Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/26/2021
E.g., 09/26/2021
State v. Pennell, 367 N.C. 466 (June 12, 2014)

Reversing the court of appeals, the court held that on direct appeal from the activation of a suspended sentence, a defendant may not challenge the jurisdictional validity of the indictment underlying his original conviction. The court reasoned that a challenge to the validity of the original judgment constitutes an impermissible collateral attack. It explained:

[D]efendant failed to appeal from his original judgment. He may not now appeal the matter collaterally via a proceeding contesting the activation of the sentence imposed in the original judgment. As such, defendant’s present challenge to the validity of his original conviction is improper. Because a jurisdictional challenge may only be raised when an appeal is otherwise proper, we hold that a defendant may not challenge the jurisdiction over the original conviction in an appeal from the order revoking his probation and activating his sentence. The proper procedure through which defendant may challenge the facial validity of the original indictment is by filing a motion for appropriate relief under [G.S.] 15A-1415(b) or petitioning for a writ of habeas corpus. Our holding here does not prejudice defendant from pursuing these avenues.

Slip Op. at 9-10 (footnote and citation omitted).

The defendant was placed on probation in district court pursuant to a formal deferred prosecution agreement under G.S. 15A-1341(a1). A district court judge found him in violation and revoked his deferred prosecution probation. The defendant appealed to superior court for a de novo violation hearing, but a superior court judge dismissed the appeal for lack of jurisdiction. The court of appeals affirmed the dismissal, concluding that there is no statutory right to appeal a revocation of probation in the deferred prosecution context, as that revocation does not “activate[] a sentence” within the meaning of G.S. 15A-1347(a). The court noted that the superior court could, in some cases, review district court revocations of deferred prosecution probation through its authority to issue writs of certiorari under Rule 19 of the General Rules of Practice for the Superior and District Courts.

The court declined to consider the defendant’s argument that the trial court had no jurisdiction to revoke his probation because the sentencing court failed to make findings supporting a probation term of more than 30 months. It reasoned that a defendant cannot re-litigate the legality of a condition of probation unless he or she raises the issue no later than the hearing at which his probation is revoked.

A defendant may not challenge the validity of an indictment in an appeal challenging revocation of probation. In such circumstances, challenging the validity of the original judgment is an impermissible collateral attack. 

State v. Long, 220 N.C. App. 139 (Apr. 17, 2012)

On appeal from judgment revoking probation, the defendant could not challenge the trial court’s jurisdiction to enter the original judgment as this constituted an impermissible collateral attack on the original judgment. 

Defendant had no right to appeal from the trial court’s orders modifying the terms of his probation and imposing Confinement in Response to Violation. For a discussion of this case, see my colleague’s blog post here.

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.”

The court held that it had no authority to consider the defendant’s challenge to the trial court’s imposition of a special condition of probation. 

State v. Murchison, 367 N.C. 461 (June 12, 2014)

Reversing an unpublished decision of the court of appeals, the court held that the trial court did not abuse its discretion by basing its decision to revoke the defendant’s probation on hearsay evidence presented by the State. The court noted that under Rule 1101, the formal rules of evidence do not apply in probation revocation hearings.

The defendant was on felony probation. During a traffic stop, a law enforcement officer found a pistol in the defendant’s car, which resulted in criminal charges for possession of firearm by a felon and carrying a concealed weapon and the filing of a probation violation report for committing new criminal offenses. In the trial for the new criminal charges, the judge denied the defendant’s motion to suppress the pistol, but the case nonetheless resulted in a mistrial. At the subsequent probation violation hearing, the court found that the defendant committed the alleged criminal offenses and revoked probation. After granting the defendant’s petition for writ of certiorari, the Court of Appeals rejected his argument that he was deprived of the right to confront and cross-examine the law enforcement officer at his probation violation hearing. The right to confront and cross-examine witnesses at a probation violation hearing as provided in G.S. 15A-1345(e) is grounded in a probationer’s Fourteenth Amendment due process rights, which are more flexible than his or her confrontation rights at trial under the Sixth Amendment. As such, the court held that the law enforcement officer’s testimony at the prior motion to suppress was competent evidence of the alleged violations, and that the trial court did not err by finding the new criminal offense violations despite the earlier mistrial. The defendant did not request findings for good cause as to why confrontation should not be allowed, and therefore no such findings were required. The Court of Appeals affirmed the revocation of probation but remanded the case for correction of a clerical error.

On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 814 S.E.2d 843 (2018), the Supreme Court considered the statutory requirements for revoking probation after it has expired. In this case the defendant’s probation officer filed a violation report on May 12, 2016 alleging, among other things, that the defendant committed a new criminal offense. His probation expired on August 28, 2016, and then came on for a violation hearing in early September. The trial court revoked the defendant’s probation based on the defendant’s admission that he absconded and committed a new criminal offense. On appeal, the defendant argued that the trial court erred by revoking his probation after expiration without making a specific finding that it was doing so for good cause shown and stated as required by G.S. 15A-1344(f)(3). The Court of Appeals held, over a dissent, that under State v. Regan, 253 N.C. App. 351 (2017), no specific findings were required. The Supreme Court reversed, concluding that the plain language of the statute does require a finding of good cause—just as former G.S. 15A-1344(f)(2) required a finding that the State had made a “reasonable effort” to notify a probationer and conduct a violation hearing earlier to give a court jurisdiction to act on a case after probation expired. See State v. Bryant, 361 N.C. 100 (2006). The court remanded the case to the trial court to make a determination of whether good cause existed to revoke the defendant’s probation after it had already expired and, if so, to make an appropriate finding of fact.

The defendant was placed on 18 months of supervised probation following his guilty pleas to possession of a firearm by a felon, possession of a stolen motor vehicle, fleeing to elude, and RDO. Shortly before his probationary term expired, the defendant’s probation officer filed a violation report alleging that he had committed four new criminal offenses. Approximately a year later, after the defendant prevailed on a motion to suppress evidence in those cases, the new charges were dismissed. Nevertheless, the defendant’s probation was revoked based on the allegations in the violation report, and the defendant appealed. In State v. Geter, 843 S.E.2d 489 (N.C. App. 2020) (unpublished), the appellate court remanded this matter because the revocation judgments failed to identify which of the four new offenses were the basis for the revocation, and also failed to make a finding that good cause existed to revoke the defendant’s probation after the probationary period had expired (by 399 days), as required by G.S. 15A-1344(f). After a rehearing, the trial court found that good cause existed for the revocation because the new charges were not resolved before the probationary period had ended, and the disposition of those charges would have had a direct impact on the violation hearing. The defendant again appealed his revocation, arguing that the trial court’s finding of good cause failed as a matter of law.

The appellate court disagreed and affirmed the revocation. Applying an abuse of discretion of standard, and distinguishing State v. Sasek, 844 S.E.2d 328 (N.C. App. 2020) in which no findings were made nor was there any evidence in the record that good cause existed, the trial court in this case did make findings and they were supported by facts in the record. The appellate court acknowledged that a revocation occurring 399 days after the probationary period had ended was “significant” and “unadvisable in the administration of justice,” but in this case the violation report was not filed until shortly before the end of the probationary period, there was only one session of hearings held each week in the county, and the trial court found that waiting for a disposition on the underlying new charges constituted good cause for the delay. The trial court did not abuse its discretion in so finding, and the revocation order was affirmed.

The defendant was placed on 18 months of supervised probation following his guilty pleas to possession of a firearm by a felon, possession of a stolen motor vehicle, fleeing to elude, and RDO. Shortly before his probationary term expired, the defendant’s probation officer filed a violation report alleging that he had committed four new criminal offenses. Approximately a year later, after the defendant prevailed on a motion to suppress evidence in those cases, the new charges were dismissed. Nevertheless, the defendant’s probation was revoked based on the allegations in the violation report, and the defendant appealed. In State v. Geter, 843 S.E.2d 489 (N.C. App. 2020) (unpublished), the appellate court remanded this matter because the revocation judgments failed to identify which of the four new offenses were the basis for the revocation, and also failed to make a finding that good cause existed to revoke the defendant’s probation after the probationary period had expired (by 399 days), as required by G.S. 15A-1344(f). After a rehearing, the trial court found that good cause existed for the revocation because the new charges were not resolved before the probationary period had ended, and the disposition of those charges would have had a direct impact on the violation hearing. The defendant again appealed his revocation, arguing that the trial court’s finding of good cause failed as a matter of law.

The appellate court disagreed and affirmed the revocation. Applying an abuse of discretion of standard, and distinguishing State v. Sasek, 844 S.E.2d 328 (N.C. App. 2020) in which no findings were made nor was there any evidence in the record that good cause existed, the trial court in this case did make findings and they were supported by facts in the record. The appellate court acknowledged that a revocation occurring 399 days after the probationary period had ended was “significant” and “unadvisable in the administration of justice,” but in this case the violation report was not filed until shortly before the end of the probationary period, there was only one session of hearings held each week in the county, and the trial court found that waiting for a disposition on the underlying new charges constituted good cause for the delay. The trial court did not abuse its discretion in so finding, and the revocation order was affirmed.

(1) The defendant was convicted of possession with intent to sell or deliver a Schedule II controlled substance and sale of methamphetamine. At trial, the State presented the testimony of an expert in drug chemistry from the North Carolina State Crime Lab. She testified that she performed a gas chromatography mass spectrometer (GCMS) test on the substance. She explained how the GCMS test works and how the examiner analyzes the results. Before she explained how she applied those methods on the sample in this case and the result she obtained, the State interrupted her testimony and asked about recognition of GCMS testing in the scientific community. The witness testified that GCMS was well-respected in the scientific community and confirmed that she had recorded the results of her testing in the lab report. The lab report was then admitted into evidence without objection, and the witness testified without objection that the substance was methamphetamine, Schedule II. The Court of Appeals held that although the witness was prepared to explain how she conducted GCMS testing in this case, she never did so. Further, the lab report stated only that the material that was examined was found to contain methamphetamine. The Court of Appeals found that this evidence failed to satisfy North Carolina Rule of Evidence 702(a)(3), which requires that the witness demonstrate that she applied the principles and methods reliably to the facts of the case. The Court ruled, however, that the defendant failed to establish plain error because the witness testified that she conducted the GCMS test, obtained positive results, and produced a lab report recording the results. (2) The trial judge revoked the defendant’s probation, imposed for other charges before the offenses in this case, based on violation of the condition that the defendant commit no criminal offense. The defendant argued and the State conceded that the trial judge erred by activating his suspended sentence without making a finding that good cause existed to revoke his probation after the period of probation expired. The defendant argued further that the probation revocation should be vacated, without remand, because the record was devoid of any evidence to show good cause to revoke after the expiration of the defendant’s probation. The Court of Appeals agreed. A violation report was filed May 17, 2017, and a probation hearing was scheduled for June 13, 2017, but a hearing did not take place until March 2019, fourteen months after the defendant’s probation expired. The Court found nothing in the record to show why the probation hearing was not held in June 2017 or at least before expiration of his probation in January 2018. The Court noted that a criminal conviction is not required for the trial judge to revoke probation for a defendant’s commission of a criminal act in violation of probation. A concurring judge would have remanded for further proceedings on whether the State made reasonable efforts to conduct a probation hearing before expiration of the defendant’s probation.

The trial court did not err by revoking the defendant’s probation based on its finding that he willfully absconded from supervision. In so ruling, the court rejected the defendant’s argument that the trial court abused its discretion by making its oral findings of fact without explicitly stating the legal standard of proof. Noting that it has held that a trial court’s failure to state the standard of proof underlying its findings may constitute reversible error when certain protected interests are involved, it has never so held in the context of a probation hearing. The court noted that “Although the trial court failed to employ the best practice and explicitly state the legal standard of proof,” the totality of the trial court’s statements indicate that it was reasonably satisfied in light of all the evidence presented that a willful violation had occurred. Reviewing the facts of the case, the court also rejected the defendant’s argument that there was insufficient evidence that he willfully absconded from supervision.

On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 810 S.E.2d 828 (2018), the court affirmed per curiam, holding that the State failed to carry its burden of presenting sufficient evidence to support the trial court’s decision to revoke the defendant’s probation based upon a finding that the defendant willfully absconded probation. It went on, however, to “disavow the portion of the opinion analyzing the pertinence of the fact that defendant’s probationary term expired prior to the date of the probation violation hearing and holding ‘that the trial court lacked jurisdiction to revoke defendant’s probation after his case expired.’” In the opinion below, the Court of Appeals held that because the State presented insufficient evidence to support a finding of willful absconding, the trial court lacked jurisdiction to revoke the defendant’s probation after the term of probation ended. When the defendant’s probation officer visited his reported address, an unidentified woman advised the officer that the defendant did not live there. The State presented no evidence regarding the identity of this person or her relationship to the defendant. The officer never attempted to contact the defendant again. However when the defendant contacted the officer following his absconding arrest, the officer met the defendant at the residence in question. The Court of Appeals held that the evidence was insufficient to establish absconding. It went on to hold that the trial court’s decision was not only an abuse of discretion but also was an error that deprived the court of jurisdiction to revoke the defendant’s probation after his probationary term expired.

A Watauga County trial court lacked jurisdiction to revoke the defendant’s probation imposed in two separate cases in other counties, one probationary sentence imposed in Lincoln County and the other in Catawba County.  As to the Lincoln County case, the State failed to meet its burden to show that the defendant was properly being supervised in Watauga County as there was no evidence that the probation was imposed in Watauga County, that the defendant violated probation imposed in the Lincoln case while she was in Watauga, or that the defendant resided in Watauga County at any relevant time.  The State failed to meet its burden to show the same with respect to the Catawba County case.

The defendant pled guilty to aggravated felony serious injury by vehicle, driving while impaired, and injury to real property. The trial court sentenced the defendant to 29 – 47 months imprisonment and suspended the sentence, placing the defendant on 60 months of supervised probation. The trial court also ordered the defendant to serve 330 days of imprisonment as a condition of special probation.

Defendant began to serve his term of special probation on October 7, 2014, and then served a 26-day term of imprisonment in a separate case. The defendant was released from imprisonment to supervised probation on September 28, 2015. The probation officer filed violation reports on January 23, 2020, February 5, 2020, and February 25, 2020. The trial court determined in a March 10, 2020 hearing that the defendant willfully violated the terms of his probation and activated the defendant’s suspended sentence. The defendant appealed.

The Court of Appeals determined that the trial court lacked subject matter jurisdiction to revoke the defendant’s probation. Pursuant to G.S. 15A-1351(a), the defendant’s total probationary period included his 330-day imprisonment as a condition of special probation. The Court reasoned that, at the latest, the defendant’s probationary period began on November 3, 2014, after he served his 26-day sentence in the other case. Thus, the defendant’s 60-month probationary period would have ended, at the latest, on November 3, 2019. Because the violation reports were all filed after that date, the trial court lacked subject-matter jurisdiction to revoke the defendant’s probation and activate his suspended sentence.

In this probation revocation case that was appealed by a petition for writ of certiorari, the court held that the defendant failed to demonstrate error with respect to the district court’s exercise of subject matter jurisdiction to revoke her probation.  On May 5, 2017, the defendant was placed on 12 months of supervised probation pursuant to a conditional discharge plea agreement related to a felony drug charge.  On March 4, 2018, the defendant’s probation officer filed a violation report asserting that she had only completed a small fraction of her court-ordered community service hours and had not yet paid in full her court costs and supervised probation fee.  At a May 4, 2018, hearing on the violation report, which resulted in the trial court finding a willful violation of probation and entering judgment on the felony drug charge, the defendant did not object to the district court’s jurisdiction and fully participated in the hearing.

The court first addressed its appellate jurisdiction, noting that the defendant’s various attempts to appeal the judgment did not comply with the Rules of Appellate Procedure but deciding to use its discretion to allow the defendant’s petition for writ of certiorari, in part because the issue of the district court’s subject matter jurisdiction to revoke her probation was one of first impression.  The court then turned to the merits, first explaining that under G.S. 7A-271(e) “the superior court generally exercises exclusive jurisdiction over probation revocation hearings even when the underlying felony conviction and probationary sentence were imposed through a guilty plea in district court.”  The court went on to explain that notwithstanding the statute’s general rule, it further provides as an exception that the district court has jurisdiction over probation revocation hearings when the State and the defendant, using the statute’s term, “consent” to the district court’s jurisdiction.  Noting that the term “consent” is not defined in the statute and has not been construed in this context by a North Carolina appellate court, the court rejected the defendant’s argument that it was necessary that her “express consent” appear in the record.  Instead, the court held that the term encompasses implied consent and that the defendant’s conduct in this case – fully participating in the hearing without objection and even going so far as to request additional relief from the court during the hearing – constitutes implied consent.

The defendant was serving an active sentence when he pled guilty to other felony charges. The sentencing court imposed two 20 to 24 month sentences, suspended for 36 months on the condition of supervised probation. In the event the defendant violated probation, the two sentences would be run consecutively to the then-existing sentence. In one of the new sentences, the court indicated the probation would run at the expiration of the defendant’s current sentence. The other new sentence did not. The defendant violated probation and the consecutive terms were imposed. On appeal, the defendant complained that the violation report for one of the cases was filed too late—since only one judgment indicated probation was to begin at the expiration of his existing sentence, probation from the other judgment began running concurrently while the defendant was still incarcerated. The court agreed. Under G.S. 15A-1346, probation runs concurrently to any active sentence if not otherwise specified. Because one of the judgments failed to indicate probation ran consecutive to the defendant’s existing sentence, it was concurrent by default and probation began on the day of that judgment. Here, the violation was filed after that probationary period expired, and the trial court lacked jurisdiction to revoke the defendant’s probation. The judgement of revocation in that case was therefore vacated.

The trial court lacked jurisdiction to conduct a probation revocation hearing because the defendant was not provided with adequate notice, including a written statement of the violations alleged. The trial court revoked the defendant’s probation after the defendant made multiple repeated objections to probation. The court rejected the State’s argument that the defendant waived her right to statutory notice by voluntarily appearing before the court and participating in the revocation hearing. Because the defendant was not provided with prior statutory notice of the alleged violations, the trial court lacked jurisdiction to revoke probation. The court went on to note that the trial court is not without recourse to compel a recalcitrant defendant in these circumstances. The violation report could have been filed and an arrest warrant could have been issued to provide the defendant with proper notice. Alternatively, the trial court could have found the defendant in contempt of court. And, regardless of the defendant’s statements and protests, the trial court could have simply ordered the defendant to be accompanied by a law enforcement or probation officer to register and implement probation supervision.

The trial court lacked jurisdiction to revoke the defendant’s probation based on the violations alleged. Here, the defendant did not waive his right to notice of his alleged probation violations and the State failed to allege a revocation-eligible violation. Thus, the trial court lacked jurisdiction to revoke.

The trial court had jurisdiction to revoke the defendant’s probation. The court rejected the defendant’s argument that the trial court in Harnett County lacked jurisdiction to commence a probation revocation hearing because the probation originated in Sampson County. It held: “A trial court located in a county where a defendant resides and violates the terms of her probation is vested with jurisdiction to revoke the defendant’s probation.” The court added however:

In order to avoid disputes, uncertainty, and costly litigation, the better practice for probation officers is to specify on probation violation reports any address relevant to alleged probation violations, such as the last known address of a probationer who has left the jurisdiction without permission or the address of the probation office where a defendant failed to attend a scheduled meeting. Additionally, in a probation violation hearing, the better practice for the State is to introduce direct evidence of any address relevant to an alleged probation violation. In this case, the indirect evidence—sufficient to allow the reasonable inference that Defendant resided in Harnett County when she fled the jurisdiction and violated her probation in Harnett County by failing to meet with her probation officer there—supports the trial court’s presumed findings necessary to support its judgment.

The court also rejected the defendant’s argument that the trial court lacked jurisdiction to revoke her probation because there was no record showing that her probation had been transferred from Sampson County to Harnett County. The court noted that the defendant had offered no authority to support this assertion. 

The trial court lacked subject matter jurisdiction to revoke the defendant’s probation because the State failed to prove that the violation reports were timely filed. As reflected by the file stamps on the violation reports, they were filed after the expiration of probation in all three cases at issue. 

Because the probation officer filed violation reports after probation had expired, the trial court lacked jurisdiction to revoke the defendant’s probation. The court rejected the State’s argument that the defendant’s period of probation did not begin until he was released from incarceration and thus that the violation reports were timely. The State acknowledged that the trial court failed to check the box on the judgment form indicating that the period of probation would begin upon release from incarceration, but argued that this was a clerical error. The court noted that under G.S. 15A-1346, the default rule is that probation runs concurrently with imprisonment. The court rejected the notion that the trial court’s failure to check the box on the form was a clerical, in part because the trial court failed to do so five times with respect to five separate judgments. Additionally, the court held that if a mistake was made it was substantive not clerical, reasoning: “[c]hanging this provision would retroactively extend the defendant’s period of probation by more than one year and would grant the trial court subject matter jurisdiction to activate [the sentences].”

(1) In this case, which came to the court on a certiorari petition to review the trial court’s 2013 probation revocation, the court concluded that it had jurisdiction to consider the defendant’s claim that the trial court lacked jurisdiction to extend her probation in 2009. (2) The trial court lacked jurisdiction to extend the defendant’s probation in 2009. The defendant’s original period of probation expired on 27 June 2010. On 18 February 2009, 16 months before the date probation was set to end, the trial court extended the defendant’s probation. Under G.S. 15A-1343.2(d), the trial court lacked statutory authority to order a three-year extension more than six months before the expiration of the original period of probation. Also, the trial court lacked statutory authority under G.S. 15A-1344(d) because the defendant’s extended period of probation exceeded five years. Because the trial court lacked jurisdiction to extend probation in 2009, the trial court lacked jurisdiction to revoke the defendant’s probation in 2013.

The trial court lacked subject matter jurisdiction to revoke the defendant’s probation when it did so after his probationary period had expired and he was not subject to a tolling period.

The trial court lacked subject matter jurisdiction to revoke the defendant’s probation when it did so after his probationary period had expired and he was not subject to a tolling period.

State v. Knox, 239 N.C. App. 430 (Feb. 17, 2015)

Because the trial court revoked defendant’s probation before the period of probation expired, the court rejected defendant’s argument that under G.S. 15A-1344(f) the trial court lacked jurisdiction to revoke. 

(1) The trial court lacked jurisdiction to revoke the defendant’s probation and activate her suspended sentences where the defendant committed her offenses prior to 1 December 2009 but had her revocation hearing after 1 December 2009 and thus was not covered by either statutory provision—G.S. 15A-1344(d) or 15A-1344(g)—authorizing the tolling of probation periods for pending criminal charges. (2) The trial court erred by revoking her probation in other cases where it based the revocation, in part, on probation violations that were neither admitted by the defendant nor proven by the State at the probation hearing.

A Sampson County superior court judge had jurisdiction to revoke the defendant’s probation where the evidence showed that the defendant resided in that county.

(1) The trial court erred by revoking the defendant’s probation where the State failed to present evidence that the violation report was filed before the termination of the defendant’s probation. As a result, the trial court lacked jurisdiction to revoke. (2) The court declined to consider the defendant’s argument that the trial court had no jurisdiction to revoke his probation in another case because the sentencing court failed to make findings supporting a probation term of more than 30 months. It reasoned that a defendant cannot re-litigate the legality of a condition of probation unless he or she raises the issue no later than the hearing at which his probation is revoked.

The trial court lacked jurisdiction to extend the defendant’s probation after his original probation period expired. Although the probation officer prepared violation reports before the period ended, they were not filed with the clerk before the probation period ended as required by G.S. 15A-1344(f). The court rejected the State’s argument that a file stamp is not required and that other evidence established that the reports were timely filed.

The trial court lacked jurisdiction to revoke the defendant’s probation and activate his sentence. Although the trial court revoked on grounds that the defendant had committed a subsequent criminal offense, such a violation was not alleged in the violation report. Thus, the defendant did not receive proper notice of the violation. Because the defendant did not waive notice, the trial court lacked jurisdiction to revoke.

The trial court lacked jurisdiction to revoke the defendant’s probation on the basis of a violation that was not alleged in the violation report and of which she was not given notice. The violation reports alleged that the defendant violated two conditions of her probation: to “[n]ot use, possess or control any illegal drug” and to “participate in further evaluation, counseling, treatment or education programs recommended . . . and comply with all further therapeutic requirements.” The specific facts upon which the State relied were that “defendant admitted to using 10 lines of cocaine” and that the defendant failed to comply with treatment as ordered. However, the trial court found that the defendant’s probation was revoked for “violation of the condition(s) that he/she not commit any criminal offense . . . or abscond from supervision.”

The court lacked jurisdiction to consider an appeal when the defendant failed to timely challenge an order revoking his probation. If a trial judge determines that a defendant has willfully violated probation, activates the defendant’s suspended sentence, and then stays execution of his or her order, a final judgment has been entered, triggering the defendant’s right to seek appellate review of the trial court’s decision. In this case, the defendant appealed well after expiration of the fourteen-day appeal period prescribed in the appellate rules. 

The trial court had jurisdiction to revoke the defendant’s probation. In 2003, the defendant was convicted in Haywood County and placed on probation. In 2007, the defendant’s probation was modified in Buncombe County. In 2009, it was revoked in Buncombe County. Appealing the revocation, the defendant argued that under G.S. 15A-1344(a), Buncombe County was not a proper place to hold the probation violation hearing. The court held that the 2007 Buncombe County modification made that county a place “where the sentence of probation was imposed,” and thus a proper place to hold a violation hearing. 

Holding, in a case decided under the old version of G.S. 15A-1344(f), that the trial court lacked jurisdiction to hold a probation revocation hearing where the state failed to make reasonable efforts to notify the defendant and to hold the hearing before the period of probation expired.

State v. Moore, 370 N.C. 338 (Dec. 8, 2017)

On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 795 S.E.2d 598 (2016), the court modified and affirmed the decision below, holding that the defendant received adequate notice of his probation revocation hearing pursuant to G.S. 15A-1345(e). The trial court revoked the defendant’s probation for violating the condition that he commit no criminal offenses, specifically fleeing to allude arrest and no operator’s license. On appeal, the defendant argued that because the probation violation reports did not specifically list the “commit no criminal offense” condition as the condition violated, the statutory notice requirement was not satisfied. The court determined that the issue was one of first impression. The statute requires that the State give the probationer notice of the hearing and its purpose, including a statement of the violations alleged. The words “violation” and “violations” as used in the statute refer to violations of conditions of probation. It follows that the phrase “statement of the violations alleged” refers to a statement of what the probationer did to violate his conditions of probation. It does not require a statement of the underlying conditions that were violated. The court also overruled post-Justice Reinvestment Act cases decided by the Court of Appeals that had created a different notice requirement. Here, the State sought to prove that the defendant had violated the condition that he commit no criminal offense. Thus, the notice needed to contain a statement of the actions the defendant allegedly took that constituted a violation of the probation— that is, a statement of what the defendant actually did that violated a probation condition. The defendant received proper notice when the violation report named the specific offenses that the defendant was alleged to have committed, listing his pending criminal charges. 

The trial court lacked jurisdiction to conduct a probation revocation hearing because the defendant was not provided with adequate notice, including a written statement of the violations alleged. The trial court revoked the defendant’s probation after the defendant made multiple repeated objections to probation. The court rejected the State’s argument that the defendant waived her right to statutory notice by voluntarily appearing before the court and participating in the revocation hearing. Because the defendant was not provided with prior statutory notice of the alleged violations, the trial court lacked jurisdiction to revoke probation. The court went on to note that the trial court is not without recourse to compel a recalcitrant defendant in these circumstances. The violation report could have been filed and an arrest warrant could have been issued to provide the defendant with proper notice. Alternatively, the trial court could have found the defendant in contempt of court. And, regardless of the defendant’s statements and protests, the trial court could have simply ordered the defendant to be accompanied by a law enforcement or probation officer to register and implement probation supervision.

State v. Knox, 239 N.C. App. 430 (Feb. 17, 2015)

Where counsel stated at the revocation hearing that defendant acknowledged that he had received a probation violation report and admitted the allegations in the report and defendant appeared and participated in the hearing voluntarily, the defendant waived the notice requirement of G.S. 15A-1345(e). 

A probation violation report provided the defendant with adequate notice that the State intended to revoke his probation on the basis of a new criminal offense. The report alleged that the defendant violated the condition that he commit no criminal offense in that he had several new pending charges which were specifically identified. The report further stated that “If the defendant is convicted of any of the charges it will be a violation of his current probation.” 

Although the probation report might have been ambiguous regarding the condition allegedly violated, because the report set forth the specific facts at issue (later established at the revocation hearing), the report gave the defendant sufficient notice of the alleged violation, as required by G.S. 15A-1345(e). The State presented sufficient evidence that the defendant violated a special condition of probation requiring compliance with the rules of intensive probation. The State’s evidence included testimony by probation officers that they informed the defendant of his curfew and their need to communicate with him during curfew checks, and that compliance with curfew meant that the defendant could not be intoxicated in his home. During a curfew check, the defendant was so drunk that he could not walk; later that evening the defendant was drunk and disruptive, to the extent that his girlfriend was afraid to enter the residence.

The trial court erred by allowing the defendant to proceed pro se at a probation revocation hearing without taking a waiver of counsel as required by G.S. 15A-1242. The defendant’s appointed counsel withdrew at the beginning of the revocation hearing due to a conflict of interest and the trial judge allowed the defendant to proceed pro se. However, the trial court failed to inquire as to whether the defendant understood the range of permissible punishments. The court rejected the State’s argument that the defendant understood the range of punishments because “the probation officer told the court that the State was seeking probation revocation.” The court noted that as to the underlying sentence, the defendant was told only that, “[t]here’s four, boxcar(ed), eight to ten.” The court found this insufficient, noting that it could not assume that the defendant understood this legal jargon as it related to his sentence. Finally, the court held that although the defendant signed the written waiver form, “the trial court was not abrogated of its responsibility to ensure the requirements of [G.S.] 15A-1242 were fulfilled.”

State v. Krider, 370 N.C. 692 (Sept. 21, 2018)

On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 810 S.E.2d 828 (2018), the court affirmed per curiam, holding that the State failed to carry its burden of presenting sufficient evidence to support the trial court’s decision to revoke the defendant’s probation based upon a finding that the defendant willfully absconded probation. It went on, however, to “disavow the portion of the opinion analyzing the pertinence of the fact that defendant’s probationary term expired prior to the date of the probation violation hearing and holding ‘that the trial court lacked jurisdiction to revoke defendant’s probation after his case expired.’” In the opinion below, the Court of Appeals held that because the State presented insufficient evidence to support a finding of willful absconding, the trial court lacked jurisdiction to revoke the defendant’s probation after the term of probation ended. When the defendant’s probation officer visited his reported address, an unidentified woman advised the officer that the defendant did not live there. The State presented no evidence regarding the identity of this person or her relationship to the defendant. The officer never attempted to contact the defendant again. However when the defendant contacted the officer following his absconding arrest, the officer met the defendant at the residence in question. The Court of Appeals held that the evidence was insufficient to establish absconding. It went on to hold that the trial court’s decision was not only an abuse of discretion but also was an error that deprived the court of jurisdiction to revoke the defendant’s probation after his probationary term expired.

The defendant was on supervised probation for a conviction of possession with intent to sell or deliver marijuana, and the state alleged that he violated his probation by testing positive for cocaine and committing a new criminal offense. At a hearing held on the violation, the defendant’s probation officer testified about the positive drug screen, and a police officer testified about the alleged new criminal activity. Officers used a confidential informant to conduct two controlled buys of a white powdery substance from the defendant, and then obtained a search warrant for his home where they discovered cash and additional drugs, resulting in new criminal charges against the defendant. The informant did not testify at the probation hearing. At the conclusion of the hearing, the trial court revoked the defendant’s probation and the defendant appealed.

The trial court’s oral pronouncement only indicated that the revocation was based on the commission of a new criminal offense, but the written findings indicated that the revocation was based on both allegations, so per case precedent the written order was deemed controlling on appeal. The appellate court agreed that pursuant to the Justice Reinvestment Act, the defendant’s probation could not be revoked for using cocaine; instead, the trial court was only authorized to modify his conditions of probation or impose a 90-day CRV, so the order of revocation based on this allegation was reversed. But the state presented sufficient evidence at the hearing that the defendant also committed a new criminal offense by possessing and selling crack cocaine, which would support revoking the defendant’s probation. 

However, rather than affirming the trial court’s order, the appellate court remanded the matter to determine whether the trial court properly exercised its discretion under G.S. 15A-1345(e), which provides that “the probationer may […] confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation.” (Since this was a probation revocation hearing, only the statutory confrontation right was at issue, rather than the confrontation rights under the Sixth Amendment.) The confidential informant did not testify at the hearing, and the defense objected to the admission of her hearsay statements. The trial court overruled those objections based on “the nature of these proceedings,” and the appellate court held that it was unclear whether that ruling reflected an exercise of discretion and finding of good cause. The court distinguished this case from State v. Jones, 269 N.C. App. 440 (2020), where it had previously held that a failure to find good cause was not reversible error, because in Jones the defendant did not challenge the testimony on this basis and did not request findings of good cause as to why confrontation should not be allowed, so no findings were required.

Judge Tyson concurred in part, finding that the defendant waived his statutory confrontation objection and failed to meet his burden of showing prejudice, and the trial court did not err in revoking the defendant’s probation.

(1) The defendant was convicted of drug offenses in Gaston County on July 5, 2017 and was sentenced to 24 months of supervised probation. After reporting for his intake visit with a Gaston County probation officer, the defendant avoided probation officers for several months. Probation officers attempted on six separate occasions to verify defendant’s residence at the address he provided. He was not present for any of these visits. On two of the visits, individuals who knew the defendant told the officers that the defendant no longer lived at the residence or that he planned to move from the residence.

Despite being on notice to maintain regular contact with probation officers, no probation officer met with the defendant in person following his initial intake visit before the first violation report alleging absconding was filed on September 14, 2017. On the few occasions that a probation officer could reach the defendant by phone, the officer notified the defendant that a home visit was scheduled. The defendant was absent from the home on those occasions and failed to apprise his probation officer of his whereabouts.

Even after the defendant was released from custody after being arrested for alleged probation violations relating to absconding, he failed to report to his probation officer within 24 hours as instructed. After defendant’s case was transferred from Gaston County to Lincoln County in March 2018, officers continued to have difficulty contacting him. And he failed to notify officers upon getting evicted from his listed residence.

An addendum was filed to the defendant’s probation violation report on May 31, 2018 alleging an additional incident of absconding. The trial court found that the defendant violated his probation by absconding and ordered his probation revoked. The defendant appealed, arguing that the trial court erred in revoking his probation based on its finding that he willfully absconded from supervision.

The Court of Appeals found the State’s allegations and supporting evidence––reflecting defendant’s continuous, willful pattern of avoiding supervision and making his whereabouts unknown––sufficient to support the trial court’s exercise of discretion in revoking defendant’s probation for absconding.

(2) The trial court checked the box on the judgment form stating that the defendant waived a violation hearing and admitted the violations. This was inaccurate, as the record reflects that the defendant was present for his probation hearing and testified as a witness. The Court of Appeals determined that the trial court committed a clerical error when it checked the box indicating otherwise and remanded the case to allow the trial court to correct the error.

(1) The defendant, who had been on probation in six cases, argued on appeal that the trial court erred by revoking his probation for absconding. A divided Court of Appeals disagreed, concluding that the trial court did not abuse its discretion by revoking when the State presented competent evidence to support its finding that the defendant absconded. At the violation hearing, the probation officer testified that, as part of his investigation, he went to the defendant’s last known residence twice, called the defendant’s references, called the local hospital, and checked legal databases to see if the defendant was in custody. During the investigation the defendant also missed two additional appointments and did not contact the officer, leaving the officer unaware of the defendant’s whereabouts for at least nine days. The appellate court distinguished State v. Williams, 243 N.C. App. 198 (2015), in which it had overturned an absconding revocation for a defendant who, despite missing meetings with his officer, remained in contact by telephone. The court also articulated a mens rea distinction between nonrevocable failure-to-report violations and revocable absconding violations, saying that failures to report can amount to absconding if they are willful and the State proves to the trial judge’s reasonable satisfaction that the defendant was avoiding supervision or making his whereabouts unknown. Here, the court cited evidence of the defendant’s failure to return a call from the officer and the thoroughness of the officer’s investigation as sufficient evidence that the defendant was willfully making himself unavailable for supervision and making his whereabouts unknown within the meaning of the absconding condition. Moreover, the defendant admitted to the absconding, and thus failed to meet his burden of establishing that the violation was not willful. (2) The defendant also argued that the trial court erred by ordering the six activated sentences to run consecutively, to the extent that it mistakenly believed that it lacked the authority to allow them to run concurrently. The Court of Appeals disagreed, concluding that the revoking judge’s remark that he was not going to modify the sentencing judge’s decision indicated that the judge acted in his discretion, not under a misapprehension of the law. The court remanded the matter for correction of a clerical error. A judge dissenting in part would have concluded in light of prior appellate cases that the evidence did not support a finding of willful absconding.

The Court of Appeals upheld the trial judge’s revocation of the defendant’s probation for absconding on the following facts: The defendant was released from custody on December 21, 2018, following a plea of guilty to assault with a deadly weapon on a government official. He failed to report to his probation officer by January 11, 2019, when the probation violation report was filed. The probation officer tried to contact the defendant at his sister’s house, which the defendant had given to the probation officer as his address. When the probation officer called the listed phone number, his sister said she had not had contact with him in some time and didn’t know he was out of custody; and when the officer went to the address provided by the defendant, the homeowner said he didn’t know the defendant. On this evidence, the Court concluded that the trial judge did not abuse his discretion in finding that the defendant had absconded. The Court rejected the defendant’s argument that the trial judge may have revoked his probation based on other alleged violations that could not be grounds for revocation, such as failing to attend community support meetings. The Court found that the trial judge specifically revoked the defendant’s probation for absconding.

The trial court did not abuse its discretion when it revoked the defendant’s probation. The State presented sufficient evidence that the defendant willfully absconded by failing to report within 72 hours of his release from custody and thereafter avoiding supervision and making his whereabouts unknown from August 20 through the filing of a violation report on September 22. At the hearing, the defendant admitted that he knew he had to report to the probation office within 72 hours of release, that his mother had informed him that a probation officer had stopped by their home, and that his mother had given him a business card with the probation officer’s information on it. Moreover, the trial court found the defendant’s testimony that he did in fact report to the probation office as instructed to be lacking in credibility. The court rejected the defendant’s argument that the trial court abused its discretion because missing scheduled appointments cannot constitute absconding. The court noted that here the defendant did not simply miss an appointment or phone call with his probation officer. After the defendant was taken into custody for a violation based on absconding, the defendant knowingly failed to notify his probation officer of his release from custody. Thereafter, he actively avoided supervision each day after the initial 72-hour time period through and until September 22, 2017. This was a willful course of conduct by the defendant that thwarted supervision. His actions were a persistent avoidance of supervision and a continual effort to make his whereabouts unknown. Thus, the trial court did not abuse its discretion by finding that the defendant had absconded.

Finding that the trial court properly revoked the defendant’s probation, the court affirmed but remanded for correction of a clerical error. While on probation for another offense, the defendant was convicted of possession of drug paraphernalia. A probation officer filed a violation report noting three violations: arrears for $800 in court indebtedness, $720 in probation supervision fees, and the new conviction. The trial court revoked the defendant’s probation and he appealed. On appeal the defendant argued that the trial court abused its discretion and acted under a misapprehension of the law when it revoked probation based on the three alleged violations when only one provided a statutory basis for revocation. Because the defendant committed a criminal offense while on probation, the trial court properly revoked probation on that ground. The court acknowledged the trial court could not have revoked based on the other two violations and, as noted by the defendant, the trial court improperly checked the box on the form indicating that each violation is in and of itself a sufficient basis for revocation. However, other evidence in the record indicated that the trial court recognized that only one of the violations was sufficient to revoke probation. The court thus remanded for correction of the clerical error.

The trial court abused its discretion by revoking the defendant’s probation, where the evidence was insufficient to establish absconding. The probation officer testified that the defendant absconded a week after a 26 October 2016 meeting by failing attend meetings scheduled for 28 October and 2 November and by failing to contact the officer thereafter even though the officer attempted to call and visit the defendant multiple times and left messages for the defendant with the defendant’s parents. However, the officer could not support her testimony with records and did not recall the number of times and dates on which these contacts were made. The defendant testified that her cell phone was missing, that she was not at home when the officer visited, and that she received no messages that the officer was trying to reach her. She testified that since she had seen the officer at the end of October, it did not occur to her to contact the officer. Although the officer testified to attempts to call and visit the defendant and to having left messages with the defendant’s parents for the defendant, there was no evidence that any message was given to the defendant or that the defendant knew the officer was trying to reach her. Although there was competent evidence that the officer attempted to contact the defendant, there was insufficient evidence that the defendant willfully refused to make herself available for supervision.

The trial court did not have jurisdiction to revoke the defendant’s probation. Four days before his 30 months of probation was to expire, the trial court entered an order extending the defendant’s probation for 12 months with the defendant’s consent. The purpose of the extension was to allow the defendant time “to complete Substance Abuse Treatment.” During the 12-month extension the defendant violated probation and after a hearing the trial court revoked probation. The defendant appealed. The court began by rejecting the State’s argument that the defendant’s appeal was moot because he had already served the entire sentence assigned for the revocation. Turning to the merits, the court held that the trial court lacked jurisdiction to revoke the defendant’s probation because his probationary period was unlawfully extended. In order to extend an individual’s probationary period, the trial court must have statutory authority to do so. No statue authorizes a trial court to extend the defendant’s probation to allow him time to complete a substance abuse program. The court rejected the State’s argument that because the statutes allow an extension of probation for completion of medical or psychiatric treatment ordered as a condition of probation, the trial court’s extension was proper. It reasoned, it part, that the General Assembly did not intend for a probation condition to complete “substance-abuse treatment” to be synonymous with, or a subset of, a probation condition to complete “medical or psychiatric treatment.”

The trial court did not err by revoking the defendant’s probation based on its finding that he willfully absconded from supervision. Reviewing the facts of the case, the court rejected the defendant’s argument that there was insufficient evidence that he willfully absconded from supervision.

The court rejected the defendant’s argument that the trial court erred by revoking her probation after its expiration because it did not make adequate findings of fact. Specifically, the defendant argued that the trial court erred by failing to make any written or oral findings of good cause to revoke her probation. The court noted that the statute at issue, G.S. 15A-1344(f), does not require that the trial court make any specific findings and that, here, the record indicates that the trial court found good cause to revoke.

The trial court properly revoked the defendant’s probation, where the defendant committed a new crime while on probation.

The trial court did not err by revoking the defendant’s probation where the evidence showed that he willfully absconded. The defendant moved from his residence, without notifying or obtaining prior permission from his probation officer, willfully avoided supervision for multiple months, and failed to make his whereabouts known to his probation officer at any time thereafter. 

(1) The trial court erred by revoking the defendant’s probation where the State failed to prove violations of the absconding provision in G.S. 15A-1343(b)(3a). The trial court found that the defendant “absconded” when he told the probation officer he would not report to the probation office and then failed to report as scheduled on the following day. This conduct does not rise to the level of absconding supervision; the defendant’s whereabouts were never unknown to the probation officer. (2) The other alleged violations could not support a probation revocation, where those violations were “unapproved leaves” from the defendant’s house arrest and “are all violations of electronic house arrest.” This conduct was neither a new crime nor absconding. The court noted that the defendant did not make his whereabouts unknown to the probation officer, who was able to monitor the defendant’s whereabouts via the defendant’s electronic monitoring device. 

Under Justice Reinvestment Act (JRA) changes, the trial court erred by revoking the defendant’s probation. After reviewing the requirements of the JRA, the court noted that the trial judge did not check the box on the judgment form indicating that it had made a finding that the defendant violated the statutory absconding provision, G.S. 15A–1343(b)(3a). 

Applying the Justice Reinvestment Act (JRA), the court held that the trial court improperly revoked the defendant’s probation. The defendant violated the condition of probation under G.S. 15A-1343(b)(2) that she not leave the jurisdiction without permission and monetary conditions under G.S. 15A-1343(b). She did not commit a new crime, was not subject to the new absconding condition codified by the JRA in G.S. 15A-1343(b)(3a), and had served no prior CRVs under G.S. 15A 1344(d2). Thus, under the JRA, her probation could not be revoked. 

(1) The trial court did not err by activating the defendant’s sentence on the basis that the defendant absconded by willfully avoiding supervision. The defendant’s probation required that he remain in the jurisdiction and report as directed to the probation officer. The violation report alleged violations of both of these conditions. Despite the trial court’s use of the term “abscond,” it was clear that the trial court revoked the defendant’s probation because he violated the two listed conditions. (2) The trial court did not abuse its discretion in finding a violation and revoking his probation where the evidence supported its determination.

The trial court erred by revoking the defendant’s probation. The defendant pleaded guilty and was sentenced to 120 days confinement suspended for one year of supervised probation. The trial court ordered the defendant to perform 48 hours of community service, although no date for completion of the community service was noted on the judgment, and to pay $1,385 in costs, fines, and fees, as well as the probation supervision fee. The schedule required for the defendant’s payments and community service was to be established by the probation officer. The probation officer filed a violation report alleging that the defendant had willfully violated his probation by failing to complete any of his community service, being $700 in arrears of his original balance, and being in arrears of his supervision fee. The defendant was found to have willfully violated and was revoked. The court concluded that absent any evidence of a required payment schedule or schedule for community service, the evidence was insufficient to support a finding of willful violation.

The trial court did not abuse its discretion by revoking the defendant’s probation under the Justice Reinvestment Act when the defendant was convicted of another criminal offense while on probation.

(1) The trial court did not abuse its discretion by revoking the defendant’s probation. The defendant asserted that the revocation was improper because he never received a written statement containing the conditions of his probation, as required by G.S. 15A-1343(c). The court noted that the statute requires written notice. However, citing an unpublished opinion, it noted that a different approach applies when the violation is a failure to initially report for processing, as happened here. In this case the defendant walked away from the probation office before he could be given the written notice. The court concluded that because the trial judge informed the defendant of his obligation to report and the defendant failed to do so, written confirmation was not necessary. (2) The court also rejected the defendant’s argument that he could not have violated probation because he was not assigned a probation officer, reasoning that the defendant was not so assigned because he left in the middle of intake procedure.

The trial court erred by finding that the defendant willfully violated probation by failing to have an approved residence plan. The defendant was placed on supervised probation to begin when he was released from incarceration on separate charges. On the day that the defendant was scheduled to be released, a probation officer filed a violation report. The defendant demonstrated that he was unable to obtain suitable housing before his release from incarceration because of circumstances beyond his control; the trial court abused its discretion by finding otherwise.  

The trial court erred by revoking the defendant’s probation on grounds that he willfully violated the condition that he reside at a residence approved by the supervising officer. The defendant was violated on the day he was released from prison, before he even “touched outside.” Prior to his release the defendant, who was a registered sex offender and indigent, had tried unsuccessfully to work with his case worker to secure a residence. At the revocation hearing, the trial judge rejected defense counsel’s plea for a period of 1-2 days for the defendant to secure a residence. The court concluded that the defendant’s violation was not willful and that probation was “revoked because of circumstances beyond his control.” 

The defendant’s explanation that she was addicted to drugs was not a lawful excuse for violating probation by failing to complete a drug treatment program. 

The trial court erred by failing to make findings of fact that clearly show it considered and evaluated the defendant’s evidence before concluding that the defendant violated his probation by failing to pay the cost of his sexual abuse treatment program. The defendant presented ample evidence of an inability to pay after efforts to secure employment; the probation officer corroborated this evidence and testified that he believed that the defendant would complete the treatment program if he could pay for it. 

(1) The trial court abused its discretion by revoking the defendant’s probation when the State failed to present evidence that he violated the condition of probation that he “not reside in a household with a minor child.” Although the trial court interpreted the term “reside” to mean that the defendant could not have children anywhere around him, State v. Strickland, 169 N.C. App. 193 (2005), construed that term much more narrowly, establishing that the condition is not violated simply when a defendant sees or visits with a child. Because the evidence showed only that the defendant was visiting with his fiancée’s child, it was insufficient to establish a violation. (2) The trial court improperly revoked the defendant’s probation for violating conditions that he not (a) socialize or communicate with minors unless accompanied by an approved adult; or (b) be alone with a minor without approval. The conditions were not included in the written judgments and there was no evidence that the defendant ever was provided written notice of them. As such, they were not valid conditions of probation.

The court rejected the defendant’s argument that his revocation was improper because the attorney who represented him at the revocation hearing was not his appointed attorney and trial court made no findings about a substitute attorney. Any error that occurred was not prejudicial.

G.S. 15A-1023(b), which grants a defendant the right to a continuance when a trial court refuses to accept a plea, does not apply when the trial court refuses to accept a plea in the context of a probation revocation proceeding.

(1) The trial court improperly ordered a forfeiture of the defendant’s licensing privileges without making a finding of fact required by G.S. 15A-1331A that the defendant failed to make reasonable efforts to comply with the conditions of her probation. The court noted that form AOC-CR-317 does not contain a section specifically designated for the required finding and encouraged revision of the form to add this required finding. (2) The term of the forfeiture exceeded statutory limits. A trial court revoking probation may order a license forfeiture under G.S. 15A-1331A(b)(2) at any time during the probation term, but the term of forfeiture cannot exceed the original probation term set by the sentencing court at the time of conviction. The defendant was placed on 24 months probation by the sentencing court, to end on December 15, 2009. His probation was revoked on Apr. 1, 2009, eight months before his probation was set to expire, and the trial court ordered the forfeiture for 24 months from the date of revocation. Because the forfeiture term extended beyond the defendant’s original probation, it was invalid. The court encouraged further revision of AOC-CR-317 (specifically the following note: “The ‘Beginning Date’ is the date of the entry of this judgment, and the ‘Ending Date’ is the date of the end of the full probationary term imposed at the time of conviction.”) “to clarify this issue and perhaps avoid future errors based upon misinterpretation of the form.”

The trial court did not abuse its discretion by declining to further stay another judge’s order finding a probation violation for failure to pay restitution and activating the sentence but staying execution of the order when the defendant presented no evidence of an inability to pay.

Although a trial court has authority under G.S. 15A-1344(d) to modify conditions of probation, modifications only may be made after notice and a hearing, and if good cause is shown. Although one modification made in this case was permissible as a clerical change, a second modification was substantive and was invalid as it was made without notice and a hearing.

The defendant was a passenger in a car stopped at a traffic checkpoint. An officer smelled marijuana emanating from the vehicle. The defendant told the officer that the marijuana was located in a bag behind the driver’s seat. The officer found a drawstring bag there, which the defendant said was his. Inside the bag, the officer found two plastic bags containing marijuana, a hookah, a snort straw, and a beer can. The beer can was altered to be a container that could be unscrewed. Inside the beer can the officer found two white crystallized substances later identified as Methylone and a Lorazepam tablet.

The defendant was charged with felony possession of a Schedule I controlled substance (Methylone), misdemeanor possession of marijuana, and misdemeanor possession of drug paraphernalia based on his possession of the altered beer can. He was convicted and sentenced to 6 to 17 months for the felony and 120 days (to run consecutively) for each misdemeanor offense. Each sentence was suspended, and the defendant was placed on probation for 36 months. He also was ordered to serve 12 days of special probation for the felony.

The defendant argued on appeal that the sentences for the misdemeanor offenses were unlawful because the trial court did not make finding that a longer period of probation was necessary. The court of appeals agreed.

G.S. 15A-1343.2(d)(2) provides that “[u]nless the court makes specific findings that longer or shorter periods of probation are necessary,” the probationary period for a misdemeanant sentenced to intermediate punishment (which includes any suspended sentence that requires supervised probation) must be not less than 12 nor more than 24 months. The record supported the defendant’s argument that the trial court made no specific findings; therefore, the court of appeals vacated the misdemeanor judgments and remanded for resentencing.

The trial court erred by entering a period of probation longer than 18 months without making the findings that the extension was necessary. 

The trial court made sufficient findings to support its decision to place the defendant on probation for sixty months.

No statutory authority supported the trial court’s orders extending the defendant’s probation beyond the original 60-month period and they were thus void. The orders extending probation were not made within the last 6 months of probation and the defendant did not consent to the extension. The orders also resulted in an 8-year period of probation, a term longer that the statutory maximum. Turning to the issue of whether the original 60-month probation was tolled pending resolution of New Jersey criminal charges, the court found the record insufficient and remanded for further proceedings. 

The trial judge violated G.S. 15A-1351 by imposing a period of special probation that exceeded ¼ of the maximum sentence of imprisonment imposed. The trial judge also violated G.S. 15A-1343.2 by imposing a term of probation greater than 36 months without making the required specific findings supporting the period imposed.

The defendant was living in a home owned by his girlfriend’s mother. He and his girlfriend had three children living with the girlfriend’s mother. The defendant exercised limited visitation with the children at the mother’s home pursuant to a child custody order. The mother entrusted a box of jewelry and valuable coins to the defendant, requesting that he store it in a safe within the home. Much of the property from the box was later discovered to be missing or to have been replaced with fake items, with some items having been pawned by the defendant at a local store. The defendant was ultimately convicted at trial of obtaining property by false pretense.

At sentencing, the court ordered that the defendant have no contact with the girlfriend’s mother as a special condition of probation. The defendant challenged that condition on appeal. He argued it conflicted with the child custody and visitation order and was an abuse of discretion. A majority of the Court of Appeals disagreed. Noting that the child custody order was not before the court and was unaffected by this decision, the majority found other avenues to exercise visitation were available to the defendant—a third party could be utilized, or the mother could contact her daughter or the defendant himself to arrange for visitation. The condition of probation only prohibited the defendant from contacting the mother. This condition was reasonably related to the “protection of the victim, the defendant’s rehabilitation, and his compliance with probation.” Medlin Slip op. at 8. The condition was therefore not an abuse of discretion. Any constitutional challenge to the probationary term was not raised at the trial level and was deemed waived on appeal.

Judge Wood dissented. She would have found that the no contact condition was not reasonably related to the defendant’s crime or rehabilitation and would have vacated it as an abuse of discretion.

The defendant was charged with insurance fraud and obtaining property by false pretenses based on her submission of claims for living expenses that she did not incur. Following Hurricane Matthew, the defendant submitted a lease agreement purportedly signed by her stepfather providing that the defendant would pay $100 per day to stay in his home. Defendant’s stepfather subsequently told investigators that he did not have a lease agreement with the defendant and that she had not stayed in his home. The defendant was convicted of both charges at a jury trial.  The trial court consolidated the convictions for judgment and sentenced the defendant to 10 to 21 months imprisonment, suspended for 24 months of supervised probation. The trial court ordered the defendant to serve 60 days imprisonment as a condition of special probation.  The defendant appealed, arguing that the trial court erred by sentencing her for both obtaining property by false pretenses and insurance fraud for the same alleged misrepresentation. She also argued that the trial court improperly delegated its authority to the defendant’s probation officer by failing to set a date by which the term of special probation had to be completed.

(1) The court of appeals determined that the trial court did not err by sentencing her for obtaining property under false pretenses and insurance fraud even though both offenses arose from the same misrepresentation. To determine whether multiple punishments may be imposed for multiple convictions in a single trial based on a single course of conduct, the court must look to the intent of the legislature. Each of the offenses for which the defendant was convicted contained an element the other did not. Insurance fraud requires proving that the defendant presented a statement in support of a claim for payment under an insurance policy; obtaining property by false pretenses requires proving that the defendant’s misrepresentation did in fact deceive. Based on the separate and distinct elements that must be proven, the appellate court reasoned that the legislature clearly expressed its intent to proscribe and punish a misrepresentation intended to deceive under both statutes. Additionally, the court noted that the subject of each crime is violative of two separate, distinct social norms: “Where obtaining property by false pretenses is generally likely to harm a single victim, a broader class of victims is harmed by insurance fraud.” Slip. op. at 8. Finally, regarding the history of the treatment of the two crimes for sentencing purposes, the court noted that previous panels had sustained sentencing for convictions of obtaining property by false pretenses and insurance fraud arising from the same misrepresentation. For these reasons, the court of appeals determined that the trial court did not err by consolidating the Class H felony convictions for judgment and sentencing the defendant in the high presumptive range for one Class H felony.

(2) The trial court did not err by delegating authority to the defendant’s probation officer and by not setting a completion deadline for the active term of the sentence as a condition of special probation. G.S. 15A-1351(a) permits a trial court to require that a defendant submit to periods of imprisonment during probation at “whatever time or intervals within the period of probation . . . the court determines,” so long as the total period of such confinement does not exceed one-fourth of the maximum sentence imposed. It further requires that imprisonment imposed as a condition of special probation be completed within two years of conviction.

In this case, the trial court sentenced the defendant to 10 to 21 months of imprisonment and suspended that sentence for 24 months of supervised probation. As a condition of probation, the trial court ordered the defendant to serve 60 days of imprisonment as a condition of special probation. The court specified that the defendant was “‘TO SERVE 30 DAYS AT ONE TIME AND 30 DAYS AT ANOTHER TIME AS SCHEDULED BY PROBATION.’” Slip op. at 11. The court of appeals held that the trial court appropriately determined the “intervals within the period of probation” as two 30-day periods, and the completion date was set by statute as August 27, 2021—which, in defendant’s case, was both the end of the two-year probationary period and two years from the date of conviction.

The defendant was convicted and placed on probation for several crimes, including drug-related crimes. The trial judge ordered as a special condition of probation that the defendant “[r]eport for initial evaluation by TASC” and “participate in all further evaluation, counseling, treatment, or education programs recommended as a result of that evaluation.” The Court of Appeals upheld the condition, rejecting the defendant’s argument that it was an improper delegation of the trial court’s authority to require participation in treatment dictated by the TASC evaluation and not specifically ordered by the court. The appellate court concluded that the condition was reasonably related to his drug-related conviction and his rehabilitation, and therefore proper as a discretionary condition under G.S. 15A-1343(b1)(10).

The defendant was speaking at an anti-abortion event outside an abortion clinic in Charlotte. He was using an amplified microphone and was sitting at the table where the amplification controls were located. Officers measured his amplified voice at more than 80 decibels and approached him to cite him for violating the city’s noise ordinance. The defendant refused to produce identification, so the officers arrested him and charged him with resisting, delaying, and obstructing a law enforcement officer as well as the noise ordinance violation. At a bench trial in superior court, a judge convicted the defendant of R/D/O and dismissed the noise ordinance violation because, although the judge concluded that the defendant had violated the ordinance, the city “had discretion to decide which enforcement penalties it would levy against a violator of the noise ordinance, but . . . failed to do so.” The judge sentenced the defendant to probation, one condition of which was that the defendant stay at least 1,500 feet away from the abortion clinic where the event took place. The defendant appealed. Among other issues: (1) The defendant’s conduct was covered by the ordinance, so the officers’ initial stop was valid. The ordinance applies, in part, to persons “operating . . . sound amplification equipment.” The defendant contended that simply speaking into a microphone does not amount to “operating” any “amplification equipment.” The court of appeals viewed that construction as “unduly narrow” and found that the “plain meaning” of the ordinance was that speaking into an amplified microphone, while sitting at a table with the amplification controls present, was covered. (2) The probation condition is reasonably related to the defendant’s rehabilitation as required by statute, in part because it reduces the likelihood that he will commit a similar offense again.

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