Indigent Defense Education

Appointment of Counsel for Class 3 Misdemeanors (Determining Prior Convictions)

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How should prior convictions be counted?

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?

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?

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?

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?

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?

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?

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.

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