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.

In this Wilson County case, defendant appealed the revocation of her probation, arguing (1) insufficient evidence to support the finding she committed a new crime on probation and (2) violation of her right to confront the probation officer who filed the violation reports against her. The Court of Appeals found no error. 

Defendant’s probation officer “W” filed two probation violation reports against her from November and December 2021. The reports alleged defendant was committed new crimes while on probation as she was charged with obtaining property by false pretenses and uttering a forged instrument. When the matter came before the trial court in May 2022, probation officer W was replaced by probation officer “H,” who testified regarding the two 2021 reports, as well as a third report from February 2022 that officer H prepared alleging a second uttering a forged instrument offense. Defendant objected to the absence of officer W, as she wished to cross-examine the officer who filed the 2021 reports against her. The trial court noted the objection in the record but otherwise proceeded with the hearing. At the conclusion of the hearing the trial court revoked defendant’s probation and activated her prison sentences.  

For (1), defendant argued “the State needed to call law enforcement witnesses to present evidence about the investigations relating to the crimes, civilian victim witnesses, or [bank] employees” to support the alleged crimes committed by defendant. Slip Op. at 10. The Court of Appeals disagreed, explaining that the violation reports, arrest warrants, and testimony from Officer H supported the conclusion that defendant was the person on security camera footage committing the crimes. The court explained “[a] probation revocation hearing is not a trial, and the State need not present evidence sufficient to convict Defendant nor call as witnesses the investigating officers of the crimes alleged.” Id. at 12. 

Turning to (2), the court noted that the Sixth Amendment did not apply to a probation revocation hearing, and that G.S. 15A-1345(e) was the basis for confrontation rights in the proceeding. Because G.S. 15A-1345(e) controlled, the issue before the court was “whether the trial court committed prejudicial error by not making an explicit finding that good cause existed for not allowing Defendant to confront [officer W].” Id. at 14. The court referenced State v. Terry, 149 N.C. App. 434 (2002), explaining that failure to require an adverse witness to testify is not error if “(1) the adverse witness’s testimony would have been merely extraneous evidence in light of other competent evidence presented through the probation officer’s testimony and (2) defendant failed to request the professor be subpoenaed.” Slip Op. at 14. Here, the court found the testimony of Officer W would have been extraneous in light of the other evidence in the record supporting defendant’s commission of the crimes. Additionally, defendant did not subpoena Officer W. This led the court to conclude the trial court did not abuse its discretion in allowing the hearing to proceed without Officer W. Finally, the court noted that if any error occurred, it was not prejudicial, as sufficient competent evidence before the trial court supported the revocation of defendant’s probation without the testimony from Officer W. 

The defendant was sentenced to 25 to 42 months in prison, suspended for 30 months of supervised probation. The defendant’s probation officer subsequently filed a violation report alleging that the defendant committed the crime of misdemeanor breaking or entering. At the probation violation hearing, the trial court found that the defendant violated his probation by committing a new offense of misdemeanor breaking or entering and activated the defendant’s suspended sentence. The defendant filed a motion for appropriate relief the following month, which the trial court denied. 

On appeal, the defendant argued that insufficient evidence existed to show he violated his probation, or, in the alternative, that the trial court abused its discretion by revoking his probation. The Court of Appeals rejected the defendant’s first argument, noting that a probation proceeding is more informal than a criminal prosecution and, accordingly, “the court is not bound by strict rules of evidence, and the alleged violation of a valid condition of probation need not be proven beyond a reasonable doubt.” Slip op. at ¶ 9. The evidence presented at the hearing showed that the defendant was known to associate with the victim “on a routine basis”; the officer recovered several prints from the point of entry of the victim’s apartment, one of which was identified as belonging to the defendant; the defendant did not have permission to be inside the apartment; and the defendant lived next door to the apartment. The Court of Appeals thus concluded that competent evidence existed that the defendant willfully violated his probation by committing a new offense of misdemeanor breaking or entering.

The Court also held that because competent evidence existed to support the trial court’s finding, the trial court had authority to revoke the defendant’s probation and thus did not constitute an abuse of discretion.

The Court of Appeals vacated the trial court’s judgments revoking the defendant’s probation and activating his suspended sentences imposed in connection with felonies charged in two CRS case numbers – 17 CRS 86913 and 18 CRS 338 – because discrepancies between the record and the judgements left the basis for revocation in both case numbers unclear.  The Court likened this case to State v. Sitosky, 238 N.C. App. 558 (2014) because in both cases the trial court marked the boxes on the judgments indicating that the defendants had admitted to all violations alleged in the violation reports when in fact the defendants had not done so.  Here, among other inconsistencies, the trial court indicated in its judgments that the defendant had waived his revocation hearing and admitted all alleged violations despite the fact that the record indicated that the defendant did not waive the hearing and expressly denied the alleged violations.  The Court discussed other discrepancies in the judgments and the record, including that the trial court appeared to have revoked the defendant’s probation in 17 CRS 86913 on the basis of violating an SRG Agreement that was a valid condition of probation in 18 CRS 338 but was not a valid condition of 17 CRS 86913 as it had not been included in a written order in that case.  The Court of Appeals remanded the case to the trial court for further determinations and findings.

(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.

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.

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 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 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. 

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. 

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.

(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 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 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.