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Indigent Defense Education

Appointment of Counsel for Class 3 Misdemeanors

Prepared November 2013

As part of the 2013 Appropriations Act, the General Assembly enacted a new punishment scheme for Class 3 misdemeanors, limiting the punishment to a fine for many defendants. See Section 18B.13 of S.L. 2013‐360 (S 402). The change applies to offenses committed on or after December 1, 2013.

In addition to changing the punishment for Class 3 misdemeanors, the 2013 Appropriations Act reclassified some Class 1 and 2 misdemeanors as Class 3 misdemeanors and some Class 3 misdemeanors as infractions. See Sections 18B.14 and 18B.15 of S.L. 2013‐360 (S 402), as amended by Sections 4–6 of S.L. 2013‐385 (S 182). The punishment for offenses reclassified as Class 3 misdemeanors is likewise limited to a fine for many defendants. (For a complete list of the affected offenses, see Robert L. Farb, 2013 Legislation Affecting Criminal Law and Procedure at p. 25–26.)

The change in punishment for these Class 3 misdemeanors significantly affects the right to appointed counsel because the right to counsel for misdemeanors depends on the allowable punishment. The questions and answers below explore the impact of the change. The discussion addresses the details of the legislation, cases interpreting the right to counsel in misdemeanor cases, and the policy adopted by the Office of Indigent Defense Services (IDS) in response to the legislation. See Appointment and Payment of Counsel in Class 3 Misdemeanor Cases (Office of Indigent Defense Services, Dec. 1, 2013) (hereinafter IDS Policy). Some questions do not have definitive answers. The opinions expressed below are those of the author.

Readers may scroll through the questions, below, or click on the following hyperlinks to go directly to the questions that interest them.

A. Generally
B. Authorized Punishments
C. Determining Prior Convictions
D. Waiver of Counsel
E. Appointment of Counsel in Particular Proceedings
F. Consequences of Fine-Only Sentence

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FAQs

What is the new rule for Class 3 misdemeanor punishments?
Answer: 

The new rule appears in G.S. 15A-1340.23(d). Effective for offenses committed on or after December 1, 2013, the statute provides: “Unless otherwise provided for a specific offense, the judgment for a person convicted of a Class 3 misdemeanor who has no more than three prior convictions shall consist only of a fine.”

This change means that all defendants in prior conviction level I (no prior convictions) and some defendants in prior conviction level II (one to four prior convictions) are subject to a fine only for a Class 3 misdemeanor unless another statute provides otherwise for the offense.

What effect does the new rule have on appointment of counsel?
Answer: 

As a result of the change, in many cases the defendant will not have the right to appointed counsel. For misdemeanors, a defendant has a Sixth Amendment right to counsel only if an active or suspended sentence of imprisonment is imposed. The formulation of this right has developed over a series of U.S. Supreme Court decisions. See Argersinger v. Hamlin, 407 U.S. 25 (1972) (recognizing basic right to counsel in misdemeanor cases); Scott v. Illinois, 440 U.S. 367, 373–74 (1979) (in misdemeanor cases, “the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel”); Alabama v. Shelton, 535 U.S. 654 (2002) (indigent defendant has right to appointed counsel in misdemeanor case if court imposes suspended sentence of imprisonment). In contrast, the Sixth Amendment guarantees the right to counsel to any indigent person accused of a felony, regardless of the possible punishment. See Gideon v. Wainwright, 372 U.S. 335 (1963).

North Carolina law provides indigent criminal defendants with a slightly broader right to counsel. G.S. 7A-451(a)(1) provides for appointed counsel in “[a]ny case in which imprisonment, or a fine of five hundred dollars . . . or more, is likely to be adjudged.” This provision will not come into play for most Class 3 misdemeanors if the defendant has three or fewer prior convictions: under the new punishment scheme for Class 3 misdemeanors, imprisonment is generally impermissible; and under other structured sentencing rules, the maximum fine is usually limited to $200.

Why did the General Assembly make the change?
Answer: 

A key goal was to reduce the costs of appointed counsel. The Joint Conference Committee Report on the 2013 Appropriations Act, p. I 10, indicates that the General Assembly reduced the indigent defense budget by $2 million per year in light of the change in the punishment scheme for Class 3 misdemeanors and the reclassification of some misdemeanors as Class 3 misdemeanors. The report states: “With no possibility of incarceration, these offenses do not require legal counsel.” Whether the changes will generate this savings is not yet known.

IDS proposed that minor criminal offenses be reclassified as infractions to save on counsel fees and avoid the collateral consequences of conviction of even a minor offense. See Reclassifying Minor Misdemeanors As Infractions (IDS, Feb. 2013). The proposal was based on a previous study of misdemeanors conducted by IDS at the General Assembly’s request. See FY 11 Reclassification Impact Study (IDS, Mar. 2011). The General Assembly reclassified as infractions some of the 31 misdemeanors identified by IDS but chose to reclassify the majority of the identified offenses as Class 3 misdemeanors and adopted the new fine-only punishment scheme.

Do these changes apply to juveniles in delinquency proceedings?
Answer: 

No. New G.S. 15A-1340.23(d) is part of the Criminal Procedure Act, which applies to adult criminal defendants only. It does not override the automatic right to counsel for juveniles in G.S. 7B-2000.

What punishments are permissible for a Class 3 misdemeanor?
Answer: 

 

If a defendant has three or fewer prior convictions, the court may impose a fine or, in the rare instance when a statute specifically authorizes it, a greater punishment. G.S. 15A-1340.23(d). In fine-only cases, the usual structured sentencing rules apply, capping the fine at $200 unless another statute provides for a greater fine. G.S. 15A-1340.23(b). Among the most commonly-charged Class 3 misdemeanors, only one statute (littering) allows a greater punishment.

If a defendant has four or more prior convictions, the court may impose the usual punishments under structured sentencing, including an active or suspended sentence of imprisonment to the extent permissible. The remainder of the discussion in this part concerns Class 3 misdemeanor cases when the defendant has three or fewer prior convictions.

Is a sentence of active or suspended sentence of imprisonment permissible?
Answer: 

No. If the defendant has three or fewer prior convictions (and no statute permits otherwise), the court may not impose an active or suspended sentence of imprisonment for a Class 3 misdemeanor.

Are costs permissible?
Answer: 

The imposition of costs on conviction (pursuant to G.S. 7A-304) remains permissible because it is not a criminal punishment; costs are therefore not subject to the punishment limitation for Class 3 misdemeanors.

 

Are attorneys’ fees permissible?
Answer: 

For the same reasons as in the preceding answer, the imposition of attorneys’ fees on conviction (pursuant to G.S. 7A-455) remains permissible because it is not a criminal punishment. The issue will still arise in cases in which a defendant is convicted of a Class 3 misdemeanor because a defendant will sometimes be charged with a greater offense, for which the right to counsel applies, and be convicted of a Class 3 misdemeanor. Although convicted of an offense for which the punishment is limited to a fine, the defendant is entitled to counsel based on the original charge, and the State is entitled to recoup attorneys’ fees following conviction. See G.S. 7A-455(c) (authorizing recoupment if the defendant is convicted). Imposition of the attorney appointment fee (under G.S. 7A-455.1) is permissible for the same reason. See also State v. Webb, 358 N.C. 92 (2004) (finding that appointment fee is cost).

Is restitution permissible?
Answer: 

Restitution is a criminal punishment but, if authorized for a specific offense, is permissible for a Class 3 misdemeanor under the exception in new G.S. 15A-1340.23(d). For example, if a defendant is convicted of a worthless check offense in violation of G.S. 14-107, whether a Class 3 misdemeanor or a higher class of offense, the court may require the defendant to make restitution to the victim as provided in G.S. 14-107(e).

For offenses for which restitution is not specifically authorized, the authority to order restitution is not as clear. G.S. 15A-1340.34 governs restitution generally. Subsection (b) states that the sentencing court must order restitution if the offense is subject to the Crime Victims’ Rights Act (G.S. 15A-830 through G.S. 15A-841). No Class 3 misdemeanors are subject to the Crime Victims’ Rights Act. Subsection (c) of G.S. 15A-1340.34 states that for other offenses the court may order restitution “in addition to any other penalty authorized by law.” This general provision may or may not be sufficient to authorize restitution because new G.S. 15A-1340.23(d) allows a punishment other than a fine only if provided for a “specific offense.”

Assuming restitution is permissible, a restitution order may be difficult to enforce. Because a suspended sentence is impermissible, restitution cannot be made a condition of probation. Because no Class 3 misdemeanors are subject to the Crime Victims’ Rights Act, an order for restitution cannot be enforced as a civil judgment. See G.S. 15A-1340.38(a) (authorizing civil judgment for restitution in excess of $250 for offenses subject to Crime Victims’ Rights Act). Whether an order of restitution may be enforced by contempt is unclear. 

Is a sentence of “time served” permissible?
Answer: 

A sentence of time served would appear to be permissible for a Class 3 misdemeanor because such a sentence imposes no additional punishment than the time already served before conviction; for an in-custody defendant, the sentence actually terminates confinement. Further, to accommodate this practice, North Carolina’s structured sentencing statutes contain an exception for time served for misdemeanors when an active punishment is not otherwise authorized, allowing imposition of a term of imprisonment “equal to or less than the total amount of time the offender has already spent committed to or in confinement . . . as a result of the charge that culminated in the sentence.” G.S. 15A-1340.20(c1).

Whether the General Assembly intended to permit a sentence of time served, however, may depend on whether such a sentence is constitutionally permissible without affording counsel to the defendant. The General Assembly adopted the new punishment scheme for Class 3 misdemeanors to reduce counsel costs. If counsel is required when the court imposes a sentence of time served, the General Assembly may not have intended to allow such a sentence.

Some decisions have found that a sentence of time served does not trigger the right to counsel. The cases have arisen in the context of whether a court may enhance a sentence for a later offense based on an earlier misdemeanor conviction in which an unrepresented defendant received a sentence of time served. The decisions found that the earlier conviction did not violate the defendant’s right to counsel and could be used for enhancement purposes. The courts reasoned that a sentence of time served does not impose a term of imprisonment as a result of an uncounseled conviction; rather, the period of incarceration served by the defendant resulted from the defendant’s inability to post bond before trial. See Glaze v. South Carolina, 621 S.E.2d 655 (S.C. 2005); Nicholson v. State, 761 So. 2d 924 (Miss. Ct. App. 2000); see also State v. Dunning, 995 So. 2d 1162 (Fl. Ct. App. 2008) (following Glaze) [subsequent decisions interpreting Florida’s state constitution may have limited the holding in Dunning].

Some decisions have reached a contrary conclusion, refusing to enhance a later offense based on a prior uncounseled conviction imposing a sentence of time served. Those decisions refuse to distinguish between a sentence of imprisonment satisfied by credit for time already served and a sentence of imprisonment to be served following conviction. See State v. O’Neill, 746 N.E.2d 654 (Ohio Ct. App. 2000); United States v. Cook, 36 F.3d 1098 (6th Cir. 1994) (unpublished).

A judge may avoid these constitutional issues by inquiring whether a defendant is willing to proceed without counsel and, if so, obtaining a waiver of counsel. A judge also could impose a nominal fine and enter judgment without using the term “time served.” Under either approach, a judge should advise an unrepresented defendant who is in custody that he or she is entitled to counsel if he or she does not enter a plea and remains in custody. 

Is a deferred prosecution permissible?
Answer: 

Yes. Although a defendant who receives a deferred prosecution may be placed on probation, with conditions, the arrangement is not part of a judgment and sentence, which are deferred. If the defendant violates the terms of the arrangement, the State may resume the prosecution. See G.S. 15A-1341(a1). If the defendant is convicted, the court then would have to sentence the defendant in conformity with the fine-only restrictions in new G.S. 15A-1340.23(d).

Is the conditional discharge procedure in G.S. 90-96 permissible?
Answer: 

Yes, for reasons similar to the reasons discussed in the preceding question about deferred prosecutions. A defendant who receives a conditional discharge under G.S. 90-96—for example, for a Class 3 misdemeanor possession of marijuana offense—is placed on probation without entry of judgment or sentence. If the defendant violates the terms of the arrangement, the court then would have to impose a sentence consistent with the fine-only provisions in new G.S. 15A-1340.23(d).

How should prior convictions be counted?
Answer: 

Prior convictions should probably be counted according to the usual structured sentencing rules—that is, multiple convictions count as one conviction if from the same session of district court (usually, one day) or the same week of superior court. See G.S. 15A-1340.21(d). The reason is that the new punishment limitation for Class 3 misdemeanors is located in G.S. 15A-1340.23, the statute containing the table of prior conviction levels for misdemeanor sentencing, to which the prior-conviction counting rule in G.S. 15A‐1340.21(d) clearly applies.

When should prior convictions be determined?
Answer: 

Prior convictions should be determined before counsel is appointed. Without evidence that the defendant has four or more prior convictions, the defendant is not entitled to have counsel appointed. (Exceptions exist when a statute authorizes a sentence of imprisonment or a fine of $500 or more).

May counsel be appointed pending a determination of prior record?
Answer: 

No. Without evidence of four or more prior convictions, the defendant is not entitled to counsel (unless an exception applies). A practice of appointing counsel in Class 3 misdemeanor cases pending a determination of prior convictions would undermine the General Assembly’s intent, as it would effectively allow appointment for all Class 3 misdemeanors. IDS’s policy states that it is not authorized to compensate an attorney appointed to represent a defendant on a Class 3 misdemeanor unless the court has determined that the defendant has four or more prior convictions (or one of the exceptions for appointment applies).

Who has the burden of producing evidence of the defendant’s prior record for purposes of appointment of counsel?
Answer: 

The new punishment scheme does not explicitly address the issue, but as a practical matter the burden may fall to the State. Ultimately, the State has the burden of establishing the grounds for punishment. In this context, if the State wants the court to impose a sentence greater than a fine, it has to prove that the defendant has four or more prior convictions (except in the rare instance when a statute authorizes a greater punishment without four or more priors). If the State wants the option of seeking a punishment greater than a fine, the court must have the defendant’s record early enough in the case to support a finding that the defendant is eligible for such a sentence and thus eligible for counsel. Although the new statute does not preclude a court from obtaining prior record information from other sources, if the court does not have the necessary information it may not appoint counsel and the State may not seek a higher punishment.

May the court require the defendant or defense counsel to disclose whether a defendant has four or more prior convictions?
Answer: 

No. A defendant may not be required to surrender one constitutional right (the right not to incriminate himself or herself) to obtain the benefit of another constitutional right (the right to appointed counsel). See generally Simmons v. United States, 390 U.S. 377, 394 (1968). Requiring defense counsel to provide prior record information about a client would infringe on the client’s right to maintain the confidentiality of information obtained by the attorney in the course of representation. See Rev’d Rules of Prof’l Conduct R. 1.6 (duty of confidentiality); 1998 Formal Ethics Opinion 5 (1998) (recognizing confidentiality of information about client’s prior convictions and citing related ethics opinions).

Must the State allege the prior convictions in the charging document and prove them at trial beyond a reasonable doubt?
Answer: 

No. The State is not statutorily or constitutionally required to allege prior convictions in this context. The prior convictions are not elements of the offense; nor do they elevate a Class 3 misdemeanor to an offense of a higher class. Rather, they place the defendant in a higher prior conviction level for a Class 3 misdemeanor. (For convictions that elevate an offense to a different class and are thus an element of the higher offense, such as a fourth worthless check offense under G.S. 14-107(d)(1), the State must allege the priors in the charging document. G.S. 15A-924(a)(5); G.S. 15A-928.)

If the court later obtains evidence that the defendant has four or more prior convictions, may the court appoint counsel and impose a sentence greater than a fine?
Answer: 

Yes, if timely. The evidence would have to be presented, and the appointment decision made, before commencement of trial or acceptance of a guilty plea, when jeopardy attaches. After jeopardy attaches, the court may not start the proceedings over again to appoint counsel. And, appointing counsel for purposes of sentencing, after trial or plea, would not cure the earlier absence of counsel.

Before attachment of jeopardy, the court may consider additional evidence of the defendant’s prior record and reconsider appointment of counsel, subject to speedy trial and due process protections against undue delay in prosecution of the case. Due process as well as Sixth Amendment concerns also may require a continuance for newly appointed counsel to consult with the client and determine how to proceed.

Is a waiver of counsel required in Class 3 misdemeanor cases in which a person is subject to a fine only?
Answer: 

No. A waiver is not required because the person is not entitled to have counsel appointed.

Is a waiver of retained counsel required in such cases?
Answer: 

No. If a defendant does not have a right to appointed counsel, the court need not obtain a waiver of retained counsel.

A person has the right to retain and appear through counsel, however, if he or she wishes to do so. See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 626 (1989) (observing that a criminal defendant has the “right to spend his own money to obtain the advice and assistance of . . . counsel”) (citation omitted). A court may not unreasonably interfere with that right. For example, if a person wants to retain counsel, a court may not require the person to proceed without giving the person a reasonable opportunity to do so. See generally 3 Wayne R. LaFave et al., Criminal Procedure § 11.4(c) (3d ed. 2007).

For what Class 3 misdemeanors is appointment of counsel permissible without evidence that the defendant has four or more prior convictions?
Answer: 

Of the Class 3 misdemeanors that resulted in 50 or more convictions in the past year (see James M. Markham, North Carolina Structured Sentencing Handbook 2013–14 (UNC School of Government 2013)), none specifically authorize a sentence of imprisonment. Only one authorizes a fine of $500 or more—littering in an amount of 15 pounds or less and for a non-commercial purpose in violation of G.S. 14-399(c). For that offense, a court may impose a fine of $250 to $1,000 and community service. Accordingly, if the court finds it likely that it will impose a fine of $500 or more, the defendant would have a statutory right to counsel under G.S. 7A-451(a)(1).

A few other commonly charged Class 3 misdemeanors carry criminal and civil consequences beyond a fine, but those consequences do not authorize appointment under the current state of the law. For a Class 3 misdemeanor worthless check offense, the court may order restitution. G.S. 14-107.1(e). Although restitution could be well over $500—a person’s first three worthless check offenses are classified as Class 3 misdemeanors if they involve an amount of $2,000 or less—restitution is not a fine and itself would not authorize appointment of counsel.

For a first offense of shoplifting in violation of G.S. 14-72.1, a Class 3 misdemeanor, any term of imprisonment may be suspended on condition that the defendant perform community service. Similarly, for possession of 1/2 ounce of marijuana or less in violation of G.S. 90-95(a)(3), any sentence of imprisonment must be suspended. These statutes do not necessarily allow the court to impose a sentence of imprisonment, however. Read in conjunction with the new punishment restrictions in G.S. 15A-1340.23(d), the court may impose a sentence of imprisonment only if the defendant has four or more prior convictions and then would have to follow the provisions on suspending a sentence of imprisonment. Accordingly, the shoplifting and marijuana provisions do not themselves authorize punishment other than a fine.

Some offenses that would otherwise be Class 3 misdemeanors are in a higher offense class for a second or subsequent offense. For example, a second offense of driving a commercial vehicle after consuming alcohol is punishable as a misdemeanor (without a specific class) under the sentencing provisions in G.S. 20-179 for impaired driving. See G.S. 20-138.2A. Because a second offense is not a Class 3 misdemeanor, the defendant would be entitled to counsel as in other cases involving higher classes of misdemeanors.

Several statutes authorize revocation of a person’s license to drive on conviction of a Class 3 misdemeanor. The most common is driving while licensed revoked (DWLR), now a Class 3 misdemeanor if the person’s license was revoked for other than an impaired driving revocation. G.S. 20-28(a). (If a DWLR is based on an impaired driving revocation, the offense is a Class 1 misdemeanor and not subject to the fine-only restrictions for Class 3 misdemeanors.) Other Class 3 misdemeanors also may result in revocation of a person’s license to drive. See G.S. 18B-302(i) (purchase or attempted purchase of alcoholic beverage by 19 or 20 year old results in revocation under G.S. 20-17.3(2)); G.S. 20-138.7 (second offense of transporting open container of alcohol results in revocation under G.S. 20-17(a)(12)); G.S. 20-141(j1) (speeding more than 15 mph over limit or over 80 mph results in revocation under G.S. 20-16.1).

To obtain a conviction of the Class 1 misdemeanor version of DWLR, must the State allege and prove that the DWLR was based on an impaired driving revocation?
Answer: 

Yes. The General Assembly has created two DWLR offenses: one based on an impaired driving revocation, a Class 1 misdemeanor; and the other based on any other revocation, a Class 3 misdemeanor. Although the two appear in the same statute, G.S. 20-28(a), they are separate offenses. If the State wants to prosecute the Class 1 misdemeanor offense, it must allege in the charging document and prove at trial beyond a reasonable doubt all the elements of the offense, including the impaired driving revocation. See G.S. 15A-924(a)(5) (pleading must allege all elements of offense). If the State fails to allege the impaired driving revocation in the charging document, the court’s jurisdiction is limited to the general Class 3 misdemeanor version of DWLR, which is subject to the fine-only provisions in new G.S. 15A-1340.23(d).

May the court require counsel to represent a person without compensation for an offense for which a person does not have the right to appointed counsel?
Answer: 

A court may have the inherent authority to do so in some circumstances, but the limits of the authority have not been tested in North Carolina. In one case, the court held that counsel representing a defendant sentenced to death could be required, without compensation, to file a certiorari petition to the U.S. Supreme Court. See In re Hunoval, 294 N.C. 740 (1977) (rejecting attorney’s argument that he was not an eleemosynary institution—that is, a charitable institution [cert. petitions are now compensated as provided in the IDS rules]). The extent to which the North Carolina courts would extend this ruling to other contexts is unclear. Requiring counsel to proceed without compensation has been the subject of challenges in other states, a subject beyond the scope of this discussion.

May the court appoint counsel if the defendant is arrested on a Class 3 misdemeanor and cannot make bond?
Answer: 

Yes. Whether detained before trial or after conviction, an inmate has a due process right to meaningful access to the courts. See, e.g., Bourdon v. Loughren, 386 F.3d 88 (2d Cir. 2004). A state satisfies this right by ensuring adequate legal assistance to inmates. The assistance does not necessarily have to be in the form of appointed counsel; it could be in the form of other legal resources, such as a law library. Because inmates in most North Carolina jails do not have access to such legal resources, IDS’s policy authorizes appointment of counsel for an indigent defendant while in custody on a Class 3 misdemeanor charge to ensure that the defendant has meaningful access to the courts to defend against the charge. The appointment would be made as in other cases involving defendants held in custody on misdemeanor charges—for example, at first appearance in districts that hold first appearances on misdemeanors. See also G.S. 7A-453 (requiring authority having custody of person held in custody for more than 48 hours without counsel to notify clerk of court or IDS designee [the public defender in districts with a public defender]).

IDS’s policy and the AOC appointment form, AOC-CR-224 (Dec. 2013), provide that this type of appointment constitutes a limited appearance pursuant to G.S. 15A-141(3) and G.S. 15A-143 and that the representation ends if the defendant makes bond or the court unsecures the bond; however, while the defendant is in custody, the appointed attorney may handle all aspects of the case and is not limited to working solely on the defendant’s release.

Some judicial districts in North Carolina have revised their bond policies to provide that if a defendant is arrested for a Class 3 misdemeanor, the judicial official should set an unsecured bond except as otherwise specified (an exception might apply if the defendant is arrested for failing to appear on a Class 3 misdemeanor). Such a policy avoids the prospect of a person being held in custody for an offense for which the court can impose no jail time if the person is convicted.

Is a person entitled to counsel if sentenced to “time served”?
Answer: 

A sentence of time served would appear to be permissible for a Class 3 misdemeanor because such a sentence imposes no additional punishment than the time already served before conviction; for an in-custody defendant, the sentence actually terminates confinement. Further, to accommodate this practice, North Carolina’s structured sentencing statutes contain an exception for time served for misdemeanors when an active punishment is not otherwise authorized, allowing imposition of a term of imprisonment “equal to or less than the total amount of time the offender has already spent committed to or in confinement . . . as a result of the charge that culminated in the sentence.” G.S. 15A-1340.20(c1).

Whether the General Assembly intended to permit a sentence of time served, however, may depend on whether such a sentence is constitutionally permissible without affording counsel to the defendant. The General Assembly adopted the new punishment scheme for Class 3 misdemeanors to reduce counsel costs. If counsel is required when the court imposes a sentence of time served, the General Assembly may not have intended to allow such a sentence.

Some decisions have found that a sentence of time served does not trigger the right to counsel. The cases have arisen in the context of whether a court may enhance a sentence for a later offense based on an earlier misdemeanor conviction in which an unrepresented defendant received a sentence of time served. The decisions found that the earlier conviction did not violate the defendant’s right to counsel and could be used for enhancement purposes. The courts reasoned that a sentence of time served does not impose a term of imprisonment as a result of an uncounseled conviction; rather, the period of incarceration served by the defendant resulted from the defendant’s inability to post bond before trial. See Glaze v. South Carolina, 621 S.E.2d 655 (S.C. 2005); Nicholson v. State, 761 So. 2d 924 (Miss. Ct. App. 2000); see also State v. Dunning, 995 So. 2d 1162 (Fl. Ct. App. 2008) (following Glaze) [subsequent decisions interpreting Florida’s state constitution may have limited the holding in Dunning].

Some decisions have reached a contrary conclusion, refusing to enhance a later offense based on a prior uncounseled conviction imposing a sentence of time served. Those decisions refuse to distinguish between a sentence of imprisonment satisfied by credit for time already served and a sentence of imprisonment to be served following conviction. See State v. O’Neill, 746 N.E.2d 654 (Ohio Ct. App. 2000); United States v. Cook, 36 F.3d 1098 (6th Cir. 1994) (unpublished).

A judge may avoid these constitutional issues by inquiring whether a defendant is willing to proceed without counsel and, if so, obtaining a waiver of counsel. A judge also could impose a nominal fine and enter judgment without using the term “time served.” Under either approach, a judge should advise an unrepresented defendant who is in custody that he or she is entitled to counsel if he or she does not enter a plea and remains in custody. 

 

Is a person statutorily entitled to counsel if he or she is charged with more than one Class 3 misdemeanor and the aggregate fine is $500 or more?
Answer: 

Probably not. In other contexts, the courts have refused to aggregate charges for purposes of finding a right that does not exist for individual charges. See Lewis v. United States, 518 U.S. 322 (1996) (under Sixth Amendment rule that a defendant is entitled to jury trial for misdemeanor punishable by six months or more, U.S. Supreme Court holds that defendant charged with multiple misdemeanors, none of which individually carries a sentence of more than six months of imprisonment, does not have right to jury trial); State v. Speights, 280 N.C. 137 (1971) (before U.S. Supreme Court clarified that defendants have right to appointed counsel for misdemeanors carrying sentence of imprisonment, North Carolina Supreme Court held that defendant charged with multiple misdemeanors, each of which carried a sentence of six months or less, did not have right to counsel).

Is a person statutorily entitled to counsel if he or she is charged with an infraction that carries a penalty of $500 or more?
Answer: 

No. The statutory right to counsel applies to criminal cases carrying a fine of $500 or more. An infraction is a noncriminal violation of law. G.S. 14-3.1.

Is a person entitled to counsel because of the collateral consequences of a Class 3 misdemeanor?
Answer: 

Under the current state of the law in North Carolina, no. Some state courts have suggested that their state constitutions may require appointment of counsel because of the collateral consequences that attach to a criminal conviction, which can have a serious and longstanding impact. See City of Pendleton v. Standerfer, 688 P.2d 68 (Or. 1984) (en banc), abrogated on other grounds, State v. Probst, 124 P.3d 1237 (Or. 2005); Alexander v. City of Anchorage, 490 P.2d 910 (Alaska 1971); see also Padilla v. Kentucky, 559 U.S. 356 (2010) (holding under U.S. Constitution that noncitizen defendant has right to effective assistance of counsel because of immigration consequences of conviction). The most common collateral consequence for a conviction of a Class 3 misdemeanor is revocation of a person’s license to drive. Conviction of a Class 3 misdemeanor also may lead to other collateral consequences, including restrictions on occupational licensing and housing. See Collateral Consequences Assessment Tool (C-CAT) (School of Government, 2013); see also Sejal Zota and John Rubin, Immigration Consequences of a Criminal Conviction in North Carolina § 3.3D, at p. 34, & § 3.4A, at p. 38 (School of Government, 2008) (conviction of possession of Class 3 misdemeanor amount of marijuana may result in immigration consequences in some circumstances).

Collateral consequences have not yet been recognized by North Carolina appellate decisions as affording a person a right to counsel. In conversations with the author, IDS has indicated that until a North Carolina appellate court rules that a defendant is entitled to counsel because of the collateral consequences of a conviction, it is not authorized to compensate counsel.

If the court imposes a fine only, may the court impose a sentence of imprisonment for failure to pay the fine?
Answer: 

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).

May a fine be docketed and collected as a civil judgment?
Answer: 

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

Is a person’s license to drive subject to revocation for failing to pay a fine for a motor vehicle offense?
Answer: 

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.

If the defendant was not afforded counsel when convicted of a fine-only misdemeanor, may the conviction be used to enhance the defendant’s sentence for a later offense?
Answer: 

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).

Public Officials - Courts and Judicial Administration Roles
Topics - Courts and Judicial Administration