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.

What is misdemeanor larceny?

Raleigh larceny lawyer

Misdemeanor larceny is a misdemeanor crime in North Carolina where the person has taken property of another with the intent to permanently deprive the other person of its use, and the value of the property is $1,000 or less.

Essentially larceny is theft, although there are other types of theft – theft by fraud, for instance. A larceny can also be a felony if the value of the property exceeds $1,000, or is committed while the person is an employee and took the items during employment, or took the items from the person directly, or the item is a firearm. N.C.G.S. § 14-72 is the relevant statute for most larceny crimes in North Carolina.

Will I be convicted of a larceny?

We often see in our offices people who have been accused of larceny, sometimes in connection with shoplifting. They otherwise have no criminal record, and are sorry for what they have done. Or they have been wrongfully accused. In either case, a larceny case usually has three possible outcomes.

First the person may be eligible for a diversion or deferral program as explained below.

Second, the person may be ineligible for a diversion or deferral program, but may wish to plead guilty to avoid a harsher sentence. If so, your criminal lawyer will enter into negotiations with the District Attorney to try to arrive at the best outcome for you.

Finally, the person may wish to have a trial, which in District Court will involve a judge ultimately making a decision about whether the state has proved its case beyond a reasonable doubt.

If found guilty after a District Court trial, the defendant has the right to appeal the case for a trial de novo.

Am I eligible for a diversion if charged with larceny?

If you’ve never been convicted of a crime before, and if you have never participated in a diversion program before, you may be eligible for a diversion or deferred prosecution agreement whereby you will be asked to complete community service, pay court costs and fines, and return to court after either six months or a year for a compliance date where the charges would be dismissed if you are in fully compliance with the deferral program.

Should I have a trial in my larceny case?

If you believe you are innocent of the charge, or you believe the state has a very weak case against you, you may wish to have a trial. The risk of a trial is that you will be convicted of the charge, and punished. Misdemeanor larceny is a class 1 misdemeanor, punishable by up to 120 days in jail. In most cases, for people who have not been in trouble before, probation would be imposed. In fact, for first time offenders, a person may not be jailed as a result of a misdemeanor larceny conviction, except if they violate probation.

Talk to your Raleigh criminal lawyer about whether your should go to trial given the facts of your case.

Clogged Courts in Wake County

No one is happy with speed at which Wake County’s criminal justice system processes cases. Judges, particularly in District Court, are frustrated with what seem like endless continuances that mean that even the simplest DWI cases can drag on 8 to 10 months. Prosecutors, who (one has to admit) are woefully underpaid, are frustrated that in a single District Court session, they may be able to get through a single misdemeanor trial, if that, per courtroom. My clients are frustrated that it can take months in District Court or years in Superior Court to have their day in court.

And defense lawyers are frustrated about the endless delays and resulting scheduling conflicts that leave them running through the courthouse trying to please frustrated judges, prosecutors, and clients.

There are a few solutions. There are also a few non-starters, as I’ve written about elsewhere.

First, let’s talk about resources. Wake County is a county of about one million people. We’ve got a brand new courthouse coming on line. We need many more judges. And while I wouldn’t say we need more prosecutors, we certainly need more support and resources for prosecutors so that they can focus on preparing cases instead of taking turns at the reception desk. We also need more resources for the Public Defender Office and court appointed lawyers.

If the North Carolina General Assembly is too cheap to pay for it, then the NCGA needs to consider why we need so many criminal laws. The cost of passing a law making it a crime to do this or that act is not just the cost of the police officer to investigate. It is the cost of the prosecutor, the judges, the clerks, and even constitutionally guaranteed counsel. That’s the total cost of enforcing the law, leaving aside the terrible cost ultimately inflicted upon the defendant for what turn out to be a very high number of victimless crimes.

Take, for instance, Driving While License Revoked. Basically you need a piece of paper that is easy enough to get from the DMV, but also incredibly easy to lose from the DMV, that says you can drive. If your sole act is driving while having a revoked piece of paper from the DMV, you may be convicted of DWLR, a class 1 (higher) level misdemeanor punishable by up to 120 days in jail and at least an additional 1 year suspension.

Wow! All for having had a license revoked for, perhaps, failing to pay a ticket, you can be convicted of a higher level crime than even Simple Assault or Resisting a Public Officer. Remarkable.

Because you can be sent to jail for this crime, you are entitled to a lawyer. That means someone has to be paid by the State to deal with what is, in many cases, a purely paperwork issue (coupled with a failure to pay fines usually by the poor). And because lawyer’s basic strategy in most of these cases is to try to delay the inevitable in the hopes that the defendant/client will be able to pay off back fines (which can be hundreds or thousands of dollars), this results in multiple continuances. For what! All because automobiles were developed during the progressive era when the regulatory state was in full swing and every state and country believed licensing to drive needed to be onerous.

Back to the original topic: How can we fix our broken court system? More resources, more judges, and more money for Public Defense.

Short of that, what can we do? Speedy Trial statutes would help, forcing prosecutors to choose among which crimes they really want to punish. Plea bargains in DWIs. And a trial court administrator’s control of the criminal calendar.

Can I go to jail for a misdemeanor in North Carolina?

We’ve handled hundreds of misdemeanors and the most common question is, can I go to jail for a misdemeanor? The answer is, as with everything in the law, it depends.

First, what is a misdemeanor? A misdemeanor in North Carolina is a low level crime. It is still serious in that a misdemeanor conviction is a public record, and a misdemeanor can affect certain other rights, including the right to keep and bear arms under the Second Amendment if the misdemeanor is a Domestic Violence related crime under federal law 18 USC 922.

It depends on your prior criminal history, and the charge involved. For most misdemeanors, if you have a clean criminal record (infractions don’t count), then you are not eligible for jail time at all. In other words, even if the judge thought you were the worst human being in the world, he or she could not put you in jail. The exception is class A1 misdemeanors, which are the most serious misdemeanors and include such crimes as Assault on a Female, Assault with a Deadly Weapon, and sexual battery.

So jail is probably not an option, and statistics indicate that the vast majority of people with little or no criminal history who are convicted of misdemeanors receive probationary sentences.

However, just because you are not eligible for jail, does not mean you shouldn’t take the misdemeanor charge seriously. Every day we get calls from people who were convicted of misdemeanors in years past, and who cannot find jobs because those convictions are discovered by potential employers.

While the new expungement law in North Carolina creates opportunities to have an old non-violent conviction removed from your record, you must wait 15 years from the time that the punishment phase ends, and have no new criminal convictions in that period.

That’s a long time. Hiring a good Raleigh criminal lawyer today, is probably worth the expense especially if that can make the difference between a conviction and a clean records.

How much time can I serve for a Raleigh shoplifting charge?

Most people think of shoplifting charges as minor charges. When they’re caught at the Crabtree Valley Mall, or Cary Town Center or one of the local Kohls, Wal-Marts or Targets, they suddenly realize just how terrible these charges can be, not just for their freedom, but also to their future job prospects.

An arrest is a public record, so the moment you are arrested is the moment a potential or current employer can see a record of your arrest. In addition, WRAL and other news outlets, including the tabloid The Slammer, frequently publish the booking photographs. Those photographs can remain on the web for years, even if your case is successfully dismissed and even expunged.

Moreover, certain websites, which operate almost like a scam, will post your photograph, and offer you the opportunity to take down those photographs if you pay them a fee. The problem is that once you pay, those networks will take down your photograph, only to post it on another website with another demand that you pay. While not ethical, this is probably quasi-legal behavior.

Do you face jail time for a shoplifting charge? The answer is, it depends on your record and on what you’ve been charged with.

If you’ve been charged with misdemeanor shoplifting or misdemeanor larceny, and you have no prior criminal record, you cannot be placed in jail by the judge. That sentencing block provides that the maximum possible crime is court costs, a fine, and community service, and possible probation, which can either be supervised or unsupervised.

The problem is that sometimes when people are in the process of committing a shoplifting offense, they either remove one of the anti-inventory devices that is designed to prevent theft or they try to use something like a lead-lined bag to prevent the items from giving off signals that trigger alarms.

Both of these acts – the removal of an anti-inventory device and the use of a lead-lined bag – qualify as felonies. In addition, stealing from a merchant by itself can be charged as a felony larceny on its own terms.

If charged as a felony, the shoplifting offense now qualifies for a jail sentence because it is a class H felony. It is rare for a first time offender to be sanctioned in that way.

Nonetheless, the mere fact that someone qualifies for a felony conviction raises the stakes, since a felony conviction will have life-long consequences, including affecting a person’s ability to have certain kinds of careers.

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.

North Carolina Misdemeanors and Your Future

Everyone knows that a felony can be a life-changing event, that can result in all kinds of collateral consequences. But too few people take misdemeanors seriously enough. In North Carolina, misdemeanors can have significant consequences. For instance, the first criminal conviction of any sort (whether it’s a misdemeanor or a felony), will have life-altering consequences. It will affect a person’s ability to find or keep employment.

While people usually realize that a felony conviction is important, to often they regard a misdemeanor as an inconvenience. As a result, they don’t hire a lawyer, they handle it themselves, or they allow their child to have a public defender appointed in the matter. Given how overworked public defenders are, the results are understandable.

As this Slate article explains, a misdemeanor can have tragic consequences if not handled properly.

The misdemeanor machine has inspired a slew of epithets: “meet ‘em and plead ‘em lawyering,” “assembly line justice,” “cattle herding,” and “McJustice.” They reflect the reality that once people charged with misdemeanors get to court, they are pressured by judges, prosecutors, and their own lawyers into pleading guilty, often without knowledge of their rights or the nature of the charges against them. Bail makes it worse. Around 80 percent of defendants who have bail set cannot afford to pay it. Innocent defendants commonly plead guilty just to get out of jail. In this way, millions of Americans are punished without due process and learn the cynical lesson that, at least when it comes to minor offenses, law and evidence aren’t all that important.
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Of course, there’s an argument that minor crimes may not actually matter that much. Guilty pleas typically result in a fine or probation, not prison. Given the deplorable lack of resources systemwide, perhaps minor crimes should indeed be handled in the quickest, cheapest way without counsel or a whole lot of due process. Indeed, petty offenders may well get out of jail sooner if they plead guilty. Moreover, it is widely assumed that these millions of defendants are actually guilty, so rushing them through the system probably won’t result in much of a miscarriage of justice. Maybe there are good reasons to take the quick-and-dirty approach.
Nevertheless, we shouldn’t write off misdemeanors.

The repercussions of a petty conviction can be anything but minor. These offenses are increasingly punished with hefty fines that low-income defendants cannot pay. A conviction of any kind can ruin a person’s job prospects. A petty conviction can affect eligibility for professional licenses, child custody, food stamps, student loans, and health care or lead to deportation. In many cities, a misdemeanor makes you ineligible for public housing.

Is Running from the Police Unlawful?

What if the officer has no suspicion of criminal activity, but the officer observes a person and tells him to stop. The person takes off running. Has the person committed a crime of Resist, Delay, and Obstruct?

In State v. White, officers received a report of loud music in a high crime area:

The State’s evidence tended to show the following. On the 2:00 p.m. to midnight shift of 15 August 2008, Detective Brian Edwards and Sergeant Jack Austin of the Southern Pines Police Department were on patrol in an unmarked white Dodge Durango. Sometime after dark, the officers received a report from dispatch complaining of loud music near the corner of Coates Street and Shaw Avenue. Although this location is at the center of Brookside Park Apartments, the report did not identify the apartment complex or a specific apartment within it as the source of the music complaint, nor did it identify the person who made the complaint. Additionally, Coates Street intersects Shaw Avenue at two locations, but the report did not specify either intersection as the subject of the loud music complaint.

Detective Edwards testified that he had been to the Brookside Park Apartments on “several occasions throughout the evening” and had made between fifty and one hundred drug arrests there in the past. He also stated he was aware of other arrests made at that location by other officers of his department, and thus he believed it to be a high-crime area.

Responding to the loud music complaint, Detective Edwards saw three or four men, including Defendant, standing near a dumpster near the intersection of Coates and Shaw Streets. The officer did not recognize any of these men, but decided to question them about the loud music. As Detective Edwards turned from Shaw Avenue on to Coates Street, he stopped his vehicle about thirty-five feet from the men and on the opposite side of the dumpster.

The officers were dressed in cargo pants and blue polo shirts with “Police” written in black letters on the back and an embroidered badge on the front left chest. The officers’ car was unmarked with no labels, decals, or exterior lights. Detective Edwards testified that as he was exiting the vehicle and turning to close the door, he heard Sergeant Austin yell, “Stop! Police[,]” and he “took off running around the back side of the vehicle.” Detective Edwards then “ran to the opposite side of the Dumpster so [he] could see[,]” and observed Sergeant Austin chasing a black male up Shaw Avenue. Detective Edwards gave pursuit behind Sergeant Austin.

The officer found a baggy of crack cocaine after tackling and handcuffing the defendant. The NC Court of Appeals held that the arrest for RDO was illegal because there was no probable cause to arrest because the defendant was free to ignore the police officer’s command to stop. The defendant had no obligation to stop. He had a right to flee.

State v. Joe is a similar case resulting in an illegal arrest for an RDO.

Running may contribute to reasonable suspicion to conduct a Terry Stop, where there are enough other facts to suggest criminal activity is permitted.

The Court of Appeals seems to view the attempt to justify a stop on running as a bad approach by the State.

North Carolina Structured Sentencing is No Longer Structured

Until the mid-1990s, North Carolina had a sentencing system called Fair Sentencing. The major criticisms of Fair Sentencing were that:

  1. There was no truth in sentencing. The actual sentence served was usually much lower than the stated sentence at sentencing.
  2. There was disparity in how people were treated from place to place, and defendant to defendant.
  3. The system was uneven and difficult for lay people to understand and interpret.

After years of study, in the mid-1990s North Carolina introduced Structured Sentencing with six prior record levels, and 10 sentencing classes (A to I), with each crime being assigned a sentencing level based on the seriousness of the crime.

The idea of structured sentencing was to end parole and to introduce truth in sentencing.

Misdemeanors were categorized by four levels – A1 to 3 – and three prior record levels.

Almost from the start, however, there were deviations from the Structured Sentencing system. For instance, DWIs have always been governed by the prior Fair Sentencing system, in part because the legislature wanted to punish DWIs more harshly than the newly established Structured Sentencing scheme would allow if DWIs were made a misdemeanor within Structured Sentencing.

Next, the legislature decided that drug trafficking was too serious a crime to be left to structured sentencing. So, while drug trafficking nominally carries with it a Class, each level of drug trafficking has specific mandatory minimums and drug trafficking sentences are not determined by looking at the offender’s prior record level.

Next, the legislature decided that certain sex offenses were too serious to be left to structured sentencing. So, while forcible rape is nominally a B1 felony, it carries with it a mandatory minimum sentence of 25 years, taking it out of Structured Sentencing. That 25 years is set regardless of a person’s prior record level.

These little tweaks here and there have meant that, over time, North Carolina’s Structured Sentencing system has looked more like a hodgepodge. Truth in sentencing has become something less than entirely truthful.

The Justice Reinvestment Act passed in 2011 and now fully in effect in North Carolina as of January 1, 2012 blows a hole in the Structured Sentencing scheme by creating an entirely new program that looks a lot like parole, even though it’s technically called Advanced Supervised Release.

As if the legislature doesn’t entirely trust judges, it requires that the prosecutor not object to putting the defendant into the DOC’s ASR program. If the person is admitted into the program at the time of sentencing, then he is eligible release on his Advanced Supervised Release date which is either the minimum sentence at the bottom of the mitigated range for the same Class and Prior Record Level, or is 80 percent of his minimum sentence if he’s sentenced in the mitigated range.

Eligible defendants must fit into certain Class and Prior Record Levels in order to qualify for the ASR program. And only the sentencing judge can place the person into the ASR program if the prosecutor doesn’t object.

The program is a good move in the right direction, because it incentivizes defendants to take advantage of programs in the DOC to earn ASR release, and then supervises them for a period of time after release.

And it credits worthy offenders, getting them out of prisons earlier, and lessening the financial burden to the State.

But it represents essentially a return to parole, which in my view is a good thing, but which runs counter to the whole concept behind Structured Sentencing.

Rationalizing sentencing only goes so far. Leniency must be built into the system to incentivize offenders. Overall NC’s criminal sanctions are overly punitive. Moving toward a less structured, but more humane criminal justice sytem is the way to go.

Misdemeanor Punishment Statistics

When someone is charged with a crime, his or her first question is, normally, what’s the chance I’ll be convicted and what sentence will I probably get?

First, no guarantees can be made about whether or not someone will be convicted, or whether or not they will get this or that punishment. That’s because there are so many different facts and circumstances unique to a case involved that’d be impossible to predict with absolute accuracy what the result will be. In addition, attorneys are under an ethical obligation not to guarantee results.

While there can be no guarantees, sometimes statistics can helpful in understanding how the law works and how certain convictions are treated.

Misdemeanors

For instance, in fiscal year 2008/9 more than 150,000 people were sentenced for misdemeanor convictions in North Carolina. According to the most recent Citizen Guide on structured sentencing:

  • 48 percent of misdemeanor convictions involved public order offenses (public intoxication, underage drinking, DWI, etc.)
  • 25 percent involved property crimes.
  • 17 percent involved drug offenses.

  • 10 percent involved person offenses (assaults, affrays, etc.)

In addition, misdemeanor punishments tend toward probation and fines:

  • 74 percent of misdemeanor convictions involved a Community Punishment (probation, fines, court costs, community service, etc.)
  • 24 percent of convictions involved Active Punishment (a jail or prison sentence)
  • 2 percent of convictions involved an Intermediate Punishment (either one or a combination of punishments harsher than Community Punishment, but less harsh than Active Punishment)

Most misdemeanor convictions tend toward a community punishment, but for many of my clients the punishment isn’t the important part of the equation – it’s the conviction that matters. North Carolina has a number of different programs, from First Offenders to Drug Diversion 90-96, that can be used to avoid a conviction altogether. Consult with a lawyer about this possibility in your case.

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