North Carolina Criminal Law Blog

There are about 10,000 people on post-release supervision (PRS) in North Carolina. Some of them get charged with a new crime. That new charge usually prompts the issuance of a PRS warrant. And when a person is arrested on one of those, it is generally understood that there is no entitlement to bail. So, even if the new charge is relatively minor, the post-release supervisee will often be held in jail until the new charge is resolved. A question that comes up again and again is whether the defendant is entitled to jail credit against the new conviction for the time spent detained on the pending PRS violation.

The U.S. Supreme Court held in Blakely v. Washington, 542 U.S. 296 (2004) that any contested fact that increases the defendant’s sentence beyond the statutory maximum must be submitted to the jury and found beyond a reasonable doubt. Shortly thereafter,  the General Assembly amended G.S. 20-179 to require judges in superior court cases to submit contested aggravating factors during impaired driving sentencing to the jury. Practically, this means that after a person is found guilty of impaired driving, if they are contesting properly alleged aggravating factors, there must be a sentencing hearing before the jury to determine any aggravating factors beyond a reasonable doubt. The North Carolina Supreme Court considered in State v. King, ___ N.C. ___, 906 S.E.2d 808 (2024) what happens if a judge finds contested aggravating factors without submitting them to the jury.

Prayer for judgment continued or a “PJC” is a common disposition in criminal cases, most frequently for traffic law violations or low-level crimes, where entry of final judgment is delayed indefinitely. We have previously covered when conditions on a PJC convert it to a final judgment, limits on the use of PJCs, sex offender registration and PJCs, whether a PJC can be expunged, collateral consequences of PJCs, and other contexts where questions about PJCs arise. A case from the Court of Appeals last year has generated renewed interest in dispositional PJCs. Dispositional or “true” PJCs typically serve as the final resolution of a case. This is in contrast with PJCs used to continue judgment for a set period of time so the defendant can satisfy some condition or for the court to otherwise remain involved in the case. Today’s post will examine that decision, offer thoughts on how defenders can mitigate the potential risk of a dispositional PJC, and discuss how an unwanted PJC might be avoided altogether.

My colleague Jeff Welty recently wrote about S.L. 2023-123 and changes to our death by drug distribution laws. He mentioned changes to the mandatory drug trafficking fines for certain drugs there, but I wanted to follow up on that point with the details. The new law, with new fines for certain controlled substances, takes effect on December 1, 2023. This post examines the coming changes to drug trafficking fines. Consistent with my defender-focused role, it also explores potential constitutional issues defenders might consider raising in cases where the new fines apply.

About seven years ago, I wrote this post about habitualized sex crimes. The issue I explored there was how to sentence a person convicted of a Class F through I sex crime when he or she has also attained habitual felon status. The question is whether the defendant, who is now sentenced as a Class B1 through E felon due to the habitual felon law’s four-class enhancement, is subject to the elevated maximum sentence applicable to Class B1 through E sex offenders under G.S. 15A-1340.17(f). When I wrote that post there was no appellate case answering the question. There is now.

In Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court held that a person who commits a homicide when he or she is under 18 may not be mandatorily sentenced to life without parole; the sentencing judge must have discretion to impose a lesser punishment. In Montgomery v. Louisiana, 577 U.S. 190 (2016), the Court held that Miller applies retroactively. When Montgomery was decided, I wondered (here) whether it did more than merely address Miller’s retroactive application. Language in the case indicated that a sentence of life without parole would be constitutionally permissible for only the most the most troubling young defendants—“those whose crimes reflect permanent incorrigibility.” Id. at 209. In Jones v. Mississippi, 593 U.S. ___ (2021), decided last week, the Court made clear that the Constitution does not require a sentencer to make a separate factual finding of permanent incorrigibility before sentencing a defendant to life without parole.

While the suspension of jury trials caused by the pandemic has slowed the work of the criminal courts, judges across the state continue to sentence defendants who enter guilty pleas. The prospect of their clients facing prison time during the pandemic has spurred defense attorneys to consider what arguments might be made during sentencing proceedings with respect to the heightened danger of a defendant contracting COVID-19 in a correctional facility.

Today’s post shares a short paper on restitution that I recently prepared for the Conference of District Attorneys. I thought it might also be useful to other audiences.

As the struggle to contain the COVID-19 crisis grinds on, including concerns about the possible spread of the virus in jails and prisons, there has been a renewed interest in finding alternatives to sentences that involve extended periods of incarceration. It will come as no surprise to regular readers of this blog that Jamie Markham has written about such alternatives many times over the years. But in light of the current health situation, I thought this would be a good opportunity to revisit some of those topics, collect them together in one post, and try to expand on a few of the suggestions and options.

I should also acknowledge that this post was prompted, at least in part, by the fact that I only recently learned about an unusual type of sentence known as the “Holbrook Holiday.”

The North Carolina Sentencing and Policy Advisory Commission released last November a report recommending several changes to the state’s impaired driving laws and correctional policies. The report marked the culmination of more than three years of study that included examination of DWI sentencing and correctional data as well as consideration of input from law enforcement, prosecutors, defense attorneys, and providers of substance abuse treatment. The report’s fifteen recommendations address issues ranging from pretrial conditions of release for defendants charged with impaired driving to the place of confinement for defendants serving active sentences.