before December 1, 2009. The amending legislation was S.L. 2009-372. New G.S. 15A-1344(g) was created in section 11.(b) of that bill, effective for offenses committed on or after December 1, 2009. The tolling clause in old G.S. 15A-1344(d) was stricken in section 11.(a) of the bill, effective for “hearings held on or after December 1, 2009.” The argument, then, is that the moment you have a hearing—even for a person on probation for an offense committed before December 1, 2009—section 11.(a) of the bill kicks in and pulls the G.S. 15A-1344(d) rug out from under the case. And frequently (especially in a case of that vintage), tolling may have been the only thing keeping the case alive.
I doubt that is what the legislature intended to do. I think the reference to “hearings held” in section 11.(a) of the bill was probably referring to other changes made in the same section of the bill clarifying what may be done at a violation hearing held in the defendant’s absence. It doesn’t really make sense to trigger a change to the tolling law by a hearing date, because tolling necessarily happens (if at all) in advance of a hearing. But intentions aside, only one effective date clause (set out in section 20) applies to the entirety of section 11.(a) of the bill. There’s certainly room for argument.
The issue has yet to come up in a published case, but the court of appeals noted it footnote 3 of State v. Karmo, 749 S.E.2d 111 (2013) (unpublished). That brief dictum appears to take the defendant-friendly view that old-school tolling disappeared for good in 2009. I also mentioned the issue in footnote 47 of this bulletin on probation violations.
Last week the court of appeals decided State v. Nolen, its first absconding “donut hole” case. Pardon the mixed metaphor, but here is the donut hole in a nutshell:
- The Justice Reinvestment Act said probationers who “abscond” under G.S. 15A-1343(b)(3a) after December 1, 2011 may have their probation revoked.
- But the absconding condition in G.S. 15A-1343(b)(3a) only applies to persons on probation for an offense that occurred on or after December 1, 2011.
- Thus, thousands of offenders on probation for pre-December 1, 2011 offenses are not subject to the revocation-eligible absconding condition.
Corey Nolen fell within that group. She was placed on probation for attempted drug trafficking in 2010. In June 2012 her probation officer filed a violation report alleging that on June 15, 2012, she violated the condition that she “remain within the jurisdiction of the court” by not being present during a home visit. The officer alleged that the defendant made her whereabouts unknown, “therefore absconding supervision.” At the ensuing violation hearing the court found that Nolen had absconded and revoked her probation, checking the box for finding 5.a. on the revocation judgment.
On appeal, Nolen argued that because her alleged violation occurred after December 1, 2011, the JRA limited the court’s authority to revoke to new criminal offenses, absconding under G.S. 15A-1343(b)(3a), and violations occurring after she served two periods of confinement in response to violation (CRV). G.S. 15A-1344(d2). Her probation officer alleged that she “absconded,” but Nolen pointed out that she was not subject to G.S. 15A-1343(b)(3a). That condition didn’t exist when she was placed on probation in 2010, and the legislation creating it applied only to offenses committed on or after December 1, 2011. S.L. 2011-412, sec. 2.5. How could she be revoked for a violation of a condition that didn’t apply to her?
She couldn’t be. The mere fact that the probation officer called the violation “absconding” was not sufficient to make it eligible for revocation. After Justice Reinvestment, a violation of the “remain within the jurisdiction” condition such as Nolen’s is a technical violation, subject at most to CRV. To be revoked for absconding, a person must be subject to the revocation-eligible absconding condition. And to be subject to that condition, the person must be on probation for an offense that occurred on or after December 1, 2011. Ms. Nolen was not, so the court of appeals reversed.
Going forward, court and corrections officials should be careful to distinguish between true statutory absconders (who are eligible for revocation) and violators like Ms. Nolen (who aren’t). The only way a person on probation for an offense committed before December 1, 2011 may be revoked for “absconding” is if the alleged violation actually happened before December 1, 2011, and thus predated the JRA’s limit on revocation authority. The issue will eventually fade away as pre-December 1, 2011 cases expire, but it’s something to watch for in the short run.
In 2012, a person on supervised probation for an offense that occurred before December 1, 2011 moves to another state without permission. Months later he is arrested there and brought back to North Carolina for a violation hearing. May he be revoked for absconding? I don’t think so. This post discusses why.
Effective for offenses committed on or after December 1, 2011, the Justice Reinvestment Act made it a regular condition of probation that a defendant not “abscond, by willfully avoiding supervision or by willfully making the defendant’s whereabouts unknown to the supervising probation officer.” G.S. 15A-1343(b)(3a). The new regular condition is the first true absconding condition in North Carolina. In fact, aside from a brief mention in the Crime Victims’ Rights Act (G.S. 15A-837), it is the first use of the word “abscond” in the criminal law statutes. Previously, offenders alleged to be “absconders” were generally violating one of two statutory conditions of probation: the “remain within the jurisdiction” condition or the “report as directed . . . to the officer” condition. The absconding terminology was derived from Community Corrections policy, not the law. The new absconding condition was initially made effective for “probation violations occurring” on or after December 1, 2011. S.L. 2011-192, sec. 4.(d). But that didn’t make sense—how could a condition become effective only upon a violation of it?—so the effective date clause was amended by a technical corrections bill to make the law applicable to offenses committed on or after December 1, 2011. S.L. 2011-412, sec. 2.5.
One of the major changes made by the JRA is that the court can only revoke probation for violations of the “commit no criminal offense” condition, absconding, or for probationers who have already received two periods of confinement in response to violation. The statutes setting out courts’ revocation authority for absconders, G.S. 15A-1344(a) and -1344(d2), both refer explicitly to violations of the new statutory absconding condition, G.S. 15A-1343(b)(3a), not to absconding generally. Thus, violations of other conditions (like the “remain within the jurisdiction” condition or the “failure to report to the officer” condition) appear to be ineligible for revocation, even if Community Corrections refers to them as absconders.
The problem, of course, is that thousands of probationers are not subject to the statutory absconding condition. As discussed in the opening paragraph above, that new condition only applies to probationers with offense dates on or after December 1, 2011—a cohort that is only recently starting to come onto probation in large numbers. With that in mind, in various JRA training sessions I have stressed the distinction between “statutory absconders,” who may be revoked, and “policy absconders” (people Community Corrections calls absconders but who are not subject to the statutory absconding condition), who apparently may not be revoked. You can listen to a discussion of the issue in this free webinar, presented to all probation officers in November 2011, beginning around the 31-minute point.
I have received lots of calls in the past two weeks about offenders falling in this “donut hole”—the apparent gap created by the effective date of the absconding condition and the wording of the statutes limiting judges’ authority to revoke. I’m not sure there’s much that can be done about it. Some have asked if the judge can add the statutory condition for an offender on probation for an offense that occurred before December 1, 2011, just in case the offender absconds in the future. Perhaps, although I think there would be a pretty good argument that, in light of the effective date for the new regular statutory absconding condition, any “don’t abscond” condition added to an older case is really just a special condition under G.S. 15A-1343(b1)(10), and still not a permissible basis for revocation.
None of this is to say that offenders not subject to the statutory absconding condition get a free pass. Violations of the “remain within the jurisdiction” condition or the “failure to report” condition are still technical violations eligible for confinement in response to violation (CRV), special probation, or some other modification of probation. And if the offender allegedly absconded before December 1, 2011, he or she would be eligible for revocation under the applicable prior law; the JRA’s limits on judges’ revocation authority only kicked in for violations occurring on or after December 1, 2011. So, if an offender who disappeared a long time ago turns up now, he or she may not fall into this so-called donut hole at all.
Even for offenders actually subject to the new statutory absconding condition, it is not entirely clear from the language of the condition itself what it means for a probationer to avoid supervision, or how long a person’s whereabouts must be unknown before he or she becomes an absconder. I think those thresholds will, to some degree, be shaped by other conditions to which the probationer may be subject and by the contact frequency standards associated with his or her supervision level. Additionally, probation officers are still required as a matter of their internal policy to conduct a specialized investigation before declaring that an offender has absconded. That investigation includes attempting to contact the offender by telephone, visiting the offender’s residence in the daytime and in the evening, contacting the offender’s landlord and neighbors, visiting the offender’s workplace or school, contacting the offender’s relatives and associates, and contacting local law enforcement, including the jail. Section of Community Corrections Policy § E.0503.