Trial de Novo: Can the State Add Charges?

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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.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.