Collateral Attacks on Probationary Sentences

Sometimes a good defense to an alleged probation violation is not about the violation itself, but rather about the underlying conviction or sentence. For example, if a violation occurred in month 38 of a probation period that shouldn’t have been any longer than 36 months without the judicial finding required under G.S. 15A-1343.2(d), the defendant will have a good argument that the violation is without merit because it occurred after a lawful probation period would have ended. (I discussed that general issue in this prior post.) A defendant might also argue that the condition allegedly violated was improper. The General Statutes expressly provide for that sort of defense, saying that a defendant’s failure to object to a condition at the outset does not constitute a waiver of the right to object to it “at a later time.” G.S. 15A-1342(g). But “at a later time” does not mean forever. Rather, the defendant must object to the condition no later than the hearing at which the violation is alleged. State v. Cooper, 304 N.C. 180 (1981). That question of timing brings me to the subject of today’s post. One type of argument a defendant facing a probation violation might raise is that there was some problem with the indictment that originally charged the offense for which he or she is on probation. That type of challenge was the subject of a recent case, State v. Pennell, __ N.C. __, 758 S.E.2d 383 (2014). The question before the supreme court in Pennell was this: when is it [...]