Suppose a defendant is convicted of a class I felony and has a prior record level of I. That’s a “C” block on the felony sentencing grid, where only community punishment is authorized. Community punishment can include a range of punishments from a fine only, up to supervised probation, but does not encompass a straight active sentence. The defendant informs the sentencing court that she wants to serve her time in prison. The defendant further explicitly states she will not accept probation and refuses to meet with probation, missing several opportunities to begin the intake process. What options does the trial court have? Continue reading
Tag Archives: probation violation
As I traveled around the state teaching about the Justice Reinvestment Act, I had lots of discussions about the various types of confinement that can now be ordered in response to a probation violation (splits, dips, dunks, and so forth—they’re all catalogued here). That conversation almost always included a discussion of jail credit. The general rule that I passed along is that a probationer who ultimately gets revoked is entitled to credit against his or her suspended sentence for any prior time spent confined in response to a violation, regardless of the precise basis for that confinement. At almost every session, someone would ask if that rule included contempt ordered under G.S. 15A-1344(e1)? It does.
Under G.S. 15A-1344(e1) the court may, in response to a willful violation of probation, hold a defendant in criminal contempt as provided in Article 1 of Chapter 5A of the General Statutes. Looking at Article 1 of Chapter 5A, the maximum period of imprisonment that may be ordered for the contempt is 30 days. G.S. 5A-12. Under G.S. 5A-15, the judge must hold a plenary hearing on the violation to determine whether the defendant is guilty or not guilty of the alleged violation, based on facts established beyond a reasonable doubt. In that sense the contempt hearing is more formal and demanding than a typical probation violation hearing, where the facts need only be shown to the judge’s reasonable satisfaction. State v. White, 129 N.C. App. 52 (1998). The contempt punishment is in lieu of revocation and does not revoke the probation.
On the question of whether a probationer gets credit against his or her suspended sentence for any time spent imprisoned for contempt, the leading case is State v. Belcher, 173 N.C. App. 620 (2005). In Belcher, a felony probationer was held in contempt for a series of violations and ordered to serve 30 days in jail. She was later revoked for subsequent violations. At her violation hearing the court refused to allow credit against the defendant’s 8-month sentence. On appeal the defendant argued that she was entitled to credit for the contempt imprisonment under G.S. 15-196.1.
The court of appeals agreed. The court cited to State v. Farris, 336 N.C. 552 (1994), in which the supreme court held that, upon revocation of probation, a defendant is entitled to any time served pursuant to a split sentence. Belcher never explicitly reasons through any argument that contempt confinement might be governed by a different rule—but that’s because the issue wasn’t really contested. The defendant argued in her brief that “[c]learly, there is no rational distinction between time served as a condition of special probation because of a willful violation of probation and time served when held in contempt because of a willful violation of probation. The label that a trial judge chooses to put on the ‘taste of incarceration’ he gives a defendant in response to a willful violation of probation cannot arbitrarily dictate whether the defendant receive [sic] jail credit for the time served if his probation is ultimately revoked.” Defendant-Appellant’s brief at 9. The State essentially agreed, noting that although this case involved contempt and not special probation, “the rationale set forth in Farris . . . would appear to dictate that credit be given for anything relating to confinement and the State is unable to distinguish the instant fact situation in a meaningful way.” Brief for the State at 5. Absent any real dispute, the court of appeals remanded the case for award of the 30 days of credit.
There may have been some basis for a meaningful distinction. The probation-contempt provision was first added to the law in 1993 as G.S. 15A-1344(g). As originally enacted, the provision explicitly provided that a “person imprisoned under this subsection for contempt shall be given day-for-day credit on any sentence of imprisonment for the underlying offense, if the offender’s probation is subsequently revoked.” That provision was repealed the following year and replaced by G.S. 15A-1344(e1), which was (and still is) silent on the issue of credit. S.L. 1994 (extra session), Ch. 19. The shift from subsection (g) to subsection (e1) probably indicated a legislative intent to eliminate the credit provision—a move perhaps designed to give courts and probation officers a little more leverage over defendants with short suspended sentences under then-new Structured Sentencing. Counting the time for credit arguably frustrates that purpose.
Moreover, it wouldn’t be out of line with our standard thinking about contempt punishment to construe it as a separate “sentence” within the language of G.S. 15-196.1. Criminal contempt is, after all, its own quasi-criminal thing—proved beyond a reasonable doubt even in the context of a probation violation—aimed more at vindicating the authority of the court than punishing the defendant for the underlying crime for which he or she is on probation. See North Carolina v. Carr 264 F. Supp. 75, 79 (W.D.N.C. 1967) (noting that contempt proceedings are “brought to vindicate the dignity and authority of the court” and are considered “criminal in their nature and are generally governed by the rules applicable to criminal cases”). But the court of appeals did not go down that path in Belcher, and the rule is that contempt time counts for credit against any later-activated sentence.
A different rule applies for contempt confinement ordered by the Post-Release Supervision and Parole Commission under G.S. 15A-1368.2(b). Under that law, discussed here, contempt confinement ordered by the Commission for a sex offender who refuses to accept or comply with post-release supervision does not, notwithstanding any other provision of law, count for credit for time served against the underlying sentence.
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
It has long been the rule in North Carolina that all that is required for a judge to revoke probation is a finding that the defendant has violated a valid condition of probation willfully or without lawful excuse. State v. Hewett, 270 N.C. 348 (1967). After December 1, 2011, there will, under the Justice Reinvestment Act, be some limits on the judge’s authority to fully activate a suspended sentence, but the threshold question for a finding of violation will remain the same: Did the defendant willfully violate at least one valid condition without lawful excuse?
Probation violation hearings are not formal trials, but there is a well-defined process for determining whether or not a defendant has willfully violated a valid condition of supervision. First, the burden of proof is on the State to establish to the “reasonable satisfaction” of the court that the defendant has violated at least one condition. State v. Tennant, 141 N.C. App. 524 (2000). If the State does that, the burden then shifts to the defendant to show that the failure to comply was not willful. If the defendant does not offer any evidence of his or her inability to comply, the State’s evidence of the failure to comply is a sufficient basis for revocation. State v. Jones, 78 N.C. App. 507 (1985). If a defendant puts on evidence of his or her inability to comply, the defendant is entitled to have that evidence considered and evaluated before the court can revoke probation. State v. Young, 21 N.C. App. 316 (1974). The court must consider the evidence and make findings of fact clearly showing that it did so. See State v. Smith, 43 N.C. App. 727 (1979) (reversing a probation revocation when the trial court failed to consider evidence of the defendant’s inability to pay, including detailed information about his rent, gas bill, and other financial obligations); State v. Sellars, 61 N.C. App. 558 (1983) (reversing a probation revocation when a defendant was unable to comply with the judgment on account of repeated hospitalizations for mental and physical health problems).
Under G.S. 15A-1345(e), when the violation alleged is the nonpayment of a fine or costs, the “issues and procedures” in G.S. 15A-1364 apply. That statute governs the response to nonpayment of a fine or cost and says a defendant gets an opportunity to show that his or her “nonpayment was not attributable to a failure . . . to make a good faith effort to obtain the necessary funds for payment.” If the defendant shows a good faith inability to pay, the court may not revoke probation. Instead, the statute gives the court three options: (1) give the defendant more time to pay; (2) reduce the amount of the money owed; or (3) “revoke” (which in this context appears to mean something more like remit) the money owed in whole or in part. G.S. 15A-1364(d). By its terms the statute only applies to fines and costs, but the same type of framework logically extends to restitution. See State v. Hill, 132 N.C. App. 209 (1999) (reversing a revocation of probation for failure to pay restitution when the trial court failed to review the defendant’s proffered evidence related to his disability, noting that “fairness dictates that in some instances a defendant’s probation should not be revoked because of circumstances beyond his control”). See generally Bearden v. Georgia, 461 U.S. 660, 668–69 (1983) (“[I]f the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available.”).
Two recent cases from the court of appeals apply the rules set out above, reaching different results. The first case, State v. Floyd, __ N.C. App. __ (July 19, 2011), shows how evaluation of a defendant’s financial situation bleeds into the court’s consideration of the defendant’s compliance with substantive conditions of probation. In Floyd, the defendant was found to have violated probation by failing to participate in a court-ordered sexual abuse treatment program. The defendant had attended 27 out of 30 sessions but was then barred from the program because he was behind (by about $2,200) on the requisite program fees. At the violation hearing the defendant presented evidence that he had been laid off from the job he had when he was sentenced and subsequently injured (by electrocution) at another job. He provided an affidavit of his indigency, showing that his sole income was $200 in food stamps each month. Both he and his probation officer testified that he would have completed the treatment program if he could pay for it. The trial court revoked the defendant’s probation. The court of appeals vacated the revocation, holding that the trial court erred by failing to make findings of fact that clearly showed the court considered and evaluated the defendant’s evidence before revoking.
In the second case, State v. Stephenson, __ N.C. App. __ (July 19, 2011), the defendant’s probation was revoked after she was discharged from a program called Potter’s House for testing positive for drugs. The defendant argued on appeal that the trial court failed to make proper findings that the violation was willful and without a valid excuse in light of her drug addiction. The court of appeals disagreed, noting primarily that the defendant had actually waived a violation hearing and admitted to the violation, but also citing a prior unpublished case holding that drug addiction is not a lawful excuse for a probation violation. State v. Green, 171 N.C. App. 366 (2005) (unpublished).
On an unrelated note, yesterday the General Assembly passed a handful of technical corrections related to Justice Reinvestment. They are in House Bill 335, and I have no reason to think they won’t be signed into law (on account of the provisions related to Justice Reinvestment, anyway). If they do, I’ll incorporate them into my forthcoming summary of the law.
Category: Procedure, Uncategorized | Tags: floyd, probation, probation violation, stephenson, willfulness
