How is a Felony Charge Processed in North Carolina?
In North Carolina, a felony is any crime that is classified as such under the laws of the State. Felonies are, by nature, more serious (and therefore more severely punished) than misdemeanors, although there does exist the potential for classification and treatment of certain misdemeanors as felonies in certain cases. The distinction between the two classifications rests largely upon the potential punishment involvement. Traditionally, felonies involved punishments like prison terms whereas misdemeanors were punished by things like jail terms, probation, and other less serious punishments. Felony indictments in North Carolina are far more common than most people think: the laws of the State dictate the prosecutorial charging decision, which usually results in massive numbers of felony indictments every year. In fact, felony charges are far and away the most common criminal charge in North Carolina.
The North Carolina General Assembly has enacted numerous statutes on the books that classify various crimes as felonies. These statutes dictate the general classification scheme, which assigns crime a level of severity (from class A up to class I) and enshrined various former felonies as misdemeanors upon conviction of the defendant for certain other crimes. North Carolina has also introduced new felonies , such as felony habitual driving while impaired charges, as people began to realize that the clearly limited punishments for repeated DWI offenders were inadequate to protect the citizens of the State.
One of the reasons for the concern surrounding felonies is that the traditionally severe punishments associated with felony convictions, particularly the prison terms, have become de rigeur. While charging theory traditionally dictated that felony indictments be reserved for the most severe crimes, recent decades have seen a greater interest in comparing potential charges and determining the best possible charging decision based on the punishment levels required. As a result, a higher percentage of crimes now see felony indictments in North Carolina than ever before.
It is vital for defendants to be cognizant of this fact and to not be overwhelmed by it. As noted above, felony indictments are now far more common than they once were. However, that does not mean that there is something intrinsically alarming about a felony court appearance. It more likely means simply that people have a much better chance of avoiding being killed by drunk drivers than they once did, and that the laws of the State reflect this most important social change.
Initial Appearance and Arrest
Arrest is required before anyone can be prosecuted and convicted of a crime. Most people are arrested after a law enforcement officer or officers come to the scene of a crime and place the person into custody. In that event, the clerk of Superior Court must conduct a first appearance hearing for the accused (called the "defendant" in court) as soon as possible but no later than 96 hours after being placed under arrest.
To facilitate the timely first appearance, the arresting officer usually takes the defendant before a magistrate after the arrest where the magistrate will determine whether the defendant qualifies for release from custody, and if so set the amount of bail. The defendant is usually placed in a county detention center, and since all local detention centers have magistrate’s offices, the defendant is promptly seen by the magistrate who usually finds the defendant to be indigent, and thus no bail is ordered.
The defendant also has the right to have an attorney appointed to represent him or her. If the defendant is financially unable to employ counsel, then the magistrate must appoint the public defender or another member of the bar in the county where the defendant is being held. A listed of local attorneys who are willing to take such defendants may be referred to the trial court administrator for the district where the offense is charged or the magistrate may appoint the public defender directly.
If bail is set and paid, or if the defendant is not indigent and engages counsel to represent him or her, the clerk will conduct an initial appearance hearing as soon as possible and normally not more than 7 days after the defendant has been placed in custody. It occurs at a regularly scheduled session of the district court and the defendant is entitled to have a court-appointed attorney present during the hearing. The defendant must appear personally unless the defendant has waived this right. At the hearing, the defendant is given a copy of the charges, is advised of his or her rights, the maximum and minimum punishment that is allowable for each crime charged and is asked how the defendant wishes to plead to the charges. If the defendant is represented by counsel at the hearing, the defendant need not personally enter a plea. In some instances, the defendant will begin to negotiate a plea deal with the prosecutor before or during the initial appearance hearing. The defendant has the right to have bail reviewed by the judge and if he does not do so at this hearing it must be done within 72 hours of the initial appearance. The public defender, if appointed, may investigate and get the facts and circumstances of the case to begin representing the defendant.
Preliminary Hearing and Grand Jury Indictment
The preliminary hearing in the District Court is not as often used as it once was, although it still serves a critical function for individuals charged by a law enforcement officer’s appearance and sworn statement. A District Court judge hears evidence to determine if the charges should be bound over to the Superior Court for trial. The judge must find probable cause to believe a crime was committed and that the defendant committed it. If the District Court judge finds the evidence is probable cause, then the case is sent up to Superior Court where one would likely have the indictment process as outlined below. If the District Court judge finds no probable cause, then the charges are dismissed. There is no appellate review from a District Court Judge’s determination that the charges are supported and probable cause exists. Most defendants will choose to have the judge hear evidence. If there is an indiction of the burden of proof being met with no evidence presented that would create a reasonable doubt, it is most likely the District Court judge will find probable cause exists. The judge may also defer to grand jury indictments and find there is probable cause.
A grand jury is composed of 18 citizens of the county who will spend about one day (8:30-4) reviewing cases in the District Court, hearing testimony from state’s witnesses under oath and determining whether probable cause exists and whether or not to charge the defendant. The grand jury is composed of "everyday" citizens in order to ensure that the jury pool for the superior court (the one that actually decides the case) comes from individuals not "tainted" by the facts of each particular case. If the grand jury hears testimony about a case and issues an indictment, it is highly unlikely that the same individuals would comprise the panel of jurors to hear a trial for that same defendant.
The grand jury is required to be a reflection of the community so the selection process is of critical importance. In Wake County, for example, the grand jury is selected at random from the pool of registered voters. The deputy court clerk in Charlotte removes from the list all persons who do not reside in the county, have not voted already, have not attended prior court service, are not ineligible, or have not asked to be excused. The citizens before the Grand Jury are not removed by the judge but by the clerks. In criminal matters the court clerk will select at random 15 persons from those who appear. The fifteen selected will be assigned to the grand jury for one month. Twelve persons will be chosen to deliberate. The additional three must be available to replace regular jurors if someone is disqualified. One or two alternates may also be chosen for each grand jury. In Buncombe County, for instance, the lists are compiled by the Clerk of along with the jury coordinator officer. The lists are formed by taking a sample of at least 100 names from the voter registration list. The sampling may be drawn at random by computer from lists of registered voters in the county. The names of persons holding an occupational license are not excluded from the pool. Although these individuals are excused from jury service, they are still eligible to serve on the Grand Jury. Prospective jurors summoned to appear before the Grand Jury are given a disqualification questionnaire to be returned by mail before appearing. Included may be a list of reasons on which, if applicable, the prospective juror seeks to be excused or disqualified. Prospective jurors are questioned under oath before the Grand Jury regarding their responses to the questionnaire.
Once the Grand Jury has been impaneled by the Clerk, all subsequent proceedings are conducted as directed by the presiding Superior Court Judge. The Grand Jury generally hears only one witness per day thereby allowing sufficient time for thorough examination of that one witness. Normally the prosecuting attorney presents the case for the State and it is the practice of the Grand Jury to hear only the prosecuting attorney. In limited circumstances, however, the Grand Jury will allow the defendant to testify. The defendant’s attorney may be present, but only the Grand Jury and the defendant may be present in the room. The District Attorney, however, is not obligated to present all charges to the Grand Jury and may elect to proceed by criminal summons, an information, or an indictment. The Grand Jury hears only felony cases with the exception of those felonies to be tried in the District Court. The time required to empanel the Grand Jury sometimes prevents the immediate disposition of District Court cases. If the charges are supported and probable cause existed to support Felony charges, the case will go to Superior Court on an indictment. If the charges did not exist and evidence presented strongly suggested innocence, the charges are dismissed. If the Grand Jury requested to hear a particular witness or gather additional evidence, they may issue a True Bill or a Bill of Information which is not a true bill. It is then up to the District Attorney to decide how they wish to proceed.
Arraignment and Plea Bargain Negotiation
The Arraignment – Reading of the Charges & Copy of the Indictment
After the Grand Jury has indicted a person, and after they’ve received a "first appearance" notice from the District Attorney’s office to come to court, they usually get an attorney before their "arraignment" date. (NC’s criminal system is so overburdened that they usually don’t pursue felony indictment warrants unless they intend to prosecute them).
During this "first appearance", the Judge will tell them the charges they’re facing, and what their rights are in Court. Often times, even though the person has already received notice from the District Attorney’s office, they fail to remember to get an attorney for the arraignment date and ask the judge for a court appointed lawyer, or time to confer with an appointed attorney.
The next part that most people don’t realize is that "arraignment" includes the reading of the actual NOA, which is the motion the DA made to the Grand Jury which requested that they return "True Bills" for the person charged in the warrant. The actual Bill of Indictment is proof that the Grand Jury agreed with the DA, and they have "indicted" the defendant. This document is called a "True Bill of Indictment", and the judge is required by NC law to inform the defendant of the specific charges against them, including the date on which the alleged offense occurred according to the NOA.
Additionally, it is mandatory under NC law for the Judge to inform the defendant of their legal rights at this stage, including that they have a right to plead "not guilty" and request a "jury trial" for certain felony cases. Additionally, the Judge will inform them that if they do not go to trial, AND they do not plead guilty, that the judge may commit them to custody until the "trial setting" court date. They are also informed that they have the right to appear at the "trial setting" docket, AND they also have the right not to appear, in which case, the State will then proceed to give notice of "sentencing".
"Plea Bargains"
If the defendant is represented by an attorney at "arraignment", they may enter a "plea bargain" at this time. A "plea bargain" is an agreement between the defendant and the DA that they will either be sentenced to a certain punishment for the criminal charge(s) in exchange for their guilty plea to the charges and cooperation with the State. For example, the defendant may agree to plead guilty, but be sentenced to probation instead of spending time in prison. In exchange, the defendant agrees to testify against co-defendants, speak to NC Legislative bodies on behalf of the charges and their cooperation, etc. Additionally, attorney’s for the defendant may actually speak to the DA’s office in advance of the arraignment date, and work out the terms of a "plea bargain" in advance of arraignment. If the defendant is not represented by an attorney, and has a "plea bargain" to offer, the DA may agree to wait on the arraignment until they can verify the defendant’s representation.
Motions and Discovery Before Trial
Before a trial begins, the defense may file a variety of pre-trial motions, from motions to reduce a bond to motions to move the trial to another county. Sometimes, these pre-trial motions are resolved through a hearing or by an agreement between the parties, such as when the defense is allowed to withdraw a motion or they agree to jury instructions, and sometimes there is no resolution until the pre-trial motions hearing.
A common motion that is filed in felony cases is a motion to suppress, which targets the introduction of evidence at the trial. The most frequent basis to suppress evidence is an illegal search and seizure, but there are numerous other bases for suppressing evidence, so this is definitely not an all-inclusive list. Sometimes the evidence that the defense wants to suppress does not come from an illegal search and seizure. For example, in some felony cases, the defense may want to suppress evidence of the defendant’s pre-arrest silence. If the intention of the answer was to "bridge a gap in the prosecution’s case" and the answer "would probably be exculpatory if the statement were extemporaneous," then the defendant’s silence should not be used against him or her. The defense may also want to suppress evidence of a pre-arrest confession. For example, a defendant had made a statement to law enforcement officers while in a car, in violation of his Miranda rights, so all of his statements made to law enforcement officers relating to the offenses at issue were suppressed. The defendant’s voluntary statements made to the victim were not suppressed. Trial courts conduct a pre-trial hearing when a motion to suppress is made. The defense will call witnesses to testify at this hearing, and the standard is beyond a reasonable doubt (as it is at trial) that the evidence should be suppressed.
Another common pre-trial motion is a motion in limine, which requests that certain evidence not be introduced at trial without further objection from the defense. For example, if an overarching concern is that the defendant’s prior criminal history may be brought up at trial if the defendant testifies in his or her own defense, the defense attorney will file a pre-trial motion in limine to keep the prosecutor from bringing up those prior charges in front of the jury without first notifying the judge and outside the presence of the jury. The in limine ruling will not be appealed, since it is not a final ruling, so if the prosecutor violates the ruling, the defense will need to object when the question is asked in front of the jury, object to the admission of the evidence, and make a motion to strike for the violation of the court’s order. Another common motion in limine is one that attempts to keep the prosecutor from arguing in closing that the defendant was present at the crime scene at the relevant time, but was located in another county. Of course, the prosecutor is prohibited under the Rules of Evidence from making any arguments in closing that are not supported by the evidence, so the court may reserve its ruling on this motion in limine until the close of the State’s case, since the court needs to know what the evidence is in order to rule on the motion. In the meantime, the defense attorney will need to prepare the jury’s verdict sheet so that they are prepared if the court does not rule prior to the close of the State’s case.
Trial Process and Sentencing
If your case proceeds to trial – not every felony case goes to trial; attorneys usually work tirelessly to reach resolution before reaching trial – you will have the right to hear the charges against you read out loud in open court before a judge. You will also hear elements of the state’s evidence, which is helpful if you are not sure what accusations a prosecutor is making against you. As the first phase of the trial, evidence is presented according to established rules and procedures. The prosecution, which is your legal opponent and is trying to make the case for a felony conviction , ends its case and rests. The defense then rests, and the judge charges the jury for the final time. Closing arguments are presented, and the jury heads to deliberation. A few quick facts: If the jury reaches a verdict and you are found guilty, you will return to court sometime within a two-week period to learn what your sentence will be and if a fine will accompany that sentence. As noted above, your felony charge comes with a range of punishment. Sentencing is the process of the state determining punishment after a conviction.
Appeals and Post-Conviction
After a conviction, the next step is determining if the case will be appealed. A defendant has the right to an appeal to the North Carolina Court of Appeals or the North Carolina Supreme Court if the case either meets jurisdictional requirements set out in the North Carolina Rules of Appellate Procedure, or the Rules allow for a right of appeal without certification to appeal. The North Carolina Supreme Court has been called the "court of last resort," but both courts hear appeals from either the District Court level (in Criminal District Court or General Court of Justice), or the Superior Court level (in Criminal or Civil Superior Court). A notice of appeal must be filed within 14 days from the entry of judgment at the trial level, which can be either oral (i.e., if no signed paper judgment is entered within the 14 days, a spoken announcement of the judgment at the courthouse is sufficient) or written.
There may also be post-conviction motions filed that declare one or more judicial errors that require a new trial. These can be motions for appropriate relief (see below), a motion for a new trial, or a motion for relief from judgment. The tactical decision of filing such motions may hinge on the attorney’s belief of what the trial judge would have to say about certain issues, as opposed to leaving the decision up to an appeals judge. To take one typical example, the defense may seek a retrial based on newly discovered evidence that was not known until after a conviction. However, because of the requirement that the new evidence could not have been discovered with reasonable diligence before the trial date, the trial judge may only be willing to grant a retrial if the newly discovered evidence in question is really compelling.
Speaking of newly discovered evidence, the long-standing availability of post-conviction motions has been both a blessing and a curse. It is a blessing because anyone convicted after a trial is entitled to file such a motion to ask the judge to reconsider the conviction using information that wasn’t available until after the trial was over. But it is also a curse because such motions used to be available even years after a conviction (as opposed to an immediate appeal) – a situation that understandably created resentment among the public, especially when it seemed that convicted murderers were being offered a second bite at the apple. As a result, the General Assembly passed legislation in 2007 to limit the time period within which a defendant could seek a post-conviction remedy. A trial court now has jurisdiction to grant a motion for appropriate relief only when it is filed within six months after the later of: (1) final disposition of the person’s direct appeal in the Supreme Court or the United States Supreme Court; or (2) the time for filing a certiorari petition in the Supreme Court or the United States Supreme Court. (A defendant also has the option of filing a motion for appropriate relief any time during the first ten years of imprisonment if the motion raises questions about the validity of the sentence, a sentence in a capital case, or challenges an expunction of a conviction.)
There are also other methods of extricating an imprisoned defendant from conviction, such as an action for coram nobis (when the investigative discovery was in one county while the underlying judgment was rendered in another county), an action for audita querela (a complaint seeking affirmative relief due to infirmities that do not appear on the face of the judgment), a writ of habeas corpus (which is filed in the Court of Appeals), or a petition for escape, or to discharge, or for the award of a new trial (which is filed directly in the Supreme Court).
Felony Conviction Consequences
Whether it is your first felony or just one more on a long list of prior convictions, the consequences of having found to be guilty of a North Carolina felony are significant. As long as you have experienced legal counsel, you should have been advised of these penalties prior to pleading guilty or being found guilty following a trial.
First, there are numerous legal limitations placed on one with a felony conviction. A convicted felon is not allowed to own firearms, and cannot have firearms in their possession. It is important to remember, whether you are a student or working with the state government, a felony conviction prohibits your employment or your ability to obtain a security clearance.
Financial institutions may be willing to lend to someone who has a felony, but only in limited circumstances. Additionally, some professional organizations will allow the convicted felon to continue in their profession, unless there was specific misconduct involved in the felony conviction. For example, if you were guilty of larceny, your professional license may be in jeopardy, as that could involve dishonesty. Sidestepping what may be long periods of probation or supervised probation for a new conviction is essential, but you may also require an expungement if you are to ever work again in that profession.
If this is not your first felony, you are likely facing a more difficult situation. Each additional felony conviction creates a significant bump in your prior record level. A level C felony, such as a sale of heroin where there was a minor under the age of 18 involved, is a class D felony with a minimum sentence with 9 months, if you are very good at your job and work hard to get up to a prior conviction level. When an individual has multiple felonies on their criminal history, this procedure can be very frustrating and time-consuming.
One other aspect of felony convictions that make them so serious is the possibility of jail time, and how they can affect your freedom. Any class of felony from B1 up and any level of felony where a victim was not uninjured is a class C felony. These felony convictions will require a person to serve a minimum of 12 months. Additionally, felonies with aggravated circumstances that fall under Level 6, 7, or 8 are all Class E felonies and none will require the person to serve a minimum 12 months, however, if the individual has a prior felony conviction the court will have the discretion to punish them seriously.
Many of these circumstances come with a recommendation for community punishment, however be careful of things like community service, home detention and special probation. A mistake in those areas can lead to a sentence of 120 days to 8 months in jail, so you need to be on guard. Long and short, you want to be as far away from the long end of the sentence as you can. You need to remember that your felony charge has forgotten the good in you, and knows only the bad. It is important that you remember all of the good things you have done, and all the good in you and convince the judge you are truly more than the sum of your worst mistakes.
Where to Find an Attorney
Regardless of where you find yourself on the legal spectrum, from a pre-trial related to felony drug charges to lengthy imprisonment with the possibility of parole, the most important factor in determining the outcome of your situation will be the legal representation you choose. If you weren’t aware, North Carolina provides for mandatory lawyer appointment for indigent defendants. Anyone charged with a felony crime who falls below 200 percent of the poverty level have the right to attorney representation at state expense. However, if you are in a financial situation where you can choose your legal representation, you should strongly consider how long your lawyer has been practicing criminal law .
With the recent upturn in felonious crimes across the country, more and more people with previous charges or convictions are being arrested. This over running of the legal system, coupled with the lack of funding in our NC courts, has directly resulted in the neglect of felony drug court procedures.
Holding the courts responsible for inadequately representing you will not benefit your case any, but being aware of the court’s time constraints is important if you are facing serious felony charges in NC. Rather than depending on appointed counsel, who may have very limited experience, you need to put your trust in a team of criminal lawyers who know the ins and outs of the law.