This session, the General Assembly made some changes to the statute governing the fingerprinting of criminal defendants. Inside and outside the School of Government, people are divided about whether the statute now requires officers to arrest, rather than cite, individuals for misdemeanor marijuana possession offenses. Continue reading
Tag Archives: misdemeanors
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 →
When I talk about the “commit no criminal offense” probation condition, it’s almost always about one particular issue. May a pending charge (or even uncharged conduct) be considered as a violation of that condition? Or must there be a conviction for that offense before it may be considered? I talk about that issue at length in this prior post. It’s a longstanding question that matters more in a post–Justice Reinvestment world, where a new criminal offense is just about the only thing that can get someone revoked.
But sometimes even a conviction for a new criminal offense is not a proper basis for revocation. Under G.S. 15A-1344(d), a person’s probation “may not be revoked solely for conviction of a Class 3 misdemeanor.” Today’s post covers a few things about that rule.
First, it survived the Justice Reinvestment Act. The JRA’s rule making new criminal offenses one of the sole bases for revocation does not trump or even really conflict with the rule that probation may not be revoked solely for a Class 3 misdemeanor. Rather, the Class 3 misdemeanor provision is an exception to the general rule that probation may be revoked for a new criminal offense—just as it was previously an exception to the rule that probation could be revoked for any violation.
Second, though the Class 3 misdemeanor rule still stands, there is not universal agreement on exactly what it means. The principal point of debate is whether the word “solely” in G.S. 15A-1344(d) allows a person to be revoked for conviction of Class 3 misdemeanor when that conviction is not the defendant’s sole violation. For instance, may probation be revoked if a person has a Class 3 misdemeanor conviction plus some other technical violation, or perhaps multiple Class 3 misdemeanor convictions? I tend to think not, because I’m not persuaded that additional non-revocable violations accumulate to a tipping point of revocability. But there are no published cases on point. The argument surfaced in a recent unpublished case, State v. Brown, 2014 WL 1047374 (N.C. Ct. App. Mar. 18, 2014). The defendant-probationer in Brown had two Class 3 misdemeanor convictions, prompting the State to argue that “a court could revoke . . . for commission of two or more Class 3 misdemeanors or for commission of a Class 3 misdemeanor and other probation violations that would not alone be sufficient for revocation.” The court of appeals did not need to reach the issue, however, because the defendant also admitted to committing a Class 1 misdemeanor while on probation.
Third, the rule is likely to come into play more often now that more crimes are Class 3 misdemeanors. As part of a plan to reduce the state’s bill for appointed lawyers, the legislature last year reduced the offense class for many common offenses to Class 3. (Jeff listed most of them in this prior post.) Those changes were made effective for offenses committed on or after December 1, 2013. It seems to me that convictions for offenses committed before that date are revocation-eligible, even though they wouldn’t be if committed today. Cf. G.S. 15A-1340.14(c) (which includes a provision updating the offense class of a prior offense to the classification assigned as of the date of the offense now being sentenced).
Finally, with revocation off the table, there is the question of what probation response options are permissible for a Class 3 misdemeanor conviction. The statutory limit refers only to revocation, meaning other non-revocation options like a split sentence, contempt, or electronic house arrest are still permissible. Another impermissible option, though, is confinement in response to violation (CRV). Despite being ineligible for revocation, the new conviction is, after all, a violation of the “commit no criminal offense” probation condition. And the CRV statute says that CRV is permissible when the defendant has violated a condition of probation other than committing a new criminal offense or absconding. G.S. 15A-1344(d2).
I thought I’d take a few minutes and jot down some questions and answers about the new fine-only punishment scheme for Class 3 misdemeanors for many defendants (enacted as part of the 2013 Appropriations Act). Several hours later—after thinking about the different permutations, reading several cases, talking with patient colleagues, and pondering further—I came up with a list of 33 questions and answers on Appointment of Counsel for Class 3 Misdemeanors. The subject poses both constitutional and practical questions.
Beginning with offenses committed on or after December 1, 2013, the basic rule is that a court may not impose a punishment other than a fine for a Class 3 misdemeanor if the defendant has three or fewer convictions and no other statute authorizes a greater punishment. See G.S. 15A-1340.23(d). The impact of this rule is that defendants who cannot receive more than a fine are generally not entitled to appointed counsel because, under the Sixth Amendment, the right to counsel in misdemeanor cases applies only if the defendant receives a sentence of active or suspended imprisonment.
This aspect of Sixth Amendment jurisprudence has always been awkward to apply because it requires that courts work backward from the sentence to be imposed at the end of the case in determining the defendant’s entitlement to counsel at the outset of the case. (For felonies, an indigent defendant always has a right to appointed counsel.) The new punishment scheme for Class 3 misdemeanors poses new questions, such as:
- What dispositions are permissible for “fine-only” Class 3 misdemeanors? Are costs permissible? A deferred prosecution? A sentence of time served?
- When does the court have to determine the defendant’s prior record for purposes of appointing counsel?
- What of a defendant charged with a Class 3 misdemeanor who has been arrested and cannot make bond? Does he or she have a right to counsel although not subject to imprisonment if convicted?
- Do the collateral consequences of a conviction have a bearing on the analysis?
People undoubtedly will have more questions as well as different views about the impact of the change. As always, feel free to weigh in with your questions and comments.
District court has original jurisdiction to try misdemeanors, so a misdemeanor usually arrives in superior court after a defendant is convicted of a misdemeanor in district court and appeals for a trial de novo in superior court. However, there are exceptions to the district court’s original jurisdiction that allow a superior court to handle a misdemeanor without any action in district court. For example, when (1) it is a lesser-included offense of a felony, (2) it is transactionally-related to a felony under G.S. 15A-926 (trying misdemeanor possession of drug paraphernalia with trafficking in marijuana), (3) there is a guilty or no contest plea in lieu of a felony, or (4) a misdemeanor is initiated by grand jury presentment and subsequent indictment, which is the topic of this post. See G.S. 7A-271, -272.
Because a presentment is rarely used, most people in the criminal justice system understandably know little about it. The presentment has a long history in North Carolina, having been used since statehood. It was originally a method by which a grand jury could bring a criminal charge on its own without an indictment and without the involvement of a prosecutor. But, as early as 1797, the North Carolina General Assembly enacted legislation to prohibit a trial by presentment alone. Instead, the grand jury’s return of a presentment requires a prosecutor to investigate the presentment’s allegations and submit an indictment if appropriate. G.S. 15A-641(c). For additional history on presentments, see State v. Thomas, 236 N.C. 454 (1952).
Although a grand jury could investigate an offense on its own and decide whether to issue a presentment, today a presentment will almost always be returned after a prosecutor has submitted a draft presentment to the grand jury with a testifying witness or witnesses. That occurred in State v. Gunter, 111 N.C. App. 621 (1993), a DWI case. G.S. 15A-628(a)(4) recognizes a prosecutor’s role (or a judge’s) in such a procedure.
A presentment alleging a misdemeanor allows a prosecutor to submit an indictment for that misdemeanor, State v. Birdsong, 325 N.C. 418 (1989), or related misdemeanors, State v. Cole, 294 N.C. 304 (1978). If the grand jury issues an indictment, the State tries the misdemeanor in superior court without any trial or other proceeding having occurred in district court—although a presentment may also be returned for a misdemeanor that is currently pending in district court but has not been tried yet. In such a case, the superior court supplants the district court’s jurisdiction over the misdemeanor. State v. Gunter, 111 N.C. App. 621 (1993).
Why would the State expend the time and effort with a presentment and subsequent indictment for a misdemeanor so it can be initially tried in superior court? The State might use the presentment process when it expects a district court trial to be lengthy, involve several witnesses, etc., and if the defendant is convicted, an appeal for a trial de novo in superior court is highly likely. So one trial instead of two may ultimately save time and effort. Other reasons include cases that involve public figures or officials or cases that have received significant publicity.
The North Carolina Court of Appeals decided its first breath-testing source code case yesterday. The court in State v. Marino affirmed the trial court’s determination that the defendant had no right to examine the source code for the Intoximeter EC IR II, the instrument used to analyze his breath alcohol concentration after he was arrested for impaired driving.
Jory Marino was pulled over by a Pinehurst police officer for speeding in March 2009. He subsequently was arrested for impaired driving and submitted to a breath test on the Intoxilyzer EC/IR II at the Pinehurst Police Department. His first and second breath samples registered alcohol concentrations of .11 and .10, respectively.
According to Marino’s brief to the court of appeals, he pled not guilty in district court “but stipulated sufficient evidence to adjudicate guilt,” and was found guilty. Marino then immediately appealed to superior court for trial de novo. See G.S. 15A-1431(b). In superior court, Marino filed a motion seeking an order that the Intoximeter source code was material, relevant and necessary for his defense. The purpose of this latter motion apparently was to facilitate issuance of a subpoena ordering Intoximeters, Inc., a Missouri company, to produce the source code. The State opposed the motion. The trial court preliminarily ordered the State to provide the defendant with “‘all downloaded and non-downloaded data in its possession that was generated from [the] Intoximeter [used to analyze defendant’s breath.],’” and ultimately denied the defendant’s motion for an order finding the Intoximeter source code material.
The defendant was convicted at trial. The jury returned a special verdict finding the defendant guilty under both the appreciable impairment and per se impairment prongs of G.S. 20-138.1(a).
Defendant appealed, arguing that, among other errors, the trial court erred in denying his motion to examine the Intoximeter source code.
No error, said the court of appeals. The appellate court rejected Marino’s argument that he was entitled to the source code under Brady v. Maryland, 373 U.S. 83 (1963). The court reasoned that the defendant failed to show the source code to be favorable to his case or material to guilt or punishment. Instead, the court noted that the defendant sought to examine the source code “in the hopes that it will be exculpatory in nature or will lead to exculpatory material.” Given that the defendant failed to show discrepancies in the Intoximeter results, the court characterized the materiality of the source code as “speculative at best.” Moreover, given that the defendant was convicted under both prongs of impairment, he failed to show a reasonable possibility that having the source code would have affected the outcome of his case. The court also rejected the defendant’s argument that he had a Sixth Amendment right to examine the Intoximeter source code, declining the defendant’s invitation to so extend the Supreme Court’s confrontation clause jurisprudence.
The court of appeals then addressed a defendant’s right to discovery generally when a misdemeanor conviction is appealed for trial de novo in superior court. The court began by noting that, with the exception of Brady material, a defendant has no constitutional right to discovery in criminal cases. Instead, the discovery right is purely statutory. The discovery provisions of the Criminal Procedure Act apply only in cases within the original jurisdiction of the superior court. See G.S. 15A-901. Because original jurisdiction for misdemeanor criminal actions lies in district rather than superior court (subject to a few exceptions not relevant here), a defendant charged with driving while impaired or any other misdemeanor offense is not entitled to statutory discovery. The court rejected the defendant’s argument that his due process rights were violated by the provisions of G.S. 15A-901 that limit discovery to cases originating in superior court.
For its part, the State sought a ruling that the trial court exceeded its authority and erroneously granted discovery when it ordered the State to provide all data generated by the Intoximeter on which the defendant was tested. The court refused to so hold on the basis that the State “voluntarily complied” with the order.
Source Code Significance.
Marino makes clear that the Intoximeter source code is not material and exculpatory in every case in which a defendant is charged with impaired driving based on a breath-alcohol concentration of .08 or more. The court’s holding does not, however, foreclose a defendant from establishing that such source code is material and exculpatory and thus discoverable under Brady by making some additional showing. For example, a defendant who demonstrates otherwise unexplained discrepancies in the results of multiple breath tests or a discrepancy between blood and breath testing of the same individual near the same point in time, might be able to establish a constitutional right to the source code. Likewise, a defendant charged with impaired driving in a case in which she allegedly refused testing might, upon a foundational showing of inconsistent outcomes, be able to establish a right to the source code. Cf. In re Source Code Evidentiary Hearings in Implied Consent Matters, 816 N.W.2d 525 (Minn. 2012) (discussed here).
Discovery in Misdemeanor Cases.
Defendants not entitled to statutory discovery (that is to say, defendants charged with misdemeanors in district court) frequently use the subpoena power in G.S. 15A-802 to obtain documentary evidence in advance of trial. Those subpoenas sometimes are issued to law enforcement agencies, seeking items like the videotaped recording of a traffic stop. Unlike the proprietary source code sought by Marino, which apparently was exclusively possessed by the third-party manufacturer, this is the type of information that, were the case a felony, would be discoverable.
The Marino court emphasized that defendants charged with misdemeanors are “not entitled to statutory discovery,” and have “no statutory right to pretrial discovery.” Yet application of G.S. 15A-802 in the manner mentioned above effectively affords a defendant discovery, albeit by a different name. Marino dodged the issue of whether a defendant might obtain otherwise undiscoverable information through a different avenue, refusing to hold that — or even analyze whether — the trial court erred by ordering the State to produce data from the Intoximeter on which the defendant was tested.
Since Marino doesn’t clarify the relationship between the subpoena power and the discovery rules, I’ll ask you practitioners to tell me how it works in the real world. Does the subpoena power effectively provide discovery in misdemeanor prosecutions?
The legislature has agreed on a budget, and it contains some provisions that will impact misdemeanor sentencing and the appointment of counsel — potentially in tens of thousands of cases each year.
Status of the budget. The current budget bill is S 402. It is available here. The accompanying “money report,” which provides narrative explanations of some of the provisions of the budget, is available here. Republican leaders in both chambers have endorsed the bill. The General Assembly is expected to approve it in the next two days, and Governor McCrory is expected to sign it.
Change to Structured Sentencing grid. Section 18B.13.(a) of the budget changes the misdemeanor Structured Sentencing grid as follows, effective for offenses committed on or after December 1, 2013:
This is the first change to the misdemeanor grid since 1995.
Fine only for many Class 3 misdemeanors. The same section states that “[u]nless otherwise provided for a specific offense, the judgment for a person convicted of a Class 3 misdemeanor who has no more than three prior convictions shall consist only of a fine.” Fines for Class 3 misdemeanors generally may not exceed $200. G.S. 15A-1340.23(b).
One question about this provision is whether it applies to a defendant who has three or fewer prior convictions that may be counted separately for Prior Conviction Level purposes, but who has four or more total prior convictions. (For example, a defendant who incurred several convictions in a single week or session of court. See generally G.S. 15A-1340.21(d).) The new fine-only provision appears in the General Statutes amidst the discussion of the Prior Conviction Level determination, so maybe so. But it does not expressly refer to or incorporate the Prior Conviction Level rules, so maybe not.
Reclassification of offenses. In addition to changing the punishments for Class 3 misdemeanors, the budget also creates more of them. Section 18B.14 reclassifies a number of misdemeanors – most currently Class 2 – as Class 3 offenses. The new Class 3 misdemeanors include:
- Obtaining property by worthless check, G.S. 14-106
- Simple worthless check, G.S. 14-107
- Failure to return hired property, G.S. 14-167
- Conversion by bailee, G.S. 14-168.1
- Failure to return rental property with purchase option, G.S. 14-168.4
- DWLR, G.S. 20-28 (unless revoked for DWI, then still Class 1)
- Certain motor vehicle misdemeanors that were Class 2 under G.S. 20-35, including:
- Most NOLs, G.S. 20-7
- Failure to tell DMV of address change by driver, G.S. 20-7.1
- Allowing vehicle to be driven by unlicensed person, G.S. 20-34
- Certain motor vehicle misdemeanors that were Class 2 under 20-176, including:
- Failure to carry registration card in vehicle, G.S. 20-57(c)
- Failure to sign registration card, G.S. 20-57(c)
- Failure to tell DMV of address change by vehicle, G.S. 20-67
- Certain license plate/registration violations, G.S. 20-111
- Window tinting violations, G.S. 20-127(d)
- Misdemeanor speeding, G.S. 20-141(j1)
- No insurance, G.S. 20-313(a)
- Repeat fishing without a license, G.S. 113-135(a) (referring to 113-174.1 and -270.1B)
Also, section 18B.15 of the budget reclassifies a number of boating safety offenses from Class 3 misdemeanors to infractions.
Ineligibility for appointed of counsel. It seems that one goal of these provisions was to save money on appointed counsel. The money report states that IDS’s budget will be reduced by $2,000,000 annually because the budget “[r]eclassifies low-level misdemeanors that rarely result in incarceration as Class 3 misdemeanors or infractions and modifies the sentencing structure for Class 3 misdemeanors so that the first three [editor’s note: probably should read “four”] charges are fineable offenses. With no possibility of incarceration, these offenses do not require legal counsel.”
In other words, the changes made by the budget will provide that a defendant charged only with a Class 3 misdemeanor, and who has no more than three prior convictions, will be facing a potential sentence of a fine of $200 or less. Constitutionally, an indigent defendant is entitled to appointed counsel when facing incarceration, Argersinger v. Hamlin, 407 U.S. 25 (1972), or even a suspended sentence, Alabama v. Shelton, 535 U.S. 654 (2002), but not a fine alone, Scott v. Illinois, 440 U.S. 367 (1979). Nor does a defendant facing a small fine have a right to counsel under the North Carolina statute governing appointment of counsel. It extends only to cases in which “imprisonment, or a fine of five hundred dollars . . . or more, is likely to be adjudged.” G.S. 7A-451(a)(1).
Note that if a defendant is sentenced to a fine but does not pay it, “the court, upon the motion of the prosecutor or upon its own motion, may require the defendant to appear and show cause” for his failure to pay, and if he cannot, may imprison the defendant for up to 30 days. G.S. 15A-1364. I don’t know how common these show cause proceedings are, but a defendant would appear to be entitled to counsel at any such hearing.
Administering the new provisions. It will be interesting to see how these changes work in practice. For example:
- Who will be responsible for determining how many prior convictions the defendant has? The prosecutor? The clerk?
- How thoroughly will the responsible party research the defendant’s prior record? Will an ACIS check of the county in which the charges are pending be the norm? A statewide ACIS check? Will CJLEADS or other systems be used for this purpose?
- Will judges err on the side of appointing counsel in order to protect defendants’ rights, or to preserve the possibility of a sentence other than a fine? Will that remove some of the anticipated cost savings?
As always, I’m interested in readers’ thoughts about the upcoming changes in the law. Given the number of cases affected, the changes appear to be quite significant.
I recently received an email that began “I have been reading in the news that Sheriff Mike Cain of Yadkin County pled guilty to eight misdemeanors. I am curious how the Superior Court had jurisdiction [since the case was not an appeal, but rather one of original jurisdiction].” The author suggested that the answer might make an interesting blog post, and I agree.
In the case of former Sheriff Cain, the answer appears to be straightforward. The Winston-Salem Journal reports here that Mr. Cain agreed “to plead guilty to charges related to maintaining a secret bank account and using county funds for a personal Harley-Davidson motorcycle.” Specifically, he “pleaded guilty to six misdemeanor counts of conversion of property by a bailee. He had faced six felony counts of the same crime. He also pleaded guilty to one count of private use of a publicly owned vehicle, one count of willfully failing to discharge his duties as sheriff and one count of a public official benefiting from a private contract.”
The jurisdiction of the superior court is established by G.S. 7A-271. Subsection (a)(1) of that section gives the superior court jurisdiction over “a misdemeanor . . . [w]hich is a lesser included offense of a felony” that has been indicted or brought by criminal information. And subsection (a)(3) gives the superior court jurisdiction over misdemeanors that are transactionally related to felony charges. Mr. Cain seems to have been charged with felony violations of G.S. 14-168.1, which gave the superior court jurisdiction over the lesser included misdemeanor violations and over the additional transactionally related misdemeanors.
Before I read the newspaper report, though, I wondered if the answer might be more exotic. Subsection (a)(2) of G.S. 7A-271 gives the superior court jurisdiction over misdemeanors “[w]hen the charge is initiated by presentment.” What’s a presentment? Well, as defined by G.S. 15A-641(c), it is a
written accusation by a grand jury, made on its own motion and filed with a superior court, charging a person, or two or more persons jointly, with the commission of one or more criminal offenses. A presentment does not institute criminal proceedings against any person, but the district attorney is obligated to investigate the factual background of every presentment returned in his district and to submit bills of indictment to the grand jury dealing with the subject matter of any presentments when it is appropriate to do so.
In other words, a presentment is a way for the grand jury to sua sponte tell the district attorney to check into a possible crime. If the prosecutor finds a crime, he or she can submit an indictment for it, even if the crime is a misdemeanor that otherwise would be charged in district court. See generally State v. Birdsong, 325 N.C. 418 (1989); State v. Gunter, 111 N.C. App. 621 (1993). Prosecutors sometimes ask grand juries to consider a presentment — which is perfectly proper, see G.S. 15A-628(a)(4) — in misdemeanor cases that are high profile, involve public officials, or otherwise are certain to be appealed if brought in district court. In other words, if the case is going to end up in superior court anyway, and it deserves the greater level of formality available there, bringing it by presentment, then indictment, may make sense. But again, that doesn’t appear to have happened in Mr. Cain’s case.
If there are other circumstances in which presentments are used, please let me know privately or post a comment. They’re pretty unusual so I may be missing a wrinkle or two.
I haven’t done any sort of official tally, but I think the most common sentencing error in North Carolina might be sentencing the defendant to an improper period of probation. It came up again this week in State v. Wheeler, so I thought I’d take the opportunity to write about it.
The basic rule is in G.S. 15A-1343.2(d): “Unless the court makes specific findings that longer or shorter periods of probation are necessary, the length of the original period of probation for offenders sentenced under [Structured Sentencing] shall be as follows:
(1) For misdemeanants sentenced to community punishment, not less than six nor more than 18 months;
(2) For misdemeanants sentenced to intermediate punishment, not less than 12 nor more than 24 months;
(3) For felons sentenced to community punishment, not less than 12 nor more than 30 months; and
(4) For felons sentenced to intermediate punishment, not less than 18 nor more than 36 months.
With the appropriate findings, the court can order probation for up to five years. The suspended sentence judgment forms (AOC-CR-603, for example) include a check-box in the “Suspension of Sentence” block for the judge to record the finding.
In Wheeler, the defendant was placed on probation for 24 months for a community-sentenced misdemeanor, with no judicial finding that a period longer than 18 months was necessary. The court thus remanded the case for findings pursuant to G.S. 15A-1343.2—as it did in State v. Lamond, __ N.C. App. __ (2009), State v. Branch, __ N.C. App. __ (2008), and State v. Cousart, 182 N.C. App. 150 (2007), just to name a few.
If the defendant catches the error right away and appeals, it’s a relatively easy fix: the appellate court will probably reverse the sentence and remand it to the trial court, which can either make a finding that a longer period is necessary or sentence the defendant to a probationary period within the statutory defaults. (That’s what happened in all the cases I cited above, but I don’t think it’s a given that the appellate court will always remand for findings. In other circumstances where a record lacked sufficient evidence to support requisite factual findings, the appellate division has chosen to “conserve judicial resources” by not remanding the case. See, e.g., State v. Bryant, 361 N.C. 100 (2006).) But what happens when the error isn’t discovered until the defendant has already violated probation? And what if the violation occurred after a proper period of probation would have expired?
I don’t see a published case answering that question, but an unpublished case, State v. Lindsay, 645 S.E.2d 229 (2007), provides some guidance. In Lindsay, the defendant was sentenced to 60 months of probation, even though 30 months was the default statutory maximum for her community-sentenced felony. In month 33, her probation officer filed a violation report, and her probation was revoked. The defendant argued on appeal that the revoking court had been without jurisdiction to hear her case because the original sentencing judge failed to make a finding that a period longer than 30 months was necessary, and the violation report was filed after the expiration of the maximum term allowable without a finding.
The court of appeals disagreed, saying the defendant could not collaterally attack her original sentence through the appeal of her probation revocation. Her proper recourse, the court said, would have been to appeal the sentence within 14 days of the original judgment or to petition for writ of certiorari. Another possibility, I think, would be for the defendant to file a motion for appropriate relief under G.S. 15A-1415(b)(8) arguing that the sentence was unauthorized—that’s a ground for an MAR that may be raised at any time. Whatever the procedure, I think it’s clear that the court of appeals was not willing in Lindsay to condone a sort of probationer self-help; she could not simply “abscond probation after thirty months had passed, rather than pursue relief from the improper sixty-month term through proper legal channels.” 645 S.E.2d at *2. Above all else, the Lindsay case demonstrates how messy the downstream effects of an improper period of probation can be.
One additional note about the Wheeler case: as a helpful commenter pointed out, the court of appeals apparently shares my belief, discussed here, that the limits on consecutive sentences for misdemeanors apply with equal force to suspended sentences. In Wheeler, the defendant was sentenced to consecutive terms for three misdemeanors: assault inflicting serious injury, false imprisonment, and a false fire alarm. All the sentences, which totaled 165 days, were suspended. (The court of appeals actually wrote that “the trial court suspended the sentences and placed Defendant on probation for a total of 165 days,” but that must be a typo. As discussed above, Wheeler’s court-ordered period of probation was 24 months.) The Class A1 assault was the most serious offense, punishable by up to 75 days for this Level II offender. Applying the rule from G.S. 15A-1340.22(a) that the cumulative length of the sentences of imprisonment may not exceed twice the maximum sentence authorized for the class and prior conviction level of the most serious offense, the court of appeals said the trial court could only impose consecutive sentences totaling 150 days—even though they were suspended.
A while ago, Alyson Grine and I wrote a post about consecutive sentences for misdemeanors. In it, we discussed the rule that when a court elects to impose consecutive sentences for two or more misdemeanors, the cumulative length of the sentences of imprisonment may not exceed twice the maximum sentence authorized for the class and prior conviction level of the most serious offense. If all the convictions are for Class 3 misdemeanors, consecutive sentences may not be imposed at all. G.S. 15A-1340.22. In that post we also opined about how those rules apply when a judge decides to suspend some or all of the misdemeanor sentences. We wrote that the rules would apply with equal force to suspended sentences, which, under G.S. 15A-1340.20(b)-(c), still include a term of “imprisonment.” Our thought was that the maximum number of days of imprisonment the court has to work with – active or suspended – in a misdemeanor sentencing episode is twice the maximum for the most serious offense.
A recent court of appeals case, State v. Remley, is leading me to rethink what we wrote in that post. The case doesn’t expressly say we were wrong, but it does do the math a little differently than we did. In Remley, the Level II defendant was convicted of 8 counts of Class 1 misdemeanor larceny. The trial court sentenced the defendant as follows, with all sentences to run consecutively:
1. 45 days, active
2. 45 days, active
3. 45 days, suspended, with 10 days active as a condition of special probation
4. 45 days, suspended, with 10 days active as a condition of special probation
5. 45 days, suspended, with 10 days active as a condition of special probation
6. 45 days, suspended, with 10 days active as a condition of special probation
7. 45 days, suspended, with 10 days active as a condition of special probation
8. 45 days, suspended, with 10 days active as a condition of special probation
The defendant complained that this sentence ran afoul of the rule on consecutive misdemeanor sentences described above by exceeding twice the maximum sentence of imprisonment for the most serious offense – 90 days. The court of appeals agreed and remanded for resentencing, but in doing so noted that the sentence was incorrect because the defendant received 150 days [45 + 45 + 10 + 10 + 10 + 10 + 10 + 10] of imprisonment. If you had asked me, I would have said the sentence was incorrect because it imposed 360 days [45 × 8] of imprisonment. That, after all, is the total amount of time the defendant would have faced upon revocation of probation. As mentioned above, I thought the limitation in G.S. 15A-1340.22 on cumulative length of “imprisonment” applied to all sentences imposed in a single episode, active or suspended. The “imprisonment” is still there in a probationary sentence, it’s just suspended. That’s how I read the language of the relevant statutes, and that outcome also makes more sense to me as a policy matter. Why would a defendant who gets fully active sentences out of the gate be exposed to less time behind bars than a defendant for whom some or all sentences are suspended?