The focus of Structured Sentencing for misdemeanors is the statutory table of punishments in G.S. 15A-1340.23 (see Table 4 at the end of this chapter). All misdemeanors, except those mentioned at the beginning of this chapter, are subject to Structured Sentencing. G.S. 15A-1340.10.
A sentencing court must take five steps to determine the appropriate sentence for a misdemeanor:
(1) Determine the offense class for each misdemeanor conviction (listed under each offense in this book as “Punishment”)(2) Determine the defendant’s prior conviction level (Table 3)(3) Select a sentence length from the appropriate sentence range (Table 4)(4) Select a sentence disposition (active, intermediate, or community) (Table 4)(5) Consider the appropriateness of restitution (discussed earlier in this chapter)
Except for the special provisions discussed below, the Blakely decision discussed above has no impact on Structured Sentencing for misdemeanors. Under Structured Sentencing, the only enhancing factors that apply in misdemeanor sentencing are prior convictions—factors specifically excluded from Blakely.
The first step in determining the appropriate sentence for a misdemeanor is to identify the misdemeanor’s offense class. There are four classes of misdemeanors under Structured Sentencing: A1, 1, 2, and 3. Punishments increase in severity as you move from a Class 3 misdemeanor up to a Class A1 misdemeanor. For each misdemeanor listed in this book, the class of the offense is indicated under the “Punishment” section of the discussion. For example, “Assault by Pointing a Gun,” discussed in Chapter 7 (Assaults), is a Class A1 misdemeanor.
Some misdemeanor offenses have no classification and no punishment listed in the General Statutes. Under G.S. 14-3(a), those offenses generally are considered Class 1 misdemeanors. Other misdemeanor offenses have a punishment but no classification listed. Under G.S. 14-3(a), those offenses are classified as follows: as a Class 1 misdemeanor if punishable by more than six months imprisonment; as a Class 2 misdemeanor if punishable by more than thirty days but not more than six months imprisonment; and as a Class 3 misdemeanor if punishable by imprisonment of thirty days or less or by a fine only.
As a general rule, conspiracies and attempts are punished one class below the main offense (for example, an attempt to commit a Class 1 misdemeanor is punished as a Class 2 misdemeanor). Solicitation to commit a misdemeanor is a Class 3 misdemeanor. G.S. 14-2.6(b); see “Attempt,”“Solicitation,” and “Conspiracy” in Chapter 5 (General Crimes).
Other provisions increase punishment for misdemeanors. Specifically, unclassified misdemeanors that are infamous, done in secrecy and malice, or done with deceit and intent to defraud are punished as Class H felonies pursuant to G.S. 14-3(b), see “Infamous or related misdemeanor enhancement,” below, and misdemeanors committed because of the victim’s race, color, religion, nationality, or country or origin are punished as either Class 1 misdemeanors or Class H felonies under G.S. 14-3(c), see “Prejudice enhancement,” below.
Prior Conviction Level
The second step in determining the appropriate sentence for a misdemeanor is to determine the defendant’s prior conviction level. A defendant is assigned to one of three prior conviction levels (I through III) based on his or her total number of prior felony and misdemeanor convictions. G.S. 15A-1340.21(b). The three prior conviction levels, and the number of convictions applicable to each level, are indicated in Table 4.
Any conviction, whether a felony or misdemeanor (including driving while impaired and other misdemeanors under Chapter 20 of the North Carolina General Statutes), counts as one conviction. G.S. 15A-1340.21(b). If the defendant was convicted of more than one offense in a single week of superior court or a single session (typically, a day) of district court, only one of the convictions counts. G.S. 15A-1340.21(d). Neither infractions nor juvenile adjudications count.
A prior offense may be counted as a conviction only if the offense is classified as a felony or misdemeanor at the time the defendant committed the current offense. G.S. 15A-1340.21(b). Thus, if an offense had been changed from a misdemeanor to an infraction (for example, speeding 50 mph in a 35 mph zone) when a defendant committed a new misdemeanor, a prior conviction for that offense would not count in misdemeanor sentencing.
Once the class of misdemeanor and prior conviction level are determined, the court must determine the length of any term of imprisonment. (If the court selects a community punishment as the sentence disposition, discussed under the next heading, it may impose a judgment consisting of a fine only; in those circumstances, it would be unnecessary for the court to specify any term of imprisonment.) To determine the length of any term of imprisonment, the court must locate the class of misdemeanor at issue along the left-hand side of Table 4 and the prior conviction level along the top of Table 4. The cell in which the misdemeanor class and prior conviction level intersect shows the possible terms of imprisonment (expressed in days) that the court may impose. The court must select a single term of imprisonment from the range shown in the applicable cell; there are no minimum and maximum terms of imprisonment, as in felony sentencing.
The next step in misdemeanor sentencing is to determine the sentence disposition, which is prescribed in Table 4. Each cell in Table 4 contains a sentence disposition, signified by the letter “A,” “I,” or “C,” or a combination of these letters. See this note under “Felonies,” above, for a discussion of sentence disposition.
Active punishment. If the court imposes an active punishment, the term of imprisonment previously determined by the court must be activated. A defendant’s term of imprisonment may be reduced by earned-time credit up to four days per month of incarceration (awarded by the Department of Correction or the local jail). G.S. 15A-1340.20(d).
When sentencing a defendant for multiple offenses, the court may consolidate sentences or run them concurrently. Subject to certain limitations, the court also may impose consecutive sentences. Unless otherwise specified by the court, sentences run concurrently. If the court consolidates offenses for sentencing, the most serious offense is controlling—the sentence disposition and the term of imprisonment must conform to the Structured Sentencing rules for that offense. G.S. 15A-1340.22(b). If the court imposes consecutive sentences, the length of imprisonment cannot exceed twice the longest term of imprisonment authorized for the class and prior conviction level of the most serious misdemeanor conviction. G.S. 15A-1340.22(a). Consecutive sentences cannot be imposed, however, if all of the convictions are for Class 3 misdemeanors. G.S. 15A-1340.22(a).
A defendant sentenced for a misdemeanor to active punishment of ninety days or less must be committed to a local jail facility, except as provided in G.S. 148-32.1(b). G.S. 15A-1352(a). For sentences imposed on or after January 1, 2012, a defendant sentenced for a misdemeanor (other than impaired driving) that requires confinement of 91 to 180 days shall be committed to confinement pursuant to the Statewide Misdemeanant Confinement program described in G.S. 148-32.1. G.S. 15A-1352(e); S.L. 2011-192. If a misdemeanor sentence or sentences require confinement for more than 180 days, the defendant must be committed to the Department of Correction. G.S. 15A-1352(e).
An active sentence may be imposed for any misdemeanor, even if an active sentence would not otherwise be authorized, if the sentence does not exceed the total amount of time that the defendant has spent in pretrial confinement awaiting trial for that misdemeanor. In effect, a sentence of “credit for time served” may be imposed for any misdemeanor. G.S. 15A-1340.20(c1).
Intermediate punishment. Intermediate punishment for misdemeanors is the same as intermediate punishment for felonies, except for the period of probation. For misdemeanor intermediate punishment, the court is authorized to impose a period of probation ranging from twelve to twenty-four months. G.S. 15A-1343.2(d)(2). The court may depart from this range upon finding that a longer or shorter period is necessary; however, the maximum period may not exceed five years. G.S. 15A-1343.2(d).
Community punishment. Community punishment for misdemeanors is the same as community punishment for felonies, except for the period of probation. For misdemeanor community punishment, the court is authorized to impose a period of probation ranging from six to eighteen months. G.S. 15A-1343.2(d)(1) The court may depart from this range upon finding that a longer or shorter period is necessary, but the maximum period may not exceed five years. G.S. 15A-1343.2(d). A community punishment also may consist of a fine only, without probation. G.S. 15A-1340.23(b).
Fines. The court may impose a fine as part of any disposition, whether active, intermediate, or community. G.S. 15A-1340.23(b). Unless otherwise provided by statute, the maximum fine for each class of misdemeanor is as indicated in Table 4.
The last step in misdemeanor sentencing is to determine the appropriateness of restitution. The restitution requirements in G.S. 15A-1340.34 through 15A-1340.38, discussed earlier in this chapter in connection with felonies, apply equally to misdemeanors.
The main difference with restitution in misdemeanor versus felony cases is that far fewer misdemeanors are subject to the Crime Victims’ Rights Act (CVRA). Only the following misdemeanors are covered:
(1) assault with a deadly weapon, (2) assault inflicting serious injury, (3) assault on a female, (4) simple assault, (5) assault by pointing a gun, (6) domestic criminal trespass, and (7) stalking.
G.S. 15A-830(7)(g). Further, the CVRA applies to the above misdemeanors only if the defendant and victim were in one of six different “personal relationships” described in G.S. 50B-1(b) (for example, as current or former spouses). G.S. 15A-830(7)(g).
Infamous or related misdemeanor enhancement. G.S. 14-3(b) provides that if a person commits a misdemeanor for which no specific punishment is prescribed and the misdemeanor is infamous, done in secrecy and malice, or done with deceit and intent to defraud, punishment is elevated to a Class H felony. The applicable factors that elevate punishment (infamous, done in secrecy and malice, or done with deceit and intent to defraud) must be alleged in the criminal pleading, State v. Bell, 121 N.C. App. 700, 702 (1996); State v. Rambert, 116 N.C. App. 89, 93 (1994), submitted to the jury, and proved beyond a reasonable doubt, unless properly admitted by the defendant, Blakely v. Washington, 542 U.S. 296 (2004).
The group of misdemeanors to which this provision may apply was reduced by implementation of Structured Sentencing. Structured Sentencing provides specific statutory punishments for most offenses, including attempts and solicitations (see the discussion of those offenses in Chapter 5 (General Crimes)). For example, attempted common law robbery (discussed in Chapter 14 (Robbery, Extortion, and Blackmail)) was formerly punished under this statute because it was an infamous misdemeanor, but now that offense is specifically punished as a Class H felony pursuant to G.S. 14-2.5. After Structured Sentencing, this provision applies only to a misdemeanor offense “as to which no specific punishment is prescribed.” This provision would apply only to misdemeanors such as common law obstruction of justice and common law forgery, which have no punishment prescribed by a specific statute. The statute specifically excludes from its coverage conspiracy to commit a misdemeanor. See G.S. 14-3(a) to determine how to classify misdemeanors that were not assigned a classification under Structured Sentencing. See G.S. 14-2.4, 14-2.5, and 14-2.6 for classifications of conspiracies, attempts, and solicitations (all of these offenses are discussed in Chapter 5 (General Crimes)).
The factor that elevates punishment (infamous, done in secrecy and malice, or done with deceit and intent to defraud) must be a necessary element of the underlying offense, rather than a particular circumstance of the individual case. State v. Glidden, 317 N.C. 557 (1986); State v. Hageman, 307 N.C. 1 (1982). An offense is “infamous” if it is an act of depravity, involves moral turpitude, and reveals a heart devoid of social duty and a mind fatally bent on mischief. Glidden, 317 N.C. at 560.
An obstruction of justice indictment properly charged a felony elevated by G.S. 14-3(b) when it alleged that the act was done “with deceit and intent to interfere with justice.” State v. Blount, ___ N.C. App. ___, 703 S.E.2d 921 (2011) (the language “deceit and intent to interfere with justice” adequately put the defendant on notice that the State intended to seek a felony conviction; additionally, the indictment alleged that the defendant acted “feloniously”).
Prejudice enhancement. G.S. 14-3(c) provides that a punishment for a misdemeanor may be increased when the misdemeanor is committed because of the victim’s race, color, religion, nationality, or country of origin. If the underlying offense is a Class 2 or Class 3 misdemeanor, the offense is punishable as a Class 1 misdemeanor. G.S. 14-3(c). If the underlying offense is a Class A1 or Class 1 misdemeanor, the offense is punishable as a Class H felony. Id.
If the applicable factor of prejudice that elevates the punishment elevates punishment from a misdemeanor to a felony, it must be proved to a jury beyond a reasonable doubt, unless properly admitted by the defendant. Blakely v. Washington, 542 U.S. 296 (2004). Note that by statute and case law, similar provisions that elevate punishment for misdemeanors and felonies must be alleged in the criminal pleading. See “Infamous or related misdemeanor enhancement,” immediately above; “Felonies,” “Special Provisions,” above.
Any Class A1, 1, 2, or 3 misdemeanor may be enhanced under this statute. Generally, however, assaults, property offenses, and trespass offenses are likely to be the underlying misdemeanors. A felony offense is not eligible for this kind of enhancement.
To qualify for this enhancement, an offense must be committed because of the victim’s race, color, religion, nationality, or country of origin. The statute applies even if the defendant and the victim are the same race. State v. Brown, ___ N.C. App. ___, 689 S.E.2d 210 (2010) (the defendant, a white male, shot the victim, also a white male, because the victim was in a relationship with an African-American female). “Ethnic Intimidation,” in Chapter 7 (Assaults), applies to assaultive and property damage offenses committed because of the personal characteristics of the victim or another person.
Enhancement for criminal gang activity. G.S. 14-50.22 provides that a person age 15 or older who is convicted of a misdemeanor committed for the benefit of, at the direction of, or in association with any criminal street gang is guilty of an offense that is one class higher than the offense committed. A Class A1 misdemeanor is enhanced to a Class I felony. G.S. 14-50.22. G.S. 14-50.29 provides for a conditional discharge for first offenders under the age of 18 sentenced under the criminal street gang enhancement. For a definition of the term “criminal street gang,” see the note on Element (2) to “Street Gang Activity” in Chapter 19 (Disorderly Conduct, Riot, and Gang Offenses).
Conditional discharge for certain drug offenders. Under G.S. 90-96, as amended by 2011 legislation, S.L. 2011-192, for certain offenders convicted of a misdemeanor under the North Carolina Controlled Substances Act or a felony possession of a controlled substance offense under G.S. 90-95(a)(3), see “Possession of a Controlled Substance” and other drug crimes in Chapter 27 (Drug Offenses), conditional discharge is mandatory.
2014 legislation, S.L. 2014-100, sec. 16C.1, made changes to the place of confinement for misdemeanants.
The evidence was sufficient to establish that the defendant obstructed justice with deceit and intent to defraud where he gave eight different statements to authorities providing an array of scenarios surrounding the victim’s death and identifying four different individuals as the perpetrator and admitted that he had been untruthful to investigators. State v. Cousin, 233 N.C. App. 523, 530–31 (2014).
G.S. 90-96, as amended by S.L. 2017-102, sec. 38, allows for conditional discharge of certain drug convictions in specified circumstances.
1–15 days C if one to three prior convictions
1–15 days C/I if four prior convictions