“Revoking” Deferral Probation

Tag Archives: probation revocation

“Revoking” Deferral Probation

Posted on June 7, 2018 by Jamie Markham

Do the Justice Reinvestment Act’s limitations on a judge’s authority to revoke probation apply in deferred prosecution and conditional discharge cases?

Defendants can be placed on probation as part of a deferred prosecution or conditional discharge. The statutes governing that probation don’t spell out every detail of what it looks like. Instead, they typically incorporate by reference the ordinary rules of Article 82 of Chapter 15A—the probation article. See, e.g., G.S. 15A-1341(a1) (“A person who has been charged with a Class H or I felony or a misdemeanor may be placed on probation as provided in this Article . . . .”). We know that “[i]n the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under G.S. 90-96.” State v. Burns, 171 N.C. App. 759 (2005).

One of the most important rules in Article 82 is that the court may revoke probation only for new crimes and absconding. G.S. 15A-1344(a). The court may also revoke probation for felony and DWI probationers who have served two prior periods of confinement in response to violation (CRV), and for misdemeanor probationers who have received two prior quick dips in the jail. G.S. 15A-1344(d2).

Of course, “revocation” means something different in the context of a deferral case than it does in regular post-conviction probation. It is not the activation of a suspended sentence. Rather, in a deferred prosecution case, it is an “order that charges as to which prosecution has been deferred be brought to trial.” G.S. 15A-1344(d). In a conditional discharge case, it is entry of judgment and sentencing. Notwithstanding those conceptual differences, the question remains: are the rules limiting the court’s authority to revoke among the “general probation provisions found in Article 82” that, under Burns, apply in deferral cases, too? Or does some “provision to the contrary” control, allowing probation to be revoked for any violation in deferral cases?

I don’t think there’s a clear answer.

The best argument that probation may be revoked for any violation is probably the language found in various conditional discharge statutes saying that, “upon violation of a term or condition of [conditional discharge probation],” the court may enter judgment and proceed as otherwise provided. Language to that effect appears in G.S. 90-96(a), G.S. 90-113.14(a) (toxic vapors), G.S. 15A-1341(a6) (misdemeanors and Class H and I felonies and drug treatment court), and G.S. 14-204(b)(5) (prostitution). Those laws refer to violation of “a term or condition,” without specifying that it need to be a violation of any particular condition. There is no similar language directly applicable to deferred prosecution probation.

As practical matter, the JRA’s three-strikes approach to technical violations strikes me as a poor fit for deferral cases. In my opinion (outlined here) those cases are ineligible for CRV or quick dips—the sanctions that qualify as strikes one and two. It seems unlikely that the legislature intended deferral cases to be entirely revocation-proof until the defendant committed a new crime or absconded, but no law unambiguously exempts those cases from the general rule.

The one type of conditional discharge that clearly sets out a rule different from the JRA is G.S. 90-96(a1). That lesser-used cousin of G.S. 90-96(a) says that a failure to complete drug education school—something that would be a mere technical violation in the context of a regular post-conviction probation case—“shall constitute grounds to revoke.” Indeed, upon receipt of information that the defendant has failed to complete the program, the court is required to revoke. That’s a departure from the general rule that the court has discretion on whether or not to revoke probation even in the face of a revocation-eligible violation.

Category: Sentencing, Uncategorized | Tags: conditional discharge, deferred prosecution, G.S. 90-96, probation, probation revocation

Revoked, but Still on Probation?

Posted on October 1, 2015 by Jamie Markham

The Right to Be Present at Sentencing

Posted on December 9, 2014 by Jamie Markham

No Revocation Solely for Conviction of a Class 3 Misdemeanor

Posted on May 12, 2014 by Jamie Markham

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).

Category: Sentencing, Uncategorized | Tags: misdemeanors, probation, probation revocation, probation violations

The Absconding Donut Hole

Posted on September 5, 2012 by Jamie Markham

In 2012, a person on supervised probation for an offense that occurred before December 1, 2011 moves to another state without permission. Months later he is arrested there and brought back to North Carolina for a violation hearing. May he be revoked for absconding? I don’t think so. This post discusses why.

Effective for offenses committed on or after December 1, 2011, the Justice Reinvestment Act made it a regular condition of probation that a defendant not “abscond, by willfully avoiding supervision or by willfully making the defendant’s whereabouts unknown to the supervising probation officer.” G.S. 15A-1343(b)(3a). The new regular condition is the first true absconding condition in North Carolina. In fact, aside from a brief mention in the Crime Victims’ Rights Act (G.S. 15A-837), it is the first use of the word “abscond” in the criminal law statutes. Previously, offenders alleged to be “absconders” were generally violating one of two statutory conditions of probation: the “remain within the jurisdiction” condition or the “report as directed . . . to the officer” condition. The absconding terminology was derived from Community Corrections policy, not the law. The new absconding condition was initially made effective for “probation violations occurring” on or after December 1, 2011. S.L. 2011-192, sec. 4.(d). But that didn’t make sense—how could a condition become effective only upon a violation of it?—so the effective date clause was amended by a technical corrections bill to make the law applicable to offenses committed on or after December 1, 2011. S.L. 2011-412, sec. 2.5.

One of the major changes made by the JRA is that the court can only revoke probation for violations of the “commit no criminal offense” condition, absconding, or for probationers who have already received two periods of confinement in response to violation. The statutes setting out courts’ revocation authority for absconders, G.S. 15A-1344(a) and -1344(d2), both refer explicitly to violations of the new statutory absconding condition, G.S. 15A-1343(b)(3a), not to absconding generally. Thus, violations of other conditions (like the “remain within the jurisdiction” condition or the “failure to report to the officer” condition) appear to be ineligible for revocation, even if Community Corrections refers to them as absconders.

The problem, of course, is that thousands of probationers are not subject to the statutory absconding condition. As discussed in the opening paragraph above, that new condition only applies to probationers with offense dates on or after December 1, 2011—a cohort that is only recently starting to come onto probation in large numbers. With that in mind, in various JRA training sessions I have stressed the distinction between “statutory absconders,” who may be revoked, and “policy absconders” (people Community Corrections calls absconders but who are not subject to the statutory absconding condition), who apparently may not be revoked. You can listen to a discussion of the issue in this free webinar, presented to all probation officers in November 2011, beginning around the 31-minute point.

I have received lots of calls in the past two weeks about offenders falling in this “donut hole”—the apparent gap created by the effective date of the absconding condition and the wording of the statutes limiting judges’ authority to revoke. I’m not sure there’s much that can be done about it. Some have asked if the judge can add the statutory condition for an offender on probation for an offense that occurred before December 1, 2011, just in case the offender absconds in the future. Perhaps, although I think there would be a pretty good argument that, in light of the effective date for the new regular statutory absconding condition, any “don’t abscond” condition added to an older case is really just a special condition under G.S. 15A-1343(b1)(10), and still not a permissible basis for revocation.

None of this is to say that offenders not subject to the statutory absconding condition get a free pass. Violations of the “remain within the jurisdiction” condition or the “failure to report” condition are still technical violations eligible for confinement in response to violation (CRV), special probation, or some other modification of probation. And if the offender allegedly absconded before December 1, 2011, he or she would be eligible for revocation under the applicable prior law; the JRA’s limits on judges’ revocation authority only kicked in for violations occurring on or after December 1, 2011. So, if an offender who disappeared a long time ago turns up now, he or she may not fall into this so-called donut hole at all.

Even for offenders actually subject to the new statutory absconding condition, it is not entirely clear from the language of the condition itself what it means for a probationer to avoid supervision, or how long a person’s whereabouts must be unknown before he or she becomes an absconder. I think those thresholds will, to some degree, be shaped by other conditions to which the probationer may be subject and by the contact frequency standards associated with his or her supervision level. Additionally, probation officers are still required as a matter of their internal policy to conduct a specialized investigation before declaring that an offender has absconded. That investigation includes attempting to contact the offender by telephone, visiting the offender’s residence in the daytime and in the evening, contacting the offender’s landlord and neighbors, visiting the offender’s workplace or school, contacting the offender’s relatives and associates, and contacting local law enforcement, including the jail. Section of Community Corrections Policy § E.0503.

Category: Procedure, Sentencing, Uncategorized | Tags: absconders, absconding, donut hole, jra, justice reinvestment, probation, probation revocation, probation violations

FAQs About CRV

Posted on February 8, 2012 by Jamie Markham

Under amended G.S. 15A-1344(a), for probation violations occurring on or after December 1, 2011, a court may only revoke probation for a violation of the “commit no criminal offense” condition or for violations of the new statutory absconding condition set out in G.S. 15A-1343(b)(3a). For all other probation violations occurring on or after that date, the court may impose Confinement in Response to Violation (CRV, sometimes referred to as a “dunk”) under new G.S. 15A-1344(d2). After a defendant has received two CRV periods, the court may revoke for any violation. I wrote about CRV in this prior post.

The questions about CRV have been pouring in. I thought it might be helpful to collect some of them into a frequently asked question post.

What is the effective date of the limitation on the court’s authority to revoke probation and the grant of authority to impose CRV? The relevant effective date for these provisions was set out in section 4.(d) of the Justice Reinvestment Act (S.L. 2011-192) and then amended by section 2.3.(e) of S.L. 2011-412, which made some technical corrections to the law. The final effective date language said the law was “effective December 1, 2011, and applies to probation violations occurring on or after that date.” I read “probation violations occurring” to refer to the date of the alleged offending behavior—not the date the violation report was filed, not the date the offender was served with the violation, not the date the violation hearing itself is held, or any other triggering event. The court needs to determine the date of the alleged violation and then respond to the old ones (those occurring before December 1, 2011) under the old law and the new ones (those occurring on or after December 1) under the new law. Probation officers, beware: I’m told your computer system isn’t really able to distinguish between pre– and post–December 1 violations, and so it directs you to use the new law for any violation report filed after December 1. Watch out for that and remember that, no matter what OPUS says, a court can revoke but cannot impose CRV for a technical violation that occurred before December 1.

Is the court required to impose CRV for a technical violation? No, the court is never required to impose CRV. Judges can still respond to technical violations using any type of modification, including imposition of a split sentence, or by doing nothing at all. That’s a matter of court discretion, just as it has always been. Some judges and prosecutors may, as a practical matter, be more drawn to CRV than other response options in light of the rule that only after two CRV periods have been imposed can the court revoke for any violation.

Can the court impose a third CRV period in response to a third technical violation? No. Under G.S. 15A-1344(d2), a defendant “may receive only two periods of confinement under this subsection.” The court would either need to revoke probation or respond to the violation in some other way.

Can a probation officer impose CRV through delegated authority? No. For offenders on probation for a Structured Sentencing offense that occurred on or after December 1, 2011, probation officers can impose “quick dips” (unless the court un-delegates the authority to do that). Dips are discussed here. So, a probation officer can impose dips, but not dunks.

Do the CRV rules and the limits on revocation authority apply in DWI cases? Yes.

Where are CRV periods served? Under an amendment to G.S. 15A-1344(d2) in the technical corrections bill mentioned above, a defendant serves CRV “in the correctional facility where the defendant would have served an active sentence.” (By the way, that’s one of those changes that—just barely—didn’t make it into this year’s Lexis Nexis “Red Book,” an issue Shea flagged here.) That means all felony CRV is served in prison. The Division of Adult Correction, or DAC—formerly DOC—has identified six facilities that will house CRV inmates: Dan River, Greene, Odom, Tyrrell, Western Youth Institution and, for women, Fountain Correctional. For misdemeanants, it’s a little more complicated. For those whose underlying sentence was 90 days or less, it’s pretty clear that CRV should be served in the local jail. For those whose underlying sentences fall in the 91–180 day range, the proper place of confinement for an active sentence imposed after January 1, 2011 would appear to be the Statewide Misdemeanant Confinement Program (MCP), discussed here. And thus the proper place to commit them for their dunk is also the MCP. My understanding is that the Sheriffs’ Association will accept a CRV defendant into the program.

Does a defendant earn any sentence reduction credits during a CRV period? No, a CRV period is not reduced by earned time or, in the case of a DWI, good time. I think the Secretary of Public Safety (formerly, the Secretary of Correction) could, through regulations promulgated under G.S. 148-13, allow such credit, but up to this point has chosen not to. (The most recent version of DAC’s credit policy is available here.) Note that under G.S. 148-13(f) the Secretary is statutorily prohibited from awarding credit to split sentences. But dunks are not splits.

Does a probationer’s probation period continue to run during CRV confinement? Yes. So if the offender’s period of probation expires during the CRV period, there is no probation to come back to upon his or her release from jail or prison. That does not, however, mean that the CRV confinement ends when the probation period expires (at least not as the law is being interpreted by DAC). For instance, a person ordered on the next-to-last day of his or her probation period to serve a 90-day CRV period would not be released from prison after 1 day. Rather, he or she would serve the full 90 days and then be released outright. That strikes me as a permissible interpretation. Note that a different rule applies for special probation in response to a probation violation: under G.S. 15A-1344(e), “[n]o [special probation] confinement other than an activated suspended sentence may be required beyond the period of probation.”

Can CRV periods for misdemeanors be “up to 90 days,” or are they required to be for the remainder of the probationer’s suspended sentence? I don’t think there’s a clear answer to that question. G.S. 15A-1344(d2) says a CRV period for a misdemeanor may be up to 90 days. That alone would appear to allow the court to impose a CRV period of any length up to 90 days (1 day, 10 days, 54 days…whatever)—limited, of course, by the amount of time remaining on the defendant’s suspended sentence. The law goes on, however, to say that “[i]f the time remaining on the defendant’s maximum imposed sentence is 90 days or less, then the term of confinement is for the remaining period of the sentence.” Most misdemeanor sentences (about 90 percent of them) are 90 days or less, so if that caveat applies to them, for many misdemeanants, the first CRV period will also be their last one—a “terminal dunk,” if you will. Interpreting the law that way would set up an odd (but not completely irrational) rule that a judge can order CRV of any length up to 90 days for a misdemeanant with a 100-day suspended sentence, but must order a full 85 days if that’s all that remains on the defendant’s suspended sentence. I think there’s an argument that the 90-days-or-less rule is meant to apply only to felonies, in that the law makes reference to the defendant’s “maximum” sentence. In context, though, it appears it was intended to apply to both felons and misdemeanants. And it makes some sense if the idea is to avoid having multiple violation hearings for a person with relatively little time remaining on his or her sentence.

For a defendant on multiple cases of probation, can CRV periods be run consecutively? Generally, no. Under G.S. 15A-1344(d2) (as amended by the technical corrections bill mentioned above—this is another one of those changes that doesn’t appear in your Red Book), CRV periods imposed “on a defendant who is on probation for multiple offenses shall run concurrently on all cases related to the violation.” That rule applies regardless of whether the underlying suspended sentences were set to run consecutively or concurrently in the event of revocation—meaning the CRV law essentially forces at least a part of those sentences to run concurrently if any portion of them is served through dunks. There are probably ways around the rule (for instance, waiting to bring a violation on Case B until the CRV on Case A is complete), but the legislative intent in favor of concurrent CRV periods is pretty clear.

Can a defendant’s suspended sentence be reduced before he or she is dunked? Under G.S. 15A-1344(d) and (d1), a court, “before activating a sentence” can reduce a defendant’s sentence within the same sentencing grid cell and, for a felony, the same sentencing range (presumptive, aggravated, or mitigated) as the initial sentence. That rule allows the court to reduce any misdemeanor sentence to one day at the point of activation. The question is whether the court may do the same thing at the point of imposing CRV. Under prior law, “activate” and “revoke” always went hand in hand, and so the meaning of G.S. 15A-1344(d) was clear. To the extent that CRV can be styled as a partial activation of sorts, perhaps there’s an argument that the authority to reduce the sentence also applies at that point. A cleaner way to accomplish virtually the same thing might be to simply terminate the defendant’s probation upon completion of the CRV period. The court can terminate probation at any time under G.S. 15A-1342(b).

Can CRV be appealed? There is no clear statutory authority for appealing CRV. Under G.S. 15A-1347 and existing case law, there is no right to appeal probation matters other than activation of a sentence or imposition of special probation. State v. Edgerson, 164 N.C. App. 712 (2004) (“Defendant’s sentence was neither activated nor was it modified to ‘special probation.’ Defendant therefore has no right to appeal.” (citations omitted)). Again, there may be an argument that CRV is a partial activation of sorts; if it is, it would be appealable under G.S. 15A-1347. It’s also possible that the court of appeals might find a right to appeal from the superior court to the appellate division under G.S. 7A-27(b). That’s what happened in the context of the satellite-based monitoring law, which also did not include a statutory appeal provision. State v. Singleton, 201 N.C. App. 620, 625–26 (2010).

What does it mean to “commit no criminal offense” for purposes of the probation law? There’s enough to say about that to merit a separate blog post. I wrote about it here, but it’s worth another look in light of some of the recent changes to the law. I’ll do that soon.

What are your other questions?

Category: Procedure, Sentencing, Uncategorized | Tags: CRV, dip, dunk, justice reinvestment act, probation, probation revocation, probation violation, quick dip

Confrontation at Probation Violation Hearings

Posted on March 17, 2011 by Jamie Markham

Under G.S. 15A-1345(e), a probationer is entitled at a probation violation hearing to “confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation.” What does that statute mean by confrontation?

The statute’s language comes directly from a 1973 case called Gagnon v. Scarpelli, 411 U.S. 778 (1973), in which the Supreme Court of the United States set out what process is due at a probation violation hearing. The Court held that before probation is revoked, a probationer is entitled to, among other things, “the right to confront and cross examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Id. at 786. As you can see, the statute practically quotes the Court.

The law’s reference to confrontation may call to mind the Sixth Amendment’s Confrontation Clause, which Jessie Smith has written so much about on this blog and elsewhere (her flagship bulletin, Jessica Smith, Understanding the New Confrontation Clause Analysis: Crawford, Davis, and Melendez Diaz (Apr. 2010), is available here). The Confrontation Clause provides that “[i]n all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him.” If you’ve learned anything from Jessie you know that the Confrontation Clause, as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), excludes a lot of evidence that might otherwise be admissible under the rules of evidence and older confrontation case law.

But that’s Sixth Amendment confrontation. Read the amendment carefully and you’ll see that it applies to “criminal prosecutions”—and North Carolina’s courts have long held that a “proceeding to revoke probation is not a criminal prosecution.” State v. Duncan, 270 N.C. 241 (1967). The supreme court put it to an even finer point in State v. Braswell, 283 N.C. 332, 337 (1973): at a probation hearing, the “Sixth Amendment rights of th[e] defendant are not involved.”

The confrontation right discussed in Gagnon is not a Sixth Amendment right, but instead a matter of due process under the Fourteenth Amendment. Due process confrontation is more flexible than its Sixth Amendment cousin. It’s not, as the Court called the Sixth Amendment in Crawford, a procedural “guarantee.” Rather, it’s rooted in notions of “fairness,” and the court may deny confrontation if it has a sufficiently “good cause”—something that would not be true if Crawford controlled. The Supreme Court even noted in Gagnon that “[w]hile in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not . . . intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.”

But due process confrontation is not so flexible as to be meaningless. In State v. Coltrane, 307 N.C. 511 (1983), the Supreme Court of North Carolina reversed a probation revocation when the trial court did not allow the probationer to confront her probation officer. At the hearing the district attorney simply relayed to the court that the probation officer told the DA that the probationer had failed to get a job. The probation officer wasn’t present at the hearing, and the conversation between the probationer and the judge went like this:

Probationer: “I’m expecting a call about a job at—”

The Court: “Do you have a job now?”

Probationer: “No, sir.”

The Court: “Let the sentence be put into effect. She’s in custody.” Id. at 515.

The court of appeals upheld the revocation, but the supreme court reversed on grounds that the defendant “was allowed to confront neither the prosecuting attorney who claimed that the probation officer had told him that the defendant had not procured employment nor the probation officer herself.” Further, the high court concluded, “No findings were made that there was good cause for not allowing confrontation.” Id. at 515–16. In short, the Coltrane court concluded that G.S. 15A-1345(e) means what it says.

In a more recent case, State v. Terry, 149 N.C. App. 434 (2002), a probationer complained on appeal of her revocation that she didn’t get an opportunity to cross-examine someone (one of her professors, who did not appear at the hearing) who provided damaging information about her to her probation officer. The court of appeals affirmed the revocation, noting that the defendant never subpoenaed the professor or otherwise asked to confront him. (That line of reasoning would be improper in the Sixth Amendment context. The Supreme Court has said that “the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.” Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2540 (2009).) The Terry court added that any error by the trial court was harmless to the extent that the professor’s statements merely confirmed information provided through other sources.

Terry never cites to Coltrane so it’s hard to know precisely how the cases fit together when thinking about how confrontation at probation hearings plays out in practice. I won’t let that stop me from concluding with a few practical thoughts.

For probation officers: I am told you are sometimes asked to testify based on a violation report prepared by another officer. When that happens, it seems the testifying officer should be prepared to explain why the officer who prepared the report is unavailable. That’s not to say, however, that I think the State needs to make the same showing of a “good faith effort to obtain the witness” that it would be required to make for Sixth Amendment purposes. Cf. Smith, supra, at 26.

For judges: We don’t have much guidance on what amounts to a “good cause” for not allowing confrontation. It strikes me that (at a minimum) you’d need to consider both the reason for the witness’s absence and the type of information at issue. Some violations, such as a positive drug screens or a new criminal convictions, may be proved just as well through documentary evidence, whereas others, such as failing to report to the officer in a “reasonable manner,” would seem more likely to require live, first-hand testimony.

And finally for probationers, it seems the best advice on this front may be that if you want to confront an adverse witness, be sure to bring it up at the violation hearing. Don’t raise it for the first time on appeal. See, e.g., Duncan, 270 N.C. at 246 (“[N]owhere in the record does it appear that the defendant asked to cross-examine any witnesses for the State, and particularly the State Probation Officer . . . , and was refused.”).

Category: Evidence, Procedure, Uncategorized | Tags: confrontation, confrontation clause, due process, probation hearings, probation revocation, probation violations

Class H and I Felonies in District Court

Posted on March 2, 2011 by Jamie Markham

Under G.S. 7A-272(c), the district court has jurisdiction to accept a defendant’s plea of guilty or no contest to a Class H or I felony in certain circumstances. The law extending this limited jurisdiction to the district court came into effect in 1996 (S.L. 1995-725), and it has been used more and more over time. In FY 2000-01, for instance, 16 percent of all Class H and I felonies were pled in district court; in FY 2009-10, that number was up to 25 percent. (Those statistics came from the North Carolina Sentencing and Policy Advisory Commission’s annual statistical reports, available here—a data goldmine that’s definitely worth a look.)

Today’s post briefly covers some of the technicalities related to taking Class H and I felony pleas in district court, including the rules for appeals and probation violation hearings.

A defendant may only enter a plea to a Class H or I felony in district court with the consent of the presiding district court judge, the prosecutor, and the defendant. G.S. 7A-272(c). If the defendant has not yet been indicted and the case is still pending in district court, the prosecution must charge the defendant by information under G.S. 15A-644.1. After indictment, the case may—with the consent of the State, the defendant, and the presiding superior court judge—be transferred back to the district court under G.S. 15A-1029.1. G.S. 7A-272(c). When a plea is accepted in district court the trial judge must require that a true, complete, and accurate record be made of the proceeding. G.S. 7A-191.1. In general, a district judge accepting a felony plea is authorized to act in the same manner a superior court judge would be authorized to act if the plea had been entered in superior court. Authorized appeals of the conviction are to the appellate division. G.S. 7A-272(d).

If a felony case pled in district court is sentenced to probation (and many of them are), the superior court has default jurisdiction over all probation violation hearings held pursuant to G.S. 15A-1345(e). The district court may, however, hear those matters with the consent of the State and the defendant (technically, the judge doesn’t get a vote). G.S. 7A-271(e). If the revocation hearing is held in district court and the court activates a sentence or imposes special probation, the appeal of that revocation is to superior court. It’s not obvious that that would be the case; as mentioned above, G.S. 7A-272(d) says “appeals that are authorized in these matters are to the appellate division.” However, the Supreme Court of North Carolina held in State v. Hooper, 358 N.C. 122 (2004), that the requirement in G.S. 15A-1347 that “[w]hen a district court judge . . . activates a sentence or imposes special probation, the defendant may appeal to the superior court for a de novo revocation hearing” trumps G.S. 7A-272(d). So, Class H and I revocations in district court get a de novo appeal to superior court—perhaps lessening the likelihood that everyone will agree to hold the initial violation hearing in district court in the first place.

The jurisdiction and appeal rules for Class H and I felony probation matters handled in district court are different from the rules for felony drug treatment court or therapeutic court judgments supervised in district court. Under legislation passed in 2009 (S.L. 2009-452 and S.L. 2009-516) and 2010 (S.L 2010-96), those cases may, with the consent of the chief district court judge and the senior resident superior court judge (and no input from the defendant or the State), be supervised by the district court—which is good, because they were sometimes being supervised there before the law expressly allowed it. G.S. 7A-272(e). The district court can modify or extend probation judgments in those cases, but jurisdiction to revoke probation is in the superior court—unless the chief district court judge and the senior resident superior court judge agree that it is in the interest of justice to hold the revocation proceeding in district court (again, no vote for the State or the defendant). Appeals of revocations in those cases are—you guessed it—to the appellate division. G.S. 7A-271(f).

Category: Procedure, Sentencing, Uncategorized | Tags: appeals, class h and i felonies, district court, jurisdiction, probation, probation revocation

Revocation-Proof Convictions

Posted on February 15, 2011 by Jamie Markham

According to data from the Division of Community Corrections, 1270 probationers had their probation revoked in December 2010. Of those, 232 revocations were based on new crimes. I’ve written before about some of the issues associated with new criminal charges as a violation of probation, a post you can read here. To sum that post up, if a court is going to proceed with a probation violation hearing before the defendant has pled to or been tried on a new criminal charge, it must make an independent factual finding that the defendant committed the alleged criminal act. The revocation should not be based on the mere fact that the probationer has been charged.

Many probationers do get their day in court on new criminal charges before any related probation hearing on the matter. Sometimes, even when a probationer is convicted of a new charge, the court entering judgment on the conviction will write on the judgment something like “THIS CONVICTION SHALL NOT VIOLATE THE DEFENDANT’S CURRENT PROBATION,” perhaps also identifying the file number of the preexisting suspended sentence.

Does the court sentencing the new conviction have the power to do that?

It’s not clear to me that it always does. A probationer who is convicted of a new crime other than a Class 3 misdemeanor has almost certainly violated the “commit no criminal offense” condition of probation. So the question is not whether it’s a violation, but rather what the court hearing any ensuing probation violation will choose to do in response to it.

Generally, the probation violation hearing process begins when a probation officer files a violation report (DCC-10). That report gives the probationer notice of the violations alleged and, if the period of probation is near its end, preserves the court’s power to act on the violation after probation expires under G.S. 15A-1344(f) (discussed at the end of this post). Without a violation report, there really isn’t any probation matter before the conviction court when it enters judgment on a new criminal case. The court’s proclamation that the new crime is not a violation of the defendant’s existing probation seems premature at best.

If a proper probation violation hearing would be held before the same court (district or superior, and in the same district) as the court sentencing the new crime, then I suppose the defendant could waive the 24-hour notice of a probation violation required by G.S. 15A-1345(e) and allow the probation matter to come before the court right away. If the court wanted the defendant’s probation in a prior case to continue unchanged despite the new conviction, it could enter an order (on form AOC-CR-609) saying so. The State may prefer that approach, as the finding of a willful violation could later serve as an aggravating factor under G.S. 15A-1340.16(d)(12a) even if it doesn’t result in a revocation.

The situation is a little more complicated when the court sentencing the new crime is not the same court that would hear any related probation violation hearing. Typically (at least based on questions I receive), a superior court judge will write on a judgment that the defendant’s new felony conviction shall not be a violation of his or her ongoing district court probation. It seems pretty clear to me that the superior court doesn’t have jurisdiction over the probation matter in that circumstance. Only a judge “entitled to sit in the court which imposed probation” has power to reduce, terminate, continue, extend, modify, or revoke it under G.S. 15A-1344(a). The superior court could recommend that the new conviction not serve as a basis for revocation, but I don’t think the recommendation is binding on the court that ultimately hears the probation matter. Of course, if everyone knows as a practical matter that the appeal of any district court revocation would wind up before the same superior court judge who said the new crime should not be a violation, it might not be worth pursuing in district court.

Another variation on this situation is when the State agrees as part of a plea bargain on a new criminal charge not to pursue a probation revocation based on the conviction. In those cases I think the State would be bound by its agreement, making the new conviction effectively revocation-proof.

Category: Procedure, Sentencing, Uncategorized | Tags: probation, probation revocation, probation violations, revocation

The Exclusionary Rule and Probation Hearings

Posted on December 1, 2010 by Jamie Markham

North Carolina’s appellate courts have long said that a proceeding to revoke probation is not a criminal prosecution or a formal trial. Instead, probation hearings are generally regarded as informal or summary. State v. Hewett, 270 N.C. 348 (1967). Formal rules of evidence do not apply at violation hearings, meaning hearsay is generally admissible. G.S. 15A-1345(e).

But what about illegally obtained evidence? In State v. Lombardo, 306 N.C. 594 (1982), our supreme court said that the fruits of an unlawful search can be admitted in a probation violation hearing.

The particular facts of the Lombardo case may have had something to do with its outcome. Officers at Miami International Airport found marijuana in the defendant’s bag just fifteen days after he was placed on probation in North Carolina for . . . selling marijuana. The drug evidence was excluded at Lombardo’s criminal trial on drug possession charges in Florida (the officers lacked a constitutionally sufficient basis to search him), but our appellate courts said it was admissible at his probation violation hearing in North Carolina. The court reasoned that the primary purpose of the exclusionary rule is to deter police misconduct by rendering illegally obtained evidence inadmissible at trial. Unless an officer knows that a person he searches or seizes is on probation, extending the application of the exclusionary rule to probation hearings would add nothing to that deterrent effect. Moreover, the court said, excluding the evidence would “severely damage our probation system” by rewarding defendants like Lombardo “who show a total disregard for the system.” 306 N.C. at 600–01. In so holding, the court expressly overruled State v. McMilliam, 243 N.C. 775 (1956).

A few years later Lombardo’s case came back before the court of appeals. State v. Lombardo, 74 N.C. App. 460 (1985). In that iteration Lombardo maintained that the supreme court had limited its holding in his earlier appeal to situations where officers were unaware of a suspect’s status as a probationer. Ready to assert that the officers at the Miami airport did know he was on probation, Lombardo argued that the drug evidence should be suppressed at his revocation hearing just as it was at his criminal trial. The court of appeals disagreed. The panel acknowledged the logic of the defendant’s argument but concluded that the supreme court “did not expressly qualify its holding to exclude the rule’s application to [probation violation hearings] upon the law enforcement official being unaware of the probationer’s status.” Id. at 463.

Our courts’ position that the exclusionary rule does not apply at revocation hearings puts us in line with most other jurisdictions. The leading case nationwide is Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357 (1998), in which the Supreme Court concluded that the exclusionary rule did not bar evidence seized in violation of the Fourth Amendment from use at a parole revocation hearing. After Scott, the federal circuits– including the Fourth Circuit in State v. Armstrong, 187 F.3d 392 (4th Cir. 1999) (overruling United States v. Workman, 585 F.2d 1205 (4th Cir. 1978), in light of Scott)—have fallen into line. A few states hold that the exclusionary rule applies as a matter of state constitutional law, see, e.g., State v. Dodd, 419 So. 2d 333 (Fla. 1982), and other courts have developed special exceptions to the general inapplicability of the rule, such as when the police harass a probationer or obtain evidence in a particularly offensive manner, see People v. Holliday, 743 N.E.2d 587 (Ill. App. 2001) (excluding drug evidence found during an improper search of a probationer’s crotch area).

Even if the exclusionary rule doesn’t apply as a constitutional matter, there is an argument that our statutory exclusionary rule in G.S. 15A-974(2) might operate to exclude evidence “obtained as a result of a substantial violation of the provisions of [Chapter 15A].” That statutory section itself does not spell out the proceedings to which it applies. It’s pretty clear in context, though, that the article in which that law appears (Article 53 of Chapter 15A) is meant to apply to criminal trials—which would not include revocation hearings.

Category: Evidence, Procedure, Uncategorized | Tags: exclusionary rule, probation hearings, probation revocation, Search and Seizure

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