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).
