Last year I posted a chart summarizing the proper place of confinement (jail, prison, or Statewide Misdemeanant Confinement Program) for various types of imprisonment. The chart covers active sentences, split sentences, CRVs, quick dips, and incarceration for nonpayment of a fine. One thing it does not explicitly cover, though, is the proper place of confinement for a sentence activated upon revocation of probation. In response to a flurry of questions, I’ll take that issue up today. Continue reading
Tag Archives: structured sentencing
It’s a snow day across much of North Carolina. If your power is on (and your internet connection is working), today’s post will give you something to read by the fire. Allow me to make my annual plug for the North Carolina Sentencing and Policy Advisory Commission’s Structured Sentencing Statistical Report for Felonies and Misdemeanors. Continue reading →
Before Structured Sentencing we had Fair Sentencing. Under Fair Sentencing, there was no such thing as “prior record level,” but a prior conviction could qualify as an aggravating factor, exposing a person to a longer sentence. G.S. 15A-1340.4(a)(1)(o) (1988). However, the law included an exception for any crime joinable with the crime for which the defendant was currently being sentenced. Id. If prior conviction A could have been joined for trial with current charge B, then A could not count as an aggravating factor for the sentencing of B.
There is no such prohibition under Structured Sentencing. Rather, a prior conviction is now defined as any conviction existing on the date judgment is entered for current offense. G.S. 15A-1340.11(7). That rule grabs essentially any prior conviction—even those for offenses that actually occurred after the offense date of the crime now being sentenced, State v. Threadgill, __ N.C. App. __, 741 S.E.2d 677 (2013), and even those arising between the sentencing and resentencing of the same offense, State v. Pritchard, 186 N.C. App. 128 (2007). There is no exception in the prior record level statute for joined or joinable offenses.
Nevertheless, limits have emerged on the use of a joined conviction when calculating a person’s prior record level. In State v. West, 180 N.C. App. 664 (2006), a defendant was convicted by a jury of four crimes on the same day. The trial court sentenced the defendant for three of the crimes before lunch. When sentencing the fourth crime after lunch, the court counted prior record points for one of the offenses sentenced that morning. The court of appeals reversed, holding that while “[n]othing within [Structured Sentencing] specifically addresses the effect of joined charges when calculating previous convictions . . . using joined convictions would be unjust and in contravention of the intent of the General Assembly.” Id. at 669.
Under West, it is impermissible to introduce a short delay between the sentencing of joined offenses to allow one to count for points in the sentencing of the other. But what if the delay arises naturally? Suppose two charges are joined for trial. One results in a conviction, but the jury fails to reach a verdict on the other. If the mistried offense is retried and results in a conviction, does the conviction from the first trial count for prior record points toward the sentencing of the retried offense—even though they were initially joined for trial?
A mechanical application of G.S. 15A-1340.11(7) would suggest that it does. The first conviction clearly exists on the date a criminal judgment is entered for the second, and so it would appear to meet Structured Sentencing’s definition of a prior conviction. On the other hand, West could be read to suggest that it would be “unjust and in contravention of the intent of the General Assembly” to count the once-joined offense for points. Close call, right?
So close, in fact, that when two cases presenting that exact fact pattern were decided by the court of appeals last week, two panels of the court answered the question differently. In State v. Perkins, __ N.C. App. __ (2014), the defendant was initially tried on 20 sex crimes at the same time but convicted of only one of them, indecent liberties with a child. The jury failed to reach a verdict on the remaining counts. A year later when the defendant was retried and convicted on four of the charges, the indecent liberties conviction counted for points toward his prior record level. The court of appeals found no error, rejecting the defendant’s argument that counting points for the once-joined offense was prohibited. The panel distinguished West, saying the prior conviction in this case, unlike in West, “was established well in advance of [the defendant’s] attaining four additional convictions.”
State v. Watlington, __ N.C. App. __ (2014), went a different direction with West (pun intended). The defendant in Watlington was tried for several charges on the same day. The jury convicted him of some of the charges, found him not guilty of others, and was unable to reach a verdict on three of them. About two months later he was retried on the three mistried charges and convicted. The trial court counted points from the convictions obtained in the first trial when sentencing the retried offenses. The court of appeals reversed, concluding that, in light of West, it would be “unjust to punish a defendant more harshly simply because, in his first trial, the jury could not reach a unanimous verdict on some charges.”
It’s hard to reconcile the two cases. I suppose there was a longer passage of time between trial and retrial in Perkins, which made the chronologically prior convictions for the once-joined charges seem more well-established by the time the retrial rolled around. But the Watlington decision to bar use of the prior convictions did not appear to turn on the passage of time. Rather, the important thing was the perceived injustice of punishing the defendant more harshly after the second trial solely because the first jury couldn’t resolve the whole thing together. Obviously this sort of split wouldn’t happen if the cases hadn’t been decided on the same day (the panel hearing the second case would have been bound by the first panel’s resolution of the issue—assuming the issues are indeed the same). For the time being, at least, there appears to be good authority on both sides of the argument.
Last month, the court of appeals decided State v. Hogan, __ N.C. App. __, 758 S.E.2d 465 (2014), a case about the use of a defendant’s prior convictions from New Jersey in determining the defendant’s prior record level. It’s an interesting case and one that has implications for the use of such convictions in the habitual felon context, an issue I previously discussed here. (The comments to that prior post are unusually substantive and anyone who reads the post should also read the comments.)
Superior court proceedings. The defendant in Hogan pled guilty to assault by strangulation after choking his girlfriend. In the course of calculating the defendant’s prior record level, the superior court judge counted as a felony a prior conviction of “third degree theft” that the defendant incurred in New Jersey. According to the defendant’s brief, that decision moved the defendant from prior record level IV to V.
Defendant’s argument: New Jersey doesn’t have “felonies.” The defendant appealed, arguing in part that the judge erred in counting the New Jersey conviction as a felony. The court of appeals summarized his argument as follows: “[B]ecause New Jersey does not use the term ‘felony’ to classify its offenses, the trial court could not properly determine that third degree theft is a felony for sentencing purposes.” This argument links into G.S. 15A-1340.14(e), which states that for prior record level purposes, an out-of-state conviction normally “is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony” (emphasis supplied). The defendant argued, and the court of appeals acknowledged, that New Jersey “does not use the term ‘felony.’” Instead, it has four degrees of “crimes,” plus a set of less serious offenses called “disorderly persons offenses.”
Court’s ruling: “crimes” are felonies. The court of appeals found, however, that a third degree crime was punishable by three to five years in prison, and that New Jersey’s own courts had recognized that such a crime is comparable to a common law felony. In other words, “New Jersey courts have clearly recognized that their third-degree crimes are felonies by a different name.” Thus, the court rejected the defendant’s argument and affirmed his sentence.
Relationship to habitual felon. The court noted that in previous cases, it had been skeptical of the use of New Jersey convictions as previous convictions supporting a habitual felon charge. It declined to apply the reasoning of those cases in the Structured Sentencing context, stating that “[t]here is no suggestion in the sentencing statutes that the Legislature intended to single out New Jersey convictions for such unfavorable treatment.”
Importantly, the court also stated that even if it were to apply the habitual felon cases in the prior record level context, “this case is distinguishable in that the State presented a ‘certification’ that third degree theft is considered a felony in New Jersey,” which is precisely what previous cases like State v. Lindsey, 118 N.C. App. 549 (1995), suggested might be needed to allow New Jersey convictions to be used to support a habitual felon allegation. The State apparently introduced a criminal history printout from a New Jersey computer system that contained a statement certifying the record as accurate and described the theft conviction as a “felony.”
A few important points. There are a couple of takeaways here:
- First, the defendant has asked the state supreme court to review the case. The supreme court hasn’t yet ruled on whether it will do so, but has issued a temporary stay. If it does review the case, its ruling might impact the habitual felon cases as well as the prior record level cases, depending on the court’s result and reasoning.
- Second, the discussion of the certification from New Jersey is a road map for prosecutors trying to use a New Jersey conviction to support a habitual felon charge. The court of appeals’ previous opinions in the habitual felon context haven’t been clear about what sort of certification was required before a New Jersey conviction could be used, so Hogan is the best place to look. A possible defense response would be that the discussion in Hogan about the certification is dicta.
- Finally, first and second degree crimes, which are more serious than the offense at issue in Hogan, also appear to be felonies under the court’s analysis. But it is not as clear that fourth degree crimes, which are punishable by up to 18 months imprisonment, count as felonies. The trial judge in Hogan apparently didn’t think so, as he declined to treat the defendant’s other New Jersey prior – a fourth degree crime – as a felony. I tend to think otherwise, for the reasons given in my prior blog post, but I don’t think that Hogan is conclusive one way or the other.
As always, comments are welcome if folks think the analysis above is incorrect or incomplete. (Or exceptionally incisive, of course, though I don’t seem to get too many comments in that vein!)
When a person’s probation is revoked, his or her suspended sentence is generally activated in the same manner in which it was entered by the sentencing judge. But a lot can happen—both good and bad—in the time between sentencing and revocation, and sometimes a change is in order. This post considers the extent of a judge’s authority to modify a suspended sentence upon revocation of probation.
Sentence reduction. Under G.S. 15A-1344(d), a judge may, before activating a sentence, reduce it. The reduction must be consistent with subsection G.S. 15A-1344(d1), which limits the court’s authority as follows. For a felon, the modified sentence must be within the same range (presumptive, mitigated, or aggravated) of the same grid cell used in determining the original sentence. Thus, a Class H/Level II probationer with a presumptive-range 8–19 month suspended sentence could have that sentence reduced to no less than 6–17 months upon revocation of probation. And if the same defendant had received a 6–17 month presumptive-range sentence in the first place, there would be no room for reduction at all, because that is the bottom of the presumptive range in that cell. For a misdemeanant, the court is likewise limited to the range of durations applicable to the defendant at sentencing. But that is not much of a limitation, because every cell on the misdemeanor grid allows for a sentence as short as 1 day.
It is not clear whether the court may reduce an impaired driving sentence at the point of revocation. G.S. 15A-1344(d) says any reduction must be consistent with subsection (d1), but that subsection uses language exclusive to Structured Sentencing (Article 81B, prior conviction level, etc.), raising some doubt about whether any reduction is allowed at all for a DWI. On the other hand, before 1994, G.S. 15A-1344(d) indicated that any sentence could be reduced upon revocation, suggesting that the Structured Sentencing references were added as conforming changes, and probably not intended to prohibit reductions for DWIs.
Is a sentence reduction permissible when the court imposes a period of confinement in response to violation (CRV)? Arguably not, as G.S. 15A-1344(d) empowers the court to reduce a sentence only “before activating a sentence.” Albeit in a pre–Justice Reinvestment case, the court of appeals interpreted that subsection to mean the court is empowered to reduce a sentence “only when the prison sentence is activated and the probation is revoked.” State v. Mills, 86 N.C. App. 479 (1987). To the extent that CRV is viewed as an alternative to activation, it would seem that no reduction is allowed at that point. The issue has yet to come before the appellate courts.
Consecutive and concurrent sentences. If a probationer is subject to multiple suspended sentences, the judge revoking probation decides whether activated sentences will run concurrently or consecutively. As described in this prior post, that is so regardless of whether the judgments suspending sentence specified that the sentences would run a particular way in the event of revocation. See State v. Hanner, 188 N.C. App. 137 (2008); State v. Paige, 90 N.C. App. 142 (1988). By default, activated sentences run concurrently upon revocation, G.S. 15A-1344(d), and my understanding is that the prison system will run them that way if the revocation order is silent on the issue, even if the original judgments suspending sentence called for consecutive sentences upon revocation. The bottom line is that the revoking judge has a choice, and it would be error for that judge to assume the revoked sentences were required to be activated as entered by the original sentencing judge. State v. Partridge, 110 N.C. App. 786, 788 (“It is apparent from a reading of the transcript . . . that [the trial judge] felt that he did not have the authority to [order concurrent sentences]. Therefore, defendant is entitled to a new revocation of probation hearing.”).
Consolidation. An activated sentence may not be consolidated for judgment with another conviction obtained at a different time—including the new conviction that may have prompted revocation. Structured Sentencing provides that consolidation is allowed only for offenders “convicted of more than one offense at the same time,” G.S. 15A-1340.15(b) (felonies), or “same session of court,” G.S. 15A-1340.22(b) (misdemeanors).
Other issues. In addition to the sentence-length modifications described above, some other matters may arise for the first time upon revocation of probation. For example, a recommendation for work release during the activated sentence should not be made until probation is revoked. G.S. 148-33.1(i). The court may also make a recommendation about whether any restitution ordered should be made a condition of the defendant’s eventual post-release supervision, G.S. 148-57.1, and, if so, whether it ought to be paid out of the defendant’s work release earnings, G.S. 15A-1340.36(c).
Extraordinary mitigation—or, more precisely, dispositional deviation for extraordinary mitigation—under G.S. 15A-1340.13(g) is a way for the court to impose a probationary sentence for a defendant whose offense class and prior record level ordinarily require an active sentence. The provision was included in Structured Sentencing as a counterbalance to the habitual felon law, although the latter is used much more frequently. Still, the law is a useful sentencing tool in certain cases, and certainly worth knowing about.
Extraordinary mitigation turns an “A” cell on the sentencing grid into an “I/A” cell, allowing the court to suspend an otherwise unsuspendable sentence. Extraordinary mitigation does not authorize the court to alter the term of imprisonment ordinarily required by the grid. It merely allows the judge to suspend that term of imprisonment and place the defendant on probation. State v. Messer, 142 N.C. App. 515 (2001).
Findings. To use extraordinary mitigation, the court must, under G.S. 15A-1340.13(g), find in writing that:
- The case presents extraordinary mitigating factors of a kind significantly greater than in the normal case;
- Those factors substantially outweigh any factors in aggravation; and
- It would be a manifest injustice to impose an active punishment in the case.
Those findings, which rest in the discretion of the trial judge, may be recorded on form AOC-CR-606.
To be considered extraordinary, a mitigating factor must be significantly greater than an ordinary mitigating factor. The judge must look to the quality of the particular factor, not the overall quantity of proffered mitigators, when evaluating extraordinary mitigation. The sheer number of ordinary mitigating factors cannot, standing alone, support a finding of extraordinary mitigation. State v. Melvin, 188 N.C. App. 827 (2008) (“[Q]uality of factors, not quantity, is the prime consideration for the trial court.”).
The trial judge is not necessarily precluded from making a finding of extraordinary mitigation based on facts that would support a statutory mitigation factor, but there must be additional facts present, over and above those required to support an ordinary mitigator. Id.; State v. Riley, 202 N.C. App. 299 (2010). For example, in State v. Williams, __ N.C. App. __, 741 S.E.2d 486 (2013), the trial judge erred by finding as an extraordinary factor that the defendant’s “level of mental functioning was insufficient to constitute a defense but significantly reduced his culpability.” The court of appeals held that factor to be inappropriate because it was “almost a verbatim recitation” of the normal statutory mitigating factor regarding the defendant’s mental condition. Additionally, the court’s finding that the victim consented to the crime (performing fellatio on the defendant) was also improper as an extraordinary factor in light of the victim’s age. The victim was 14, meaning her voluntary participation could not have supported even an ordinary mitigating factor, as that statutory factor applies only if the victim is at least 16. Williams, 741 S.E.2d at 493. If it could not be an ordinary factor, then it clearly could not be an extraordinary one.
Eligibility. Some offenses are not eligible for extraordinary mitigation. Under G.S. 15A-1340.13(h), the judge may not find extraordinary mitigation for:
- Class A or Class B1 felonies;
- Drug trafficking or conspiracy to commit drug trafficking; or
- Defendants with 5 or more prior record points.
Because extraordinary mitigation may not be used for Class A or Class B1 offenses or for offenders with 5 or more prior record points, the law may come into play in only six cells on the sentencing grid: Prior Record Level I and most of Prior Record Level II for Class B2, C, and D. Grid cells below those already allow a probationary sentence, and so the defendant would not be helped by a finding of extraordinary mitigation in any event.
Extraordinary mitigation is not used frequently enough to discern any real patterns in how it gets used. One not-so-recent change in the law might make extraordinary mitigation a better option in certain circumstances. Until 2003, a split sentence could not exceed one-fourth the defendant’s maximum sentence or 6 months, whichever was less. For offenses committed on or after December 1, 2003, the split sentence may be up to one-fourth of the maximum (the 6-month rule was repealed). For a first-time offender convicted of a Class C felony and sentenced to, say, 58–82 months, a judge who suspended the sentence through extraordinary mitigation would have up to 20 months of split time to work with. That’s a measure of flexibility that might come in handy in the right kind of case.
The School of Government’s mobile app for Structured Sentencing is available for download. The version for Apple devices—iPhone and iPad—is in the iTunes App Store, linked here. (You’ll need at least an iPhone 4, running iOS7.) The Android version is in the Google Play store, here. Both versions are free.
The app will help you prepare a lawful sentence for any felony or misdemeanor sentenced under Structured Sentencing and for drug trafficking. For all types of sentences, an important first step in the process is to enter the offense date of the crime being sentenced. With that information in place, the app will automatically apply the law as it existed at the time of offense—including the proper sentencing grid, available sentencing enhancements, and statutory probation conditions, among other things. It’s accurate back to October 1, 1994.
The app can store multiple sentences at once, allowing you to work up sentences for all of a defendant’s charges, or perhaps different sentencing options for the same charge (e.g., habitual/non-habitual; active/probationary; etc.), which could be useful for brainstorming, in plea negotiations, or when advising a client.
Here are some additional features.
The app will help you avoid some common sentencing errors. If your split sentence is too long (or your probation period too long, or your fine too big), a pop-up will warn you about it.
There is a searchable chart of all North Carolina crimes, sorted by offense class.
There is a prior record level calculator.
Every screen in the app has an associated help screen that addresses legal issues and frequently asked questions germane to that step in the sentencing process. For example, the help screen for prior record level collects statutes and case law on which things count for points and which do not.
When legally appropriate, the app will prompt you for sentencing options such as extraordinary mitigation, advanced supervised release, substantial assistance, and the firearm/deadly weapon sentence enhancement. The app will calculate the enhanced or mitigated sentence, such as the ASR date, for you.
The app prepares a detailed report on each sentence that is exportable to email.
Steve Winsett of Mainprocessor, LLC, in Greensboro programmed the app. Steve is a visionary who cares a lot about how the court system does its work. Christopher Tyner and Cindy Lee helped me edit and check the app’s content. Robby Poore designed some of the app artwork.
The app was created with generous funding from the C. Felix Harvey Award to Advance Institutional Priorities, a UNC–Chapel Hill award promoting innovative scholarship that positively impacts constituencies outside the university. I am grateful to the Harvey family for their support of the university, and for recognizing the importance of accuracy in the work that readers of this blog do each day.
The sentencing app is the latest addition to the School’s family of apps. Just as he led us into blogging, Jeff led us into the world of apps with his mobile search and seizure guide, ASSET (for Apple and Android). In general, I find that it’s a good strategy in life to watch what Jeff Welty does and try my best to do it too.
I hope you’ll download the app and take a look. We’re already working on some additional functionality for future releases, so I welcome thoughts about how it could be improved to help you with your work.
I was on spring break last week, which meant I had lots of time for uninterrupted reading while my kids entertained themselves at the pool. Okay, maybe not. Despite being on the go, I made time to read three new publications from the North Carolina Sentencing and Policy Advisory Commission. They are well worth a look to anyone who reads this blog.
The first publication is the annual Structured Sentencing Statistical Report for Felonies and Misdemeanors (FY 2012/13). I look forward to it each spring in the same way I look forward to pitchers and catchers reporting to spring training. Like last year’s report (which I reviewed here), it’s chock full of enough data to keep Bill James busy.
This year’s installment is especially interesting in that it’s the first report for which a majority of the sentences covered (64 percent of felonies and 82 percent of misdemeanors) have offense dates after December 1, 2011, and are thus governed by the post–Justice Reinvestment Act sentencing laws. It’s interesting to see what has changed under the new law, and what hasn’t. For example, the dispositional slash line for felonies (percent Active/Intermediate/Community) is 39/32/29, which is somewhat of a departure from last year’s 41/41/18. Some people (including me, to be honest) had thought the percentage of Active sentences might increase in light of the substantial limits on judges’ authority to revoke probation, on the theory that judges might be less inclined to put some defendants on probation if they couldn’t get them off probation. But it looks like that didn’t happen.
Other items of note:
- The sentencing range breakdown (percent presumptive/mitigated/aggravated) was 69/27/4, almost identical to last year’s 68/27/5.
- 150 sentences were entered under the 2011 habitual breaking and entering law.
- 463 drug trafficking sentences were entered, a substantial decline from 543 the prior year.
- The firearm/deadly weapon enhancement set out in G.S. 15A-1340.16A was not used a single time.
- A high percentage of habitual felon sentences continue to be sentenced in the mitigated range, despite the law’s transition in 2011 from automatic Class C status to a four-class enhancement.
- 77 sentences included an Advanced Supervised Release (ASR) date, although the report notes that due to recordkeeping limitations in the early part of the data collection period, the actual number of ASR sentences was probably a good bit higher.
There are lots of other interesting data that range from interesting trivia (months with the most and least convictions? August and June, respectively) to source material for effective advocacy (Appendix D, Table 1 breaks down the type of punishment and average sentence length by crime type and offense for the state’s most commonly charged crimes).
The second publication is the Commission’s Correctional Program Evaluation: Offenders Placed on Probation or Released from Prison in FY 2010/11, better known as the annual recidivism report. This year’s report examines the recidivism outcomes of the 57,535 offenders released from prison or placed on probation in fiscal year 2010/11. The report defines recidivism as an arrest, conviction, and incarceration during the two years after being released from prison or placed on probation.
To continue our theme of sentencing sabermetrics, the overall recidivism slash line (percentage arrested/convicted/incarcerated within two years) for all offenders was 40.7/21.3/21.9. Perhaps unsurprisingly, defendants sentenced to probation have slightly lower overall recidivism rates (36.8/18.6/22.2) than those sentenced to prison (48.6/26.6/21.2). Habitual felons had rates (48.1/21.9/26.0) fairly similar to other felons, while sex offenders had substantially lower rates of arrest and conviction than felons in general (27.0/13.9/26.3). Rearrest rates for all offenders have risen over time, climbing from 31.2 percent in 1989 to 40.7 percent in 2010/11, but the report indicates that most of that increase is due to improved documentation technology and a greater number of fingerprinted misdemeanor arrests, rather than an increase in the actual number of arrests themselves.
The recidivism report also included an extended discussion of outcomes for probationers broken down by the risk and need level identified through Probation’s risk-needs assessment (RNA) process (described here). It appears that the RNA is predictive of probationer’s violation, revocation, and recidivism rates, which is good news for those who hope to focus limited correctional resources on those who need them most, based on the results of the RNA.
There’s a natural time lag in recidivism reports—you have to wait for a full two-year reporting period before you can measure the outcomes of a particular cohort of offenders. As a result, this year’s report looks at offenders sentenced under pre-JRA law. The 2016 report, based on a sample of offenders placed on probation or release from prison during FY 2012/13, will be the first to provide a more complete accounting of whether the JRA has met its recidivism reduction goals.
Speaking of Justice Reinvestment, the third and final publication of note is the Justice Reinvestment Act Implementation Evaluation Report. The report, prepared in response to legislative mandate, gives insight into how the JRA is playing out in practice through a combination of data, site visit reports, and a review of JRA-related policy changes made by the court and correctional systems. For example, the report gives a status update on the Department of Public Safety’s Treatment for Effective Community Supervision (TECS) program, the JRA’s answer to the former Criminal Justice Partnership Program (CJPP). As of February, TECS services were available in 88 counties, with service in all 100 counties projected to begin by July 2015. The report also gives an update on the Statewide Misdemeanant Confinement Program, future plans for management of offenders ordered to confinement in response to violation (CRV), use of delegated authority, as well as various changes in prosecutorial and plea negotiation practice under the revised habitual felon law, the new habitual breaking and entering law, ASR, and G.S. 90-96. If you don’t have time to read the whole thing, I recommend reviewing the Conclusions section beginning on page 47.
Today’s post covers some of the nuts and bolts of electronic house arrest (EHA). EHA is fairly self-explanatory: in lieu of traditional incarceration, a person is confined to his or her residence by way of an electronic monitor that signals authorities if he or she departs. The focus here is on EHA as a component of a criminal sentence, not as a condition of pretrial release, although the same technology may be used for that purpose.
Legal background. House arrest with electronic monitoring is a defined term under Structured Sentencing. Under G.S. 15A-1340.11(4a), it is probation in which a person is required to remain at his or her residence. The court may authorize the person to leave for certain purposes (work, education, or treatment, for example), and a probation officer may authorize the person to leave for other purposes not mentioned by the court with the approval of a chief probation officer. There are actually two statutory conditions that mention EHA—the statutory special condition set out in G.S. 15A-1343(b1)(3c) and the “community and intermediate” condition set out in G.S. 15A-1343(a1)(1)—but there’s no apparent substantive distinction between the two.
For offenses committed before December 1, 2011, EHA was an “intermediate” sanction under G.S. 15A-1340.11(6), meaning it could be imposed only as part of an intermediate sentence. That distinction was repealed for offenses committed on or after December 1, 2011, meaning EHA may now be imposed as part of any probationary sentence. Electronic house arrest is also one of the sanctions a probation officer may add without prior court approval through delegated authority. G.S. 15A-1343.2(e) (for community cases); 15A-1343.2(f) (for intermediate cases).
There is no statutory time limit on how long a probationer may be ordered to EHA; in theory a person could be placed on EHA for every day of a five year probationary term. However, probation policy (§ .0303A(b)(4)) recommends that a period of EHA not exceed 120 days.
Technology. An electronic device monitors an offender’s compliance with EHA. No specific device is required by law, but under G.S. 15A-101.1(3a), any “electronic monitoring” mentioned in Chapter 15A must be done with a device that is not removed from a person’s body that actively monitors, identifies, tracks, and records a person’s location at least once every minute 24 hours a day, with a battery life of least 48 hours. The Division of Adult Correction contracts with a company called BI Incorporated for its electronic monitoring needs. The particular device used in North Carolina is called the BI ExacuTrack® One (with general information and technical specs available online). DAC uses the exact same device for electronic monitoring curfews and satellite-based monitoring of sex offenders.
Cost. A person placed on EHA as a condition of probation must pay a one-time $90 fee and, as of last September, a “daily fee in an amount that reflects the actual cost of providing the electronic monitoring.” G.S. 15A-1343(c2). As of now that daily cost is set at $4.37. (The daily cost of EHA listed on the N.C. Department of Public Safety website is $9.83, but that number probably includes some accounting of the probation officer’s time in addition to the cost of the device itself.) In a judgment imposing EHA, the court should multiply the number of days that the defendant will be subject to EHA by $4.37, add $90, and include that amount as the EHA fee on the judgment. The court may exempt a person from paying the EHA fee “only for good cause and upon motion of the person placed on house arrest.” G.S. 15A-1343(c2). Because the EHA fee is not listed in G.S. 7A-304, it probably does not require a written finding of “just cause” to reduce or remit it for a particular defendant.
Enforcement. A willful failure to abide by EHA obviously is a violation of probation. Any person who removes, destroys, or circumvents the operation of an EHA device, or solicits another person to do it, also commits a crime under G.S. 14-226.3. The offense class of the crime depends on the class of offense for which the person is being monitored: interference with the equipment is a crime one offense class lower than the most serious felony or misdemeanor for which the person is under supervision (a violation by a Class I felon is a Class A1 misdemeanor).
Credit for confinement. Time spent subject to EHA does not qualify for credit under G.S. 15-196.1. State v. Jarman, 140 N.C. App. 198 (2000). That statute is limited to time spent in any “State or local correctional, mental, or other institution,” and a person’s house is not one of those.
Along similar lines, a judge may not commit a person to a residence for service of a sentence of imprisonment. The DWI law used to include a provision allowing a split sentence to be served via house arrest, but that was repealed in 1997. S.L. 1997-379. Likewise, a sheriff may not allow a person committed to his or her custody for a term of imprisonment to serve the sentence on house arrest. The sheriff has some discretion in identifying a person’s place of confinement, but it must ultimately be a place designated by law for such confinement and approved by the Department of Health and Human Services. G.S. 162-56. In general, no person should be imprisoned except in the common jail of the county, unless otherwise provided by law. G.S. 15-6. With that in mind, house arrest should not be used as a substitute for incarceration. See 59 N.C. Op. Atty. Gen. (1989) (concluding that DWI split sentences could not be served through EHA before enactment of the authorizing provision in G.S. 20-179 noted above).
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.