Under G.S. 15A-1346(b), a sentencing court has the authority to order a probationary sentence to run consecutively to an undischarged term of imprisonment. Probation officers refer to that as a “contingent” sentence, because for them, it is—the start of the probation is contingent on the person’s release from prison. A contingent probationary sentence can be helpful when, for example, a defendant owes a lot of restitution, and the court wants to make sure there’s plenty of time on probation remaining after the defendant finishes any active sentences. To be clear, this is not a matter of whether the suspended term of imprisonment, if revoked, will run concurrently with or consecutively to some other term of imprisonment. This is about when the period of probation itself begins. A recent Court of Appeals decision changes things.
There are two check-boxes on every suspended judgment form (AOC-CR-603E, for example) related to this authority. In the SUSPENSION OF SENTENCE portion of the form, item 3 states
This period of probation shall begin □ when the defendant is released from incarceration □ at the expiration of the sentence in the case below.
If neither option is selected, then by default the probationary sentence begins the day it is imposed, even if the defendant will be in prison serving some other sentence. G.S. 15A-1346(b). The first option is understood to mean that the probation sentence will begin immediately upon the person’s release from prison, even if they will also be on post-release supervision at that point. (The probation and the PRS would just run concurrently.) The second option—“at the expiration of the sentence”—was understood to mean the probation period wouldn’t begin until the entire sentence had expired, including any term of PRS following an active sentence. Let’s call those “super-contingent” sentences, because they made a big difference in the overall time under supervision, especially for a sex offender subject to a 5-year term of PRS. In a case like that, ordering a probation sentence to begin “at the expiration of the sentence” could have resulted in five years of PRS followed by up to 60 months of probation.I’m using the past tense to describe the second option because in State v. Barton, ___ N.C. App. ___, 905 S.E.2d 230 (2024), the Court of Appeals put the kibosh on super-contingent sentences. In Barton, the defendant was convicted of four counts of second-degree sexual exploitation of a minor. The court ordered one active sentence of 25–90 months with three contingent probationary terms set to begin at the expiration of the first sentence. The trial court verbally made clear that the “probation is not going to begin to run until the conclusion of his post-release supervision,” which is five years long for this reportable sex crime. See G.S. 15A-1368.2(c) (“For offenses subject to the registration requirement of Article 27A of Chapter 14 of the General Statutes, the period of post-release supervision is five years.”).
On appeal, the defendant argued that there is no statutory authority to run a probationary period consecutively to a term of PRS—an issue our most devoted readers may remember me flagging in this post from 14 years ago! To the contrary, G.S. 15A-1346(b) only mentions running a probation period consecutively to a “term of imprisonment”; it makes no mention of PRS. The Court of Appeals agreed, concluding that probation and PRS must run concurrently, and that the trial court thus erred by ordering the probation to begin at the conclusion of the PRS. The court invited the General Assembly to “address this issue by statute if it deems our analysis to be contrary to its intent.” Slip op. at 12.
In light of Barton, I’d say you shouldn’t use the second check-box anymore. That’s clear enough as a prospective rule: no more super-contingent sentences.
The Barton rule may also impact a number of defendants already sentenced.
Some of them are in prison, with dormant super-contingent probationary sentences set to follow the PRS term that follows their active sentences. They have a good argument under Barton that they should be resentenced to, at most, regular contingent probation that will begin upon their release from prison.
Some of them are already on PRS, again with probationary sentences set to begin at the conclusion of that PRS term—be it 9, 12, or 60 months. They, too, may be entitled to resentencing to allow their PRS and probation to run concurrently.
Finally, some are already on probation. And those strike me as the trickiest. Arguably, based on what we learned in Barton, their probation should have started immediately upon their release from prison, not when they finished PRS. In those cases, the issue is most likely to arise at a probation violation hearing, with defense counsel arguing that a violation report was not timely filed under G.S. 15A-1344(f), because a probation period that started within the rule of G.S. 15A-1346(b) as correctly understood after Barton would have ended a lot earlier than anyone expected.
It probably makes sense to flag these cases sooner rather than later. Defendants obviously shouldn’t be supervised longer than the law allows. And a proactive review would give the court an opportunity to extend or modify the cases before a Barton argument pulls the jurisdictional rug out from under them at a violation hearing.
