State v. Graham, ___ N.C. App ___, 2022-NCCOA-132 (Mar. 1, 2022)

The defendant pled guilty to second-degree murder and possession of a firearm by a convicted felon. The defendant was sentenced to active terms of 176-221 months imprisonment for the second-degree murder charge and 16-20 months imprisonment for the possession of a firearm by a convicted felon charge. The active sentence for possession of a firearm by a convicted felon was suspended for 36 months of supervised probation, which commenced in August 2019 after the defendant was released from prison following his active sentence for second-degree murder.

In February 2021, the State filed a violation report alleging that the defendant violated his probation by failing to pay the full monetary judgment entered against him and because he was arrested and charged with possession of a firearm by a felon. Following a hearing, the trial court found that the defendant committed a crime and revoked the defendant’s probation. The Court of Appeals granted the defendant’s petition for writ of certiorari.

On appeal, the defendant argued that the trial court erred in revoking his probation. The Court of Appeals agreed, reasoning that in order to revoke a defendant’s probation for committing a criminal offense, there must be some form of evidence that a crime was committed. The only evidence presented at the probation revocation hearing was the probation officer’s violation report and testimony from the probation officer. The Court concluded that this evidence only established that defendant was arrested for possession of a firearm by a felon and that there was no evidence beyond the fact that defendant was arrested that tended to establish he committed a crime. The Court thus held that the trial court abused its discretion in concluding a crime was committed and revoking defendant’s probation.