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Participating in Misrepresentation of Prior Record Level in Sentencing Proceeding

Adopted: July 25, 2003

Opinion rules that neither a defense lawyer nor a prosecutor may participate in the misrepresentation of a criminal defendant's prior record level in a sentencing proceeding even if the judge is advised of the misrepresentation and does not object.


Chapter 15A, Article 81B of the North Carolina General Statutes provides for the structured sentencing of persons convicted of crimes (the "Structured Sentencing Act"). The Act requires the court to sentence an offender to a term of imprisonment within the range specified in the Act for the class of offense and the offender's prior record level. See  N.C. Gen. Stat. §15A-1340.13 and §15A-1340.20. An offender's prior record level is determined by the calculation of points assigned, by statute, to various kinds of convictions. See  N.C. Gen. Stat. §15A-1340.14 and §15A-1340.21.

Inquiry #1:

Lawyer represents Defendant who is convicted of a crime. At the sentencing hearing, Prosecutor gives the court a sentencing worksheet showing a prior record level for Defendant. Lawyer knows that the worksheet does not include some prior convictions from other jurisdictions that would increase Defendant's point level. Defendant and Lawyer did not criminally or fraudulently conceal the prior convictions. When the court asks Lawyer, "Do you stipulate to the prior record level as shown on the worksheet," may Lawyer respond, "The State has the burden of proof to establish the defendant's prior record?"

Opinion #1:

Yes. Formal Ethics Opinion 98-5 rules that a defense lawyer may remain silent while the prosecutor presents an inaccurate driving record to the court provided the lawyer and the client did not criminally or fraudulently misrepresent the driving record to the prosecutor or the court.

Inquiry #2:

Prosecutor and Lawyer are negotiating a plea for Defendant #2. Prosecutor is unwilling to reduce the charge but she is willing to leave some of Defendant's prior convictions off of the worksheet. This will reduce the prior record level and thereby reduce Defendant #2's exposure to active prison time. Defendant #2 instructs Lawyer to accept the plea offer. At the plea hearing, Prosecutor tenders a sentencing worksheet to the court that does not include some of Defendant #2's prior convictions. The court asks Lawyer to stipulate to the worksheet. May Lawyer do so? May Lawyer respond by telling the court that the prosecutor has the burden of proof?

Opinion #2:

No. Both the prosecutor and the defense lawyer are required by the duties of honesty and candor to the tribunal to disclose to the court all the material terms of the negotiated plea. RPC 152; Rule 3.3(b) of the Revised Rules of Professional Conduct (2003).

Inquiry #3:

Would the response to inquiry #2 be different if the judge was advised and agreed that Defendant #2's prior record level would exclude some of Defendant's known prior convictions?

Opinion #3:

No. Prosecutor and Lawyer may not collude with the judge to avoid the requirements of the Structured Sentencing Act. Such conduct violates Rule 8.4 (c) because it involves dishonesty and misrepresentation. It also violates the prohibitions in Rule 8.4(d) and (f) on conduct that is prejudicial to the administration of justice and on knowingly assisting a judge to violate the rules of judicial conduct or other law.

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