The Prior Probation Violation Aggravating Factor

One of the statutory aggravating factors for felony sentencing is that the defendant has, during the 10-year period prior to the commission of the offense now being sentenced, been found to be in willful violation of probation, post-release supervision, or parole. G.S. 15A-1340.16(d)(12a). It sounds straightforward enough, but it turns out to be a little tricky to apply in practice. The factor hasn’t been around very long. It was added to the law in 2008, and made applicable only to offenses committed on or after December 1, 2008. S.L. 2008-129. That refers to the offense date of the crime now being sentenced, not to the offense date of the earlier crime that eventually resulted in a violation of probation, PRS, or parole. Obviously most crimes sentenced today are covered. The prior findings that can trigger the aggravating factor are a finding of willful violation of probation by a judge or a finding of willful violation of post-release supervision or parole by the Post-Release Supervision and Parole Commission (the Parole Commission). The probation may apparently be any type of adult probation—felony or misdemeanor, supervised or unsupervised. Violations of juvenile probation don’t fit, because the law applies to violations of “conditions of probation imposed pursuant to a suspended sentence,” (emphasis added), a construct that is unique to adult probation. The probation violation must be found “by a court of this State”; violations from other jurisdictions do not qualify. Determinations by a probation officer that a person has failed to comply with conditions of [...]