Indigent Defense Education

Appointment of Counsel for Class 3 Misdemeanors (Appointment of Counsel in Particular Types of Cases)

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

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?

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?

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?

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”?

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?

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?

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?

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.

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