North Carolina Criminal Law NC Criminal Law
The North Carolina Supreme Court held last week in State v. Diaz-Tomas, ___ N.C. ___, 2022-NCSC-115 (November 4, 2022), that neither a criminal defendant nor the court has the right to compel a district attorney to reinstate criminal charges that were dismissed with leave pursuant to G.S. 15A-932 due to the defendant’s failure to appear. The case arose in Wake County, where the district attorney’s office reportedly would reinstate misdemeanor charges dismissed with leave under G.S. 15A-932 only if the defendant agreed to plead guilty and to waive his or her right to appeal to superior court for trial de novo. As a result, Diaz-Tomas’s only option for ending the indefinite license revocation that was imposed for his failure to appear is to plead guilty to the driving while impaired charges that were dismissed with leave. This post discusses the state supreme court’s analysis and considers how it might apply in other circumstances.
Facts. Diaz-Tomas was charged with driving while impaired on April 4, 2015. He failed to appear for court on February 24, 2016, and an order for his arrest was issued. On July 11, 2016, the State dismissed the charges with leave pursuant to G.S. 15A-932(a)(2) (permitting the prosecutor to enter a dismissal with leave for nonappearance when a defendant fails to appear at a criminal proceeding at which his attendance is required and the prosecutor believes the defendant cannot readily be found). Diaz-Tomas’s failure to appear also was reported to the North Carolina Division of Motor Vehicles (NC DMV), which revoked his driving privileges pursuant to G.S. 20-24.1(a).
Two years later, Diaz-Tomas was arrested pursuant to the court’s order. He was released, failed to appear once more, and was arrested again. Diaz-Tomas appeared in court on December 14, 2018. The charges were not addressed on that date or thereafter as the assistant district attorney declined to reinstate them (ostensibly pursuant to the policy noted at the outset of this post).
Why have such a policy? At this point, it may be helpful to mention why a district attorney might have such a policy. The likely reason is ensure that a defendant who fails to appear does not benefit from his or her nonappearance. As cases age, memories may fade, officers may retire, and witnesses may be difficult to locate. Thus, a defendant who fails to appear for a number of years may be able to avoid a conviction by significantly postponing the trial.
Certainly there are mechanisms other than the refusal to reinstate charges that discourage non-appearance. One is the issuance of an order for arrest, as occurred in Diaz-Tomas’s case. Another is the indefinite license revocation that results from failure to appear for a motor vehicle offense, which also was imposed against Diaz-Tomas. In addition, a person who fails to appear may be subject to prosecution for the offense of failure to appear in violation of G.S. 15A-543, which applies when a person willfully fails to appear after being placed on conditions of pretrial release, or G.S. 20-28(a3), which applies to a person who fails to appear for two years from the date he or she was charged with an implied consent offense.
With that background, let’s return to Diaz-Tomas.
Procedural History. Diaz-Tomas requested that the district court reinstate the charges, but the court denied his motion. Diaz-Tomas petitioned the superior court for certiorari review, which was denied. Diaz-Tomas then appealed to the court of appeals, which, in a divided opinion, affirmed the superior court’s denial of the petition for certiorari review. Diaz-Tomas then appealed to the state supreme court, which considered several issues, including whether the superior court appropriately denied the petition for certiorari review and whether the defendant was entitled to a writ of mandamus ordering reinstatement of the charges.
Court’s analysis. The North Carolina Supreme Court began by noting that prosecution of criminal offenses is the sole and exclusive authority of the duly elected district attorneys of the state, who must carry out those duties as framed by the General Assembly.
Dismissal with leave pursuant G.S. 15A-932. The Diaz-Tomas Court noted that G.S. 15A-932 permits a prosecutor to put a case in dismissed-with-leave status, thereby removing the case from the docket but retaining the validity of all outstanding process. The statute contemplates two ways of disposing of the case thereafter. First, the prosecutor “may reinstitute the proceedings” when the defendant is apprehended “or in the discretion of the prosecutor when the prosecutor believes apprehension is imminent.” G.S. 15A-932(d). Second, if the offenses charged are waivable pursuant to G.S. 7A-148(a), the defendant may dispose of the charges by paying the requisite fine(s) and costs. See G.S. 15A-932(d1). Given that the offense of driving while impaired is not waivable, Diaz-Tomas’s only option for disposing of the charges was to have them reinstated. The Court reasoned that the term may in G.S. 15A-932(d) grants exclusive power to the district attorney to reinstate charges – or to decline to do so — in his or her discretion.
Interplay with G.S. 20-24.1. Diaz-Tomas argued that the prosecutor’s discretion was limited by G.S. 20-24.1, the statute that provides for revocation of a person’s driver’s license for failure to appear in court for a motor vehicle offense. G.S. 20-24.1(b) states that such a revocation endures until the person whose license is revoked for failing to appear disposes of the charge or demonstrates that he is not the person charged. In turn, G.S. 20-24.1(b1) provides that a defendant “must be afforded an opportunity for a trial or hearing within a reasonable time of the defendant’s appearance” and that “[u]pon motion of a defendant, the court must order that a hearing or a trial be heard within a reasonable time.”
The Court rejected Diaz-Tomas’s argument that G.S. 20-24.1(b1) required the prosecutor to reinstate the charges, reasoning that such a construction “would offend the delegated exclusive and discretionary power of the District Attorney to reinstate defendant’s criminal charges.” Slip op. at ¶ 17. The Court reached this conclusion notwithstanding its earlier acknowledgment that the legislature has a role in framing the duties of the prosecutor, which it has executed in part by requiring that criminal actions be prosecuted in a “timely manner.” Slip op. at ¶ 9. The Court also rejected Diaz-Tomas’s argument that the trial court should have reinstated the charges pursuant to G.S. 20-24.1(b1), stating that such an interpretation would run afoul of the principle that courts should “‘make every possible effort to avoid unnecessarily interfering with the District Attorneys in their performance of [constitutional and statutorily mandated] duties.’” Id. (quoting State v. Camacho, 329 N.C 589, 595 (1991)).
Right to speedy trial and due process. Finally, the Court rejected the argument that the right to a speedy trial as applied in Klopfer v. North Carolina, 386 U.S. 213 (1967), or the right to due process as recognized in Simeon v. Hardin, 339 N.C. 358 (1994), required reinstatement of the charges. In Klopfer, the United States Supreme Court concluded that the State’s use of a procedure known as nolle prosequi with leave to indefinitely postpone the prosecution of the petitioner – a zoology professor at Duke University — following a mistrial on charges of trespassing, without dismissing the charges, denied the petitioner the right to a speedy trial. In Simeon, the North Carolina Supreme Court held that the plaintiff’s allegations that the district attorney purposely delayed calendaring his case to keep him in jail and pressure him into entering a guilty plea were sufficient to raise a genuine issue of material fact as to whether the statutes authorizing district attorney calendaring were being applied in an unconstitutional manner. The Diaz-Tomas Court distinguished both cases on the basis that the prosecutor in the case before it “placed defendant’s criminal charges on a trial court docket for prosecution in a timely manner on multiple occasions while defendant continually sought to evade the resolution of his active criminal charges . . . by failing to appear . . . until nearly three years after defendant’s criminal charges were placed in dismissed-with-leave status.” Slip op. at ¶ 23.
Several questions occurred to me as I read Diaz-Tomas.
About that may. Perhaps the “may” in G.S. 15A-932(d) was included to allow for the fact that, rather than reinstating charges, a prosecutor might elect to abandon them altogether following a dismissal with leave. This could occur if a prosecutor subsequently learned the defendant had died or that the offense was committed by a different person or that there were other problematic issues in the case. In those circumstances, the prosecutor surely would not be required to reinstate charges in order to dismiss and dispose of them. The “may” could thus be construed to indicate that reinstatement is among the prosecutor’s options as opposed to the view that the prosecutor has the option of never reinstating the case or only reinstating it upon a defendant’s agreement to plead guilty. Of course, that is not the way the supreme court saw it.
What does G.S. 20-24.1(b1) mean? Diaz-Tomas also left me scratching my head about the import of G.S. 20-24.1(b1). G.S. 20-24.1 only applies when a defendant fails to appear for a motor vehicle offense or fails to pay fines and costs. Subsection (b1) of that statute states that “[a] defendant must be afforded an opportunity for a trial or hearing within a reasonable time of the defendant’s appearance.” Yet Diaz-Tomas states that this provision did not require that Diaz-Tomas be afforded an opportunity for a trial following his appearance on December 14, 2018. The Court said that he lost the opportunity for trial by failing to appear for court until three years had passed since the charges. If that is the case, what trial right is guaranteed by G.S. 20-24.1(b1)?
Constitutional concerns. The opinion does not reveal whether Diaz-Tomas remains subject to conditions of pretrial release that were ordered upon his last arrest, though it seems likely that he may. Under the Supreme Court’s reasoning and the Wake County practice, it appears that the only way Diaz-Tomas may be relieved from those conditions – as well as from the indefinite license revocation — is to plead guilty. That kind of prosecutorial pressure does not match the pre-trial detention pressure in Simeon, but it certainly implicates the same due process concerns recognized in that case. Moreover, I wonder how the holding in Diaz-Tomas would apply to a defendant who was detained pursuant to an order for arrest issued after a failure to appear. If the prosecutor has unfettered discretion to refuse to reinstate a case dismissed with leave and the defendant cannot obtain release, certainly that would be a violation of due process. Cf. State v. Reekes, 59 N.C. App. 672, 676–77 (1982) (noting that while “[c]ertainly, the State is required to reinstitute proceedings within some ‘reasonable’ time, especially in a case such as the present one where the defendant is in custody, awaiting trial” the legislature intended to limit the statutory speedy trial rights of defendants who fail to appear in court).
Potential limitations. Diaz-Tomas did not paint a sympathetic picture, given his multiple failures to appear. I wonder whether a court might impose different constraints on prosecutorial discretion given different facts. Suppose, for example, that a defendant misses court because of illness, hospitalization, or transportation issues. The court issues an order for arrest. The defendant calls the clerk the next day to explain why she did not appear, but, in the meantime, the district attorney has dismissed the case with leave. May the prosecutor refuse to reinstate the case absent the defendant’s agreement to plead guilty? Diaz-Tomas suggests the answer based on principles of statutory construction is yes, but a court presented with these facts might weigh the constitutional concerns differently.