As I’ve noted in prior posts, some people just want to serve their time in prison. For one reason or another, they do not want to be on probation.
For similar reasons, many defendants do not want to be on post-release supervision. Post-release supervision (PRS), you’ll recall, is a term of supervised release served at the conclusion of an active felony sentence. Before December 1, 2011, only Class B1–E felons received post-release supervision. For offenses committed on or after December 1, 2011, all felons get PRS.
That being the case, a frequently asked question of late is how PRS might be avoided. The short answer (at least for an active sentence for a felony committed on or after December 1, 2011) is that it can’t be. The time for PRS is baked into the maximum sentences set out on the post–December 1, 2011 sentencing grids, and the court must sentence from the proper grid. State v. Roberts, 351 N.C. 325 (2000); State v. Lee, __ N.C. App. __, 745 S.E.2d 73 (2013). If the wrong grid is used, the Division of Adult Correction will likely flag the judgment as erroneous and return it to the sentencing court—which is what they are supposed to do. Hamilton v. Freeman, 147 N.C. App. 195 (2001). I have heard that this has been happening more often recently.
Just as PRS cannot generally be avoided on the front end, it cannot be refused on the back end. The prison system is required by law to release an eligible inmate to PRS when he or she is within 9, 12, or 60 months of the maximum sentence (for Class F–I, Class B1–E, and Class B1–E sex offenders, respectively). G.S. 15A-1368.2(a). A prisoner may not refuse PRS. G.S. 15A-1368.2(b). Sex offenders who refuse to be released onto PRS can be held in contempt and (somewhat ironically) locked up for it. Id. (discussed in this prior post).
I can think of two principal ways to avoid PRS for a felony. One is to have already served the maximum sentence. If the defendant has jail credit in excess of the maximum, the only proper sentence is to time already served, and no PRS is required. G.S. 15A-1368(a) (defining PRS as an inmate’s release from imprisonment “before the termination of his maximum prison term”); G.S. 15A-1368.3(c)(1) (stating that an inmate shall not be released onto PRS if he or she “has served all the time remaining on the . . . maximum imposed term”). Remember that jail credit in excess of the minimum sentence alone does not authorize a sentence to time served, although it may make the person eligible for a direct release from court to PRS, as described in this post. In any event, not many people will have jail credit in excess of their maximum sentence.
The second way to avoid PRS is not to get an active sentence at all. PRS kicks in only when a person is released from an active sentence. But you may be thinking, I thought this post was about people who just wanted to do their time without any supervision in the community. In general, a probationary sentence wouldn’t achieve that goal.
One way it might, however, is a probationary sentence with a lengthy term of special probation (a split sentence). With the inflated maximum sentences that apply to offenses committed on or after December 1, 2011, the permissible confinement period for a split sentence can come pretty close to the active sentence the defendant might have been required to serve. For example, a Class H/Level II offender could, if sentenced to the top of the aggravated range (10–21 months), be ordered to serve a split sentence of 5.25 months (one-fourth the maximum imposed sentence). That approaches the average active sentence from that grid cell—especially when you consider that the defendant will serve every day of the split sentence, while an active sentence would be reduced by earned time. And more to the point of today’s post, there’s no PRS to follow. In fact, if the goal is to order imprisonment without supervision, the court could order a probation period of roughly the same length as the split, so probation expires at the same time as the person’s release. If the defendant has jail credit, remember that when ordering a split sentence the court may apply the credit either to the split or to the remaining suspended sentence in its discretion. G.S. 15A-1351(a). That flexibility may be helpful in crafting a sentence that includes enough confinement to meet everyone’s objectives.
I’ll conclude by noting that the legislature expanded the PRS law in 2011 based on indications that PRS reduced recidivism and helped smooth inmates’ reentry into society. The split sentence approach described above arguably frustrates those goals to some extent, but I think it’s legally permissible and perhaps appropriate in some cases.
