Another Jail Credit Issue: The Charge that Culminated in the Sentence

Last week I wrote a post about “using up” jail credit that generated some helpful comments. Thanks! I’m hoping for a repeat performance with today’s post, which is about another jail credit issue. A defendant must receive credit for all the time he or she is confined “as a result of the charge that culminated in the sentence.” G.S. 15-196.1. What is the charge that culminates in the sentence? Clearly when a defendant is charged with, confined for, and eventually sentenced on a single charge, that is the charge that culminates in the sentence, and it must receive all applicable credit. It is likewise clear that when a person is held on one charge but convicted of an entirely separate charge, the credit from the first charge cannot be applied toward the sentence on the other. In other words, credit accrued against one charge cannot be shared with some contemporaneous charge, or banked for some future charge. That is true even if the charges are transactionally related. In State v. Floyd, 173 N.C. App. 234 (2005) (unpublished), for example, the defendant was initially charged with first-degree murder. Forty-five days later, and still in custody on the murder charge, she was indicated for an armed robbery that arose out of the same incident as the murder charge. After 91 additional days in custody she pled guilty to the armed robbery and the murder charge was dismissed. The trial court applied 91 days of jail credit to the robbery conviction. The court of appeals rejected the defendant’s request for credit for the first 45 days of confinement, as that confinement was only for the murder charge, which did not culminate in a sentence. What about a credit accrued on an initial charge by a defendant who is ultimately convicted of a lesser offense for the same behavior? For example, a first-degree rape charge that is pled to second-degree rape. If no superseding charging instrument is necessary, either because the conviction offense is a lesser included offense of the initial charge or because both may be charged using the same short-form indictment, it would seem that any credit accrued on the original charge must be applied. The original charge is the only charge, and is thus the charge that culminated in the sentence. If the crime of conviction is a different but not lesser-included offense of the initial charge (a rape pled to indecent liberties, for example) I think the practice varies. To the extent that some new charging instrument is necessary, the original charge is not the charge that culminates in the sentence, and any credit accrued against it would not apply under the literal language of G.S. 15-196.1. Nevertheless, my sense is that some read “charge that culminated” broadly enough to encompass the full life cycle of the charge, including any reduced charge for the same behavior. In some states that broader, behavior-based approach is required by law. Maryland, for example, has a statute that requires credit for all time in custody because of the charge for which the sentence is imposed or “the conduct on which the charge is based.” Md. Code Ann. § 6-218(b)(1) (2013). In fact, Maryland’s law goes further, allowing judges to apply credit against a sentence for time spent in custody for another charge or crime, and requiring judges to credit any time in custody on a charge that resulted in a dismissal or acquittal against any sentence that is based on a charge for which a warrant or commitment was filed during that custody (like the first 45 days of confinement in the Floyd case described above). Id. § 6-218(b)(3) and (b)(2). The purpose of that latter provision is to eliminate “dead time”—i.e., time spent in custody that would not otherwise be credited to a valid sentence. See Fleeger v. State, 482 A.2d 490, 495 (Md. 1984) (“Simply stated, we believe that no legitimate legislative policy is advanced by maximizing dead time or by withholding credit . . . .”). Though we have no such statutes in North Carolina, appellate courts have sometimes taken a broad view of what credit must be applied to a charge. In State v. Meadows, 272 N.C. 327 (1968), for example, a defendant pled guilty to assault for shooting a victim. When the victim later died, the defendant was charged with murder. When he was convicted of manslaughter, the issue arose as to whether he was entitled to credit toward the murder sentence for the time spent imprisoned on the assault. In that “anomalous situation,” the supreme court concluded “in the exercise of its general supervision and control over the proceedings of the other courts,” that the defendant should receive credit. Though decided before the enactment of G.S. 15-196.1, the case can be read to support a behavior-based view of credit. Another case worth noting is Williams v. Hayes, 846 F.2d 6 (4th Cir. 1988), which suggests that charges should not be manipulated in a way that intentionally deprives a defendant of credit. In Williams, the defendant had been arrested on two charges: Charge 1, a common law robbery for which he wound up with no jail credit, and Charge 2, an armed robbery for which he had 139 days of credit. Ultimately the defendant pled guilty to two counts of common law robbery, receiving a 10-year sentence for Charge 1 and a concurrent 3-year sentence for Charge 2. By giving the shorter sentence to what began as the more serious charge, and then applying the jail credit to that sentence, the court effectively deprived the defendant of the credit altogether, because the shortened 3 year sentence was swallowed by the uncredited 10-year term. Holding that this ran afoul of “common sense and fundamental fairness,” the Fourth Circuit granted habeas relief and instructed the trial court to apply the credit to the longer sentence. Once again, I would value your comments on how this issue plays out in practice, especially when it comes to plea negotiations.