Public Defense Education

The law is unsettled. G.S. 15A-1361 through G.S. 15A-1365 contain sentencing procedures for cases in which the court imposes a fine. One of the procedures, in G.S. 15A-1362(c), is no longer available for Class 3 misdemeanors if the defendant has three or fewer prior convictions (and no other statute authorizes a punishment greater than a fine). G.S. 15A-1362(c) provides that when a court orders a defendant to pay a fine other than as a condition of probation, it may at the time it enters the fine impose a sentence to be served in the event the defendant defaults. It is unlikely that the General Assembly intended to allow courts to impose this type of judgment, which amounts to a suspended sentence of imprisonment for which the defendant would have a right to counsel. See also 3 Wayne R. LaFave et al., Criminal Procedure § 11.2(a), at 616–17 (3d ed. 2007) (noting that several courts have found that conditional sentence imposed on uncounseled misdemeanor conviction, even if conditioned only on payment of money, is constitutionally impermissible).

G.S. 15A-1364 provides for an alternative sentencing possibility if the court finds that a defendant has defaulted on payment of a fine. It authorizes the court to impose a sentence of imprisonment of up to 30 days if the defendant fails to pay a fine in a case in which the court’s original judgment did not specify an active or suspended sentence of imprisonment. This procedure is comparable to contempt. The permissible length of such a sentence exceeds the maximum permissible sentence for Class 3 misdemeanors generally.

It is unclear whether this procedure is permissible under the new fine-only provisions. Some cases suggest that a court may not impose a sentence of imprisonment in a criminal case if it did not afford counsel to the defendant when he or she was convicted. Thus, under federal law, a court may impose stand-alone conditions of probation, without a suspended sentence of imprisonment. Because the stand-alone conditions do not involve a sentence of imprisonment, the court is not required to afford counsel to the defendant when it imposes the conviction. However, some federal courts, including the Fourth Circuit, have indicated that the failure to afford counsel to the defendant when he or she was convicted precludes a court from later imposing a sentence of imprisonment for that conviction. These cases suggest that the absence of a specific suspended sentence at the time of conviction is not determinative. See United States v. Pollard, 389 F.3d 101, 105 (4th Cir. 2004) (“We also acknowledge, as did the Fifth Circuit, that the actual imposition of a prison term upon revocation of probation may pose Sixth Amendment problems if the defendant was uncounseled for the underlying conviction that led to probation.”); United States v. Rios-Cruz, 376 F.3d 303, 305 (5th Cir. 2004); see also Robinson v. State, 669 S.E.2d 588 (S.C. 2008) (finding that court could not enhance later offense with uncounseled misdemeanor conviction, for which defendant was sentenced to public service, because defendant subsequently was required to serve jail time for failing to complete public service).

If a court finds it permissible to impose imprisonment for a defendant’s failure to pay a fine, the court would have to afford counsel to the defendant at the non-payment proceeding. This requirement is part of the guarantee of counsel in misdemeanor cases involving imprisonment. See also Hammock v. Bencini, 98 N.C. App. 510 (1990) (recognizing right to appointed counsel for criminal contempt if imprisonment is likely to be imposed); McBride v. McBride, 334 N.C. 124 (1993) (recognizing similar right for civil contempt).

Yes. G.S. 15A-1365 continues to authorize that procedure if the court finds the defendant has defaulted in payment.

Yes. G.S. 20-24.1 continues to require revocation of a person’s license to drive for failing to pay a fine for a motor vehicle offense.

Yes. An uncounseled misdemeanor conviction, valid because no term of imprisonment was imposed, may be used to enhance a sentence for a subsequent offense. Nichols v. United States, 511 U.S. 738 (1994).