Indigent Defense Education

Appointment of Counsel for Class 3 Misdemeanors (Generally)

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What is the new rule for Class 3 misdemeanor punishments?

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?

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?

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?

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.

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