Opinion
No. COA14–931.
03-17-2015
STATE of North Carolina v. Auley McCrae JORDAN, Jr., Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Letitia C. Echols, for the State. Guy J. Loranger for Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Letitia C. Echols, for the State.
Guy J. Loranger for Defendant.
McGEE, Chief Judge.
Auley McCrae Jordan, Jr. (“Defendant”) pleaded no contest to two felony larceny charges and two additional misdemeanor charges on 14 July 2011. Defendant was given a suspended sentence and placed on supervised probation. Defendant's probation officer signed four probation violation reports (“violation reports”) on 11 December 2013. These violation reports were filed on 3 January 2014. The violation reports each alleged:
Of the conditions of probation imposed in [the judgments], [D]efendant has willfully violated:
1. “Report as directed by the Court, Commission or the supervising officer to the officer at reasonable times and places ...” in that [ ] DEFENDANT FAILED TO REPORT TO HIS SCHEDULED OFFICE VISIT AS DIRECTED ON 12/2/2013 @ 5PM.
2. Condition of Probation “Remain within the jurisdiction of the Court unless granted written permission to leave by the Court or the probation officer” in that [ ] DEFENDANT LEFT HIS PLACE OF RESIDENCE AT 404 DAVIE DR. WILMINGTON, N.C. ON OR ABOUT 11/2/2013 AND FAILED TO MAKE HIS WHEREABOUTS KNOWN TO HIS SUPERVISING OFFICER MAKING HIMSELF UNAVAILABLE FOR SUPERVISION, THEREBY ABSCONDING SUPERVISION.
3. Condition of Probation “Commit no criminal offense in any jurisdiction” in that ON OR ABOUT 11/19/2013, [ ] DEFENDANT COMMITTED THE OFFENSE OF (M) LARCENY IN DOCKET NUMBER: 13CR 008975. IF THE DEFENDANT IS CONVICTED OF THIS MATTER, IT WILL BE A VIOLATION OF HIS PROBATION.
4. Other violation[:] DEFENDANT FAILED TO REPORT TO SUPERIOR COURT FOR PENDING PROBATION VIOLATION ON 12/3/2013.
A hearing on the violation reports was held on 5 March 2014. At the hearing, the State notified the trial court that it was not proceeding on the third alleged violation—that Defendant had committed a criminal offense while on probation—because that charge was still pending. The trial court concluded that Defendant had violated conditions of his probation, and Defendant's probation was revoked. The trial court made the following findings in each judgment and commitment revoking Defendant's probation:
1. [D]efendant is charged with having violated specified conditions of [D]efendant's probation as alleged in the: a. Violation Report(s) on file herein, which is incorporated by reference.
2. Upon due notice or waiver of notice[:] a. a hearing was held before the Court and, by the evidence presented, the Court is reasonably satisfied in its discretion that [D]efendant violated each of the conditions of [D]efendant's probation as set forth below.
3. The condition(s) violated and the facts of each violation are as set forth a. in Paragraph(s) 1–4 of the Violation Report or Notice dated 12/11/2013.
4. Each of the conditions violated as set forth above is valid; [D]efendant violated each condition willfully and without valid excuse; and each violation occurred at a time prior to the expiration or termination of the period of [D]efendant's probation. Each violation is, in and of itself, a sufficient basis upon which this Court should revoke probation and activate the suspended sentence.
5. (NOTE TO COURT: This finding is required when revoking probation for violations occurring on or after December 1, 2011.)
The court may revoke [D]efendant's probation[:] a. for the willful violation of the condition(s) that he/she not commit any criminal offense, G.S. 15A–1343(b)(1), or abscond from supervision, G.S. 15A–1343(b)(3a), as set out above.
The boxes next to all of the above findings were checked, including the portion stating that the trial court could revoke Defendant's probation for committing a criminal offense, or absconding. However, there is nothing in the judgments and commitments to indicate whether the trial court determined that Defendant had absconded pursuant to N.C. Gen.Stat. § G.S. 15A–1343(b)(3a), committed a criminal offense pursuant to N.C. Gen.Stat. § G.S. 15A–1343(b)(1), or both. The trial court activated Defendant's sentences, resulting in consecutive sentences of fifteen to eighteen months. Defendant appeals.
Initially, we grant Defendant's petition for writ of certiorari filed 3 November 2014 seeking review of this appeal despite errors in Defendant's notice of appeal. We therefore address the merits of Defendant's appeal.
Defendant argues that the trial court erred in revoking his probation and activating his sentences. We agree.
We note that two of the trial court's findings are clearly erroneous. First, the trial court erred in finding: “The condition(s) violated and the facts of each violation are as set forth ... in Paragraph(s) 1–4 of the Violation Report or Notice dated 12/11/2013.” Because the State did not proceed on the alleged third violation, “commit no criminal offense,” the trial court erred in including that alleged violation in its judgments and commitments. Second, the trial court erred in concluding: “Each violation is, in and of itself, a sufficient basis upon which this Court should revoke probation and activate the suspended sentence.” For violations occurring after 1 December 2011, probation can only be revoked for absconding or committing a criminal offense:
Except as provided in N.C. Gen.Stat. § 15A–1344(d2). N.C. Gen.Stat. § 15A–1344 (2013).
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In 2011 the General Assembly passed the Justice Reinvestment Act (JRA), which modified our probation statutes in two important ways. First, the JRA made the following a regular condition of probation: “Not to abscond, by willfully avoiding supervision or by willfully making the defendant's whereabouts unknown to the supervising probation officer.” SeeN.C. Gen.Stat. § 15A–1343(b)(3a) (2011). Second, the JRA revised N.C. Gen.Stat. § 15A–1344 to provide that a trial court may only revoke probation if the defendant commits a criminal offense or “absconds” as defined by the revised Section 15A1343(b)(3a). SeeN.C. Gen.Stat. § 15A–1344(a) (2011).
State v. Hunnicutt,––– N.C.App. ––––, ––––, 740 S.E.2d 906, 910–11 (2013).
However, because Defendant in the present case committed the underlying offensesbefore 1 December 2011, the trial court was without authority to revoke Defendant's probation on the basis of absconding.
The JRA initially made both provisions [absconding and committing a criminal offense] effective for probation violations occurring on or after 1 December 2011. See2011 N.C. Sess. Laws 192, sec. 4.(d). The effective date clause was later amended, however, to make the new absconding condition applicable only to offensescommitted on or after 1 December 2011, while the limited revoking authority remained effective for probation violations occurring on or after 1 December 2011. See2011 N.C. Sess. Laws 412, sec. 2.5. Hunnicutt,–––N.C.App. at ––––, 740 S.E.2d at 911. Because Defendant committed all of the underlying offenses in 2010, the trial court was without authority to revoke Defendant's probation based upon N.C. Gen.Stat. § 15A–1343(b)(3a), absconding. Hunnicutt,––– N.C.App. at ––––, 740 S.E.2d at 911. The State acknowledges this fact in its appellate brief.
Therefore, there remains only one basis upon which the trial court could have revoked Defendant's probation, N.C. Gen.Stat. § 15A–1343(b)(1), committing a criminal offense. The third alleged violation in the violation reports was the only alleged violation explicitly based upon the condition of probation that Defendant “[c]ommit no criminal offense[.]” Because the State did not proceed on the third alleged violation in the violation reports, a larceny allegedly committed by Defendant on 19 November 2013, this alleged crime could not be the basis of the trial court's decision to revoke Defendant's probation. The State also acknowledges this fact.
However, the State argues that the fourth alleged violation constituted a criminal offense, and was sufficient to support revocation. The fourth violation in the violation reports states: “Other Violation[:] DEFENDANT FAILED TO REPORT TO SUPERIOR COURT FOR PENDING PROBATION VIOLATION ON 12/3/2013.” Failure to appear for a criminal court date can be a crime. N.C. Gen.Stat. § 15A–543 (2013). However, there is nothing in this portion of the violation reports indicating that Defendant's probation officer was advancing this alleged violation as a criminal offense in support of revocation pursuant to N.C. Gen.Stat. § 15A–1343(b)(1). There is no indication in the judgments and commitments that the trial court relied on its finding that Defendant violated this provision to support its revocation pursuant to N.C. Gen.Stat. § 15A–1343(b)(1), even assuming the trial court intended to revoke Defendant's probation pursuant to N.C. Gen.Stat. § 15A–1343(b)(1), and not solely pursuant to N.C. Gen.Stat. § 15A–1343(b)(3a).
Defendant argues that the violation reports failed to give him proper notice that the State might seek to revoke his probation pursuant to N.C. Gen.Stat. § 15A–1343(b)(1), based on failure to appear for a court date.
“The State must give the probationer notice of the [probation revocation] hearing and its purpose, including a statement of the violations alleged.” “The notice, unless waived by the probationer, must be given at least 24 hours before the hearing.” “The purpose of the notice mandated by this section is to allow the defendant to prepare a defense and to protect the defendant from a second probation violation hearing for the same act.”
This Court has reversed revocation of a defendant's probation when the revocation was based, in part, on a violation for which defendant had no notice.
State v. Tindall,––– N.C.App. ––––, ––––, 742 S.E.2d 272, 274 (2013) (citations omitted). In State v. Kornegay,this Court held that the defendant's probation could not be revoked based upon the trial court's finding that the defendant had possessed a firearm and illegal drugs because
the State did not allege that defendant “[c]ommit[ted][a] criminal offense” in its violation reports. Instead, it alleged that defendant had (1) been “in possession of [ ] drug paraphernalia” (original in all caps), (2) “[p]ossess [ed][a] firearm ... or other deadly weapon,” and (3) “use[d], possess[ed] or control[led][an] illegal drug or controlled substance....” Defendant did not receive proper notice that his probation might be terminated for violating § 1343(b)(1). Yet, the trial court revoked defendant's probation because he “committed a subsequent criminal offense.”
State v. Kornegay,––– N.C.App. ––––, ––––, 745 S.E.2d 880, 883 (2013).
[U]nder the Justice Reinvestment Act of 2011 it is no longer true that “[any] violation of a valid condition of probation is sufficient to revoke defendant's probation.” Under the Justice Reinvestment Act, only when a probationer “[c]ommit[s][a] criminal offense” or “abscond[s] by willfully avoiding supervision” is his probation subject to revocation, unless he has been subject to two prior periods of “Confinement in Response to Violation”. A trial court may not otherwise revoke probation simply for a violation of the general requirement that a probationer “[n]ot use, possess, or control any illegal drug....”
Id.at ––––, 745 S.E.2d at 882–83 (citations omitted).
In the present case, Defendant was on notice that his probation could be revoked if he was subsequently convicted of having “COMMITTED THE OFFENSE OF (M) LARCENY IN DOCKET NUMBER: 13CR 008975 .” Apparently Defendant had not been convicted of that charge at the time of the revocation hearing. The violation reports did not indicate that Defendant could have his probation revoked for having committed the criminal offense of: “FAIL[URE] TO REPORT TO SUPERIOR COURT FOR PENDING PROBATION VIOLATION ON 12/3/2013.” In the present case, as in Kornegay,the fact that failure to appear can constitute a crime does not, in itself, provide adequate notice absent clear indication that the State is pursuing that violation as a criminal offense pursuant to N.C. Gen.Stat. § 15A–1343(b)(1).
We hold, assuming arguendothe trial court revoked Defendant's probation based upon Defendant's failure to appear at the 3 December 2013 court date, that the trial court lacked jurisdiction to do so. As our Court held in Kornegay:
In order to revoke a defendant's probation, a court must have jurisdiction to do so. To establish jurisdiction over specific allegations in a probation revocation hearing, the defendant either must waive notice or be given proper notice of the revocation hearing, including the specific grounds on which his probation might be revoked. Here, defendant did not waive notice, and the trial court revoked defendant's probation for violation of a condition not included in the State's violation reports. Therefore, it did not have jurisdiction to revoke defendant's probation and activate his sentence. Accordingly, we vacate the trial court's order revoking defendant's probation and activating his sentence and remand.
Kornegay,––– N.C.App. at –––, 745 S.E.2d at 883. Contrary to the State's assertion, an assertion in the violation reports that the State might seek revocation for a different violation does not suffice. Adequate notice requires that a defendant be notified concerning which alleged violations the State intends to pursue for the purposes of probation revocation.
VACATED AND REMANDED.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).
Opinion
Appeal by Defendant from judgments and commitments entered 5 March 2014 by Judge W. Allen Cobb, Jr. in Superior Court, New Hanover County. Heard in the Court of Appeals 16 February 2015.