As Shea discussed on Monday, the court system will look to expand operations on June 1. Today’s post describes a few of the issues related to probation that are likely to arise in the months ahead.

Probation periods generally. The Chief Justice has issued a series of emergency directives related to COVID-19 since mid-March. None of those directives impacted the running of time on a probationary period itself. Probation cases that were set to expire in the weeks since March 16 have expired, unless a judge affirmatively extended them.

Hearings after expiration. Those cases have ended, but that does not mean those probationers can’t be held to account for violations that occurred during the probation period. If an officer filed a violation report before the case ended, the court would still have jurisdiction to act on it as provided in G.S. 15A-1344(f).

Even if the probation officer (or other office, in the case of unsupervised probationers) has not yet filed a violation report, it is not too late for some cases. Under the language of the Chief Justice’s emergency directives, all pleadings, motions, notices, and other documents and papers in criminal actions that were or are due to be filed on or after March 16, 2020, shall be deemed to be timely filed if they are filed before the close of business on June 1, 2020. So, if a case expired on or before March 15, 2020, and no violation report was filed, it’s over. For cases that expire between March 16 and June 1, a report filed before the close of business on June 1 will hold the case open as provided in G.S. 15A-1344(f). (Last week the Judicial Branch COVID-19 Task Force recommended a further extension of that deadline to July 31, 2020; there may be additional extensions.)

For any hearing held on a case that is already expired, remember that the court does not have jurisdiction over the case unless it finds a violation and makes a finding of “good cause shown and stated” that probation should be extended, modified, or revoked. G.S. 15A-1344(f)(3); State v. Morgan, 372 N.C. 609 (2019) (discussed here).

Money. Most probationers owe some money (court costs, a fine, supervision fees, restitution, etc.) as a condition of probation. The Chief Justice’s emergency directive says that all money owed pursuant to a judgment or order that comes due between April 6 and May 30 is extended by 90 days, and that nonpayment in those cases shall not be deemed a willful failure to comply. However, those directives also say that “[m]onetary obligations owed pursuant to a term of probation which is scheduled to end within 30 days after the date that this order is issued are excluded” from the directive. Looking at the dates of the relevant directives, that means that for probation cases that expired or expire from April 3 to May 31, the deadline for money owed is not extended. I think the purpose of these exemptions was to avoid having probation cases expire out from under an extended payment deadline.

Even if the payment deadline in those probation cases is not extended or excused as a technical matter, there may of course be many cases where, in light of the economic crisis caused by the pandemic, failures to pay will not be willful violations. And though covered probation payments don’t get the benefit of the 90-day extension, a probationer who pays any delinquent obligation that comes due between March 16 and June 1 by the close of business on June 1 would be deemed to have done that “act” in a timely fashion within the language of the Chief Justice’s order extending time and periods of limitation—even if a violation report had already been filed. The same could be said about non-monetary conditions satisfied after the original deadline but before the close of business on June 1, such as completion of community service hours or treatment sessions. Although it’s certainly possible that those, too, may have become impossible to complete in light of stay-at-home orders, program closures, and other restrictions, and that the failure to complete them therefore would not be a willful violation.

Audio-video probation proceedings. Probation hearings—both preliminary (“7-day”) and final—can likely be held through an audio-video proceeding in accordance with Emergency Directive 3 of the Chief Justice’s most recent order. There is no authority on point from North Carolina, but courts nationally have approved hearings in absentia in certain circumstances, including by waiver. See Mathews v. State, 907 N.E.2d 1079 (Ind. Ct. App. 2009) (defendant knowingly and voluntarily waived constitutional right to be present at probation revocation hearing). There is little case law on conducting a contested hearing through remote technology. In Schiffer v. State, 617 So. 2d 357 (1993), a Florida appellate court found that the trial court erred by conducting a revocation proceeding by video/audio procedures when the defendant did not affirmatively waive his right to be personally present at the hearing and was not able to communicate privately with counsel.

CRV and other intermittent confinement. Before the pandemic, confinement in response to violation for technical violations in felony cases was served in the CRV centers in Robeson County, Burke County, and, for women, in Davidson County at North Piedmont Correctional Center for Women. Operations at the Robeson facility have been suspended since June 2019 and the Burke facility is being used to house active-sentence inmates relocated from other prisons as a result of COVID-19. Men ordered to serve CRV are receiving some CRV services at Morrison Correctional Institution in Richmond County.

Courts and sheriffs will surely wish, to the extent possible, to continue limiting defendants’ movement in and out of jail through other intermittent confinement like split sentences, quick dips, and contempt. Legislation effective last week, S.L. 2020-3, empowered chief district court judges to modify any criminal judgment requiring a defendant to serve periods of confinement in a jail in certain circumstances, namely that the defendant is unable to serve a period of confinement due to the COVID-19 state of emergency, that without the modification the defendant will be in violation of the judgment, and that the district attorney consents. That authority applies from May 4 to August 1, 2020. Id., sec. 4.41.(b).

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