New Rules for Appointment of North Carolina Public Defenders for Class 3 Misdemeanors

As part of the 2013 Appropriations Act, the General Assembly enacted a new punishment scheme for Class 3 misdemeanors, limiting the punishment to a fine for many defendants.  The change applies to offenses committed on or after December 1, 2013.  Specifically marijuana possession under half an ounce is now a fine only offense for many in North Carolina.


In addition to changing the punishment for Class 3 misdemeanors, the 2013 Appropriations Act reclassified some Class 1 and 2 misdemeanors as Class 3 misdemeanors and some Class 3 misdemeanors as infractions.  The punishment for offenses reclassified as Class 3 misdemeanors is likewise limited to a fine for many defendants.

The change in punishment for these Class 3 misdemeanors significantly affects the right to appointed counsel because the right to counsel for misdemeanors depends on the allowable punishment.  So if the punishment is only a fine as it now is for most marijuana possession charges and Driving While License Revoked (DWLR) charges those who cannot afford an attorney in North Carolina will no longer be able to have one provided by the courts.

What is the new rule for Class 3 misdemeanor punishments?

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Effective for offenses committed on or after December 1, 2013, the statute provides: “Unless otherwise provided for a specific offense, the judgment for a person convicted of a Class 3 misdemeanor who has no more than three prior convictions shall consist only of a fine.”

This change means that all defendants in prior conviction level I (no prior convictions) and some defendants in prior conviction level II (one to four prior criminal convictions) are subject to a fine only for a Class 3 misdemeanor unless another statute provides otherwise for the offense.

What effect does the new rule have on appointment of counsel?

As a result of the change, in many cases the defendant will not have the right to appointed counsel. For misdemeanors, a defendant has a Sixth Amendment right to counsel only if an active or suspended sentence of imprisonment is imposed. The formulation of this right has developed over a series of U.S. Supreme Court decisions.

North Carolina law provides indigent criminal defendants with a slightly broader right to counsel. G.S. 7A-451(a)(1) provides for appointed counsel in “[a]ny case in which imprisonment, or a fine of five hundred dollars . . . or more, is likely to be adjudged.” This provision will not come into play for most Class 3 misdemeanors if the defendant has three or fewer prior convictions: under the new punishment scheme for Class 3 misdemeanors, imprisonment is generally impermissible; and under other structured sentencing rules, the maximum fine is usually limited to $200.

Why did the Legislature make this change?

The goal was to reduce the costs of court appointed counsel and to save the taxpayers money for crimes that generally never received jail time to begin with. The General Assembly reduced the indigent defense budget by $2 million per year in light of the change in the punishment scheme for Class 3 misdemeanors and the reclassification of some misdemeanors (like DWLR) as Class 3 misdemeanors. Since there is no possibility of incarceration, these offenses do not require a court appointed lawyer.

Do these changes apply to juveniles?


What punishments are permissible for a Class 3 misdemeanor?

If a defendant has three or fewer prior convictions, the court may impose a fine or, in the rare instance when a statute specifically authorizes it, a greater punishment. In fine-only cases, the usual structured sentencing rules apply, capping the fine at $200 unless another statute provides for a greater fine.  Among the most commonly-charged Class 3 misdemeanors, only one statute (littering) allows a greater punishment.

If a defendant has four or more prior convictions, the court may impose the usual punishments under structured sentencing, including an active or suspended sentence of imprisonment to the extent permissible. The remainder of the discussion in this part concerns Class 3 misdemeanor cases when the defendant has three or fewer prior convictions.

Is a sentence of active or suspended sentence of imprisonment permissible?


No. If the defendant has three or fewer prior convictions (and no statute permits otherwise), the court may not impose jail time or a suspended sentence of imprisonment for a Class 3 misdemeanor.

Are court costs permissible?

The imposition of court costs on conviction remains permissible because it is not a criminal punishment. Court costs are not subject to the punishment limitation for Class 3 misdemeanors.

Is a North Carolina sentence of “credit for time served” permissible?

A sentence of credit for time served is likely permissible for a Class 3 misdemeanor because such a sentence imposes no additional punishment than the time already served before conviction; for an in-custody defendant, the sentence actually terminates confinement. Further, to accommodate this practice, North Carolina’s structured sentencing statutes contain an exception for time served for misdemeanors when an active punishment is not otherwise authorized, allowing imposition of a term of imprisonment “equal to or less than the total amount of time the offender has already spent committed to or in confinement . . . as a result of the charge that culminated in the sentence.”

Is a deferred prosecution arrangement permissible?

Yes. Although a defendant who receives a deferred prosecution may be placed on probation, with conditions, the arrangement is not part of a judgment and sentence, which would be deferred per the agreement with the Wake County District Attorney. If the defendant violates the terms of the arrangement, the State may resume the prosecution. If the defendant is later convicted, the court then would have to sentence the defendant with the fine-only restrictions in new G.S. 15A-1340.23(d).

Is the conditional discharge procedure in G.S. 90-96 permissible?

Yes, for reasons similar to the reasons discussed in the preceding question about deferred prosecutions. A defendant who receives a conditional discharge under G.S. 90-96—for example, for a Class 3 misdemeanor possession of marijuana offense—is placed on probation without entry of judgment or sentence. If the defendant violates the terms of the arrangement, the court then would have to impose a sentence consistent with the fine-only provisions in new G.S. 15A-1340.23(d).

How should prior convictions be counted?

Prior convictions should probably be counted according to the usual structured sentencing rules—that is, multiple convictions count as one conviction if from the same session of district court (usually, one day) or the same week of superior court. See G.S. 15A-1340.21(d). The reason is that the new punishment limitation for Class 3 misdemeanors is located in G.S. 15A-1340.23, the statute containing the table of prior conviction levels for misdemeanor sentencing, to which the prior-conviction counting rule in G.S. 15A‐1340.21(d) clearly applies.

Is a waiver of counsel required in Class 3 misdemeanor cases in which a person is subject to a fine only?

No. A waiver of counsel is not required because the person is not entitled to have counsel appointed.

Is a waiver of retained counsel required in such cases?

No. If a defendant does not have a right to appointed counsel, the court need not obtain a waiver of retained counsel.

To obtain a conviction of the Class 1 misdemeanor version of DWLR, must the State allege and prove that the DWLR was based on an impaired driving revocation?

Yes. The General Assembly has created two DWLR offenses: one based on an impaired driving revocation, a Class 1 misdemeanor; and the other based on any other revocation, a Class 3 misdemeanor. Although the two appear in the same statute, G.S. 20-28(a), they are separate offenses. If the State wants to prosecute the Class 1 misdemeanor offense, it must allege in the charging document and prove at trial beyond a reasonable doubt all the elements of the offense, including the impaired driving revocation. If the State of North Carolina fails to allege the impaired driving revocation in the charging document, the court’s jurisdiction is limited to the general Class 3 misdemeanor version of DWLR, which is subject to the fine-only provisions in new G.S. 15A-1340.23(d).

May the court appoint counsel if the defendant is arrested on a Class 3 misdemeanor and cannot make bond?

Yes. Whether detained before trial or after conviction, an inmate has a due process right to meaningful access to the courts.

Is a person statutorily entitled to counsel if he or she is charged with a North Carolina infraction that carries a penalty of $500 or more?

No. The statutory right to counsel applies to criminal cases carrying a fine of $500 or more. An infraction is a noncriminal violation of law. G.S.

Is a person entitled to counsel because of the collateral consequences of a Class 3 misdemeanor?

Under the current state of the law in North Carolina, no. Some state courts have suggested that their state constitutions may require appointment of counsel because of the collateral consequences that attach to a criminal conviction, which can have a serious and longstanding impact

If the court imposes a fine only, may the court impose a sentence of imprisonment for failure to pay that fine?

The law is unsettled on this count.

May a fine be docketed and collected as a civil judgment?

Yes. The Legislature continues to authorize that procedure if the court finds the defendant has defaulted in payment.

Is a person’s license to drive subject to revocation for failing to pay a fine for a motor vehicle offense?

Yes. G.S. 20-24.1 continues to require revocation of a person’s license to drive for failing to pay a fine for a motor vehicle offense.

If the defendant was not afforded counsel when convicted of a fine-only misdemeanor, may the conviction be used to enhance the defendant’s sentence for a later offense?

Yes. An uncounseled misdemeanor conviction, valid because no term of imprisonment was imposed, may later be used to enhance a sentence for a subsequent offense. 


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Wiley Nickel

Wiley Nickel lives and works in Cary, North Carolina. In 1998, he graduated from Tulane University with a major in Political Science and a minor in History. After college Wiley went to work for Al Gore and travelled with the Vice President as part of his national advance staff. Following the Gore campaign he earned his law degree from the Pepperdine University School of Law in 2005. While in law school Wiley worked as a law clerk in the Ventura County District Attorney’s Office where he gained valuable criminal trial experience before taking and passing the California bar exam. His first job out of law school was for the Merced County District Attorney’s Office where he worked as a Deputy District Attorney with a focus on prosecuting DWI offenders. Wiley later joined the Law Offices of Joseph Uremovic where he focused on civil litigation and family law. When the opportunity came to join the Obama campaign in 2008 Wiley jumped at the chance. He spent three years travelling with President Obama as a member of his national advance team. In 2011 Wiley left his work for the White House to return to the practice of law. Wiley devotes the majority of his practice to the areas of criminal law, family law, traffic tickets and DMV issues. The Law Offices of Wiley Nickel was started with the goal of providing the best representation possible for all of his clients. Experienced, Compassionate, Aggressive Criminal Defense While defense attorney Wiley Nickel works as the primary attorney for all of his cases, he does have an associate attorney, a team of investigators, forensic consultants, and support staff to call on to help achieve the best possible result in every case. He limits his case load so that he can focus on providing the best possible legal defense to all of his clients. Every case is a top priority and the goal is to have your case dismissed with a focus on being able to expunge your charges at the end of the process. When he is not working, Wiley is an avid family man, distance runner and golfer. He loves North Carolina college sports and is hoping this is the year for Cam Newton and the Carolina Panthers. Wiley is licensed to practice law in North Carolina and California.