Last week, the North Carolina Court of Appeals in State v. Watson (October 18, 2016) ruled that an officer’s erroneous completion of a juvenile waiver of rights form did not bar the admissibility of the juvenile’s confession. This post will discuss North Carolina statutory law concerning juvenile warnings and rights and the Watson ruling. Continue reading
Tag Archives: waiver
Suppose that when a criminal defendant appears in court, he is advised of the right to have counsel appointed if indigent, tells the judge he wants to hire his own lawyer, and signs a written waiver of his right to appointed counsel. When the defendant next appears in court, he does not have a lawyer. May the judge rely on the waiver of appointed counsel to require the defendant to proceed, without inquiring whether the defendant wants the assistance of counsel? Continue reading →
In an opinion last week, the court of appeals helpfully summarized the law about how a defendant may lose the right to counsel, and may have recognized a new way that a defendant may lose that right. The case is State v. Blakeney, and this post explores it briefly. Continue reading →
A North Carolina defendant has a common law right to be personally present when a criminal sentence is pronounced. That right is separate from the constitutional right to be present at trial, State v. Pope, 257 N.C. 326 (1962), and a waiver of the sentencing right should not be inferred from the defendant’s absence at trial. When a defendant is tried and found guilty in absentia (because he or she fled in the middle of the trial, or perhaps behaved in a disorderly fashion), we generally recommend that prayer for judgment be continued until the defendant can be brought before the court for sentencing. See Jessica Smith, N.C. Superior Court Judges’ Benchbook: Trial in the Defendant’s Absence. In one case the court of appeals held that a trial judge did not err by proceeding to sentence a defendant after he fled the courthouse, primarily because his lawyer remained and did not ask for a continuance. State v. Miller, 142 N.C.App. 435 (2011). But in light of earlier cases, the better practice is to wait. See, e.g., State v. Stockton, 13 N.C. App. 287 (1971) (citing several supreme court cases deeming sentences entered in a defendant’s absence to be defective). Continue reading →
As of December 1, 2014, North Carolina criminal defendants may waive their right to a jury trial in superior court and instead opt for a bench trial. This is because of the state constitutional amendment that voters approved this fall. (I wrote about the amendment here.) But how exactly is waiver supposed to work? Continue reading →
Earlier this year National Public Radio ran a series on court costs entitled Guilty and Charged. The general point of the series was that “the costs of the criminal justice system in the United States are paid increasingly by the defendants and offenders”—a population that is mostly poor. Missed payments often lead to more fees, interest, probation violations, and eventually incarceration.
North Carolina is no exception to the national trend. Continue reading →
This fall, North Carolina voters will decide whether to amend the state constitution. The proposed amendment would allow, for the first time, bench trials for felonies in superior court. Neither the media nor advocacy groups have paid much attention to the amendment, so almost no one seems to know that it is on the table. For that reason, I think of it as the stealth constitutional amendment. Despite the amendment’s low profile, allowing felony bench trials would be a major change.
The change could be for the better. For example, bench trials might save money, and some defendants — those with technical defenses, or those who are unpopular in the community — might prefer a judge to a jury. The 49 other states allow bench trials, so the amendment would bring us in line with the national norm.
But the change could also be for the worse. Once waiver is possible, defendants might be pressured to waive their right to a jury trial. Defendants with prominent and well-connected lawyers might get unfairly favorable treatment. Also, contrary to the majority rule in other states, the amendment doesn’t give the prosecution the right to insist on a jury trial if it believes that a bench trial would be inappropriate.
In an effort to draw some attention to the amendment and to provide some information about its possible benefits and costs, I worked with School of Government law clerk Komal Patel to prepare a report about it. The report is available here as a free PDF. In typical School of Government fashion, it doesn’t take a position on the amendment but it contains quite a bit of information about its potential impact and the practice in other jurisdictions. It’s written to be accessible to voters who aren’t very familiar with the criminal justice system, so please pass the link along to anyone who may be interested. As always, feedback and comments of all kinds are welcome.
A probationer is entitled to a hearing on an alleged probation violation, unless the hearing is waived. G.S. 15A-1345(e). What does it mean to waive a probation violation hearing? As a result of legislation passed in 2013, the answer to that question matters more than it used to for probation violations in district court.
Ordinarily, when a person’s probation is revoked or a split sentence is imposed in district court, the probationer may appeal to superior court for a de novo violation hearing. G.S. 15A-1347. (Other modifications of probation, including imposition of confinement in response to violation, are not appealable, as discussed here.) Under new G.S. 15A-1347(b), “if a defendant waives a revocation hearing, the finding of a violation of probation, activation of sentence, or imposition of special probation may not be appealed to the superior court.” The new law appears to apply to probation violations occurring on or after December 1, 2013—language I generally interpret to refer to the date of the alleged offending behavior, not the date of the hearing. S.L. 2013-385.
The problem is that a waiver of a probation violation hearing is not as clear of a thing—not as identifiable of a moment—as a guilty plea to a new criminal charge. Aside from the mention of a hearing waiver in G.S. 15A-1345(e), the statutes don’t really say anything about it. What little case law we have has stressed that a probation violation hearing is not a formal trial, and that “[u]nlike when a defendant pleads guilty, there is no requirement that the trial court personally examine a defendant regarding his admission that he violated his probation.” State v. Sellars, 185 N.C. App. 726, 728–29 (2007).
Given that relative informality, it may not always be clear when a violation hearing has been waived. If a probationer explicitly waives his or her right to a hearing and consents to a modification imposed out of court, then the hearing probably has been waived. But what about the probationer who admits to a violation, but still wishes to be heard on its circumstances, or on how the court will respond to it? Is the admission tantamount to a waiver, or is the argument regarding the proper sanction (house arrest in lieu of revocation, for instance) still a hearing of sorts?
I don’t see a clear answer in our statutes or case law. Given the uncertainty, some practitioners have taken the position that they will not admit to any violation in district court. They fear that the admission will be deemed a hearing wavier, and in turn a waiver of the right to appeal. Others have been careful to accompany any admission with some indication that the hearing was not waived. That requires a small modification to the relevant AOC forms (for example, AOC-CR-607), which generally place waiver and admission together on the same line, with a single check-box.
May community service fees be waived? I suspect some of you are thinking “I hope so, because they just were,” or something along those lines. It turns out to be a tricky question, I think.
First, let me be clear about what I mean by community service. I’m talking about community service ordered as a condition of probation, either as a special condition of probation under G.S. 15A-1343(b1)(6) or a community and intermediate condition of probation under G.S. 15A-1343(a1)(2). Those two conditions are essentially the same, and both require the probationer to perform community service and pay the fee required by law for it. (When the community and intermediate community service condition was initially added to the law in 2011, it did not include any reference to the fee, but an amendment in 2012—discussed here—added one.)
Community service ordered as a condition of probation, supervised or unsupervised, generally falls under the Community Service program described in G.S. 143B-708. (There is a background question about whether a judge may order community service outside the program, but let’s leave that aside for now.) Community service through the program requires the defendant to pay a fee of $250. Under G.S. 143B-708(c), that fee “shall be paid by all persons who participate in the program or receive services from the program staff.” Only one fee is required for each “sentencing transaction,” defined as all offenses considered and adjudicated during the same term of court.
In general, a person must pay the fee in full before participating in the community service program. A small exception is that the court in which the person is convicted may give the person of extension of time to pay or allow the service to begin before payment. G.S. 143B-708(c). (Prosecutors have similar authority for community service ordered in deferral cases, and probation officers have similar authority when the service was ordered through delegated authority.) Aside from that, the statute makes no mention of any authority to waive the fee.
The absence of any reference to a waiver is noteworthy. Court costs generally may be waived for just cause under G.S. 7A-304(a) (as discussed here)—but the community service fee is not set out in G.S. 7A-304, or incorporated into it by reference. Probation supervision fees may be waived “for good cause and upon motion of the person placed on supervised probation.” G.S. 15A-1343(c1). For electronic house arrest, the court “may exempt a person from paying the fees only for good cause and upon motion of the person.” G.S. 15A-1343(c2). For attorney fees, the court has express authority to order a defendant to pay “a portion, but not all, of the value of the legal services rendered” if, in the court’s opinion, that is what the person is financially able to pay. G.S. 7A-455(a). So, the legislature certainly knows how to include waiver or exemption provision when it wants to.
On the other hand, the legislature also knows how to say expressly that a fee may not be waived. Under G.S. 7A-455.1(b), the $60 attorney appointment fee is “mandatory” and “may not be remitted or revoked by the court.” I suppose the community service fee isn’t stated as mandatorily as that. But it does use the word shall. And the court of appeals has described such fees as a “non-discretionary byproduct of the sentence.” State v. Arrington, __ N.C. App. __, 714 S.E.2d 777 (2011); see also In re Greene, 297 N.C. 305 (1979) (holding that a judge does not have inherent power to continue prayer for judgment in a case when a certain punishment is made mandatory).
Be that as it may, the fee gets waived with some frequency. I imagine that may have something to do with its growth over time. When first enacted in 1984 the fee was $50. It grew to $100 in 1986, $200 in 2002, $225 in 2009, and $250 in 2010.
Even if it may not be waived on the front end, there may be support for a later remission of the fee. Under G.S. 15A-1363 a defendant may “at any time” petition the court for remission of a “cost” or any unpaid portion of it. The court of appeals has interpreted “cost” in that context as “fees and charges required by law to be paid to the courts or some of their officers, the amount of which is fixed by statute or court rule.” State v. Webb, 358 N.C. 92 (2004). Along the same lines, any alleged probation violation tied to a failure to pay the fee might be defensible on the grounds that the defendant had a good faith inability to pay. If the defendant showed that to be the case, the judge would have authority at that point under G.S. 15A-1364(c) to reduce or remit the fee.