by guest blogger and SOG faculty member Jamie Markham
If you’ve been reading the paper, you know the Division of Community Corrections (Probation) has been under a microscope lately. Since the killings of UNC undergraduate Eve Carson and Duke graduate student Abhijit Mahato in 2008, both allegedly committed by probationers, Probation has been taking a hard look at its policies and procedures.
One change that has come about is a new interpretation of the provision in 15A-1344(d) that says a “probation period shall be tolled if the probationer shall have pending against him criminal charges in any court of competent jurisdiction, which, upon conviction, could result in revocation proceedings against him for violation of the terms of this probation.” Probation has now taken the position that a new charge for any offense other than a Class 3 misdemeanor (probation cannot be revoked solely for conviction of a Class 3 misdemeanor) tolls—that is, stops the clock on—a person’s period of probation immediately when the charge is brought. The period is held in abeyance until the charge is resolved (by way of acquittal, dismissal, or conviction), and then resumes when the charge is no longer pending, with as much time remaining on the period as there was when the case was first tolled. When a probationer is charged with a new crime, you effectively push pause on a clock counting down how much time a person has left on probation, and you don’t “un-pause” it until the charge is resolved.
Probation’s new approach to tolling is based on Court of Appeals decisions in State v. Henderson, 179 N.C. App. 191 (2006) (“Under the statute, a defendant’s probationary period is automatically suspended when new criminal charges are brought.”) and State v. Patterson, __ N.C. App. __, 660 S.E.2d 155 (2008) (same). Prior policy required tolling of the case only when a probationer had a new pending charge when his or her period of probation was set to expire.
The impact of the new policy could be substantial, not only because a lot of probationers are charged with new crimes while they’re on probation, but also because Probation is now (for the first time) equipped with the technology to know when their supervisees are charged with new crimes. A new web-based alert program informs Probation’s computer system (OPUS) when a probationer has a new charge pending in AOC’s computer system (ACIS). When a probation officer gets an alert that a new charge is pending, he or she tolls the case immediately.
The result? A lot of people are going to be on probation a lot longer than they expected.
The result is not just that a lot of people are going to be on probation a lot longer than they expected; it is also that people who are accused of a crime and are utimately found not guilty or whose charges are dismissed will be unfairly required to complete a longer term of probation.
Does tolling apply to defer prosecution cases under supervision-how does the probation office have the right to toll cases that are pending disposition?-it that not doing a pentalty of pending on pending dispositions?
ANON: There’s no case that tells us for sure, but it seems to me that the rules applicable to regular probation would also apply to deferred-prosecution probation. The court of appeals said something similar in State v. Burns, 171 N.C. App. 759 (2005), in the context of 90-96 probation.
As a probation officer, I can tell you that most of my co-workers, my chiefs and myself are not happy about the new enforcement/interpretation of this policy and are hoping that it will be resolved soon although I can’t tell you what that resolution is. That is for the lawyers to address. I informed an offender yesterday of this and had him sign the necessary paperwork and he was pacing the office and expressed his dismay and frustration. He then stated that he wanted to serve his active time but came to his senses before he left the office and has since let me know that his frustration was not aimed at me but at the system. I pray that someone addresses this issue soon so that the offenders are given the term of probation that meets the ends of justice and is appropriate to the crime.
First, let me say how happy I am to see people reading and commenting. We’d really like this to be interactive and helpful. I’m especially excited to get feedback from a probation officer–thank you.
I think your concerns are legitimate. The rule is harsh when viewed retrospectively for a probationer who is eventually acquitted or has a new charge dismissed. I imagine in many of those cases DCC would not oppose a request to terminate probation for an offender whose period of probation would have ended had it not been tolled. It’s also not hard to imagine a statutory amendment that would allow credit for time spent on probation during the tolled period if a new charge did not result in a conviction.
Maybe the solution (or at least partially) is that if an offender is charged, that the time stops as is, and the probationer continues with his program and if the new charge is dismissed or they are found not guilty, then the time stop is erased and they get credit for that time as is no charge was brought. Therefore, the tolling only effects those found or pleading guilty.
An unpublished opinion from the Court of Appeals this week deals with tolling probation. The opinion suggests tolling is automatic and requires no notice to the defendant. State v. Battle, http://www.aoc.state.nc.us/www/public/coa/opinions/2009/unpub/080580-1.htm. Nevertheless, as of January 1, 2009, DCC policy is to issue a DCC-51, Notice of Tolled Status, to probationers who have a new charge pending.
Under the tolling policy, is a person still subject to supervision along with the other conditions of his probation (e.g., drug testing, comm. service, curfew checks) while his new charge is pending. Do they still have to pay supervision fees.
It seems to me that the State can’t have things both ways, that is, pushing back the probation termination date and at the same time continuing to supervise the probationer.
yes they must still pay supervision fees and keep all appt. and drug testing.
Totally agree with you Rich,, how does the state have it both ways? It seems to me if the probation is tolled then everything else (fees, supervisory visits, drug test,) should be put on hold also. I have a family member who is on probation, was charged with DUI while on probation, but has met all other the terms of his probation, is up to date on his monthly fees, has had neg. drug screens, attending AA meetings, worked 2 jobs while finishing his college degree. So how is this fair?
My son is schedule to be released from N.C soon and is from Alabama which is where All his family is due to the court sending in paperwork wrong on another charge that is to run concurrent i just got his paper work in the system to show that he does not have to serve time in Alabama only 6 days before his release now my problem is he cant come home when he is released because i heard it will take about a month to transfer his probation to Alabama i would love for his to come home and see his siblings that he has only seen 2 times in almost 5 years can he come for a short visit? Does anyone know how i might speed the process up?
Michelle Ward: It is correct that it can take some time to formally transfer probation or post-release supervision to another state under the Interstate Compact for Adult Offender Supervision. (I’m assuming your son will be on post-release supervision after serving time in prison, or on probation for another offense committed in North Carolina.) A judge (or the Post-Release Supervision and Parole Commission, as the case may be) or a probation officer can give a supervisee permission to leave North Carolina on a temporary basis, but they may be hesitant to do that in some circumstances.
I’m on probation and this is B.S. i guess if you murder somebody you should do have the time just cause they thought you did it. Guilty is guilty and innocent is innocent, therefore should be no punishment when case is dismissed!
If probation supervision time runs out before the probationer is found guilty in a new charge, any judge with a grain of sense will dismiss the violation of a new conviction and terminate supervision in the probation case. If the probationer receives a new probation case from the new offense, the judge will continue him on supervised probation in the case he was violated in. If the probationer receives active time over 180 days in the new case and goes to prison, the judge will run all sentences concurrent so what is the use of reporting him back in the first place?
I think the pause is unneeded.It’s not like the officer is going to reales the person with a pending charge any how.It is just another gain of money to support the system. It is not only unfair the person must lose time but they are still required to pay fees while on tole status.