Posts Tagged ‘probation’

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Waiving Probation Supervision Fees

Thursday, October 29th, 2009

by School of Government faculty member Jamie Markham

Under G.S. 15A-1343(c1), defendants placed on supervised probation must pay a monthly supervision fee of $30, unless exempted by the court. That exemption may only be granted for good cause upon motion of the defendant.

Over the past month or so I’ve received many calls from people who have heard that legislation from the past session removed the court’s authority to exempt probationers from the fee. There were lots of changes to probation, and lots of changes to fees, but as far as I know there were no changes to a judge’s authority to waive probation supervision fees.

After consulting with AOC I have a few theories about what might be causing the confusion. First, a provision in the appropriations act (S.L. 2009-451, section 15.17I(a)) made the following changes (underlined) to G.S. 7A-455.1, clearly stating that a judge may not remit the $50 fee for appointment of counsel:

(b) The mandatory fifty-dollar ($50.00) fee may not be remitted or revoked by the court and shall be added to any amounts the court determines to be owed for the value of legal services rendered to the defendant and shall be collected in the same manner as attorneys’ fees are collected for such representation.

That’s strong language, but it applies only to that particular appointment fee, not to supervision fees.

Second, legislation in 2008 amended the law applicable to probationers supervised under the Interstate Compact for Adult Offender Supervision (G.S. 148-65.7) to say that North Carolina’s compact commissioner (or the commissioner’s designee) is the waiver authority for Compact-related fees. That includes the $150 transfer application fee that North Carolina offenders must pay to transfer supervision to another state and the $30 monthly supervision fee that offenders convicted in other states pay when supervised here. Several judges have asked me whether they can waive either of those fees, and my answer is that it appears as though they can’t. But again, this limitation on a judge’s fee-waiver authority is limited to this particular context and doesn’t affect their ability to waive ordinary supervision fees.

Finally, there’s a provision in the main probation reform bill, S.L. 2009-372, that says probationers for whom a period of probation is tolled based on a new charge “shall remain subject to the conditions of probation, including supervision fees, during the tolled period.” I don’t read the “shall” in that provision to mean a person must pay fees during a tolled period even if a judge has previously waived the fee. Rather, I interpret it to mean whatever probation conditions a person has, including supervision fees if not exempted, continue unabated during a tolled period.

Those are my best guesses. If you know of something I’m missing or have other ideas about what might be causing the confusion, please leave a comment. I’ll be embarrassed if someone points out something I overlooked, but I’ll get over it. The important thing is getting the proper information out to the field.

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Electing to Serve a Sentence

Friday, October 23rd, 2009

by School of Government faculty member Jamie Markham

Suppose a defendant is convicted of a crime and the judge wants to (or, in a “C” or “C/I” cell in the sentencing grid, has to) suspend the sentence. Can the defendant refuse probation and elect to serve the sentence? Unless the defendant’s crime was committed prior to January 1, 1997, the answer is no.

The law that used to allow a probationer to elect to serve a sentence, G.S. 15A-1341(c), was repealed in 1995. S.L. 1995-429. The repeal was motivated in part by the fact that many pre-Structured Sentencing probationers were refusing or purposely violating their probation, knowing they would serve only ten to twenty percent of their active sentences under the emergency prison population control measures in effect at the time. Better, the thinking went, to knock out a shortened active sentence than to put up with years of probation supervision.

There were some who worried that the repeal of the elect-to-serve provision would cast doubt on the constitutionality of suspended sentences. At that time, probation was not included in the list of authorized punishments set out in Article XI, Section 1 of the state constitution, and so its validity arguably hinged on the defendant’s consent. With the elect-to-serve provision repealed, a defendant could no longer be said to have consented to his or her probation. To be safe, then, the repeal was accompanied by a state constitutional amendment, adding probation to the list of authorized punishments. Consent no longer required, problem solved. (This change in the law becomes important when you think about things like warrantless searches of probationers. No longer can you just say the searches are okay because the probationer has implicitly agreed to be on probation. Instead, the searches need to be analyzed under a more traditional Fourth Amendment framework.)

Generally speaking, there are two times when a defendant might try to elect to serve a sentence, at the time of sentencing or at a violation hearing. At sentencing, a defendant who falls within a cell on the sentencing grid that includes an “A” may certainly ask the judge for an active sentence. In many cases I suspect that request will resonate with the judge, who may not want to burden an already-overworked community corrections staff with an offender who isn’t motivated to succeed on probation in the first place. But what if the defendant falls in a grid cell without an “A”? Aside from the active-time exception for certain misdemeanors under G.S. 15A-1340.20(c1), an active sentence is simply not an option. The General Assembly has determined that those defendants don’t merit a prison bed-at least not at the outset. In those cases, if the court is inclined to let the defendant bypass probation and go directly to prison, I’m told that some judges will use a three-step process in which they (1) sentence the defendant to probation, (2) get the defendant to admit noncompliance (presumably by refusing to report to an officer), and (3) revoke the probation. If you go that route, at a minimum I think you should use a separate form for the original sentence and the revocation, and you should be sure the defendant affirmatively waives the requisite notice and hearing on the probation violation.

At a violation hearing, a defendant can certainly admit to a violation and ask the court to revoke. I imagine the court generally will grant that request, but not in every case. The court may, for example, be inclined to keep a defendant on probation when he or she owes a large amount of restitution. In any event, even if the defendant is purportedly electing to serve, the court should be sure to check the first box in the “Conclusion and Order” section on page one of AOC-CR-607 or -608, saying that the suspended sentences were activated because of the violations, not the second box referring to elections to serve.

Am I elevating form over substance? Maybe. But in addition to the underlying rule-of-law issue, there’s a risk in both situations (at sentencing or at a violation hearing) that invocation of the non-existent elect-to-serve provision will result in the judgment getting kicked back, either by DOC or by the court of appeals, as happened in State v. Davis, 186 N.C. App. 305 (2007) (unpublished), and State v. Adams, 166 N.C. App. 517 (2004) (unpublished).

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Does Mandatory AA/NA Violate the First Amendment?

Friday, October 16th, 2009

by School of Government faculty member Jamie Markham

The First Amendment says, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” There are two religion clauses in the amendment, the Establishment Clause and the Free Exercise Clause. Lately I’ve been getting a lot of questions about the Free Exercise Clause in relation to G.S. 14-208.18, the law that’s preventing some sex offenders from attending church. Thinking about that issue reminded me of a question I was asked about the Establishment Clause: does it violate the Establishment Clause to require a probationer to attend Alcoholics Anonymous or Narcotics Anonymous?

Three federal circuit courts have held that coerced participation in 12-step programs like AA and NA violates the First Amendment. In Kerr v. Ferry, 95 F.3d 472 (7th Cir. 1996), the Seventh Circuit held that requiring an inmate to attend NA meetings or risk suffering adverse effects for parole eligibility violated the Establishment Clause. The Second Circuit reached a similar conclusion in Warner v. Orange County Department of Probation, 115 F.3d 1068 (2d Cir. 1997), striking a probation condition requiring attendance at AA meetings. And most recently the Ninth Circuit determined that a parolee’s First Amendment rights were violated when his parole officer forced him to attend 12-step meetings as a condition of his parole. Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007). In the latter two cases the courts found the law sufficiently clearly established to abrogate the officers’ qualified immunity. Qualified immunity shields government officials from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800 (1982). In other words, Warner and Inouye were able to go forward with lawsuits against their officers for damages for violation of their constitutional rights under 42 U.S.C. 1983. Numerous federal district courts and state supreme courts have reached the same conclusion.

It’s possible that the Fourth Circuit might rule differently. The judges here continue to apply the Lemon test (derived from Lemon v. Kurtzman, 403 U.S. 602 (1971)) in Establishment Clause cases, whereas the circuit courts listed above used a slightly different “coercion test.” Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003); Gray v. Johnson, 436 F. Supp. 2d 795, 800 n. 4 (W.D. Va. 2006) (distinguishing the tests). But given the general march toward unanimity around the country, I generally advise judges (and probation officers, who are really the ones at greatest risk of getting sued) to avoid AA or NA as a mandatory condition of probation. It’s okay to make participation optional. See Gray, 436 F. Supp. 2d at 801 (prison substance abuse program did not run afoul of the Establishment Clause when it made AA and NA participation optional). And it would be permissible to make participation in some type of recovery program mandatory as long as a secular option were available. See O’Connor v. California, 855 F. Supp. 303 (C.D. Cal. 1994) (upholding use of AA/NA as part of a drunk driving sentence when the defendant was given a choice over what program to attend). Examples of secular options include Secular Organizations for Sobriety, LifeRing, Rational Recovery, and SmartRecovery.

Finally, I’ll note that what’s not at issue in these cases is the question of whether AA is, in fact, religion-based. The litigants typically agree that it is, and the courts are unpersuaded by the idea that it’s “spiritual” and not religious. Here are the traditional twelve steps:

1.  We admitted we were powerless over alcohol-that our lives had become unmanageable.

2.  Came to believe that a Power greater than ourselves could restore us to sanity.

3.  Made a decision to turn our will and our lives over to the care of God as we understood Him.

4.  Made a searching and fearless moral inventory of ourselves.

5.  Admitted to God, to ourselves, and to another human being the exact nature of our wrongs.

6.  Were entirely ready to have God remove all these defects of character.

7.  Humbly asked Him to remove our shortcomings.

8.  Made a list of all persons we had harmed, and became willing to make amends to them all.

9.  Made direct amends to such people wherever possible, except when to do so would injure them or others.

10.  Continued to take personal inventory and when we were wrong promptly admitted it.

11.  Sought through prayer and meditation to improve our conscious contact with God as we understood Him, praying only for knowledge of His Will for us and the power to carry that out.

12.  Having had a spiritual awakening as the result of these steps, we tried to carry this message to alcoholics, and to practice these principles in all our affairs.

What do you think?

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Extending Probation

Wednesday, September 30th, 2009

by School of Government faculty member Jamie Markham

How long can a defendant be on probation for a single conviction?

A.      Five years.

B.      Eight years.

C.      It depends.

The best answer is C.

A judge can sentence any defendant (community or intermediate, misdemeanant or felon) to probation for up to five years on a finding that a period longer than the statutory defaults set out in G.S. 15A-1343.2(d) is necessary. But the original period of probation tells only part of the story. The real difficulty in answering the question stems from the fact that the General Statutes describe two different types of probation extensions, ordinary extensions under G.S. 15A-1344(d), and special-purpose extensions under G.S. 15A-1342 or G.S. 15A-1343.2. (I made up the terms “ordinary” and “special-purpose” for clarity; they do not appear in the General Statutes.)

Under G.S. 15A-1344(d), ordinary extensions may, after notice and hearing, be ordered at any time prior to the expiration of probation for “good cause shown”-no violation need have occurred. Probation may be extended multiple times under this provision, but the total maximum probation period is five years.

By comparison, special-purpose extensions can be used to extend the probationer’s period of probation by up to three years beyond the original period of probation, including beyond the five-year maximum, if all of the following criteria are met:

1.       The probationer consents to the extension;

2.       The extension is being ordered during the last six months of the original period of probation; and

3.       The extension is necessary to complete a program of restitution or to complete medical or psychiatric treatment. G.S. 15A-1343.2.

Extensions for these special purposes are the only way to extend a period of probation beyond five years, and only when the original period was five years could probation be extended to as long as eight years under this provision. If, for example, the original period of probation was three years, probation could only be extended by a special-purpose extension out to six years, not eight. And it would be improper to use an ordinary extension to extend probation from three years to five years and then use a special-purpose extension to extend from five years to eight. Special-purpose extensions may only be done in the last six months of the original period of probation, and once you’ve done an ordinary extension, you’re no longer in the original period.

I realize that many probationers consent to extensions-even those that go beyond five years-to get more time to pay money owed or complete some other condition of probation. But the court’s power to act in probation matters is a creature of statute, State v. Hicks, 148 N.C. App. 203 (2001), and you can’t create jurisdiction by consent. See State v. Satanek, __ N.C. App. __, 660 S.E.2d 623 (2008) (vacating a defendant’s revocation of probation for lack of subject matter jurisdiction, notwithstanding the defendant’s consent to multiple extensions of probation).

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Notice, Drinking, and Intensive Probation

Wednesday, September 23rd, 2009

by School of Government faculty member Jamie Markham

Back in July the court of appeals decided State v. Hubbard, a probation revocation case that I mentioned in passing but never really discussed in depth. In Hubbard the defendant’s probation officer filed a violation report alleging that Mr. Hubbard violated probation by being “so drunk that he could hardly walk” during a curfew check. At the violation hearing the defendant raised a question about exactly which condition of probation he had violated - he was not, after all, barred from possessing or consuming alcohol. After some initial confusion, the probation officer testified that regular condition number six, “report as directed by the Court or the probation officer to the officer at reasonable times and places and in a reasonable manner,” was the condition that had been violated. The trial court, however, found that Hubbard had violated probation by failing to comply with the rules of intensive supervision - a separate, special condition of probation. On appeal, the defendant argued that the court lacked subject matter to revoke his probation for violation of a condition of probation of which he had no notice.

The court of appeals disagreed and affirmed the revocation. Mr. Hubbard was correct that in general, the State must give a defendant notice before holding a probation violation hearing, including a statement of the violations alleged. G.S. 15A-1345(e). Probation may not be revoked based on conduct not alleged in the probation violation report. State v. Cunningham, 63 N.C. App. 470 (1983) (improper to revoke probation for property damage when violation report alleged only playing loud music). Mr. Hubbard was incorrect, though, that he received insufficient notice of the alleged violation in this case. The court of appeals ruled that despite some ambiguity at the hearing about which condition Hubbard violated, there was no question that he had sufficient notice of the specific behavior that constituted a violation. The violation report said he was “drinking and raising Cain,” and his probation officer testified at the violation hearing that Hubbard was “highly intoxicated” during a curfew check. This was sufficient evidence to reasonably satisfy the trial court that Hubbard had violated a condition of his probation - and it didn’t matter, the court of appeals concluded, exactly which condition it was.

It appears to me that Mr. Hubbard’s violation was a failure to report to his probation officer “in a reasonable manner” as required by the regular probation condition set out in G.S. 15A-1343. Being combative when your probation officer checks in is not reasonable. I disagree, however, with the idea that “part of [Hubbard's] intensive supervision is that . . . he’s not at home drunk.” The rules of intensive probation do not prohibit getting drunk at home. Soon, though, it will be a default condition of probation all defendants sentenced to intermediate punishment (which would include all probationers under intensive supervision) that they not use, possess, or control alcohol. S.L. 2009-372.

Even if the notice provided in Hubbard was legally sufficient, it seems to me that the best practice for probation officers is to tie every offending behavior alleged in a violation report to a particular condition of probation - especially in the “Other” block on page 3 of the DCC-10. Doing so will help both the probationer and the probation officer prepare for the hearing.

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Absconding from Probation

Thursday, August 13th, 2009

by School of Government faculty member Jamie Markham

What does it mean to “abscond” from probation supervision? “Absconder” is not defined statutorily; rather, it is defined in Division of Community Corrections (DCC) policy as “an offender who is actively avoiding supervision by making his/her whereabouts unknown to the supervising officer.” DCC makes a searchable list of all absconders available to the public here (click on the absconder tab at the top of the page, and you can search by last name or by county). Statewide, there are about 12,000 probationers who have absconded probation - about 10% of all supervised probationers. That’s down from the 14,000 figure the News & Observer frequently cited in its “Losing Track” series, but obviously still a high number. One of the reasons the number stays so high is that district attorneys and DCC are disinclined to remove anyone from the list, even for cases that would have expired many years ago. Rightly so - as I’ll discuss in a minute, there’s no other way to retain jurisdiction over a probationer who might someday turn up. So, the 12,000-probationer list, which undoubtedly includes a good number of bad people “actively avoiding supervision,” probably also includes a fair number of low-risk folks who might have changed addresses, moved out of the state, gotten married and changed names, been hospitalized, or died. Regardless, it’s a bad situation for everyone, including court officials who have to explain why a handful of decades-old cases make it look like it takes 7 months to resolve the average probation violation. I digress.

Back to my original question: what does it mean to abscond probation? As I said, the General Statutes don’t really mention absconding at all, except in G.S. 15A-837(a)(6), which places on DCC a duty to inform crime victims within 72 hours when a victim has absconded supervision. That may be tricky, though, because a probationer doesn’t become an absconder the moment he or she misses a curfew check. Here are DCC’s policy requirements for declaring someone an absconder:

absconder-regulation

Suppose all these requirements are met and an officer files a report alleging that a person absconded. Is it a problem that hardly anyone has as an explicit condition of probation that says “don’t abscond”? No. Depending on the circumstances, absconding probably constitutes a violation of multiple conditions of probation - G.S. 15A-1343(b)(2) (remain within the jurisdiction), G.S. 15A-1343(b)(3) (report to a probation officer as directed), and other conditions in certain cases. And we know from a recent court of appeals case that notice of the offending behavior - even if not tied to a particular condition - gives a probationer sufficient notice of the alleged violation under G.S. 15A-1345(e). State v. Hubbard, __ N.C. App. __ (2009). Nevertheless, if a violation report alleges that a person absconded, it seems to me that the probation officer should be prepared to testify at the violation hearing that he or she fulfilled all the necessary administrative requirements before declaring the probationer an absconder.

Finally, note that absconder violations are not immune from the jurisdictional requirements that apply to all probation violations - even if the State is unable to hold the hearing before the period of supervision expires precisely because the probationer can’t be found. The requirement in G.S. 15A-1344(f) that the State file a written violation report before the probation term expires to preserve the court’s ability to act applies with equal force to absconders. State v. High, 183 N.C. App. 443 (2007). Under prior law, the fact that a person had absconded might have been relevant to the court’s determination of whether the State had made a “reasonable effort to notify the probationer and to conduct the hearing earlier,” but legislation passed last year (S.L. 2008-129) did away with that requirement for violation hearings held after December 1, 2008. So, cases like State v. Black, __ N.C. App. __, 677 S.E.2d 199 (2009) (holding that a court lacked jurisdiction to revoke a defendant’s probation after expiration when the State failed to make the requisite “reasonable efforts”), should, except for those already in the appellate pipeline, be a dying breed.

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Summary of Probation Reform Bill

Friday, August 7th, 2009

The General Assembly has passed several interesting pieces of legislation recently, but none are more consequential than S 920, the probation reform bill signed by Governor Perdue last week. I previously expressed my hope that Jamie Markham, our sentencing and corrections expert, would summarize and analyze the bill, and fortunately for all of us, he’s come through. His summary is available here, and, as usual, it’s concise, precise, and practical — a must-read for virtually everyone involved in the criminal justice system.

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News Roundup

Friday, July 31st, 2009

Several recent news stories that may be of interest:

1. Governor Perdue just signed S 920, which makes substantial changes to the probation laws. For example, it requires all probationers to submit to warrantless searches by probation officers, and to a lesser degree, by law enforcement officers. It also clarifies the tolling provisions of the probation statutes, modifies the requirements for intensive probation, and imposes new rules regarding community service, among other things. The News and Observer’s story about the new law is here; if we’re lucky, Jamie Markham will give us a breakdown soon.

2. In a story that’s a particularly appropriate topic for a blog post, a Virginia woman has been arrested for blogging about the members of a law enforcement drug task force, including posting their pictures, and in at least one case, an officer’s home address. The story — available here — implies that she was trying to expose officers who work undercover as a way of frustrating their efforts. She was charged with harassment of a police officer, a charge that doesn’t exist in North Carolina. Anyone think a charge of resisting, delaying, or obstructing an officer would fly on these facts? Or another charge? Or is this protected speech?

3. Finally, there’s been a tremendous amount of discussion recently about a concurring opinion in a Tenth Circuit felon-in-possession case. The case upheld the defendant’s conviction over a Second Amendment challenge grounded in Heller v. District of Columbia, the Supreme Court case that held that the Constitution protects an individual right to bear arms. Because Justice Scalia’s majority opinion went out of the way to state that nothing in Heller should be taken to cast doubt on the validity of laws preventing felons from carrying firearms, the Tenth Circuit held that the federal felon-in-possession law survived Heller. Concurring judge Tim Tymkovich, however, questioned whether Justice Scalia should have prejudged the felon-in-possession issue, suggesting that nonviolent felons might have the same self-defense rights as nonfelons. You can read the opinion here, and some blogosphere commentary here, here, and here. Unsurprisingly, the defendant plans to petition for certiorari review, and some of the big names in legal academia and appellate practice seem interested enough that this issue might have some legs. For what it’s worth, I note that the federal felon-in-possession law already excludes some nonviolent felons, such as those convicted under the antitrust laws. See 18 U.S.C. s. 921(a)(20)(A). North Carolina’s Felony Fireams Act, however, has no exceptions. See G.S. 14-415.1.

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Unsatisfactory Termination of Probation

Tuesday, June 30th, 2009

by School of Government faculty member Jamie Markham

What does it mean for a probationer to be terminated “unsatisfactorily” or “unsuccessfully”? From what I understand it’s a notation that the Division of Community Corrections (DCC) uses to indicate that a probationer’s term of probation ended without revocation, but under other-than-ideal circumstances. A common example arises when a probationer owes restitution as a condition of probation, but has demonstrated a good-faith inability to pay the money. Absent a collateral public safety concern, DCC might recommend “unsatisfactory early termination.” It’s kind of like a dishonorable discharge from the military - you’re out, but you probably won’t go around bragging about it in the future. Over 300 probationers are terminated unsatisfactorily each month, compared to about twice that many who are terminated satisfactorily.

Clearly, an indication that a probationer’s supervision ended under unfavorable conditions provides relevant and valuable information to probation officers and judges who might come into contact with the person in the future. That said, the only type of termination mentioned in the General Statutes is that in G.S. 15A-1342(b), which the judge may do at any time if “warranted by the conduct of the defendant and the ends of justice.” There’s no mention of satisfactory or unsatisfactory termination in the law. With that in mind, should unsatisfactory termination be the judge’s formal adjudication of a probation violation hearing?

What do you think? Do judges order unsuccessful or unsatisfactory terminations of probation in your district? If so, how is that information used later?

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Concurrent and Consecutive Sentences Upon Revocation of Probation

Thursday, June 11th, 2009

by School of Government faculty member Jamie Markham

Under G.S. 15A-1344(d), a “sentence activated upon revocation of probation commences on the day probation is revoked and runs concurrently with any other period of probation, parole, or imprisonment to which the defendant is subject during that period unless the revoking judge specifies that it is to run consecutively with the other period.”

In State v. Paige, 90 N.C. App. 142 (1988), the court of appeals addressed the last clause of that section. The case involved a defendant who was convicted of crime #1 in November of 1986 and given a 1-year sentence, suspended. He was then convicted of crime #2 in January of 1987 and given a 5-year sentence, again suspended. A few months later he violated his probation. At the revocation hearing the judge activated both sentences, ordering the 5-year sentence to begin at the expiration of the 1-year sentence. The defendant argued that the revoking judge could not run these sentences consecutively, but the court of appeals disagreed, pointing to the italicized language above.

The court reaffirmed and extended this rule last year in State v. Hanner, 188 N.C. App. 137 (2008). In that case the defendant pled guilty to 16 crimes which were consolidated (pursuant to a plea agreement) into eight judgments with eight 8-10 month sentences, all suspended. Three of the eight sentences were set by the original sentencing judge to run concurrently in the event of revocation. Nevertheless, when Mr. Hanner was found to have violated his probation, the revoking judge set all of the sentences to run consecutively. Citing to Paige, the court of appeals said this was permissible under G.S. 15A-1344(d).

The rule that emerges from Paige and Hanner is that a revoking judge can change the concurrent/consecutive decision made by the original sentencing judge - even when the original concurrent sentences were entered in the same session of court, and even (apparently) when they were entered pursuant to a plea. As to that last point, the original sentence in Hanner was entered pursuant to a plea, but it appears in the procedural history of the case that the original sentencing court ran certain sentences concurrently even though the defendant had actually agreed that they would run consecutively. In that regard Hanner is not a good case to test whether G.S. 15A-1344 is trumped by a contract theory of plea negotiation - the revoking judge really didn’t do anything the defendant hadn’t agreed to.

Suppose the original plea had explicitly been conditioned on concurrent sentences? Could a revoking judge still decide to run the sentences consecutively? Or would the defendant be entitled to the benefit of his or her bargain? I’m interested to hear your thoughts about that.

Just because judges are empowered to do this does not mean they will. As a matter of comity, I imagine many judges are hesitant to tinker with their colleagues’ sentences, absent a good reason for doing so. In any event, judges (and everyone else) should be aware that silence at revocation does not necessarily mean the activated sentence will run as originally entered. To the contrary, under the command in G.S. 15A-1344(d) that an activated sentence runs concurrently unless the revoking judge specifies that it is to run consecutively, DOC will interpret silence at revocation to mean concurrent, even if the original judgment said consecutive. So, if you want to keep consecutive sentences consecutive upon revocation, be sure to fill in the appropriate boxes at the bottom of the first page of the AOC form.

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