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The case is State v. Spry, ___ N.C. App. ___, 911 S.E.2d 745 (2025). The facts of the case stem from a robbery that happened in 2006. The defendant ultimately pled guilty to common law robbery, second-degree kidnapping, and attempted second-degree kidnapping. The kidnappings involved victims under the age of 16, but the trial court didn’t note that on the original judgment in 2007. The Department of Correction sent an auditing letter asking for clarification, because a kidnapping of a minor requires sex offender registration. G.S. 14-208.6(1m). The trial court—without any notice to the defendant and outside his presence—modified the judgment, checking the box indicating that the victims were minors. The amended judgment triggered sex offender registration, which in turn triggered the requirement for a five-year term of post-release supervision. Under the law that existed at that time (pre-2011), there was no increased maximum term of imprisonment for Class B1–E sex offenders, just a requirement for a longer term of supervision in the community (that’s been the law since 1996).

So, what the defendant wound up with was a 25–39 month sentence that carried five years of post-release supervision, during which he would have nine months of possible imprisonment hanging over his head (that was before 2011, when the extra time built into the maximum for Class B1–E felonies was increased from nine to twelve months). I’m sorry this is so complicated—the important thing for our purposes today is that the defendant had a very long period of post-release supervision lurking, he hadn’t been advised about it, and it was in no way obvious from the face of the judgment itself.

Fast forward to 2022. At that point, the defendant was petitioning for removal from the sex offender registry. As part of that process, he filed a motion for appropriate relief arguing that the “corrected” judgment entered 16 years earlier violated his constitutional right to a knowing and voluntary plea. The trial court denied the motion, concluding among other things that sex offender registration was a collateral consequence that didn’t affect the voluntariness of the defendant’s plea.

On appeal, the defendant argued the knowing and voluntary plea issue. Following precedent from the majority of other states to have considered the issue, the Court of Appeals agreed with the trial court that sex offender registration was a collateral consequence of the defendant’s guilty plea and not a direct consequence. Therefore, the trial court did not violate the defendant’s right to a knowing and voluntary plea by requiring registration without first informing the defendant about it.

As to the extended post-release supervision issue, however, the appellate court reached a different result. The court noted that the defendant was “not admonished that he would be subject to registration requirements or the lengthier 5 years of PRS and its much more onerous conditions of supervision.” The court noted that even though G.S. 15A-1022 does not mention PRS, the courts of other states (New York, New Jersey, and Kansas) have held that a failure to advise a defendant about a mandatory term of PRS renders a plea involuntary. (I discussed the New York cases in this prior post from 2015.)

With those cases in mind, and in light of State v. Bozeman, 115 N.C. App. 658, 661 (1994) (a defendant must be advised of the direct consequences of his or her plea, which are those that have a “definite, immediate and largely automatic effect on the range of the defendant’s punishment”), the court of appeals concluded that five-year post release supervision was a direct consequence of the defendant’s plea, and that the trial court thus violated the defendant’s right to make a knowing and voluntary plea by failing to advise him about the lengthier term of PRS.  (The court also said the defendant wound up serving an additional four years in prison because of the later addition of sex offender status, but that doesn’t make sense to me. For crimes of that vintage, the five-year period of PRS applies, but there is no additional time built into the maximum term of imprisonment for offenses committed before December 1, 2011.)

Mr. Spry is certainly not the only defendant who wasn’t advised of a five-year term of post-release supervision for a crime requiring sex offender registration. In his case, that consequence was especially opaque: it wasn’t included in the judgment at all at the original sentencing, and then it was “fixed” by a correction made outside of his presence. But the same general issue comes up any time a court advises a defendant on a guilty plea for a crime requiring registration—especially today’s Class F–I felonies (like indecent liberties), that get five years of PRS but have only 9 extra months of imprisonment built into the maximum sentence.

The Supreme Court of North Carolina allowed a temporary stay in Spry. 911 S.E.2d 489 (2024) (mem.). So it’s possible things could change. In the meantime, the safer practice would appear to be for a trial court to advise the defendant about both the maximum term of imprisonment and any related term of PRS. The issue is most acute when we’re talking about five-year sex offender PRS that goes beyond the nine-month term of additional imprisonment underlying it, but if PRS generally is a direct consequence, it would seem that any PRS period ought to be mentioned when advising a defendant about the consequences of a guilty plea. If the failure to do so turns out to be a constitutional problem, a lot of prior guilty pleas will be challenged.

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The case is State v. Spry, ___ N.C. App. ___, 911 S.E.2d 745 (2025). The facts of the case stem from a robbery that happened in 2006. The defendant ultimately pled guilty to common law robbery, second-degree kidnapping, and attempted second-degree kidnapping. The kidnappings involved victims under the age of 16, but the trial court didn’t note that on the original judgment in 2007. The Department of Correction sent an auditing letter asking for clarification, because the kidnapping of a minor requires sex offender registration. G.S. 14-208.6(1m). The trial court—without any notice to the defendant and outside his presence—modified the judgment, checking the box indicating that the victims were minors. The amended judgment triggered sex offender registration, which in turn triggered the requirement for a 5-year term of post-release supervision. Under the law that existed at that time (pre-2011), there was no increased maximum term of imprisonment for Class B1–E sex offenders, just a requirement for a longer term of supervision in the community (that’s been the law since 1996).

So, what the defendant wound up with was a 25–39 month sentence that carried five years of post-release supervision, during which he would have nine months of possible imprisonment hanging over his head (that was before 2011, when the extra time built into the maximum for Class B1–E felonies was increased from 9 to 12 months). I’m sorry this is so complicated—the important thing for our purposes today is that the defendant had a very long period of post-release supervision lurking, he hadn’t been advised about it, and it was in no way obvious from the face of the judgment itself.

Fast forward to 2022. At that point, the defendant was petitioning for removal from the sex offender registry. As part of that process, he filed a motion for appropriate relief arguing that the “corrected” judgment entered 16 years earlier violated his constitutional right to a knowing and voluntary plea. The trial court denied the motion, concluding among other things that sex offender registration was a collateral consequence that didn’t affect the voluntariness of the defendant’s plea.

The defendant appealed, arguing the knowing and voluntary plea issue as to sex offender registration and the requirement for post-release supervision.

Following precedent from the majority of other states to have considered the issue, the Court of Appeals agreed with the trial court that sex offender registration was a collateral consequence of the defendant’s guilty plea, not a direct consequence. Therefore, the trial court did not violate the defendant’s right to a knowing and voluntary plea by requiring registration without first informing the defendant about it.

As to the extended post-release supervision, however, the appellate court reached a different result. The court noted that the defendant was “not admonished that he would be subject to registration requirements or the lengthier 5 years PRS and its much more onerous conditions of supervision.” The court noted that even though G.S. 15A-1022 does not mention PRS, the courts of other states (New York, New Jersey, and Kansas) have held that a failure to advise a defendant about a mandatory term of PRS renders a plea involuntary. (I discussed the New York cases in this prior post from 2015.) With those cases in mind, and in light of State v. Bozeman, 115 N.C. App. 658, 661 (1994) (a defendant must be advised of the direct consequences of his or her plea, which are those that have a “definite, immediate and largely automatic effect on the range of the defendant’s punishment”), the court of appeals concluded that 5-year post release supervision was a direct consequence of the defendant’s plea, and that the trial court thus violated the defendant’s right to make a knowing and voluntary plea by failing to advise him about the lengthier term of PRS.  (The court also said the defendant wound up serving an additional four years in prison because of the later addition of sex offender status, but that doesn’t make sense to me. For crimes of that vintage, the 5-year period of PRS applies, but there is no additional time built into the maximum term of imprisonment for offenses committed before December 1, 2011.)

Mr. Spry is certainly not the only defendant who wasn’t advised of a 5-year term of post-release supervision for a crime requiring sex offender registration. In his case, that consequence was especially opaque: it wasn’t included in the judgment at all at the original sentencing, and then it was “fixed” by a correction made outside of his presence. But the same general issue comes up any time a court advises a defendant on a guilty plea for a crime requiring registration—especially today’s Class F–I felonies (like indecent liberties), that get five years of PRS but have only 9 extra months of imprisonment built into the maximum sentence.

The Supreme Court of North Carolina allowed a temporary stay in Spry. 911 S.E.2d 489 (2024) (mem.). So it’s possible things could change. In the meantime, the safer practice would appear to be for a trial court to advise the defendant about both the maximum term of imprisonment and any related term of PRS. The issue is most acute when we’re talking about 5-year sex offender PRS that goes beyond the 9-month term of additional imprisonment underlying it. But if PRS generally is a direct consequence, it would seem that any PRS period ought to be mentioned when advising a defendant about the consequences of a guilty plea. If the failure to do so turns out to be a constitutional problem, a lot of prior guilty pleas will be challenged.

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The situation comes up all the time. An officer files a timely probation violation report but the case expires before there’s a hearing. The person is no longer on probation, but the violation remains pending—a situation officers refer to as “discontinued” status.

Under G.S. 15A-1344(f), a court has jurisdiction to hold the hearing after expiration if all of the following things apply:

• The State filed a violation report with the clerk before the case expired;
• The court finds that the probationer violated one or more conditions of probation prior to the expiration of probation; and
• The court finds for good cause shown and stated that the probation should be extended, modified, or revoked.

(There’s a fourth subdivision of G.S. 15A-1344(f), but it’s just a reminder that any extension of probation is limited to the five-year cap in G.S. 15A-1342(a).)

It’s the “good cause shown and stated” prong that has been wreaking a bit of probationary havoc. In State v. Morgan, 372 N.C. 609 (2019), the supreme court unanimously held that G.S. 15A-1344(f)(3) means what it says—a court has jurisdiction to act on a probation violation after expiration only if it makes a finding of good cause. After Morgan, dozens of cases have been vacated for lack of the required finding. See State v. Brewington, 911 S.E. 2d 405 (2025) (unpublished); State v. Siler, 295 N.C. App. 262 (2024); State v. White, 902 S.E.2d 364 (2024) (an unpublished conditional discharge case, indicating that the issue applies with equal force in that context); State v. Carpenter, 900 S.E.2d 239 (2024) (unpublished); State v. Hammond, 900 S.E.2d 417 (2024) (unpublished); State v. Leggette, 898 S.E.2d 383 (2024) (unpublished); State v. Pratt, 896 S.E.2d 761 (2024) (unpublished); State v. Jackson, 291 N.C. App. 116 (2023); State v. Black, 892 S.E.2d 511 (2023) (unpublished G.S. 90-96 case); State v. McSpadden, 891 S.E.2d 507 (2023) (unpublished); State v. Lytle, 287 N.C. App. 657 (2023).

The takeaway from those cases is clear: if the trial court makes no findings at all, whatever action it took on the case will be vacated on appeal. In many cases the matter is remanded back to the trial division for reconsideration of the findings. But in some, where there is nothing at all in the record related to good cause for the delay, the appellate court will vacate without remand. State v. Sasek, 271 N.C. App. 568, 576 (2020) (“The record does not show why Defendant’s probation hearing was not held in June 2017, or, in any event, at some time prior to the expiration of Defendant’s probation in January 2018. Therefore, we vacate the trial court’s judgments revoking Defendant’s probation without remand.”).

The appellate division isn’t the only place this issue can arise. If a probation period was previously extended after an earlier expiration, and that extension was ordered without the requisite finding of good cause, the defendant might argue at any later probation violation hearing that the trial court lacks jurisdiction due to the prior improper extension. It’s a sleeper issue that’s probably lurking in dozens if not hundreds of previously extended cases.

Thankfully, at this point we have some appellate guidance on what findings are needed to preserve the court’s authority to act on a discontinued case. And what we see is that it’s not an especially high bar to clear.

Procedurally, the burden is on the State to show and state the good cause. State v. Geter, 383 N.C. 484, 491 (2022) (“[T]he “good cause” contemplated by N.C.G.S. § 15A-1344(f)(3) therefore must be shown by the State, as the proponent of the ‘good cause shown and stated’ to justify the revocation of probation even though the defendant’s probationary term has expired and determined by the trial court, pursuant to its ‘broad discretionary powers.’”).

As to the substance of the finding, there’s yet to be an appellate case where the good cause found wasn’t good enough. In Geter, the defendant’s pending probation violation was based on new criminal charges that had yet to be resolved by the time the period of probation expired. The trial judge found it to be good cause to hold the hearing after expiration because it was “clear to the Court that the State waited until disposition of the underlying offenses alleged before proceeding with the probation violation.” Id. at 495. The supreme court held that this was a sufficient finding of good cause to preserve the court’s jurisdiction to revoke probation—even 399 days after the term had expired. Id. at 497.

As a supreme court case, Geter is certainly the leading authority on point. There are some additional (albeit nonbinding) datapoints in a series of unpublished cases.

State v. Parry shows that the good cause might be nothing more than the fact that the court simply couldn’t get to the matter any sooner. In Parry, a case arising out of Cherokee County, the defendant’s probation officer filed a violation report based on new criminal convictions in April 2022. Initially set for August 1, 2022—right before the probation term expired on August 3, 2022—the final violation hearing didn’t actually happen until October 25, 2022. The probation revocation ordered at that hearing was vacated by the court of appeals in 2023 for lack of good cause findings. See State v. Parry, 891 S.E.2d 345 (2023) (unpublished). On remand, the trial court considered whether good cause existed to revoke probation after expiration and concluded—with a charming hint of mountain common sense—that it did, “not[ing] for the benefit of the appellate division that we don’t have a whole lot of court dates here, so it was set for the next court date that was available.” In its written order, the trial court found that “Court sessions in Cherokee County are few and far between, and this matter was handled expeditiously and professionally by all concerned.” On the case’s second trip to the appellate division, the court of appeals concluded that the trial court did not act arbitrarily or capriciously in finding good cause for revocation probation after the case had expired. State v. Parry, 905 S.E.2d 118 (2024) (unpublished).

In State v. Roberts, 897 S.E.2d 42 (2024) (unpublished), the violation hearing occurred five days after expiration. The trial court orally stated that “I would also find that his probation has expired, but there’s good cause to address it following expiration of his probation,” and made a written finding that “the court finds good cause to proceed with hearing outside period of probation.” The court of appeals affirmed the order. Id. (“The revocation hearing occurred . . . five days after the expiration of defendant’s probation, and the State presented evidence that tended to show defendant absconded from supervision for extended periods of time during his probation. Given these facts, and that the statute does not mandate that the trial court base its finding on any one consideration, we do not conclude that it was ‘arbitrary, capricious, or offended substantial justice’ for the trial court to find good cause to revoke defendant’s probation five days after his probationary period expired.”).

In State v. Harris, 897 S.E.2d 552 (2024) (unpublished), the court of appeals expressly noted the trial court’s similar lack of specific factual findings underpinning its determination of good cause, but nonetheless found no error. The defendant in that case was revoked for absconding at a violation hearing held in 2022 on a violation report filed way back in 2016. On appeal, the defendant argued that “neither the prosecutor nor the judge stated what the good cause was.” The court of appeals explained in a footnote that “we do not read Geter, Morgan, or N.C.G.S. § 15A-1344(f) as requiring that the trial court specify what it found to constitute good cause, only that good cause exist.” Thus, the tongue-in-cheek title of this post.

Each of these situations—waiting out a new criminal charge, infrequent sessions of superior court or violations occurring very near the expiration date, or long-absent absconders—is very likely to support a finding of good cause to extend, modify, or revoke after expiration. The real challenge for the State is to (1) identify the cases that are expired (it won’t always be obvious to the court), (2) show and state the good cause, and (3) remind the court of the need for findings to preserve its jurisdiction to act. Defendants, meanwhile, may wish to scan the record for any prior after-expiration extensions that may have been improper, or any probation periods that may have expired before anyone realized—perhaps because of an improper contingent sentence, see State v. Barton, ___ N.C. App. ___, 905 S.E.2d 230 (2024), or a misunderstanding about when probation begins on a split, see State v. Hendricks, 277 N.C. App. 304 (2021).

Finally, as far as memorialization of good cause findings goes, as noted in my earlier posts on this topic, there is no check-box or dedicated space on the revocation or modification order forms for the court to record its findings. So for now, the court will need to record its findings somewhere in the free text space on the form. In Geter, the court wrote “THE COURT FINDS AND CONCLUDES GOOD CAUSE EXISTS TO REVOKE DEFENDANT’S PROBATION DESPITE THE EXPIRATION OF HIS PROBATIONARY PERIOD” in the “Other” block on the revocation order.

In Roberts, the court wrote “COURT FINDS GOOD CAUSE TO PROCEED WITH HEARING OUTSIDE PERIOD OF PROBATION” in the same “Other” block.

In Harris, the court penciled in “For Good Cause Shown and . . .” in the margin above the boilerplate language for the “CONCLUSION AND ORDER” block of the form.

Each memorialization sufficed.

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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.

The post The End of the Super-Contingent Sentence appeared first on North Carolina Criminal Law.

The old rule was no. As discussed in this prior post from 2015, DAC used to take the position that a person detained on a pending PRS violation was “serving a sentence imposed for another offense” within the meaning of G.S. 15-196.1, and therefore not entitled to credit toward any other sentence. If a court awarded jail credit on a new charge and DAC was aware that the person was also being held on a pending PRS violation at that time, they would write back to the court, flagging it as an error. The idea was that detention on a pending PRS violation was a “conditional revocation” under the language of G.S. 15A-1368.6(a), and thus counted as service of the sentence, barring credit toward anything else.

DAC no longer applies that interpretation. If a court awards jail credit to a new charge for time when a PRS violation was also pending, DAC will not generally write back to the court (unless there’s something else wrong with the judgment). Some clerks and others still have in mind a rule of thumb that a person cannot be awarded credit toward a new charge when a PRS violation is also pending, but that is probably a response to audit letters received under DAC’s former interpretation.

There is no statutory prohibition on granting the credit—unless the sentence for the new offense is run consecutively the previously imposed sentence. G.S. 15-196.2 (“Consecutive sentences shall be considered as one sentence for the purpose of providing credit, and the creditable time shall not be multiplied by the number of consecutive offenses for which a defendant is imprisoned.”). Even that should be relatively rare. The new criminal charge is typically handled before the PRS violation (the Parole Commission ordinarily waits to see what will happen with the new criminal offense before handling the pending violation), and so any sentence imposed for the new offense is likely to start the day it is imposed. The ensuing PRS revocation will necessarily run concurrently with the new sentence; the Parole Commission will carry it out the revoked sentence as originally imposed, and the sentence for the new conviction didn’t yet exist at that time.

In the relatively rare circumstance that the PRS violation is handled first, the defendant would clearly not be entitled to credit for any further confinement on the new criminal charge after PRS is revoked. At that point the defendant actually would be “serving a sentence” and thus not entitled to credit toward any other charges. However, any days of confinement shared between the new criminal charge and the pending PRS violation up to the day of revocation should still be credited to the new charge, too, as long as the sentence for the new offense is set to run concurrently with the previously imposed sentence. If you’re doing otherwise for fear of DAC sending the judgment back, you’re unnecessarily depriving the defendant of creditable time.

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