I recorded another whiteboard-style presentation on sentencing law. Today, the focus is on how active sentences for Class B1–E felonies play out in practice.
These days, you can find an online instructional video for pretty much anything. Cooking techniques, auto repair, differential calculus. Why not criminal sentencing? Today’s post is my first attempt at a microlecture on a discrete sentencing topic: Understanding how minimum and maximum sentences work for Class F–I felonies. You can view the video here. I’ll cover Class B1–E felonies in a subsequent installment, and maybe other topics, too, if you find this to be a helpful format. Let me know!
Update: I created a new version of this module using a program that allows me to export it to YouTube. Future modules will be posted on the same channel. You can view the revised video below.
Today’s post picks up where my last post left off, with answers (my answers, at least) to more frequently asked questions about post-release supervision.
What will life on PRS be like? It will be a lot like probation—which is something to keep in mind if the defendant requested an active sentence to avoid probation. The conditions of supervision will be set by the Post-Release Supervision and Parole Commission, not by the court. Every supervisee will be subject to a condition that he or she not commit another crime. G.S. 15A-1368.4(b). The Commission may add other conditions it believes are “reasonably necessary to ensure that the supervisee will lead a law-abiding life or to assist the supervisee to do so.” G.S. 15A-1368.4(d) and (e) set out appropriate reintegrative and controlling conditions, respectively. They include things like having a job, completing treatment, not using drugs, paying court costs, and submitting to warrantless searches by a post-release supervision officer. (Unlike probation, for post-release supervision there is no statutory provision for warrantless searches by a law enforcement officer.) Special conditions apply to sex offenders. G.S. 15A-1368.4(b1).
For what types of violations can I be revoked? As described in this prior post summarizing the PRS violation hearing process, the Justice Reinvestment Act limited the Commission’s authority to revoke PRS in much the same way that it limited judges’ authority to revoke probation. PRS may be fully revoked only for a new criminal offense or absconding, or for any violation committed by a person under supervision for a reportable sex crime. G.S. 15A-1368.3(c)(1). For all other violations, the supervisee may be reimprisoned for three months, and then re-released onto PRS. (DAC and the Commission sometimes refer to those 3-month reimprisonment stints as “CRV,” though that statutory terminology applies only to imprisonment for technical violations of probation.) Reimprisonment tolls the term of supervised release. Id. For example, if a defendant violates PRS 10 months into a 12-month term of supervision and is reimprisoned for three months, he comes out of prison with 2 months remaining on the term of supervision. Time does not run on the supervision period while he is behind bars. However, once the defendant has served his entire maximum term of imprisonment, the sentence is considered terminated, G.S. 15A-1368.2(f), and there is no further release to supervision, G.S. 15A-1368.3(c)(1).
If my PRS is revoked, do I get credit against my remaining term of imprisonment for the time I spent under supervision? No. Unlike some other states, North Carolina does not allow credit for what is sometimes called “street time,” the time a person a person spent under supervision in the community. To the contrary, G.S. 15A-1368.3(c)(2) expressly provides that a supervisee “shall not receive any credit for days on post-release supervision against the maximum term of imprisonment imposed by the court . . . .” So, if you have a 9-month term of PRS with 9 months of imprisonment hanging over your head, and you violate and get revoked in month 8, you go back to prison for 9 months, not 1 month.
How does PRS work if I am serving multiple sentences? In general, a person convicted of multiple felony offenses will serve only one period of post-release supervision upon his or her release. If the sentences were set to run consecutively, one PRS term will remain at the end of the aggregate term by virtue of the single sentence rule, described in detail here. The length of that sole PRS term will be dictated by the longest term applicable to the defendant’s multiple convictions (9, 12, or 60 months, depending on the offense class and whether the defendant is a sex offender). Occasionally a defendant will be subject to concurrent sentences that include a mix of non-PRS (i.e., pre-2011) and PRS-eligible felonies, and for which the term of imprisonment for the non-PRS sentence actually extends beyond the PRS-eligible one(s). If that happens, DAC and the Commission will hold the PRS term for the PRS-eligible offense in abeyance until the defendant is actually released from prison on the non-PRS case. Once a person is on PRS, the PRS term generally runs concurrently with any other federal or State prison, jail, probation, or parole term to which the person becomes subject. G.S. 15A-1368.5.
What is the deal with PRS for drug trafficking crimes committed between December 1, 2011 and November 30, 2012? When the General Assembly amended the felony sentencing grid in 2011, increasing felony maximum sentences to account for the expansion of post-release supervision, it did not increase the statutory terms of imprisonment for drug trafficking set out in G.S. 90-95(h). The legislature fixed the problem for offenses committed on or after December 1, 2012, but when I wrote about the issue here in 2012, I was unsure how DAC and the Commission would treat cases falling in the gap year. I have since learned that if there is not a full complement of “extra” time built into the maximum sentence for PRS (9 extra months for Class F, G, and H trafficking, and 12 extra months for Class C, D, and E trafficking), then they will not give the defendant any post-release supervision at all. I have heard that some judges have addressed the issue by adding extra time to the maximum themselves, but I don’t know of any legal basis for doing that. The applicable statute for that time period prescribed a particular sentence, and I think that’s what the court is obliged to use, even if it makes administration of PRS difficult. I would be interested to hear from readers with practical experience with cases from this time frame to learn more about how things played out.
There are almost 7,000 people on post-release supervision in North Carolina today. That’s up from around 2,000 in 2011, before the law was changed to require post-release supervision for all felonies. As the PRS census increases, so do the questions. Today’s post addresses a few frequently asked questions about post-release supervision, presented from the defendant’s point of view.
Do I have to do post-release supervision? It depends on the date and class of the offense. Sentences for defendants convicted of Class B1–E felony offenses committed on or after October 1, 1994, and any felony committed on or after December 1, 2011, include time for post-release supervision. Defendants who receive active sentences in those date ranges necessarily will be released onto post-release supervision at the conclusion of their active time. Defendants sentenced to probation initially will do PRS only if their probation is revoked.
How long is my term of post-release supervision? Again, it depends on the date and class of offense, and also whether or not the crime requires registration as a sex offender. The following summary is drawn from G.S. 15A-1368.2(c).
Offenses Committed before 12/1/11
Offenses Committed on or after 12/1/11
Can I refuse PRS and just serve out the remaining term of imprisonment? No. G.S. 15A-1368.2(b). And a sex offender inmate who willfully refuses to accept PRS can be held in contempt and imprisoned for the refusal, with that imprisonment not counting for credit against the remaining term of imprisonment for the underlying sex crime. Id. (described in this prior post).
Nobody mentioned anything about PRS when I was sentenced, and there’s nothing about it on my judgment. Do I still have to do it? Probably. There is no statutory requirement that a defendant be advised of a term of post-release supervision as a consequence of a guilty plea. G.S. 15A-1022 requires only that the defendant be advised of the maximum possible sentence for the charge. By contrast, federal procedural rules require the judge accepting a guilty plea to advise the defendant of the “maximum possible penalty, including imprisonment, fine, and term of supervised release.” Fed. R. Crim. Proc. Rule 11(b)(1)(H). Other states have similar rules. E.g. Ohio R.C. 2943.032.
Could the failure to advise about PRS raise a constitutional issue regarding whether the defendant’s plea was knowing, voluntary, and intelligent? Maybe. Constitutionally, a defendant must be made fully aware of the direct consequences of his or her plea, which are those that have a “definite, immediate and largely automatic effect on the range of the defendant’s punishment.” State v. Bozeman, 115 N.C. App. 658, 661 (1994). See generally Julie Ramseur Lewis & John Rubin, North Carolina Defender Manual (Vol. 2, Trial), at 65. PRS is mandatory, and thus pretty clearly “direct” (unlike parole eligibility, which is something upon which a defendant need not be advised, State v. Daniels, 114 N.C. App. 501 (1994)). However, when the term of PRS supervision is no longer than the extra time built into the defendant’s maximum sentence (generally 9 months for a Class F–I felon or 12 months for a Class B1–E felon), the judge’s advice about the maximum term of imprisonment may be all that is required. Though qualitatively different from imprisonment, the PRS supervision period will not extend beyond the duration of the advised-upon maximum, because the defendant will automatically be released that same number of months before attaining the maximum. G.S. 15A-1368.2(a). So in some sense the defendant has been advised about the outermost bounds of the punishment.
The type of defendant for whom the failure to advise about PRS seems most troubling is a Class F–I sex offender, who has only 9 extra months of imprisonment built into his or her maximum sentence, but a 5-year term of supervised release. G.S. 15A-1368.2(c). A lack of information about that lengthy, mandatory term of supervision (which extends over four years beyond the maximum term of imprisonment) could, perhaps, call the validity of a guilty plea into question. I’m not aware of any North Carolina case law, but when the issue has come up in other states, it generally has been resolved in the defendant’s favor. See People v. Catu, 825 N.E.2d 1081 (N.Y. 2005) (“Because a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction.”); State v. Johnson, 864 A.2d 400 (N.J. 2005) (vacating a plea when the trial court failed to advise about a mandatory parole period); Helms v. State, 281 P.3d 180 (Kan. Ct. App. 2012) (unpublished) (setting aside a plea when the trial court did not tell the defendant about mandatory postrelease supervision when entering his plea).
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.
(Editor’s note: Jamie Markham is a co-author of this post.)
Level A1 DWI. The General Assembly created Aggravated Level One sentencing for misdemeanor impaired driving in 2011. See S.L. 2011-191 (enacting G.S. 20-179(f3)). Level A1 sentences require a term of imprisonment that includes a minimum term of 12 months and a maximum term of not more than 36 months. Unlike defendants sentenced for lower levels of impaired driving, a defendant sentenced under Level A1 is not eligible for parole. Such defendants are instead subject to a term of post-release supervision to commence four months before the end of the maximum imposed term of imprisonment. They also are subject to the general provision in G.S. 20-179(p)(2) that requires a defendant to “serve the mandatory minimum period of imprisonment.”
Back when the law was passed, we wrote (here and here) about the difficulties associated with applying each of these sentencing requirements to Level A1 sentences while at the same time awarding good time credit pursuant to Division of Adult Correction policy. For sentences of certain durations, we noted that it would be a challenge to square the early release for post-release supervision with the law’s mandatory minimum period of incarceration—especially if good time credit would effectively cut the sentence in half. Given these ambiguities, we weren’t sure how DAC would administer the sentences.
Today, more than 200 inmates are serving Level A1 sentences. We thought we’d share what we know about how those sentences are playing out in practice.
Good Time Credit. Good time credit is not being applied to reduce Level A1 sentences. That’s a departure from the rule that generally applies to misdemeanor DWI sentences, which may be reduced for good behavior pursuant to regulations adopted by the Secretary of Public Safety. G.S. 148-13(b).
The regulations, which were last amended before the enactment of Aggravated Level One sentencing, provide that inmates “convicted of Driving While Impaired” are awarded good time “at the rate of one day deducted for each day served in custody for good behavior and/or without an infraction of inmate conducts [sic] rules.” Though the regulations do not specify their applicability only to certain punishment levels, the Division of Adult Correction has determined that they do not apply to Level A1 sentences.
The absence of this credit is significant. A defendant sentenced to 24 months imprisonment for a Level A1 DWI will be released to post-release supervision after 20 months of imprisonment. In contrast, a defendant sentenced to 24 months imprisonment for a Level One DWI who receives good time credit for each day served will be released outright after serving 12 months.
Moreover, in many circumstances, a defendant may serve a longer term of imprisonment for a Level A1 DWI than for habitual impaired driving, a Class F felony. A defendant who receives the maximum term for a Level A1 DWI will be released to post-release supervision after serving 32 months of imprisonment. In contrast, a Prior Record Level II habitual DWI defendant sentenced at the high end of the presumptive range will be released after 23 months at the latest.
Post-release supervision. In earlier posts we said we were unsure what DAC would do if the four-month early release for post-release supervision for Level A1 DWI sentences caused a defendant to dip below the 12-month mandatory minimum sentence of imprisonment for the crime. It turns out DAC will give full effect to the early release. So, for example, a Level A1 defendant who receives a 12 month sentence will be released onto post-release supervision after serving 8 months of imprisonment. The person will be on post-release supervision for four months with the remaining four months of imprisonment hanging over his or her head.
As expected, the number of people on post-release supervision (PRS) is on the rise. After Justice Reinvestment, all felons with offense dates on or after December 1, 2011 who serve active time receive PRS. The legislature projected that the addition of PRS for Class F-I felons would increase the number of post-release supervisees from 2,000 to around 15,000 over the next few years. The PRS census stands at about 3,300 today.
It’s no surprise, then, that I’m starting to get more questions about how PRS works in practice. Today’s post sets out the basic law for what happens when a person is alleged to have violated a condition of his or her post-release supervision.
The controlling authority for PRS cases is the Post-Release Supervision and Parole Commission (the Commission), not a judge. The Commission sets the conditions of supervision (the statutory default conditions are set out in G.S.15A-1368.4) and adjudicates alleged violations of them.
The officers who supervise PRS cases are the very same officers who supervise probation, but unlike probation, violations of PRS are reported to the Commission, not the court. An officer can arrest a post-release supervisee for an alleged violation, but only with a warrant issued by the Commission. G.S. 15A-1368.6(a).
If the supervisee is arrested, he or she may be detained in the local jail pending a preliminary hearing on the violation. The preliminary hearing must be held reasonably near the place of the alleged violation or arrest within seven working days of the arrest. Otherwise, the supervisee must be released at that point under G.S. 15A-1368.6(b) to continue on supervision until a hearing is held, unless the supervisee is a sex offender, in which case he or she may be held longer under G.S. 15A-1368.6(b1).
It is generally said that a post-release supervisee has no entitlement to bail pending a PRS hearing. There is no statute actually saying that. In fact, the sole statute mentioning “bond” for post-release supervisees is G.S. 15A-1368.6(b1), and, as I just mentioned above, it says only that sex offenders may be “detained without bond” until a preliminary hearing is held, even if it takes more than seven working days to hold it. The express prohibition on bond for sex offenders could, perhaps, be framed as tacit approval of it for non-sex offenders. But I mention that only as a possible argument. To be clear, there is no statute authorizing bail in PRS matters (as is there is for probationers in G.S. 15A-1345(b1)), and the longstanding practice has been to deny it. (The most authoritative guidance on point appears to be a 1975 opinion of the attorney general.)
Statutorily, the preliminary hearing may be conducted by a judicial official or by a hearing officer designated by the Commission. In practice, they are done by hearing officers, generally at the local jail. The procedure is informal, as provided in G.S. 15A-1368.6(d). There is no absolute right to appointed counsel at the preliminary hearing, but there is a conditional right, both as a constitutional matter under Gagnon v. Scarpelli, 411 U.S. 778 (1973), and statutorily under G.S. 148-62.1. That law creates an entitlement to appointed counsel for supervisees who (1) deny the alleged violation; (2) have reasons that justify or mitigate the violation that are complex or hard to present; or (3) appear to be incapable of speaking effectively for themselves. The Office of Indigent Defense Services has developed a procedure that directs hearing officers and clerks of court to use form AOC-G-311 for the appointment of counsel in appropriate cases.
If probable cause is found at the preliminary hearing, the supervisee can be returned to prison to await a revocation hearing before the full Commission. (The hearing officer can also reinstate supervision under the same or modified conditions. When that happens, the defendant is still entitled to credit against his or her remaining term of imprisonment for any time spent confined pending the preliminary hearing. State v. Corkum, __ N.C. App. __, 735 S.E.2d 420 (2012)).
As a practical matter, the vast majority of supervisees apparently waive their right to a final revocation hearing. Those who do not waive may be confined for up to 45 days pending the revocation hearing, as provided in G.S. 15A-1368.6(e). That confinement is generally in a DAC prison facility. Historically, supervisees were brought to Central Prison to be close to the Commission headquarters in Raleigh. As of last year, however, the Commission is empowered to hold revocation hearings by videoconference under G.S. 143B-720(f). As a result, supervisees may be taken to one of the several facilities around the state equipped with videoconference equipment. Under G.S. 143B-721(d), final revocation decisions are made by majority vote of the full Commission.
For supervisees under supervision for crimes committed on or after December 1, 2011, the Commission’s authority to revoke post-release supervision is limited much like judges’ authority to revoke probation. The Commission may only revoke for a new criminal offense or absconding, or for any violation committed by a sex offender. G.S. 15A-1368.3(c)(1). All other supervisees may only be returned to prison for three months at a time—similar to a 90-day CRV for probation.
That is the regular violation process in a nutshell. Note that the Commission may also respond to violations by sex offenders using the contempt procedure set out in G.S. 15A-1368.2(b), described here.
I mentioned in this prior post that the 2012 Justice Reinvestment clarifications act, S.L. 2012-188, made changes related to drug trafficking. Specifically, the law amended G.S. 15A-1368.1 to make clear that the post-release supervision law applies to drug trafficking sentences and added time onto the maximum sentences for those offenses accordingly. In response to the changes I prepared a revised drug trafficking sentencing chart. It is available here.
The 2012 changes to the law were made effective for offenses committed on or after December 1, 2012. Going forward, it is clear the drug trafficking sentences for crimes occurring on or after that date receive post-release supervision (PRS) just like any Structured Sentencing felony: 12 months of PRS for Class B1–E trafficking, 9 months of PRS for Class F–I trafficking.
The changes do not, however, answer the question of how PRS applies (if at all) for trafficking offenses committed before December 1, 2012. Before it was amended, G.S. 15A-1368.1 said that PRS applied to “all felons sentenced to an active punishment under Article 81B.” Article 81B of Chapter 15A is Structured Sentencing. Some would say that drug trafficking crimes are not sentenced under Structured Sentencing. They are instead sentenced under G.S. 90-95(h), and thus PRS does not apply. I think there are at least two problems with that view.
First, the statute setting out the applicability of Structured Sentencing, G.S. 15A-1340.10, says that it applies to criminal offenses other than impaired driving and certain health control measures. In other words, certain crimes are expressly excluded from Structured Sentencing, but drug trafficking is not among the exclusions. If that statute controls, drug trafficking crimes fall under Structured Sentencing generally, but just happen to have an alternative punishment set out in G.S. 90-95(h)—a possibility expressly provided for within Structured Sentencing itself. G.S. 15A-1340.17(d) (“Unless provided otherwise in a statute establishing a punishment for a specific crime, [punishment] is as specified in the [sentencing grid] . . . .”).
Second, maximum sentences for class C, D, and E trafficking offenses have long been 120% of the minimum plus 9 months, indicating an expectation that they would, like other Class B1–E felons from that timeframe, be released onto PRS nine months before attaining their maximum. And as a practical matter, the prison system has always released those offenders onto PRS like other serious felons.
So, there were at least a few indications that PRS did apply to drug trafficking sentences.
That was all well and good until the Justice Reinvestment Act (JRA) expanded post-release supervision without increasing the maximum sentences for trafficking. That expansion gave rise to a statutory conflict: revised G.S. 15A-1368.2(a) commands a release from prison onto PRS before some inmates have a chance to serve their minimum as required by G.S. 15A-1340.13(d). The problem is most obvious with low-level traffickers. For example, a Class H trafficker who receives a 25–30 month sentence would, at the very latest, be due for release onto PRS after serving 21 months (maybe earlier depending on earned time), but G.S. 15A-1340.13(d) says he may not be released from prison until serving his 25-month minimum.
So what do you do? The issue won’t go away soon. It will persist as long as people are serving sentences for offenses that occurred on or after December 1, 2011 (the effective date of the JRA’s expanded PRS law), but before December 1, 2012 (the effective date of the clarifications act described above). How should sentences for cases in that “gap” be administered?
One possibility would be to give effect to as much of the law as possible and release the person onto PRS as soon as both the early release rule of G.S. 15A-1368.2(a) and the serve-the-minimum rule of G.S. 15A-1340.13(d) rule are satisfied. Applying that rule to the Class H trafficker described above, the inmate would be released from prison onto PRS as soon as he served his 25-month minimum. He would then be on post-release supervision for 9 months with the possibility of reimprisonment for the 5 months remaining on his sentence in the event of revocation (or less, depending on earned time). It’s a little strange for the time hanging over the person’s head not to match the period of supervised release, but not unprecedented. A similar thing happens with Class F–I sex offenders who are under supervision for 60 months with only 9 months time remaining on their maximum. And that’s okay, because the supervision time is dictated by G.S. 15A-1368.2(c), not by the length of time remaining on the maximum sentence.
Other interpretations are also possible. I’ll post an update if I learn more about how the statutory conflicts will be resolved. I imagine that some “gap” cases are being handled right now, and all parties have an interest in knowing how the sentence will be served.
Like most complicated legislation, the Justice Reinvestment Act (JRA) was less than perfectly clear as originally written. Earlier this week (July 16, 2012) the governor signed House Bill 1021, Justice Reinvestment Clarifications. S.L. 2012-188. The act makes several important changes to the law, some of which are effective immediately. This post summarizes them.
Changes to “quick dip” procedures for probation officers. Under the JRA, probation officers can, in certain cases, impose a short term of jail confinement in response to a probation violation. That confinement has been referred to colloquially as a “quick dip” in the jail. The officer may impose up to six days of confinement per month, served in 2-day or 3-day increments, during any three separate months of a period of probation. The power to use quick dips was effective for any person on probation for a Structured Sentencing (i.e., non-DWI) offense committed on or after December 1, 2011, but Community Corrections chose as a matter of policy not to use them until July 2, 2012.
Before imposing a quick dip, a probation officer must present the probationer with a violation report noting the alleged violations and designating the period of confinement the officer is planning to impose. The officer must advise the probationer of his or her rights to a lawyer and a hearing on the violation. If the probationer signs a written waiver of those rights, the officer can impose the quick dip.
The Clarifications Act made a small change to that waiver procedure. Under the JRA as originally written, the waiver had to be witnessed by the probation officer and “a supervisor.” In some districts, the “supervisor”—the chief probation-parole officer or perhaps a judicial district manager—does not work in the same county as some of the officers he or she supervises. That made it inconvenient for the supervisor to witness a probationer’s waiver of rights. In response, the Clarifications Act deletes the requirement for a supervisor to witness and allows another officer (designated by the chief of the Section of Community Corrections in the written policy of the Division of Adult Correction) to do it instead. The change probably does not affect the analysis of whether the waiver procedure is constitutionally sufficient. Notice, a meaningful hearing, and an impartial decision maker—not witnesses—are the core elements of procedural due process.
The change to the witness requirement was made in both G.S. 15A-1343.2(e) (for community cases) and (f) (for intermediate cases). It is effective immediately on July 16, 2012.
Changes to confinement in response to violation for misdemeanors. As originally written, the JRA said that the period of confinement in response to violation (CRV, sometimes referred to as a “dunk”) for a misdemeanant was “up to 90 days.” G.S. 15A-1344(d2). However, the law went on to say that if 90 days or less remained on the defendant’s suspended sentence the CRV period had to be for the length of that remaining time. Because most misdemeanor sentences were 90 days or less to begin with, the rule virtually always trumped the court’s authority to order a shorter CRV period. It led to a peculiar result: the judge could impose a short CRV period (5 days, for example) for a defendant with a suspended sentence of 91 days or more, whereas any CRV period ordered for a defendant with a suspended sentence of 90 days or less was required to be a “terminal dunk,” using up the entirety of the remaining sentence. That formulation also appeared to frustrate one of the purposes of the JRA—reducing the number of offenders incarcerated for technical violations of probation—in that most misdemeanants’ first CRV period was the functional equivalent of a revocation.
The Clarifications Act excludes misdemeanants from the 90-days-or-less-remaining rule. In other words, the judge now can, in his or her discretion, impose a shorter CRV period in any misdemeanor case. The new version of the rule simply says the court may impose a CRV period of “up to 90 days” in a misdemeanor case. The law does not explicitly address how long the CRV period may be when the offender has less than 90 days remaining on his or her suspended sentence, but given that the confinement must be credited under G.S. 15-196.1, it may be no longer than the defendant’s suspended sentence.
The change was effective immediately when the governor signed it at 3:50 p.m. on July 16, 2012. It thus appears to apply to any CRV-eligible violation heard on or after that point. (If a judge was unaware of the change and, thinking it mandatory, ordered a terminal dunk for a misdemeanant after the law took effect, there may be grounds for bringing the matter back before the court for reconsideration in light of the revised law.) It will take a little time for the AOC forms to catch up with the change in the law. Until a new form AOC-CR-609, Order on Violation of Probation or on Motion to Modify, is published, court personnel should, in misdemeanor cases, disregard the usage note saying that a terminal CRV period must be ordered if 90 days or less remain on the defendant’s sentence.
Community service fee. The “perform community service” condition added by the JRA as a “community and intermediate” condition of probation under G.S. 15A-1343(a1)(2) did not expressly require payment of the $250 community service fee described in G.S. 143B-708. As a result, a defendant ordered to complete community service as a special condition of probation under G.S. 15A-1343(b1)(6) was required to pay the fee, while a defendant ordered to perform community service as a community and intermediate condition under G.S. 15A-1343(a1)(2) may not have been required to pay it. The Clarifications Act amends the latter condition to say that the fee is required under it, too. The change is effective July 16, 2012, and applies to any community service ordered as a community and intermediate condition on or after that date. As such, court personnel should probably disregard the usage note on the suspended sentence judgment forms saying that the community service fee should not be assessed for the “community and intermediate” version of the community service condition unless specifically ordered by the court.
Post-release supervision changes. The Clarifications Act made several changes related to post-release supervision.
First, the act amended G.S. 15A-1368.3(c) to say that while a person is reimprisoned for a violation of post-release supervision, his or her period of supervised release is tolled. For example, a supervisee who commits a technical violation in the eighth month of a 9-month post-release supervision period will have 1 month of post-release supervision left to serve in the community upon her release from a 3-month term of reimprisonment. The supervision period will not expire during her imprisonment. (Note that there is no parallel provision tolling a probationer’s period of probation during a CRV period.) The amended law also adds that a supervisee is not to be rereleased onto post-release supervision if the supervisee has served all the time remaining on his or her maximum imposed term. That change applies to all supervisees, including sex offenders. Under prior law, sex offenders were sometimes kept under supervision even after the conclusion of their full term of imprisonment, with the conditions of supervision enforced through the Post-Release Supervision and Parole Commission’s contempt power (discussed here). That practice does not appear to be permissible under the revised law. The change applies to supervisees who violate on or after July 16, 2012.
Second, the act amends G.S. 143B-720 to allow the Post-Release Supervision and Parole Commission to hold all post-release supervision and parole hearings and contempt hearings for sex offenders by videoconference. The change is designed to help the Commission handle the large expected increase in the number of post-release supervisees now that PRS applies to all felons. Logistically, the ability to conduct hearings via videoconference will certainly be helpful—there is only one Commission in Raleigh, and it (not the courts) is the controlling authority for PRS cases all across the state. There may be questions, though, about whether a hearing conducted via videoconference satisfies constitutional due process requirements. There isn’t much case law on point from other jurisdictions. See United States v. Thompson, 599 F.3d 595 (7th Cir. 2010) (holding that Rule 32.1 of the Federal Rules of Criminal Procedure prohibits conducting supervised release hearings via videoconference). Cf. Wilkins v. Timmerman-Cooper, 512 F.3d 768 (6th Cir. 2008) (upholding, on federal habeas review, a state parole violation hearing in which a parole officer and a witness testified against the parolee via videoconference). The technology may not be suitable for contempt hearings, which require proof beyond a reasonable doubt under the procedures set out in G.S. Ch. 5A. See S.E.C. v. Kimnes, 759 F. Supp. 430 (N.D. Ill. 1991) (discussing a defendant’s constitutional rights to be present and to confront witnesses at a criminal contempt hearing). The change is effective December 1, 2012.
Finally, the act amends G.S. 15A-1368.1 to make clear that the post-release supervision law applies to drug trafficking sentences. (Previously there were some indications that it did apply and some that it did not.) The act also adds time onto the maximum sentences for drug trafficking set out in G.S. 90-95(h) to cover for traffickers’ early release onto PRS. The act adds three months to the maximum sentences for Class C, D, and E trafficking (so that maximum sentences in those cases are 120 percent of the minimum plus 12 months) and nine months to the maximum sentences for Class F, G, and H trafficking (so that maximums in those cases are 120 percent of the minimum plus 9 months). That additional time will avoid the situation (discussed here) where the post-release supervision law commands a person’s release before he or she has served the minimum sentence. The changes are effective for offenses committed on or after December 1, 2012. That effective date leaves questions about the proper way to handle drug trafficking sentences for offenses committed between December 1, 2011 and November 30, 2012. I’ll write separately with my thoughts about that.
Shea Denning summarized S.L. 2011-191, Laura’s Law, in a prior post. To recap, the law adds a new punishment level for impaired driving sentencing, Aggravated Level One (hereinafter Level A1), for situations in which three or more grossly aggravating factors apply. Today’s post picks up on some of the points Shea mentioned in her earlier post. I especially want to focus on the law’s requirement of post-release supervision of Level A1 offenders.
The permissible punishment for a Level A1 sentence is a fine of up to $10,000 and sentence that includes a minimum term of not less than 12 months and a maximum term of not more than 36 months. The court can suspend the sentence only if it requires the offender to serve a split sentence of 120 days. Though the law appears to instruct the judge to impose a minimum sentence, the effect of that minimum is not altogether clear. Typically, the minimum imposed in a DWI sentence is for determining parole eligibility under G.S. 15A-1371 (which says that a DWI inmate is parole eligible upon completion of the lesser of the minimum or one fifth of the maximum penalty allowed by law, less good time), but Laura’s Law says that Level A1 inmates are not eligible for parole.
The law does, however, say that Level A1 inmates shall be released from the Department of Correction “on the date equivalent to the defendant’s maximum imposed term of imprisonment less four months and shall be supervised by the Division of Community Corrections under and subject to the provisions of Article 84A of Chapter 15A of the General Statutes . . . .” Article 84A of Chapter 15A is the post-release supervision article. Up to now, it has only applied to Class B1 through E felons, but come December 1—under Laura’s Law and Justice Reinvestment—it will apply to all felons and Level A1 DWI misdemeanants. Though no conforming change was made to Article 84A (G.S. 15A-1368.2(c), specifically), new G.S. 20-179(f3) indicates the period of supervised release for Level A1 DWI offenders will be the same as the amount of time the offender will have remaining on his or her active sentence when released: four months.
So when exactly does a Level A1 DWI inmate get released onto PRS? On “the date equivalent to the defendant’s maximum imposed term of imprisonment less four months,” right? The problem is that that statutory language is slightly different from the language in existing law for determining PRS release dates for felons. Under G.S. 15A-1368.2(a), a felon is released from prison for post-release supervision “on the date equivalent to his maximum imposed prison term less nine months [or 12 months for Class B1–E felons or 60 months for sex offenders, as the case may be under new law], less any earned time awarded by the Department of Correction.” DWI inmates don’t get earned time, but they do get good time under G.S. 15A-1355(c), G.S. 148-13(b), and applicable DOC regulations. And the good time rule—which applies to all DWI offenders regardless of punishment level—is more generous to inmates than the earned time rule in that it cuts DWI sentences in half. The thing is, there is no parallel provision in Laura’s Law about subtraction of good time from the offender’s “maximum imposed term of imprisonment” for determining the PRS release date. In other words, the law does NOT say the person is released four months early, less good time.
It remains to be seen how DOC and the Post-Release Supervision and Parole Commission will interpret that difference. The fiscal note accompanying the bill, prepared in consultation with DOC, figured that Level A1 offenders would serve the same average proportion of their maximum term as Level One DWI offenders, 41 percent, so they must have assumed that good time will apply. If that’s right, then any Level A1 DWI maximum sentence from 12 months to 24 months will be functionally the same from the (well-behaved) defendant’s point of view. It will be a 12-month sentence, because that’s as low as you can go without dipping below the statutory mandatory minimum under G.S. 20-179(p)(2), which says that good time credit “may not be used to reduce that mandatory minimum period.” There is no requirement that the inmate have completed substance abuse and assessment and treatment prior to release on post-release supervision; that limitation applies only to releases on parole under G.S. 20-179(p)(3).
Even if you set aside the good time credit issue, there is still a question about whether a person may be released on post-release supervision before serving the 12-month mandatory minimum for a Level A1 DWI. Different statutory provisions point in different directions. New G.S. 20-179(f3) says a person “shall be released” when he or she is four months from the maximum, but existing G.S. 20-179(p)(2) says a defendant “shall serve the mandatory minimum period of imprisonment.” G.S. 20-179(p)(3) isn’t really helpful either way; it says a person may not be paroled unless he has served his mandatory minimum, but it makes no mention of release on post-release supervision. To flesh that out a little, suppose a defendant is sentenced to a 14-month maximum. G.S. 20-179(f3) would say release him to PRS at 10 months (or 8 months if you allowed the maximum to be reduced to 12 months by good time credit). But G.S. 20-179(p)(2) says he must serve the statutory 12-month minimum. Comparable “truth-in-sentencing” principles under Structured Sentencing (G.S. 15A-1340.13(d)) would say he must serve the minimum, but Structured Sentencing minimums and maximums are designed to avoid this very problem: there is a constant 20 percent difference between every minimum and its corresponding maximum, with additional time built in to the maximum for the possibility of post-release supervision revocation. The DWI sentencing law simply isn’t set up that way. So again, we’ll need to wait to see how DOC will resolve the ambiguity.
(If it’s any consolation, release-date calculation is little more straightforward for defendants who receive a split sentence for Level A1 DWI: under G.S. 148-13(f) and DOC regulations, split sentences are not eligible for good time.)
Once a person is released onto post-release supervision, he or she will have four months of PRS under the supervision of the Division of Community Corrections. There is no such thing as “unsupervised” PRS. An offender who violates a condition of that supervision can be arrested and held for a hearing under the procedure set out in G.S. 15A-1368.6 (a preliminary hearing within 7 days, a final hearing within 45 days, etc.). Under changes made by the Justice Reinvestment Act, the Parole Commission can only fully revoke PRS for sex offenders, offenders who commit a new crime, or offenders who abscond. Offenders who violate in other ways get returned to prison for three months—which, for these DWI offenders who have four months of active time left to serve, will just about max out the sentence. In fact, if DOC awards good time to those offenders who are returned to prison, they will finish their four remaining months of active time in two months, and will thus max out and not be re-released into the community at all. It’s not clear, though, whether DOC will (or even can) do that. G.S. 15A-1368.3(c)(4) allows DOC to award earned time credit to reimprisoned Structured Sentencing offenders, but the new law does not mention any similar authority regarding good time for DWI offenders.