When imposing a split sentence, the court has a choice to make about what to do with whatever pretrial jail credit the defendant might have in the case. Apply it to the split? Or apply it to the defendant’s suspended sentence? Today’s post discusses a few issues associated with that choice. Continue reading
Tag Archives: split sentence
When a person is convicted and sentenced, the sentence generally starts right away. G.S. 15A-1353(a). The judge can delay the start of the sentence, as discussed in this prior post, but that is the exception to the rule. About the only other thing that can put the brakes on the start of a sentence is an appeal. Today’s post discusses the rules for staying probation (including special probation) upon appeal.
When a defendant appeals a misdemeanor conviction in district court, all portions of the district court judgment are stayed under G.S. 15A-1431(f1). The stay includes any active punishment imposed and any probation or special probation. That is in line with the general principle that an appeal from district court wipes the slate clean pending trial de novo in superior court. Julie Ramseur Lewis & John Rubin, North Carolina Defender Manual (Vol. 2, Trial), at 341.
For defendants sentenced to probation, a probation officer will track the progress of the appeal during the stay, but the officer should not be supervising the defendant. (Probation policy, §D.0409, notes that distinction.) The defendant is not on probation at that time, and thus not subject to supervision fees or any other condition of supervision. The defendant may, however, be subject to conditions of pretrial release during the pendency of the appeal. G.S. 7A-290; 15A-1431(e). If the appeal is withdrawn and the case is remanded, probation will begin when the case arrives back in district court for execution of the original judgment (or, in the case of an implied consent offense, upon resentencing as required by G.S. 20-38.7). State v. Smith, 359 N.C. 618 (2005).
Occasionally a defendant will manage to violate probation during the first few days of his or her district court probation, before the time for appealing the case to superior court (ten days) has expired. If the defendant appeals, the probation will at that point be stayed. If the defendant proceeds with the trial de novo and receives a sentence in superior court, I think those quickly-obtained district court violations disappear under the clean slate theory noted above.
Appeals of superior court convictions (and Class H and I felonies pled in district court) are governed by a different statute, but the general rule for stays is similar—at least as far as probation is concerned. Notice of appeal of a superior court conviction stays probation, including special probation. G.S. 15A-1451(a)(4). Based on questions I have received, the automatic stay of superior court split sentences sometimes catches people off guard. That’s probably because other confinement ordered in superior court is stayed only when the judge imposes release conditions under G.S. 15A-536. G.S. 15A-1451(a)(3). It does not follow, however, that the court may impose conditions of release only upon appeal of an active sentence. To the contrary, G.S. 15A-536 empowers the trial judge to impose release conditions during the appeal of a stayed probationary sentence—including conditions that may be very similar to the stayed probation itself. See State v. Howell, 166 N.C. App. 751 (2004) (affirming the trial judge’s imposition of a release condition barring computer use while a similar probation condition was stayed on appeal). As with appeals from district court, a probation officer should not supervise the defendant during the pendency of an appeal to the appellate division.
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.
The rules for sentencing a defendant to special probation—a split sentence—are set out in G.S. 15A-1351(a). Under that law, the court can order as part of a probationary sentence that the defendant serve a period of imprisonment not exceeding one-fourth the maximum suspended sentence imposed (or, in impaired driving cases, one-fourth of the maximum penalty allowed by law). Periods of special probation confinement can be for a continuous period or for noncontinous periods. If for noncontinuous periods, the time behind bars must be in a jail or treatment facility (not DOC), and it must be completed within two years of conviction (so the judge could not, for example, order someone to serve weekends in jail for five years). Periods of imprisonment ordered under G.S. 15A-1351(a) are to be served “at whatever time or intervals . . . the court determines.” G.S. 15A-1344(e) sets out essentially the same rules for special probation ordered as a modification of probation in response to a violation.
I am sometimes asked just how explicit a judge needs to be when determining the “time or intervals” at which special probation confinement will be served. Form AOC-CR-603, Page Two, Side One, gives the court the option of imposing a specific day, date, and hour for the defendant to report to the jail, perhaps to be repeated at intervals for a designated term of consecutive weeks. The form also allows the court to order that the “sentence shall be served at the direction of the probation officer” within a set period of days or months from entry of the judgment. Can the court take it a step further and say that the probation officer can schedule the jail time “as necessary”—in the officer’s discretion—to respond to misbehavior by the offender?
I generally advise judges that they may not do that. I think G.S. 15A-1351(a) and -1344(e) probably allow the court and the probation officer some flexibility in setting the parameters for service of a split sentence. The court could, for instance, tell the probation officer to work with the sheriff or jail administrator to schedule a split at a time that doesn’t place an unreasonable burden on the jail. But the court should—as the form directs—indicate a completion deadline for the imprisonment. What I think the court cannot do is leave any doubt as to whether the split will be served at all. Jail time should not be contingent on some additional misconduct by the offender, held in the probation officer’s hip pocket until needed.
An opinion letter from the Attorney General reached the same conclusion. Asked whether a court could impose a condition of probation allowing a probation officer to impose “up to 30 days of incarceration if deemed necessary for minor infractions or technical violations,” the AG said no. Because doing so would violate constitutional due process and the statutory framework set out in G.S. 15A-1345, the opinion letter advised DOC to “instruct its probation officers not to attempt to utilize such authority.” 60 N.C. Ap. Atty. Gen. 110 (1992).
I’m not aware of any North Carolina case law on point, but the AG’s advice jibes with court decisions from other states. For instance, the Nebraska Supreme Court struck a provision purporting to allow a probation officer to “waive” some of the jail days imposed on a defendant as a condition of probation. State v. Lee, 237 Neb. 724 (1991). The court ruled that the sentence was invalid, finding it “clear that in probation cases, the jurisdiction to commit offenders to jail, or to release offenders from jail terms, rests solely with the trial court. Jail time is to be imposed by judges. The trial court may not delegate the authority to impose a jail sentence, or to eliminate a jail sentence, to a nonjudge.” Id. at 725. The Illinois Court of Appeals reached a similar conclusion in People v. Thomas, 217 Ill. App. 3d 416 (1991) (“Although it is clear the court intended to remit the remaining 30 days’ imprisonment upon defendant’s successful completion of the program, it left to the probation department the decision as to whether defendant could be deemed to have been successful. This was not a function that could properly be delegated when the question of further incarceration is at stake.”).
There is a legislative proposal on the table that would allow a probation officer, as a matter of delegated authority under G.S. 15A-1343.2, to respond to an alleged violation of probation in a Structured Sentencing case (but not in a DWI case) by ordering a probationer to “[s]ubmit to a period or periods of confinement in a local confinement facility for a total of no more than six days per month.” H 642, sec. 1(d) and 1(e). That law would require an officer to get approval from a chief probation officer and a waiver of rights from the offender before ordering the confinement, but the order does not appear to be reviewable by a court. That proposal and others in the bill are worth a look. I welcome your thoughts.