Double-Secret Post-Release Supervision
Post-release supervision has been mandatory for all felonies since 2011. But rarely if ever does anyone mention it when advising a defendant about a waiver of counsel or the consequences of a guilty plea. It’s not clearly statutorily required to do so. But the PRS is real, especially for crimes that require registration as a sex offender, where the term of supervised release is five years. G.S. 15A-1368.2(c). Is it a problem that it doesn’t get mentioned? Yes, according to a recent case from the Court of Appeals.
The case is State v. Spry, ___ N.C. App. ___, 911 S.E.2d 745 (2025). The facts of the case stem from a robbery that happened in 2006. The defendant ultimately pled guilty to common law robbery, second-degree kidnapping, and attempted second-degree kidnapping. The kidnappings involved victims under the age of 16, but the trial court didn’t note that on the original judgment in 2007. The Department of Correction sent an auditing letter asking for clarification, because a kidnapping of a minor requires sex offender registration. G.S. 14-208.6(1m). The trial court—without any notice to the defendant and outside his presence—modified the judgment, checking the box indicating that the victims were minors. The amended judgment triggered sex offender registration, which in turn triggered the requirement for a five-year term of post-release supervision. Under the law that existed at that time (pre-2011), there was no increased maximum term of imprisonment for Class B1–E sex offenders, just a requirement for a longer term of supervision in the community (that’s been the law since 1996).
So, what the defendant wound up with was a 25–39 month sentence that carried five years of post-release supervision, during which he would have nine months of possible imprisonment hanging over his head (that was before 2011, when the extra time built into the maximum for Class B1–E felonies was increased from nine to twelve months). I’m sorry this is so complicated—the important thing for our purposes today is that the defendant had a very long period of post-release supervision lurking, he hadn’t been advised about it, and it was in no way obvious from the face of the judgment itself.
Fast forward to 2022. At that point, the defendant was petitioning for removal from the sex offender registry. As part of that process, he filed a motion for appropriate relief arguing that the “corrected” judgment entered 16 years earlier violated his constitutional right to a knowing and voluntary plea. The trial court denied the motion, concluding among other things that sex offender registration was a collateral consequence that didn’t affect the voluntariness of the defendant’s plea.
On appeal, the defendant argued the knowing and voluntary plea issue. Following precedent from the majority of other states to have considered the issue, the Court of Appeals agreed with the trial court that sex offender registration was a collateral consequence of the defendant’s guilty plea and not a direct consequence. Therefore, the trial court did not violate the defendant’s right to a knowing and voluntary plea by requiring registration without first informing the defendant about it.
As to the extended post-release supervision issue, however, the appellate court reached a different result. The court noted that the defendant was “not admonished that he would be subject to registration requirements or the lengthier 5 years of PRS and its much more onerous conditions of supervision.” The court noted that even though G.S. 15A-1022 does not mention PRS, the courts of other states (New York, New Jersey, and Kansas) have held that a failure to advise a defendant about a mandatory term of PRS renders a plea involuntary. (I discussed the New York cases in this prior post from 2015.)
With those cases in mind, and in light of State v. Bozeman, 115 N.C. App. 658, 661 (1994) (a defendant must be advised of the direct consequences of his or her plea, which are those that have a “definite, immediate and largely automatic effect on the range of the defendant’s punishment”), the Court of Appeals concluded that five-year post release supervision was a direct consequence of the defendant’s plea, and that the trial court thus violated the defendant’s right to make a knowing and voluntary plea by failing to advise him about the lengthier term of PRS. (The court also said the defendant wound up serving an additional four years in prison because of the later addition of sex offender status, but that doesn’t make sense to me. For crimes of that vintage, the five-year period of PRS applies, but there is no additional time built into the maximum term of imprisonment for offenses committed before December 1, 2011.)
Mr. Spry is certainly not the only defendant who wasn’t advised of a five-year term of post-release supervision for a crime requiring sex offender registration. In his case, that consequence was especially opaque: it wasn’t included in the judgment at all at the original sentencing, and then it was “fixed” by a correction made outside of his presence. On top of all that it was a kidnapping committed in the course of a robbery, not a case where sex offender consequences were likely to be top of mind. But the same general issue comes up any time a court advises a defendant on a guilty plea for a crime requiring registration—especially today’s Class F–I felonies (like indecent liberties), that get five years of PRS but have only 9 extra months of imprisonment built into the maximum sentence.
The Supreme Court of North Carolina allowed a temporary stay in Spry. 911 S.E.2d 489 (2024) (mem.). So it’s possible things could change. In the meantime, the safer practice would appear to be for a trial court to advise the defendant about both the maximum term of imprisonment and any related term of PRS. The issue is most acute when we’re talking about five-year sex offender PRS that goes beyond the nine-month term of additional imprisonment underlying it. But if PRS generally is a direct consequence, it would seem that any PRS period ought to be mentioned when advising a defendant about the consequences of a guilty plea. If the failure to do so turns out to be a constitutional problem, a lot of prior guilty pleas will be challenged.
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