North Carolina Misdemeanors: What is a Misdemeanor in North Carolina?

Raleigh Criminal LawyerThe state of North Carolina categorizes offenses into three main categories: Felonies, Misdemeanors, and Infractions/Ordinance Violations. Infractions and ordinance violations are the least serious while felonies are the most serious. A misdemeanor classification is for less serious crimes, but a conviction of this type is still a criminal conviction and can impact your life negatively in terms of job prospects, housing, financial aid and educational opportunities, and most important, your freedom.

The most common misdemeanors seen on North Carolina background checks are larceny, drug possession, and DWI. Assaults and domestic violence cases are very often misdemeanors as well.

Misdemeanors are first handled in district court, which is the lower level of the two state courts in North Carolina. District court is a court in which a judge makes a decision as to guilt or innocence and there are no juries involved.

North Carolina is interesting in that the evidence that the state has against you, called discovery, does not have to be turned over to you in district court. However, if an attorney requests it, it is usually handed over as a matter of courtesy. Your discovery provides valuable insight as to how strong or weak the state’s case is and what the defense strategy should be.

Typical misdemeanor cases in Wake County take between 1-5 months. Some may take longer depending on the complexity of the case. Sometimes, the more patient you are and the longer the case takes, the better the outcome.

If you are convicted in a district court trial by a judge, you have the right to appeal to superior court, where you are entitled to a jury trial. Appeals from district court to superior court must be filed within 10 days of date of conviction in district court.

Punishment for misdemeanors can range from probation to active jail time. A good Raleigh criminal defense attorney will understand how misdemeanors are handled in the North Carolina court system and will be able to effectively manage the process for you and try to get you the best result possible.

Trial de Novo: Can the State Add Charges?

Cuffs Bench Leather Small

Which is better: Level 2 DWI or Felony Serious Injury?

Let’s assume you are charged with a misdemeanor that could be punished as a felony. For instance, you were driving while impaired and during that offense, injured another person. It’s possible for you to be charged and convicted under the DWI statute – § 20-138.1 – but it’s also possible for you to be charged, ultimately indicted, and tried under North Carolina’s felony serious injury by vehicle statute – § 20-141.4.

The misdemeanor statute provides for enhanced punishment for an impaired driver who causes serious injury to another person – § 20-179(c)(3). A potential felony conviction awaits anyone under § 20-141.4(a3) for causing serious injury to another person while driving while impaired.

For purposes of this example, let’s assume that the case is tried in District Court as a misdemeanor and not a felony. For the Defendant, assuming he stands a good chance of being convicted of the crime, having the case tried in District Court as a misdemeanor is vastly preferable to having it tried as a felony.

First, obviously, is that a felony conviction to a class F felony is not expungeable and will make him a felon for the rest of his life under current North Carolina expungement law.

A misdemeanor DWI is potentially expungeable after a 15 year wait following the conclusion of any punishment.

Second is that the punishment is somewhat greater with the felony. The maximum sentence for a Level 2 DWI involving just one grossly aggravated factor is 12 months. The maximum sentence under the class F felony of Felony Serious Injury by Motor Vehicle is 23 months in the presumptive range with a 9 month post-supervision release period.

Let’s assume that following the District Court trial, the person is convicted and sentenced and wants to decide to appeal. An appeal to Superior Court is an appeal for a trial de novo, which means an entirely new trial.

Does that appeal, however, permit the State to change the charge from a misdemeanor DWI to a Felony Serious Injury by Vehicle?

Can the State of North Carolina Add Charges following a trial de novo?

The short answer is probably not, absent some showing that new facts, originally unavailable to the State, emerged after the District Court trial and before the conclusion of the Superior Court matter.

The North Carolina Court of Appeals addressed this issue in State v. Bissette.

Bissette had originally been charged with the felony of larceny by an employee. The State, however, decided to dismiss that charge and instead prosecute her for misdemeanor larceny in District Court.

Bissette had a trial in District Court that resulted in a guilty verdict. Bissette appealed the matter for a trial de novo to Superior Court. Before that trial could happen, the State of North Carolina indicted Bissette on larceny by employee, the felony. The State explained to the Superior Court judge that the two charges arose out of a single underlying occurrence, and that he had intended to have the misdemeanor larceny charge dismissed at the time Bissette was indicted on the felony larceny charge. He further stated that he would file another dismissal at the conclusion of the trial in superior court to ensure that the misdemeanor larceny charge was,in fact, dismissed. Bissette was then tried before a jury and found guilty on the felony larceny charge.

The case was appealed to the North Carolina Court of Appeals, which wrote:

A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant’s conviction becomes final, and may even result in a formerly convicted defendant’s going free. And, if the prosecutor has the means readily at hand to discourage such appeals — by “upping the ante” through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy — the State can insure that only the most hardy defendants will brave the hazards of a de novo trial.

The Court of Appeals, following the United States Supreme Court holding in Blackledge v. Perry (1974), held in Bissette that an indictment on the felony charge violates the Due Process Clause of the Fourteenth Amendment, since a person convicted of a misdemeanor in North Carolina is entitled to pursue his right under state law to a trial de novo without fearing that that the State will retaliate by substituting a more serious charge for the original one and thus subject him to a significantly increased potential period of incarceration.

Can the State allege new factors in Superior Court?

The holdings in State v. Bissette and Blackledge v. Perry are limited. The state cannot pile on charges. But the State can do other things to make appealing to Superior Court a tough decision.

(As an aside, a trial de novo does not entirely wipe away the underlying conviction. In U.S. v. Martin, the Fourth Circuit held that even an appealed District Court verdict could be used as a sentencing point in federal sentencing guideline calculations.)

The State is not barred from asking for harsher punishment than in District Court. While this may seem to be an approach that ensures that “only the most hardy defendants,” appellate courts have said that this is a risk that defendants take.

The State controls the calendar and a misdemeanor appeal can take years, especially in Raleigh where the misdemeanor appeals calendar is overwhelmed with DWI cases. That alone can cause may defendants to stop at the District Court level, even if they have viable criminal cases for a jury trial.

And the State can allege new factors in Superior Court by providing appropriate pre-trial notice. These factors can be different from the ones alleged in District Court, and may substantially enhance the punishment available.

Limiting Appeals to Superior Court

Raleigh misdemeanor appealsVery few people are happy with the way misdemeanor appeals works in much of North Carolina. District Criminal Court in North Carolina does not have juries. Trials are heard by judges who both decide the factual issues, guilt and innocence, and impose punishment. Only a small percentage of cases are actually appealed to Superior Court.

But even the small number of appealed cases can clog things up. That’s because, given how few judges we have in North Carolina, there are simply too many cases for judges to hear in a timely fashion. In Wake County during a given Misdemeanor Appeals week, the prosecutor is typically able to try two jury trials, and have maybe 3 or 4 motions heard. Sometimes things go a little faster. Sometimes a little slower.

But given that there are hundreds upon hundreds of cases to try each week, that leaves hundreds of cases untried, creates a backlog, and leads to three and four year delays in some counties before misdemeanors are tried and resolved. This creates uncertainty for hundreds of people who seek to have their cases decided. And there’s enormous expense, especially because in many cases defendants need to periodically appear in court (thereby missing work) for a calendar call only to find that their case is not being tried that week.

Because people have the constitutional right to appeal a guilty verdict for a trial de novo in front of a jury, the North Carolina General Assembly is limited in its ability to restrict jury trials.

But that isn’t keeping it from trying…

Senate Bill 182 now before the legislature would limit appeals for people who plead guilty in District Court. That would require them, if they do wish to appeal, to appeal straight to the Court of Appeals. This law would only apply to people who plead guilty, which means that it would have the effect of clogging up District Court by requiring defendants who wish to appeal the case, for whatever purpose, to either have a trial (and presumably lose and then appeal) or plead not guilty, not resist the verdict, which would permit the appeal.

So either the law is entirely ineffective, creating a new language by which appeal is effected following a guilty plea. Or it would jam up District Court by forcing more people to have a trial in District Court.

The way to resolve the appeal problem is to first have more sensible results in District Court and, second, to hire more District Court and Superior Court judges. Instead of building a new courthouse, hire 20 new District Court judges. Instead of building a new jail, hire 20 new Superior Court judges.

Cases will be resolved if that happens. Cases will not be resolved by rewording the way appeals take place.

Trial de Novo and Federal Sentencing in North Carolina

North Carolina, like some states, has a two-tiered criminal system. Lower level cases, including infractions, almost all misdemeanors and most Class H & I felonies – can be resolved in District Court, which is the lower of two levels.

If a person wants to have a trial on a misdemeanor or an infraction, that trial will almost always occur first in District Court (unless the case has been indicted), and in that case the person will appear before a judge for arraignment and a trial as part of what’s known as a Bench Trial.

Felonies cannot be tried by judge in North Carolina. If a person wishes to resolve a felony in District Court, the person can do so, but must plead guilty. There may be many reasons to plead guilty to a felony in District Court, rather than demand a jury trial in Superior Court.

If the person has a trial in District Court on a misdemeanor, or enters a plea to a misdemeanor, and changes his or her mind, the person can appeal the case. That appeal can be entered orally in court by the person or his or her attorney.

Or the matter may be appealed in writing by filling out a form or submitting a notice to the Clerk of Court within 10 calendar days of judgment being imposed.

Upon an appeal, the District Court Judge has a limited opportunity (described elsewhere on this blog) to impose a new bond – called an Appeal Bond – designed to ensure the person is not a danger to the community or and that the person appears for his or her Superior Court court dates.

If the case is sent to Superior Court, what happens to the judgment?

The judgment is set aside. It is a nullity. The case returns to “pending” status and remains that way until one of several things happens in Superior Court.

  1. The person is found guilty or not-guilty by a Superior Court Jury
  2. The person decides to withdraw the appeal and remand the case from Superior Court back to District Court, which in DWI cases requires a new sentencing hearing.
  3. The person decides to plead guilty in Superior Court, and is sentenced in Superior Court by a judge.
  4. The State dismisses the case in Superior Court.

How does an appeal de novo affect a person for other purposes?

Licensing agencies – such as nursing boards, medical boards, state bars – will deal with the matter according to their own internal rules. Their internal administrative rules may treat the underlying conduct as punishable by suspension or revocation of a license.

The DMV will not treat a de novo appeal any differently than the Court system. In other words, the DMV will not regard the underlying District Court conviction as a conviction, and will await the outcome of the Superior Court case.

If you’re being sentenced in other states, those states should not count a District Court conviction that has been appealed as a criminal conviction. It should be regarded as a nullity.

However, if you are being sentenced by the Federal Government, the United States Court of Appeals for the Fourth Circuit in U.S. v. Martin, 378 F.3d 353 (2004) held that a District Court judgment that has been properly appealed can be used against a defendant sentenced in Federal District Court under the United States Sentencing Guidelines.

Superior Court and DWIs: Part II

In addition to increasing the efficiency of DWI adjudication (about which I previously have commented), placing DWIs in Superior Court will improve a defendant’s access to discovery.

N.C.G.S 15A-901 provides that all cases in the original jurisdiction of Superior Court are governed by the State’s open-file discovery law. This means that Defendants are entitled to such discovery following a timely request.

As it currently stands, DWI discovery in District Court is effectively a mere courtesy. The prosecution is not required to hand over discovery. The prosecution usually does so as a courtesy to defense attorneys.

But sometimes that discovery is not complete. For instance, sometimes video needs to be subpoena’s. And the entire maintenance log of the Intox EC/IR machines is not available. Nor are, as a matter of right, the manual used by the Forensic Tests for Alcohol Branch of the DHHS in training chemical analysts.

Placing a DWI in Superior Court as a matter of original jurisdiction would cure these gaps in the defendants’ ability to defend themselves in Raleigh DWI cases.

Superior Court and DWIs: Part I

One possible solution to the crush of DWIs (about which I’ve written recently) would be to assign DWIs to the original jurisdiction of the Superior Court.

Currently, a DWI can take anywhere from 3 to 15 months to resolve in Wake County District Court. Once that process is over, and if the defendant has been found guilty, the Defendant can appeal for a trial de novo in Superior Court.

That begins another year-long wait for a Jury Trial. During that time, the State simply does not call the case for trial, even though it is on the trial calendar, usually, once a month.

The whole process can take anywhere from 6 months to 2 1/2 years to resolve, depending on the avenues the defendant takes.

While the right to a speedy trial has been broadly interpreted – courts have ruled that three or four years is not an unreasonable delay in certain circumstances – taking 2 1/2 years to handle a common DWI certainly creates a hardship on most defendants and overwhelms a court system.

Placing DWIs in the original jurisdiction of Superior Court would do a couple of things. First, it would create at least some risk for criminal defendants to truly evaluate the merits of their case.

As it currently stands, a DWI defendant in Wake County District Court is unlikely to receive anything other than a probationary sentence if convicted of a Level 4 or Level 5 DWI. In large part that’s because the person has probably already taken steps to remedy the situation – such as being assessed – and the person likely has little or no other criminal record.

In addition, the facts of most DWIs are not egregious – a person was stopped by an officer, the odor of alcohol was detected, and various Standardized Field Sobriety Tests (SFSTs) were performed. District Court judges will impose a probationary sentence, knowing that if they don’t, the defendant will likely appeal the case for a better result in Superior Court.

Knowing that they’re virtually certain to receive the same or close-to-the-same sentence whether they plead guilty or not, many DWI defendants will try the case even when there is a very small chance of success. The reason being that if nothing is offered by way of a plea, then why should a defendant give up a constitutional right to a trial.

By placing the DWI in the original jurisdiction of Superior Court, the DWI defendant is a lot less certain about the outcome. That’s because, following a Superior Court jury trial, the defendant is not entitled to a de novo appeal. His trial rights have been exhausted (unless there’s a legal defect discovered by an appellate court).

Whatever sentence the Superior Court judge imposes is, almost always, the final sentence. Consequently, a Superior Court judge can impose an active sentence for a low level DWI, knowing that the case can’t be appealed for a trial de novo.

This increased uncertainty of making putting a DWI in the original jurisdiction of the Superior Court will (along with my other proposal of creating a plea option for first-time DWIs) will clear out the vast majority of DWIs from Wake County’s court system in 90 days.

The second thing that will occur is that prosecutors will be forced to offer genuine plea deals for DWIs in Superior Court. That’s because, Superior Court will simply be overwhelmed by the sheer volume of DWIs that, without effective plea deals, all cases will grind to a halt in Superior Court.

The State’s Use of Appeal and MAR in District Court

When a judge renders a judgment in District Court, a Defendant has a number of options. The Defendant can appeal the judgment within 10 days for a trial de novo in Superior Court. If the Defendant misses that 10-day window, the Defendant may also seek to re-open the case through a Motion for Appropriate Relief (MAR).

What about the State? What happens when a prosecutor doesn’t like a result in District Court? What can a prosecutor do to “get justice”?

What happens when a judge sentences a defendant in District Court, but the State doesn’t think the sentence is harsh enough?

A prosecutor also has an opportunity to appeal, although for more limited reasons. And a prosecutor may also file a Motion for Appropriate relief. But a prosecutor can’t ask for a harsher punishment if he doesn’t like the judgment imposed in District Court. That’s because when judgment was imposed, jeopardy attached. Once jeopardy attaches, the Defendant’s federal constitutional rights are implicated.

The State has no countervailing rights. This is a country of individual liberties, protected by a Constitution from state power. The state may have procedural obligations. And there may be interests of fairness to the State’s lawyers – called “prosecutors”. But the state is not the equivalent of the Defendant.

In a criminal trial, the Defendant’s rights hold special importance. Consequently, the phrase, “being fair and impartial to the State of North Carolina and the defendant” misses the point. Fairness and impartiality has to do with the procedural rules. But ties always go to the Defendant in our system, even if judges don’t always commit to that lofty ideal.

Let’s return to the above question. What recourses does a prosecutor have after a judgment has been issued in District Court?

N.C.G.S. 15A-1432 (pdf) permits the prosecutor to appeal to Superior Court when Double Jeopardy has not attached and when “there has been a decision or judgment dismissing criminal charges as to one or more counts” or “upon the granting of a motion for a new trial on the ground of newly discovered or newly available evidence but only on questions of law.”

When jeopardy has attached, either upon a guilty plea or upon a dismissal or not-guilty verdict at the close of State’s evidence, the prosecutor cannot re-open the case because doing so would put the defendant twice in jeopardy of life or limb.

What about a Motion for Appropriate Relief? Can the State use a MAR to try to re-open a judgment it doesn’t like?

N.C.G.S. 15A-1416 says yes, but only for the relief that it may assert upon appeal, which means only for reasons outlined in N.C.G.S. 15A-1432.

N.C.G.S. 15A-1416 also allows the State to pray judgment at any time when grounds for the imposition of the sentence in the PJC are asserted or for probation violations.

Recently the Johnston County court system had to contend with issues involving illegally dismissed cases. The new District Attorney attempted to open the old cases, but was rebuffed by a judge who held that the State’s chance to file the MAR had expired 10 days after the dismissal of each of the cases. (The State potentially could’ve refiled on those cases if the State had caught the corruption scandal within a year of the dismissal.)

Taking a DWI to Jury Trial

Sometimes I’m approached by folks who want to fight their DWI charge tooth and nail. They’re convinced they were driving impaired, and they are dead certain that a jury of their peers will find them “Not Guilty.”

Whether a client – also known as the Defendant or the Accused – wants to go to a jury trial is always a question for them to make. It’s their life.

Where the case is right to take to a jury, I am happy to fight that fight. Even where a case is difficult, time-consuming, or tough to litigate, I am happy to argue a case to a jury. After all, I’m a trial lawyer.

But here’s what someone should know about how a DWI is handled in North Carolina.

1. Before you reach a jury, you will first need to go through a bench trial. Depending on various factors, it may take anywhere from 6 to 9 months to have you trial heard in District Court.

2. If you win after a trial on the merits in District Court, your case is over. The State of North Carolina may not appeal a Not Guilty verdict by a judge in District Court. (The State may appeal lost motions to suppress where the individual was not arraigned.)

3. If you lose after a trial on the merits in District Court – that is, if you are found guilty – you at your option may appeal the verdict.

4. You or your attorney may give the Notice of Appeal in open court. This is the simplest way of making an appeal. In most cases, a judge will not impose an appeal bond. If no appeal bond is imposed, you may walk out of court with your license in hand (assuming you were otherwise able to drive to court) and proceed on with your life until your case reaches trial in Superior Court.

5. If you fail to give Notice of Appeal in District Court, you must give Notice of Appeal within 10 days of your District Court judgment if you wish to appeal. Notice should be given in writing to the Clerk of Court. In Wake County, the Clerk of Court for criminal court can be found in room 102 of the courthouse.

6. Once you give Notice of Appeal, a new court date – this time in Superior Court – will be set and you will need to appear in Superior Court to be given a trial date. In Wake County so many cases are appealed that there are literally hundreds of people who line-up every other Monday in courtroom 3D.

It’s important to keep in mind that just because you lost your case in District Court does not mean that you will necessarily lose your case in Superior Court. This is because a jury may be more skeptical of the State’s case. Or this is because the State’s case may weaken over time.

It’s important for you to discuss all your options with your lawyer both before you hire the lawyer, but also in the event you should lose in District Court.

What is District Court in North Carolina?

North Carolina has a unified court system, organized by county. Each county has a court in its county seat (although Wake County also operates a satellite court in Wendell on Fridays where misdemeanors are handled for eastern Wake communities.)

North Carolina’s general court of justice is divided into two divisions, the lower District Court Division, and a Superior Court Division. All misdemeanors and most felonies, although not all felonies, start out in District Court. Most misdemeanors, and many felonies, end their lives in District Court.

Misdemeanors can reach the trial stage in District Court, where the trial will be heard by a single judge. That judge will render a verdict, which can be guilty or not guilty. If the person has been found not guilty, then the case ends, and there is no further prosecution (although the prosecutor can appeal certain rulings that may have led to a dismissal).

Many misdemeanors never reach the trial stage. They are settled by either a plea, a deferral, a diversion, or a first offenders program. In these cases, the prosecutor agrees to either reduce punishment or dismiss charges entirely provided that the defendant does something, such as community service, to justify the dismissal or reduction in punishment.

For those misdemeanors that reach the trial stage or plea stage, the case may be appealed by the defendant, if he or she loses. If the case is appealed to Superior Court, it is as if the District Court trial never happened. This is called a “de novo” appeal. The reason that any criminal case in district court may be appealed is because where someone’s liberty is at stake, that person has a right to a jury trial.

The District Court, therefore, serves as a filtering court, to filter out the cases that should be resolved with minimal review by a District Court judge. As such, you’d hope that the District Court judges would render decisions consistent with what a Superior Court jury would find, but this isn’t always the case. District Court conviction rates are generally higher than the result from a jury trial.

This is sort of absurd, because it only encourages defendants and their attorneys to appeal cases, which is an incredibly bad use of judicial resources. I will generally advise, where appropriate, that my clients appeal district court cases where I think they might find relief in front of a jury.

While all misdemeanors are handled in District Court, no felonies are tried in District Court. Felonies must be tried in front of a jury, and so the only way to resolve a felony in District Court is through a plea, a diversion or deferral program, a first offenders program, or a dismissal of the charge.

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