When a person has pretrial jail credit shared between multiple charges, and those charges result in consecutive sentences, the shared jail credit gets applied only once. Does it matter which individual sentence gets the credit? Continue reading
Tag Archives: jail credit
When a person has so much jail credit that he has served his entire sentence of imprisonment, may he nonetheless be sentenced to probation? In other words, may a court sentence someone to probation when there is no sentence left to suspend? Continue reading →
What happens when a low-level felon serves a split and then gets quick-dipped, dunked, and eventually revoked? Today’s video post walks through a case like that from start to finish, including many of the jail credit wrinkles that have emerged since 2011. Long story short: things have gotten complicated. I hope you’ll take a look.
My next few posts will discuss this session’s legislative changes related to sentencing and corrections. Today’s post covers some pending changes related to confinement in response to violation (CRV, sometimes referred to as a “dunk”).
CRV is incarceration ordered in response to a technical violation of probation—meaning a violation other than a new crime or absconding. The CRV concept was created in 2011 as a centerpiece of the Justice Reinvestment Act. Drafters of that legislation noted that revoked probationers made up a big portion—over half—of North Carolina’s prison population. How to reduce that population? Change the law so that technical violators can be locked up for no more than 90 days. G.S. 15A-1344(d2).
There are many technical details associated with CRV—where it is served, how it works when a person is on probation for multiple convictions, and how jail credit gets applied to it, among others. I tried to address some of those issues in the FAQ post here. The CRV law has been amended multiple times since 2011 to clarify various things about it. In 2012: to remove the apparent requirement of a “terminal dunk” in short misdemeanor cases. In 2013: to make clear that CRV confinement must be served in one big chunk, not on weekends or other noncontinuous intervals.
That brings us to the changes for 2014, which relate to the rules for applying jail credit to a CRV. Under existing G.S. 15A-1344(d2), the rule for felonies and misdemeanors alike is that credit for any time spent awaiting a violation hearing at which a CRV is ordered must first be applied to the CRV. For example, if a person was held in jail for 20 days in advance of a violation hearing at which a 90-day felony CRV is ordered, the judge is required under existing law to credit the 20 days to the CRV, and the person will serve only 70 additional days. That prehearing credit cannot be “banked” to be applied only in the event of a later revocation. The law never said anything about whether other jail credit, such as pretrial confinement or time spent at DART-Cherry, could be applied to a later-imposed term of CRV, but that frequently happens in practice.
That crediting of time—especially the gathering up of credits beyond the mandatorily-credited prehearing confinement—was frustrating the Division of Adult Correction’s plan for CRV periods by making them too short. With credits applied, the average length of a felony CRV is around 75 days. And that is apparently not enough time for CRV to be the program-based behavior modification that DAC envisioned. They were hoping for a full three months to allow the offender to complete a tailored curriculum involving cognitive behavioral intervention, substance abuse treatment, and other programming as appropriate.
And so DAC sought and obtained a change to the law. A provision in the budget bill (section 16C.8.(a) of S.L. 2014-100) amends G.S. 15A-1344(d2) to provide that the 90-day period of CRV ordered for a felony “shall not be reduced by credit for time already served in the case.” Instead, “[a]ny such credit shall . . . be applied to the suspended sentence”—which means it will only be applied if the offender ever gets revoked. There’s nothing inherently wrong with that; it happens to every probationer with pretrial jail credit who completes probation without getting revoked. But it is a 180-degree turn from the original CRV rule, which was designed to cap the total incarceration (pre- and post-hearing) for a technical violation at 90 days.
For misdemeanors, the revised rule is different. In fact, the revised rule for misdemeanor CRV is that there is no rule. Amended G.S. 15A-1344(d2) neither requires nor forbids the crediting of any sort of confinement (pretrial or prehearing), giving the judge apparent flexibility to do what he or she would like. The change was made in recognition of the fact that for most misdemeanor probationers, the first CRV usually winds up being a “terminal” one, either because it uses up the entire suspended sentence or because the judge orders probation terminated upon its completion.
This change to G.S. 15A-1344(d2) is effective October 1, 2014, and applicable to probation violations occurring on or after that date. I read that applicability clause to refer to the date of the defendant’s offending behavior, not to the date of the violation hearing. If an offender is before the court for a string of technical violations that cross that effective-date threshold, the court should take care to note the particular violation(s) to which it is responding, and apply the appropriate credit rule accordingly.
To the extent that the change disadvantages a probationer by limiting the judge’s authority to apply credit, there may be some argument that it violates the Ex Post Facto Clause. On the other hand, if one views the suspended sentence as setting the total punishment in a given case, a change to the manner in which the time is served may not register as an increase in the defendant’s exposure. After all, regardless of the technicalities of the credit rules, the judge must always see to it that the defendant’s total time behind bars does not exceed his or her suspended sentence.
Finally, these changes to the credit rules should be viewed in the context of DAC’s broader plan with respect to CRV. For example, the Division has legislative approval to create two prison facilities devoted exclusively to CRV inmates—the “treatment and behavior modification facilities” mentioned in section 16C.10 of the budget. For men, a western facility in Burke County is on track to open in November, while an eastern facility in Robeson County should come online early next year. The plan for women is still under development. These facilities will apparently have a unique approach to staffing and security designed to facilitate the programmatic interventions described above—which CRV offenders will, after October 1, have a full 90 days to complete.
Today’s post is about a recurrent question related to jail credit for periods of confinement in response to violation (CRV). First, a 30-second refresher on the basics of CRV.
When a probationer commits a violation other than a new criminal offense or absconding, the court may order a period of confinement in response to violation. CRV is 90 days for a felon and up to 90 days for a misdemeanant. If a person is on probation for multiple offenses, CRV periods “shall run concurrently on all cases related to the violation.” G.S. 15A-1344(d2). After the defendant has received two CRV “strikes” in a particular case, he or she may be revoked for any subsequent violation. Any CRV periods served in the revoked cases “shall be credited pursuant to G.S. 15-196.1.” Id.
That brings us to today’s question. Suppose a defendant is on probation for three convictions with 8–19 month suspended sentences in each case, set to run consecutively in the event of revocation. Assume the conditions of probation are identical in all three cases. During his probation, the defendant commits a technical violation for which the court imposes a 90-day CRV in each case. As noted above, under G.S. 15A-1344(d2), these three CRV periods must be served concurrently. So the defendant serves 90 days in prison and returns to probation. How is that time credited if the defendant’s probation is later revoked?
It seems to me that the defendant must get 90 days of credit against each of the three sentences, for a total of 270 days. And I think that’s the case regardless of whether the sentences are run consecutively or concurrently upon revocation. The time was in fact served in each case, and no statute directs the court to disregard it when completing the revocation order in an individual case.
If that feels strange, it’s probably because it’s different from how we credit pretrial jail credit when a defendant is held on multiple charges. In that context, when a defendant winds up getting consecutive sentences, we do not multiply any shared credit for pretrial confinement by the number of consecutive sentences for which the defendant is imprisoned. That is so because G.S. 15-196.2 tells us not to multiply it. The reason for that rule is that when a judge winds up ordering consecutive sentences, we learn for the first time that the defendant has, to that point, been serving the only first sentence in the consecutive string, and that service of the second and subsequent sentences is yet to come. And so we credit the pretrial confinement only once.
Neither G.S. 15-196.2 nor the rationale behind it applies to CRV. First, G.S. 15A-1344(d2) makes no reference to the non-multiplication rule of G.S. 15-196.2; it says only that prior CRV periods shall be credited pursuant to G.S. 15-196.1. Second, unlike pretrial confinement, CRV is mandatorily and unmistakably concurrent from the get-go. Yes, the remainder of any activated sentences may wind up being served consecutively, but that does not trump the legislature’s command that any portion of the sentences served as CRV “shall run concurrently.”
I should note that not everyone agrees with me on this. I know some clerks will not credit CRV time against multiple cases, and I’ve certainly heard from judges, prosecutors, and probation officers who find that sort of double (or triple, as in my example above) counting of the time to be downright offensive. To be sure, crediting of the time in this way lessens the impact of any consecutive suspended sentences ordered by the court. But I don’t see how the law can be read to allow for the un-crediting of time actually served in each case, when the General Assembly has ordered that portion of it to be served concurrently.
The issue can be avoided. The court is never required to order CRV. If a defendant is on probation for multiple cases and violates probation in each of them, the court could order CRV in only one of the cases and use a different response in the others. There is a trade-off in the sense that the probationer does not accrue a CRV “strike” in the other cases. But it turns out that hardly anybody gets to his or her third CRV strike before probation ends. One of the following things almost always happens first: the period of probation expires or is terminated, the suspended sentence gets used up (especially in misdemeanor cases), or the probationer commits a new crime or absconds.
Last week I wrote a post about “using up” jail credit that generated some helpful comments. Thanks! I’m hoping for a repeat performance with today’s post, which is about another jail credit issue. A defendant must receive credit for all the time he or she is confined “as a result of the charge that culminated in the sentence.” G.S. 15-196.1. What is the charge that culminates in the sentence?
Clearly when a defendant is charged with, confined for, and eventually sentenced on a single charge, that is the charge that culminates in the sentence, and it must receive all applicable credit. It is likewise clear that when a person is held on one charge but convicted of an entirely separate charge, the credit from the first charge cannot be applied toward the sentence on the other. In other words, credit accrued against one charge cannot be shared with some contemporaneous charge, or banked for some future charge. That is true even if the charges are transactionally related. In State v. Floyd, 173 N.C. App. 234 (2005) (unpublished), for example, the defendant was initially charged with first-degree murder. Forty-five days later, and still in custody on the murder charge, she was indicated for an armed robbery that arose out of the same incident as the murder charge. After 91 additional days in custody she pled guilty to the armed robbery and the murder charge was dismissed. The trial court applied 91 days of jail credit to the robbery conviction. The court of appeals rejected the defendant’s request for credit for the first 45 days of confinement, as that confinement was only for the murder charge, which did not culminate in a sentence.
What about a credit accrued on an initial charge by a defendant who is ultimately convicted of a lesser offense for the same behavior? For example, a first-degree rape charge that is pled to second-degree rape. If no superseding charging instrument is necessary, either because the conviction offense is a lesser included offense of the initial charge or because both may be charged using the same short-form indictment, it would seem that any credit accrued on the original charge must be applied. The original charge is the only charge, and is thus the charge that culminated in the sentence.
If the crime of conviction is a different but not lesser-included offense of the initial charge (a rape pled to indecent liberties, for example) I think the practice varies. To the extent that some new charging instrument is necessary, the original charge is not the charge that culminates in the sentence, and any credit accrued against it would not apply under the literal language of G.S. 15-196.1. Nevertheless, my sense is that some read “charge that culminated” broadly enough to encompass the full life cycle of the charge, including any reduced charge for the same behavior.
In some states that broader, behavior-based approach is required by law. Maryland, for example, has a statute that requires credit for all time in custody because of the charge for which the sentence is imposed or “the conduct on which the charge is based.” Md. Code Ann. § 6-218(b)(1) (2013). In fact, Maryland’s law goes further, allowing judges to apply credit against a sentence for time spent in custody for another charge or crime, and requiring judges to credit any time in custody on a charge that resulted in a dismissal or acquittal against any sentence that is based on a charge for which a warrant or commitment was filed during that custody (like the first 45 days of confinement in the Floyd case described above). Id. § 6-218(b)(3) and (b)(2). The purpose of that latter provision is to eliminate “dead time”—i.e., time spent in custody that would not otherwise be credited to a valid sentence. See Fleeger v. State, 482 A.2d 490, 495 (Md. 1984) (“Simply stated, we believe that no legitimate legislative policy is advanced by maximizing dead time or by withholding credit . . . .”).
Though we have no such statutes in North Carolina, appellate courts have sometimes taken a broad view of what credit must be applied to a charge. In State v. Meadows, 272 N.C. 327 (1968), for example, a defendant pled guilty to assault for shooting a victim. When the victim later died, the defendant was charged with murder. When he was convicted of manslaughter, the issue arose as to whether he was entitled to credit toward the murder sentence for the time spent imprisoned on the assault. In that “anomalous situation,” the supreme court concluded “in the exercise of its general supervision and control over the proceedings of the other courts,” that the defendant should receive credit. Though decided before the enactment of G.S. 15-196.1, the case can be read to support a behavior-based view of credit.
Another case worth noting is Williams v. Hayes, 846 F.2d 6 (4th Cir. 1988), which suggests that charges should not be manipulated in a way that intentionally deprives a defendant of credit. In Williams, the defendant had been arrested on two charges: Charge 1, a common law robbery for which he wound up with no jail credit, and Charge 2, an armed robbery for which he had 139 days of credit. Ultimately the defendant pled guilty to two counts of common law robbery, receiving a 10-year sentence for Charge 1 and a concurrent 3-year sentence for Charge 2. By giving the shorter sentence to what began as the more serious charge, and then applying the jail credit to that sentence, the court effectively deprived the defendant of the credit altogether, because the shortened 3 year sentence was swallowed by the uncredited 10-year term. Holding that this ran afoul of “common sense and fundamental fairness,” the Fourth Circuit granted habeas relief and instructed the trial court to apply the credit to the longer sentence.
Once again, I would value your comments on how this issue plays out in practice, especially when it comes to plea negotiations.
Suppose a person is held in jail for 20 days on two pending misdemeanor charges, Charge A and Charge B. For one reason or another, Charge A results in a conviction first and is sentenced to 100 days. Ten days later, the defendant is convicted of Charge B and also sentenced to 100 days on it. If the first judge applied 20 days of jail credit to Charge A, how much credit may be applied to Charge B?
If Charge B is set to run consecutively to Charge A, the answer is easy: no pretrial jail credit should be applied to Charge B. That’s not because Charge A was sentenced earlier, but rather because of the general rule for applying shared jail credit to consecutive sentences. When a person is confined on multiple charges and eventually sentenced consecutively, the resultant sentences are considered as one sentence for the purpose of applying credit. G.S. 15-196.2. The shared credit time is not multiplied by the number of consecutive offenses for which the defendant is imprisoned, and so the 20 days applied to Charge A are not also applied to Charge B. There is no credit against Charge B for the 10 days after the sentencing of Charge A; once a person is serving one sentence, he or she does not accrue credit toward any still-pending charge. G.S. 15-196.1 (“[T]he credit available herein shall not include any time that is credited on the term of a previously imposed sentence to which a defendant is subject.”).
If Charge B is set to run concurrently with Charge A—which, under G.S. 15A-1354(a), is what will happen by default if the judgment is silent on the issue—I think the answer regarding the 20 days of shared credit is less clear. Ordinarily, when a defendant is confined on multiple charges that result in concurrent sentences, each sentence “shall be credited with so much of the time as was spent in custody” on each of them. G.S. 15-196.2. If the sentences were imposed at the same time, there would be no question that both would get 20 days of jail credit.
Is the same true when Charge B is sentenced after Charge A? People disagree, with the sticking point being the last clause of G.S. 15-196.1. That’s the provision I cited above for the rule that the defendant does not accrue jail credit for one charge when he or she is already serving a sentence for another charge—i.e., a “previously imposed sentence to which [the] defendant is subject.”
Some read that provision to say that no credit should be applied to Charge B because the 20 days of shared credit were “used up” by Charge A. They view Charge A as a “previously imposed sentence” under the last clause of G.S. 15-196.1, and conclude that once the 20 days of credit have been applied to Charge A, they cannot also be applied to Charge B. Others think the credit can be awarded under the general rule for applying shared credit to concurrent sentences in G.S. 15-196.2. They read “previously imposed sentence” in last clause of G.S. 15-196.1 to refer to a sentence to which the defendant “is subject” prior to the accrual of credit on the case now being sentenced, not merely prior to its sentencing. Read that way, the clause blocks only the award of the 10 days of confinement between the sentencing of Charge A and Charge B, because at that point Charge A is unquestionably a “previously imposed sentence” to which the defendant is subject during his continued pretrial confinement on Charge B. The credit accrued on Charge B before Charge A was sentenced survives and can be awarded under G.S. 15-196.2.
I don’t think there’s a case that clearly resolves the issue. And even if the legal interpretation were clear, there are often practical barriers to knowing precisely when various charges were pending and what credit has already been applied—especially when multiple counties, multiple judges, and multiple jails are involved. Nevertheless, I write to ask if you have encountered this issue in your work, and if there is a prevailing interpretation in your neck of the woods.