GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

H	3 

HOUSE BILL 665
Committee Substitute Favorable 6/25/97
Committee Substitute #2 Favorable 7/10/97

Short Title:  Crime Victims' Rights Act.	(Public)

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Sponsors:

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Referred to:  

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March 27, 1997

A BILL TO BE ENTITLED
AN ACT TO CREATE THE CRIME VICTIMS' RIGHTS ACT, TO ASSIST VICTIMS OF DOMESTIC VIOLENCE, TO ALLOW THE ENFORCEMENT OF ORDERS FOR RESTITUTION IN CRIMINAL CASES IN THE SAME MANNER AS CIVIL JUDGMENTS, TO CREATE AN EXCEPTION TO THE STATUTORY EXEMPTIONS FOR EXECUTION OF RESTITUTION JUDGMENTS, AND TO CHANGE THE ORDER OF PRIORITY FOR DISBURSEMENT OF FUNDS IN CRIMINAL CASES.
The General Assembly of North Carolina enacts:
Section 1. Chapter 15A of the General Statutes is amended by adding a new Subchapter to read:
“SUBCHAPTER XVI. CRIME VICTIMS' RIGHTS.
"ARTICLE 101.
"Crime Victims' Rights Act.
"§ 15A-2010. Definitions.
(a)	The following definitions apply in this Article:
(1)	Accused. – A person who has been arrested and charged with committing a crime covered by this Article.
(2)	Law enforcement agency. – Law enforcement agency includes the following:
a.	Arresting law enforcement agency. – The law enforcement agency that makes the arrest of an accused.
b.	Custodial agency. – The agency that has legal custody of an accused or defendant arising from a charge or conviction of a crime covered by this Article including, but not limited to, local jails or detention facilities, regional jails or detention facilities, or the Department of Correction.
c.	Investigating law enforcement agency. – The law enforcement agency with primary responsibility for investigating the crime committed against the victim.
(3)	Next of kin. – The victim's spouse, children, parents, siblings, or grandparents.  The term does not include the accused unless the charges are dismissed or the person is found not guilty.
(4)	Victim. – A person against whom there is probable cause to believe one of the following crimes was committed:
a.	A Class A, B1, B2, C, D, or E felony.
b.	A Class F felony if it is a violation of one of the following:  G.S. 14-16.6(b); 14-16.6(c); 14-18; 14-32.1(e); 14-32.2(b)(3); 14-32.3(a); 14-32.4; 14-34.2; 14-34.6(c); 14-41; 14-43.2; 14-43.3; 14-190.17; 14-190.19; 14-202.1; or 14-288.9.
c.	A Class G felony if it is  a violation of one of the following: G.S. 14-32.3(b); 14-51; 14-58; 14-87.1; 20-138.5; or 20-141.4.
d.	A Class H felony if it is a violation of one of the following: G.S. 14-32.3(a); 14-32.3(c); or 14-33.2.
e.	A Class I felony if it is a violation of one of the following: G.S. 14-277.3; 14-32.3(b); 14-34.6(b); or 14-190.17A.
f.	An attempt of any of the felonies listed in this subdivision if the attempted felony is punishable as a felony.
(b)	If the victim is deceased, then the next of kin, in the order set forth in the definition contained in this section, is entitled to the victim's rights under this Article, except for the rights contained in G.S. 15A-2014.  An individual entitled to exercise the victim's rights as a member of the class of next of kin may designate anyone in the class to act on behalf of the class.
"§ 15A-2010.1.  Assistance to victims of domestic violence.
Effective July 1, 1999, victims of domestic violence shall be entitled to all of the rights of victims under this Article.  For purposes of this Article, a victim of domestic violence is any person against whom there is probable cause to believe that a felony or misdemeanor which fits the definition of domestic violence contained in G.S. 50B-1 has been committed, including G.S. 14-33, 14-134.3, 14-277.1, and 14-318.2, as well as the attempt of any such felony or misdemeanor.  These crimes are in addition to the felonies set forth in G.S. 15A-2010(a)(4).
"§ 15A-2011. Responsibilities of law enforcement agency.
(a)	Within 24 hours after identifying a victim covered by this Article, the investigating law enforcement agency shall provide the victim with the following information:
(1)	The availability of medical services, if needed.
(2)	The availability of crime victims' compensation funds under Chapter 15B of the General Statutes and the address and telephone number of the agency responsible for dispensing the funds.
(3)	The address and telephone number of the district attorney's office that will be responsible for prosecuting the victim's case.
(4)	The name and telephone number of an investigating  law enforcement agency employee whom the victim may contact if the victim has not been notified of an arrest in the victim's case within six months after the crime was reported to the law enforcement agency.
(5)	Information about an accused's opportunity for pretrial release.
(6)	The name and telephone number of an investigating  law enforcement agency employee whom the victim may contact to find out whether the accused has been released from custody.
(b)	Within 24 hours after receiving notification from the arresting law enforcement agency that the accused has been arrested, the investigating law enforcement agency shall forward to the district attorney's office that will be responsible for prosecuting the case the victim's name, address, date of birth, social security number, race, sex, and telephone number, unless the victim refuses to disclose any or all of the information, in which case, the investigating law enforcement agency shall so inform the district attorney's office.
(c)	Upon receiving the information in subsection (a) of this section, the victim shall, on a form provided by the investigating law enforcement agency, indicate whether the victim wishes to receive any further notices from the investigating law enforcement agency.  If the victim elects to receive further notices, the victim shall be responsible for notifying the investigating law enforcement agency of any changes in the victim's name, address, and telephone number.
(d)	Within 24 hours after the arrest of a person believed to have committed a crime covered by this Article, the arresting law enforcement agency shall inform the investigating law enforcement agency of the arrest.  Within 24 hours of being notified of the arrest, the investigating law enforcement agency shall notify the victim of the arrest.
"§ 15A-2012.  Responsibilities of the district attorney's office.
(a)	Within 21 days after the arrest of the accused, but not less than 24 hours before the accused's first scheduled probable cause hearing, the district attorney's office shall provide to the victim a pamphlet or other written material that explains in a clear and concise manner the following:
(1)	The victim's rights under this Article, including the right to confer with the attorney prosecuting the case about the disposition of the case and the right to provide a victim impact statement.
(2)	The responsibilities of the district attorney's office under this Article.
(3)	The victim's eligibility for compensation  under the Crime Victims' Compensation Act and the deadlines by which the victim must file a claim for compensation.
(4)	The steps generally taken by the district attorney's office when prosecuting a felony case.
(5)	Suggestions on what the victim should do if threatened or intimidated by the accused or someone acting on the accused's behalf.
(6)	The name and telephone number of a victim and witness assistant in the district attorney's office whom the victim may contact for further information.
(b)	Upon receiving the information in subsection (a) of this section, the victim shall, on a form provided by the district attorney's office, indicate whether the victim wishes to receive notices of some, all, or none of the trial and posttrial proceedings involving the accused.  If the victim elects to receive notices, the victim shall be responsible for notifying the district attorney's office or any other department or agency that has a responsibility under this Article of any changes in the  victim's address and telephone number. The victim may alter the request for notification at any time by notifying the district attorney's office and completing the form provided by the district attorney's office.
(c)	The district attorney's office shall notify a victim of the date, time, and place of all trial court proceedings of the type which the victim has elected to receive notice.  All notices required to be given by the district attorney's office shall be given in a manner that is reasonably calculated to be received by the victim prior to the date of the court proceeding.
(d)	Whenever practical, the district attorney's office shall provide a secure waiting area during court proceedings that does not place the victim in close proximity to the defendant or the defendant's family.
(e)	When the victim is to be called as a witness in a court proceeding, the court shall make every effort to permit the fullest attendance possible by the victim in the proceedings.
(f)	Prior to the disposition of the case, the district attorney's office  shall offer the victim the opportunity to consult with the prosecuting attorney to obtain the views of the victim about the disposition of the case, including the victim's views about dismissal, plea or negotiations, sentencing, and any pretrial diversion programs.
(g)	At the sentencing hearing, the prosecuting attorney shall submit to the court a copy of a form containing the identifying information set forth in G.S. 15A-2011(b) about any victim electing to receive further notices under this Article.  The form shall be included with the final judgment and commitment transmitted to the Department of Correction or other agency receiving custody of the defendant and shall be maintained by the custodial agency as a confidential file.
"§ 15A-2013. Evidence of victim impact.
(a)	A victim has the right to offer evidence of the impact of the crime, which shall be considered by the court or jury, as the case may be, in sentencing the defendant.  The evidence may include the following:
(1)	A description of the nature and extent of any physical, psychological, or emotional injury suffered by the victim as a result of the offense committed by the defendant.
(2)	An explanation of any economic or property loss suffered by the victim as a result of the offense committed by the defendant.
(3)	A request for restitution and an indication of whether the victim has applied for or received compensation under the Crime Victims' Compensation Act.
(b)	No victim shall be required to offer evidence of the impact of the crime.  No inference or conclusion shall be drawn from a victim's decision not to offer evidence of the impact of the crime.
"§ 15A-2014.  Restitution.
(a)	Upon conviction of the defendant or upon a plea of guilty, the court shall, in addition to any penalty authorized by law, require that the defendant make restitution to a victim or the victim's estate for any injuries or damages arising out of the offense committed by the defendant.  In determining the amount of restitution, the court shall consider the following:
(1)	The cost of any medical or other professional services and devices or equipment required by the victim.
(2)	The cost of physical therapy, occupational therapy, and rehabilitation required by the victim.
(3)	Any income loss, after taxes, suffered by the victim.
(4)	The cost of any psychological or medical treatment for the victim's next of kin.
(5)	The cost of the victim's funeral and any related services.
(6)	Any other injuries or damages arising out of the offense committed by the defendant.
(b)	The court may require that the victim or the victim's estate provide evidence that documents the costs claimed by the victim or the victim's estate under this section.  Any such documentation shall be shared with the defendant before the sentencing hearing.
(c)	In determining the amount of restitution to be made, the court shall take into consideration the resources of the defendant including all real and personal property owned by the defendant and the income derived from the property, the defendant's ability to earn, the defendant's obligation to support dependents, and any other matters that pertain to the defendant's ability to make restitution, but the court is not required to make findings of fact or conclusions of law on these matters.  The amount of restitution must be limited to that supported by the record, and the court may order partial restitution when it appears that the damage or loss caused by the offense is greater than that which the defendant is able to pay.
(d)	An order providing for restitution does not abridge the right of a victim or the victim's estate to bring a civil action against the defendant for damages arising out of the offense committed by the defendant.
(e)	The court may order the defendant to make restitution to a person other than the victim, or to any organization, corporation, or association, including the Crime Victims' Compensation Fund that provided assistance to the victim following the commission of the offense by the defendant.  Restitution shall be made to the victim or the victim's estate before it is made to any other person, organization, corporation, or association.
(f)	The court may require the defendant to make full restitution no later than a certain date or, if the circumstances warrant, may allow the defendant to make restitution in installments over a specified time period.
(g)	If the defendant is placed on probation or post-release supervision, any restitution ordered under this Article shall be a condition of probation or post-release supervision.
(h)	If the court orders partial restitution, the court shall state on the record the reasons for such an order.
"§ 15A-2015.  Enforcement of order for restitution.
(a)	An order for restitution under this Article may be enforced in the same manner as a civil judgment, subject to the provisions of this section.
(b)	The order for restitution under this Article shall be docketed and indexed in the county of the original conviction in the same manner as a civil judgment.  The order for restitution may be collected in the same manner as a civil judgment unless the order to pay restitution is a condition of probation.  If the order to pay restitution is a condition of probation, the judgment may only be collected in accordance with subsection (c) of this section.
(c)	If the defendant is ordered to pay restitution as a condition of probation, the docketed judgment may not be collected until the date of notification to the clerk of superior court in the county of the original conviction that the judge presiding at the probation termination or revocation hearing has made a finding that restitution in a sum certain remains due and payable, that the defendant's probation has been terminated or revoked, and that the remaining balance of restitution owing may be collected by execution on the judgment.  The clerk shall then enter upon the judgment docket the amount that remains due and payable on the judgment, together with amounts equal to the standard fees for docketing, copying, certifying, and mailing, as appropriate, and shall notify the victim by first-class mail at the victim's last known address that the judgment may be executed upon, together with the amount of the judgment.  Until the clerk receives notification of termination or revocation of probation and the amount that remains due and payable on the order of restitution, the clerk shall not be required to update the judgment docket to reflect partial payments on the order of restitution as a condition of probation.
(d)	An appeal of the conviction upon which the order of restitution is based shall stay execution on the judgment until the appeal is completed.  If the conviction is overturned, the judgment shall be removed from the judgment docket.
"§ 15A-2016.  Posttrial responsibilities.
(a)	Within 30 days after the final proceeding of the trial phase of the case, the district attorney's office shall notify the victim, in writing, of:
(1)	The final disposition of the case.
(2)	The crimes of which the defendant was convicted.
(3)	The defendant's right to appeal, if any.
(b)	Upon a defendant's giving notice of appeal to the Court of Appeals or the Supreme Court, the district attorney's office shall forward to the Attorney General's Office the victim's name, address, and telephone number. Upon receipt of this information, and thereafter as the circumstances require, the Attorney General's Office shall provide the victim with the following:
(1)	A clear and concise explanation of how the appellate process works, including information about possible actions that may be taken by the appellate court.
(2)	Notice of the date, time, and place of any appellate proceedings involving the defendant.  Notice shall be given in a manner that is reasonably calculated to be received by the victim prior to the date of the proceedings.
(3)	The final disposition of an appeal.
(c)	If the defendant has been released on bail pending the outcome of the appeal, the agency that has custody of the defendant shall notify the investigating law enforcement agency, and the investigating law enforcement agency shall notify the victim that the defendant has been released.
(d)	If the defendant's conviction is overturned, and the district attorney's office decides to retry the case or the case is remanded to superior court for a new trial, the victim shall be entitled to the same rights under this Article as if the first trial did not take place.
(e)	The Conference of District Attorneys shall maintain a repository relating to victims' identities, addresses, and other appropriate information for use by agencies charged with responsibilities under this Article.  
"§ 15A-2017.  Responsibilities of agency with custody of defendant.
The Department of Correction shall notify the victim of:
(1)	The projected date by which the defendant can be released from custody.  The calculation of the release date shall be as exact as possible, including earned time and disciplinary credits if the sentence of imprisonment exceeds 90 days.
(2)	An inmate's assignment to a minimum custody unit and the address of the unit.  This notification shall include notice that the inmate's minimum custody status may lead to the inmate's participation in one or more community-based programs such as work release or supervised leaves in the community.
(3)	The victim's right to submit any concerns to the agency with custody and the procedure for submitting such concerns.
(4)	The defendant's escape from custody.
(5)	The defendant's capture.
(6)	The date the defendant is scheduled to be released from the facility.  Whenever practical, notice shall be given 60 days before release.
(7)	The defendant's death.
"§ 15A-2018.  Responsibilities of Division of Adult Probation and Parole.
The Division of Adult Probation and Parole shall notify the victim of:
(1)	The defendant's regular conditions of probation or post-release supervision, special or added conditions, supervision requirements, and any subsequent changes.
(2)	The date of a hearing to determine whether the defendant's supervision should be revoked, continued with or without modifications, or terminated.
(3)	The final disposition of any hearing referred to  in subdivision (2) of this section.
(4)	Any restitution modification.
(5)	The defendant's movement into or out of any intermediate sanction as defined in G.S. 15A-1340.11(6).
(6)	The defendant absconding supervision.
(7)	The capture of a defendant described in subdivision (6) of this section.
(8)	The date when the defendant is terminated or discharged.
(9)	The defendant's death.    
"§ 15A-2019.  Notice of commuted sentence or pardon.
	The Governor's Clemency Office shall notify a victim when it is considering commuting the defendant's sentence or pardoning the defendant.  The Governor's Clemency Office shall also give notice that the victim has the right to present a written statement to be considered by the Office before the defendant's sentence is commuted or the defendant is pardoned.  The Governor's Clemency Office shall notify the victim of its decision. Notice shall be given in a manner that is reasonably calculated to allow for a timely response to the commutation or pardon decision.
"§ 15A-2020.  No money damages.
This Article does not create a claim for damages against the State, a county, or a municipality, or any of its agencies, instrumentalities, officers, or employees.
"§ 15A-2021.  No ground for relief.
The failure or inability of any person to provide a right or service under this Article may not be used by a defendant in a criminal case, by an inmate, or by any other accused as a ground for relief in any criminal or civil proceeding.
"§ 15A-2022.  Incompetent victim's rights exercised.
When a victim is rendered mentally or physically incompetent or when the victim is a minor, the victim's rights under this Article, other than the rights provided by G.S. 15A-2014 and G.S. 15A-2015, may be exercised by the victim's next of kin.
"ARTICLE 102.
"Crime Victims' Rights Fund.
"§ 15A-2025.  Crime Victims' Rights Fund established.
There is established within the State treasury a special nonreverting revenue fund to be known as the Crime Victims' Rights Fund (the ‘Fund').  All moneys remitted to the State Treasurer under G.S. 7A-304(a)(7) shall be credited to the Fund. The Fund shall be used to supplement the funds otherwise available to the Judicial Department, the Justice Department, the Department of Correction, or State and local law enforcement agencies for providing services to victims of crime under Article 101 of this Chapter.  The Department of Crime Control and Public Safety shall administer the Fund.  The interest and other investment income earned by the Fund must be credited to the Fund.
"§ 15A-2026.  Application for supplemental funds.
(a)	A law enforcement agency, district attorney's office, or other agency that has a responsibility to provide services to crime victims as required by the General Statutes may apply annually to the Department of Crime Control and Public Safety for supplemental funds.  Such funds shall be used to supplement local, State, or federal funds that are available to  agencies and district attorneys' offices to provide services to crime victims.
(b)	The Department of Crime Control and Public Safety shall establish procedures for screening, recording, and processing applications for supplemental funds.  The Department shall prepare and transmit annually to the General Assembly a report of the Department's activities."
Section 2.  The provisions of Article 45 of Subchapter VIII of Chapter 15A of the General Statutes are supplemental to the provisions of Article 101 of Subchapter XVI of Chapter 15A of the General Statutes as enacted in Section 1 of this act.  If there is any conflict between the provisions of Article 45 and Article 101, the provisions of Article 101 shall control.
Section 2.1.  G.S. 1C-1601(e) reads as rewritten:
"(e)	Exceptions. – The exemptions provided in this Article are inapplicable to claims
(1)	Of the United States or its agencies as provided by federal law;
(2)	Of the State or its subdivisions for taxes, appearance bonds or fiduciary bonds;
(3)	Of lien by a laborer for work done and performed for the person claiming the exemption, but only as to the specific property affected;
(4)	Of lien by a mechanic for work done on the premises, but only as to the specific property affected;
(5)	For payment of obligations contracted for the purchase of the specific real property affected;
(6)	Repealed by Session Laws 1981 (Regular Session, 1982), c. 1224, s. 6;
(7)	For contractual security interests in the specific property affected; provided, that the exemptions shall apply to the debtor's household goods notwithstanding any contract for a nonpossessory, nonpurchase money security interest in any such goods;
(8)	For statutory liens, on the specific property affected, other than judicial liens;
(9)	For child support, alimony or distributive award order pursuant to Chapter 50 of the General Statutes;
(10)	For criminal restitution orders docketed as civil judgments pursuant to G.S. 15A-2015."
Section 2.2. G.S. 7A-304(d) reads as rewritten:
"(d)	In any criminal case in which the liability for costs, fines, restitution, or any other lawful charge has been finally determined, the clerk of superior court shall, unless otherwise ordered by the presiding judge, disburse such funds when paid in accordance with the following priorities:
(1)  	Sums in restitution prorated among the persons entitled thereto;
(2)	Costs due the county;
	(3)	Costs due the city;
(4)	Fines to the county school fund;
	(5)  	Costs due the State;
(6)  	Attorney's fees.
Sums in restitution received by the clerk of superior court shall be disbursed when:
(1)  	Complete restitution has been received; or
(2)  	When, in the opinion of the clerk, additional payments in restitution will not be collected; or
(3)  	Upon the request of the person or persons entitled thereto; and
(4)  	In any event, at least once each calendar year."
Section 2.3. Article 45 of Subchapter VIII of Chapter 15A of the General Statutes is amended by adding a new section to read:
"§ 15A-828.  Assistance to victims of domestic violence.
In the allocation of resources to persons the district attorney determines are victims of serious misdemeanors, the district attorney shall, to the extent possible, provide the services listed in G.S. 15A-825 to victims of domestic violence misdemeanors that could involve the infliction of serious bodily injury."
Section 2.4.  The Governor's Crime Commission of the Department of Crime Control and Public Safety will coordinate a study of the incidence of domestic violence and identify the felonies and misdemeanors that may be categorized as domestic violence.  The study will include participation by the North Carolina Conference of District Attorneys and the seven prosecutorial districts that are currently receiving funds from the Violence Against Women Act, administered through the Governor's Crime Commission.  The study will also include participation of other prosecutorial districts which volunteer their participation in providing necessary information.  The Commission will recommend a statutory definition of domestic violence crimes that will be sufficiently clear so that it can be used by law enforcement officers and prosecutors  to determine eligibility of victims of these crimes for victims' assistance services.  The Commission shall also recommend whether any crimes that are currently misdemeanors should be reclassified as felonies when committed as crimes of domestic violence. The Commission will report the findings of its study and its recommendations to the 1998 Session of the 1997 General Assembly on or before its convening date.
Section 2.5.  The Post-Release Supervision and Parole Commission shall compile a report of the notification services it has provided under G.S. 15A-825(11), and pursuant to a letter from Governor Hunt to the Chair of the North Carolina Parole Commission dated October 13, 1993.  The report shall include information on notification services provided through December 31, 1997.  The report shall be delivered to the 1998 Session of the 1997 General Assembly on or before its convening date.
Section 2.6.  G.S. 7A-304(a) is amended by adding the following new subdivision to read:
"(7)	For the support of services to victims of crime, the sum of five dollars ($5.00) to be remitted to the State Treasurer to be credited to the Crime Victims' Rights Fund established under Article 102 of Chapter 15A of the General Statutes."
Section 3.  G.S. 15A-2010.1, as enacted by Section 1 of this act, becomes effective July 1, 1999.  Section 2.3 of this act becomes effective when it becomes law and expires on July 1, 1999.  Sections 2.4 and 2.5 and this section of this act are effective when they become law.  Section 2.6 of this act and Article 102 of Chapter 15A of the General Statutes, as enacted by Section 1 of this act, become effective August 1, 1997.  The remainder of this act becomes effective January 1, 1998, and applies to fees assessed or paid on or after that date.