Does Miranda Apply When Defendant’s Lawyer is Present?

I thought I’d take a few minutes and jot down some questions and answers about the new fine-only punishment scheme for Class 3 misdemeanors for many defendants (enacted as part of the 2013 Appropriations Act). Several hours later—after thinking about the different permutations, reading several cases, talking with patient colleagues, and pondering further—I came up with a list of 33 questions and answers on Appointment of Counsel for Class 3 Misdemeanors. The subject poses both constitutional and practical questions.

Beginning with offenses committed on or after December 1, 2013, the basic rule is that a court may not impose a punishment other than a fine for a Class 3 misdemeanor if the defendant has three or fewer convictions and no other statute authorizes a greater punishment. See G.S. 15A-1340.23(d). The impact of this rule is that defendants who cannot receive more than a fine are generally not entitled to appointed counsel because, under the Sixth Amendment, the right to counsel in misdemeanor cases applies only if the defendant receives a sentence of active or suspended imprisonment.

This aspect of Sixth Amendment jurisprudence has always been awkward to apply because it requires that courts work backward from the sentence to be imposed at the end of the case in determining the defendant’s entitlement to counsel at the outset of the case. (For felonies, an indigent defendant always has a right to appointed counsel.) The new punishment scheme for Class 3 misdemeanors poses new questions, such as:

What dispositions are permissible for “fine-only” Class 3 misdemeanors? Are costs permissible? A deferred prosecution? A sentence of time served?
When does the court have to determine the defendant’s prior record for purposes of appointing counsel?
What of a defendant charged with a Class 3 misdemeanor who has been arrested and cannot make bond? Does he or she have a right to counsel although not subject to imprisonment if convicted?
Do the collateral consequences of a conviction have a bearing on the analysis?

People undoubtedly will have more questions as well as different views about the impact of the change. As always, feel free to weigh in with your questions and comments.

Category: Procedure, Sentencing, Uncategorized | Tags: appointment of counsel, fines, ids, misdemeanors, right to counsel, Sentencing

Misdemeanor Reclassification, the Right to Counsel, and the Budget

Posted on July 23, 2013 by Jeff Welty • 15 comments

The legislature has agreed on a budget, and it contains some provisions that will impact misdemeanor sentencing and the appointment of counsel — potentially in tens of thousands of cases each year.

Status of the budget. The current budget bill is S 402. It is available here. The accompanying “money report,” which provides narrative explanations of some of the provisions of the budget, is available here. Republican leaders in both chambers have endorsed the bill. The General Assembly is expected to approve it in the next two days, and Governor McCrory is expected to sign it.

Change to Structured Sentencing grid. Section 18B.13.(a) of the budget changes the misdemeanor Structured Sentencing grid as follows, effective for offenses committed on or after December 1, 2013:

This is the first change to the misdemeanor grid since 1995.

Fine only for many Class 3 misdemeanors. The same section states that “[u]nless otherwise provided for a specific offense, the judgment for a person convicted of a Class 3 misdemeanor who has no more than three prior convictions shall consist only of a fine.” Fines for Class 3 misdemeanors generally may not exceed $200. G.S. 15A-1340.23(b).

One question about this provision is whether it applies to a defendant who has three or fewer prior convictions that may be counted separately for Prior Conviction Level purposes, but who has four or more total prior convictions. (For example, a defendant who incurred several convictions in a single week or session of court. See generally G.S. 15A-1340.21(d).) The new fine-only provision appears in the General Statutes amidst the discussion of the Prior Conviction Level determination, so maybe so. But it does not expressly refer to or incorporate the Prior Conviction Level rules, so maybe not.

Reclassification of offenses. In addition to changing the punishments for Class 3 misdemeanors, the budget also creates more of them. Section 18B.14 reclassifies a number of misdemeanors – most currently Class 2 – as Class 3 offenses. The new Class 3 misdemeanors include:

Obtaining property by worthless check, G.S. 14-106
Simple worthless check, G.S. 14-107
Failure to return hired property, G.S. 14-167
Conversion by bailee, G.S. 14-168.1
Failure to return rental property with purchase option, G.S. 14-168.4
DWLR, G.S. 20-28 (unless revoked for DWI, then still Class 1)
Certain motor vehicle misdemeanors that were Class 2 under G.S. 20-35, including:
- Most NOLs, G.S. 20-7
- Failure to tell DMV of address change by driver, G.S. 20-7.1
- Allowing vehicle to be driven by unlicensed person, G.S. 20-34
Certain motor vehicle misdemeanors that were Class 2 under 20-176, including:
- Failure to carry registration card in vehicle, G.S. 20-57(c)
- Failure to sign registration card, G.S. 20-57(c)
- Failure to tell DMV of address change by vehicle, G.S. 20-67
Certain license plate/registration violations, G.S. 20-111
Window tinting violations, G.S. 20-127(d)
Misdemeanor speeding, G.S. 20-141(j1)
No insurance, G.S. 20-313(a)
Repeat fishing without a license, G.S. 113-135(a) (referring to 113-174.1 and -270.1B)

Also, section 18B.15 of the budget reclassifies a number of boating safety offenses from Class 3 misdemeanors to infractions.

Ineligibility for appointed of counsel. It seems that one goal of these provisions was to save money on appointed counsel. The money report states that IDS’s budget will be reduced by $2,000,000 annually because the budget “[r]eclassifies low-level misdemeanors that rarely result in incarceration as Class 3 misdemeanors or infractions and modifies the sentencing structure for Class 3 misdemeanors so that the first three [editor’s note: probably should read “four”] charges are fineable offenses. With no possibility of incarceration, these offenses do not require legal counsel.”

In other words, the changes made by the budget will provide that a defendant charged only with a Class 3 misdemeanor, and who has no more than three prior convictions, will be facing a potential sentence of a fine of $200 or less. Constitutionally, an indigent defendant is entitled to appointed counsel when facing incarceration, Argersinger v. Hamlin, 407 U.S. 25 (1972), or even a suspended sentence, Alabama v. Shelton, 535 U.S. 654 (2002), but not a fine alone, Scott v. Illinois, 440 U.S. 367 (1979). Nor does a defendant facing a small fine have a right to counsel under the North Carolina statute governing appointment of counsel. It extends only to cases in which “imprisonment, or a fine of five hundred dollars . . . or more, is likely to be adjudged.” G.S. 7A-451(a)(1).

Note that if a defendant is sentenced to a fine but does not pay it, “the court, upon the motion of the prosecutor or upon its own motion, may require the defendant to appear and show cause” for his failure to pay, and if he cannot, may imprison the defendant for up to 30 days. G.S. 15A-1364. I don’t know how common these show cause proceedings are, but a defendant would appear to be entitled to counsel at any such hearing.

Administering the new provisions. It will be interesting to see how these changes work in practice. For example:

Who will be responsible for determining how many prior convictions the defendant has? The prosecutor? The clerk?
How thoroughly will the responsible party research the defendant’s prior record? Will an ACIS check of the county in which the charges are pending be the norm? A statewide ACIS check? Will CJLEADS or other systems be used for this purpose?
Will judges err on the side of appointing counsel in order to protect defendants’ rights, or to preserve the possibility of a sentence other than a fine? Will that remove some of the anticipated cost savings?

As always, I’m interested in readers’ thoughts about the upcoming changes in the law. Given the number of cases affected, the changes appear to be quite significant.

Category: Procedure, Sentencing, Uncategorized | Tags: buget, infractions, misdemeanors, reclassification, right to counsel, structured sentencing

Forfeiture of the Right to Counsel

Posted on October 17, 2011 by Jessica Smith • 0 comment

In response to my recent post (here) about waivers of counsel, a number of you emailed asking me to write about forfeiture of the right to counsel. Your wish is my command.

Although cases sometimes confuse the terms, waiver is different from forfeiture. A waiver of counsel involves a knowing, voluntary, and intelligent relinquishment of the right to counsel. Forfeiture of the right to counsel involves an involuntary relinquishment of the right. Typically, forfeiture is understood to occur when the defendant’s misconduct results in a relinquishment of the right. State v. Montgomery, 138 N.C. App. 521, 524 (2000) is a commonly cited N.C. case on point. The facts were as follows. In January 1997, the defendant was found to be indigent and assistant public defender Thurston Fraizer was appointed as counsel. One month later, the defendant’s family retained George Laughrun to represent him. Then, in August 1997, Laughrun successfully moved to withdraw; a month later, the public defender again was appointed. In December 1997, private attorney Thomas Duncan filed a notice of appearance as defendant’s counsel. On February 16, 1998, the day of trial, Duncan moved for a continuance, and apparently to withdraw, saying that he was retained by the defendant’s girlfriend but that the defendant no longer wished to be represented by him. The court denied the motion to withdraw, informed the defendant of his right to proceed pro se, and told him that he was not entitled to appointment of another lawyer. The next day, the defendant appeared in court, reiterated his objection to Duncan’s representation, and disrupted court with profanity, leading to a finding of contempt. On February 23, 1998, the defendant appeared before another judge. After Duncan again unsuccessfully sought to withdraw, the defendant again became disruptive and again was found in contempt. Trial was set for February 25, 1998. In the courtroom on the day of trial, the defendant threw water in Duncan’s face. He again was found in contempt, and was charged with assault on Duncan. Duncan was allowed to withdraw and the case was continued. In April 1998, the defendant appeared before yet another judge, this time with attorney Fraizer, who said that he had been appointed to represent the defendant in connection with the assault case involving Duncan and that the defendant required representation in the present case. The judge refused to appoint Fraizer but allowed him to serve as standby counsel. After the defendant was convicted, he appealed, arguing that the trial judge had erred by requiring him to proceed pro se. The court of appeal disagreed, finding that the defendant had forfeited his right to counsel. It stated:

A forfeiture results when the state’s interest in maintaining an orderly trial schedule and the defendant’s negligence, indifference, or possibly purposeful delaying tactic, combine[] to justify a forfeiture of defendant’s right to counsel. A defendant who misbehaves in the courtroom may forfeit his constitutional right to be present at trial and a defendant who is abusive towards his attorney may forfeit his right to counsel.

Applying that rule, the court found that the defendant’s “purposeful conduct and tactics to delay and frustrate the orderly processes of our trial courts simply cannot be condoned.” Thus, it held he forfeited his right to counsel.

Following Montgomery, the court of appeals has found that forfeitures occurred in other cases. See State v. Quick, 179 N.C. App. 647 (2006) (failure to retain counsel over an eight month period amounted to “obstruction and delay of the proceedings” resulting in a forfeiture); State v. Leyshon, __ N.C. App. __, 710 S.E.2d 282 (2011) (forfeiture occurred when the defendant refused to sign a waiver of counsel form and refused to answer the court’s questions about whether he wanted counsel or to proceed pro se); State v. Boyd, 200 N.C. App. 97 (2009) (the defendant willfully obstructed and delayed court proceedings by refusing to cooperate with his appointed attorneys and insisting that his case would not be tried).

Notwithstanding this case law, some cautionary notes are in order. Specifically, in State v. Wray, __ N.C. App. __, 698 S.E.2d 137 (2010), the court articulated “a presumption against the casual forfeiture” of constitutional rights and stated that forfeiture should be restricted cases of “severe misconduct.” In that case, the defendant’s first lawyer was allowed to withdraw because of a breakdown in the attorney-client relationship. His second lawyer withdrew on grounds of conflict of interest. The defendant’s third lawyer was allowed to withdraw after the defendant complained that counsel had not promptly visited him and had “talked hateful” to his wife and after counsel reported that the defendant accused him of conspiring with the prosecutor and contradicted everything the lawyer said. The trial court appointed Mr. Ditz and warned the defendant that failure to cooperate with Ditz would result in a forfeiture of the right to counsel. After the defendant indicated that he did not want to be represented by Ditz, the trial court explained that the defendant either could accept representation by Ditz or proceed pro se. The defendant rejected these choices and asked for new counsel. When Ditz subsequently moved to withdraw, the trial court allowed the motion and found that the defendant had forfeited his right to counsel. On appeal the court held, among other things, that the record did not establish serious misconduct required to support a finding of forfeiture. Specifically, there was no evidence that the defendant used profanity in court, threatened counsel or court personnel, was abusive, or was otherwise inappropriate. Additionally, the court found that the record failed to support a finding of forfeiture because the defendant “was given no opportunity to be heard or to participate in the hearing at which the trial court ruled that he had forfeited his right to counsel.” Thus, Wray suggests that the trial judge should proceed with caution when finding a forfeiture of counsel, making sure that the record fully reflects the defendant’s “severe misconduct” and that the defendant was afforded an opportunity to be heard.

Category: Procedure, Uncategorized | Tags: forfeiture, montgomery, right to counsel, wray

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