State v. Posey, ___ N.C. App. ___, 804 S.E.2d 580 (Aug. 15, 2017)

Over a dissent, the court dismissed as moot the defendant’s appeal from a judgment revoking his probation and activating his suspended sentence. After finding that the defendant was not at home during a mandatory curfew on two occasions, that these absences constituted willful violations of probation, and that the violations constituted absconding, the trial court revoked the defendant’s probation and activated his suspended sentence. The defendant appealed. The case was before the appellate court on writ of certiorari. The State conceded that the trial court lacked jurisdiction to revoke the defendant’s probation under the Justice Reinvestment Act because the underlying offenses occurred prior to December 1, 2011. The State argued however that the appeal was moot because the defendant had served his time. The defendant countered, arguing that he may suffer collateral consequences as a result of the trial court’s alleged error if he is subsequently convicted of a new crime. Specifically, he noted that under North Carolina law, an aggravating sentencing factor may be found when the defendant previously has been found in willful violation of probation. The court rejected this argument, noting that the defendant made no assertion that the trial court erred in finding him in willful violation of probation, the factor that triggers application of the aggravating factor. Rather, the defendant only argued that the trial court erred in revoking his probation based on application of the Justice Reinvestment Act, which did not take effect until after he violated his probation. However, the fact that the defendant’s probation was revoked does not in itself trigger application of the aggravating factor. The only part of the trial court’s judgment which could have any future detrimental effect is the finding that the defendant was in willful violation of probation, a finding he did not challenge. Here, the trial court acted within its authority in entering its finding of willfulness. Specifically, the court stated: “the conditions of Defendant’s probation included a mandatory curfew; Defendant was cited for violating this curfew; the trial court had the jurisdiction to hold its hearing to consider Defendant’s violation; and the trial court found that Defendant violated his curfew and that the violation was willful. Therefore, since Defendant will not suffer future collateral consequences stemming from the trial court’s error in revoking his probation, we conclude that Defendant’s appeal is moot.”