State v. Brown ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-562
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
STATE OF NORTH CAROLINA
v. Columbus County
No. 07 CRS 53687
TREVOR DEMON BROWN,
Defendant.
Appeal by defendant from judgment entered 5 December 2012
by Judge D. Jack Hooks, Jr. in Columbus County Superior Court.
Heard in the Court of Appeals 7 November 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Gaines M. Weaver and Assistant Attorney General Kimberly N.
Callahan, for the State.
New Hanover County Public Defender's Office, by Assistant
Public Defender Brendan O'Donnell, for defendant-appellant.
GEER, Judge.
Defendant Trevor Demon Brown appeals from the trial court's
judgment revoking his probation and activating his suspended
sentence of 15 to 18 months imprisonment. On appeal, defendant
primarily argues that the trial court erred in revoking his
probation because the competent evidence showed, at most, that
defendant committed two Class 3 misdemeanors while on probation
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and, under N.C. Gen. Stat. § 15A-1344(d) (2013), the trial court
had no authority to revoke his probation based solely on two
Class 3 misdemeanor convictions. However, our review of the
transcript reveals that defendant also admitted to committing a
Class 1 misdemeanor offense, as alleged in the verified
probation violation report. Based upon defendant's admission,
we hold that the trial court could properly revoke defendant's
probation. Nonetheless, because the record suggests that the
trial court may have also based its revocation of defendant's
probation on a ground not supported by the evidence, we must
reverse and remand for further proceedings.
Facts
On 9 December 2010, defendant pled guilty in Columbus
County Superior Court to assault inflicting serious bodily
injury. The trial court sentenced defendant to a presumptive-
range term of 15 to 18 months imprisonment, but suspended the
sentence and placed defendant on 36 months supervised probation.
On 1 August 2012, defendant's probation officer, Tarni
Carter, filed a verified probation violation report alleging
that defendant had violated the condition of his probation that
he "'[r]eport as direct [sic] by the Court or the probation
officer to the officer at reasonable times and places.'" The
report alleged that defendant had failed to meet Ms. Carter at
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defendant's residence on 10 May and 19 May 2012 and had also
failed to meet Ms. Carter on 15 May 2012 and on 17 July 2012.
The report further asserted that defendant had violated the
condition that he pay monies owed to the clerk of superior court
-- defendant was $180.00 in arrears on his payments.
Ms. Carter then filed a second verified probation violation
report, entitled an "Addendum," on 15 November 2012. The 15
November 2012 report alleged that defendant had also violated
the condition of his probation that he commit no criminal
offense. According to the report, defendant had been convicted
in New Hanover County of (1) possession of more than one-half
ounce but less than one and one-half ounces of marijuana (with
an offense date of 9 August 2012) and (2) possession of up to
one-half ounce of marijuana, (with an offense date of 8 August
2012). The report further alleged that defendant had been
charged with driving while license revoked ("DWLR") in Brunswick
County, with an offense date of 21 February 2012, and that "IF
HE IS CONVICTED," the DWLR charge "WILL BE [A] VIOLATION[]."
At a 5 December 2012 hearing on the probation violation
reports, Ms. Carter testified that defendant failed to attend
three scheduled probation appointments at defendant's home and
that defendant was, at that time, $300.00 in arrears in payments
owed to the clerk of superior court. Ms. Carter further
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testified that defendant "committed the offense of marijuana
[sic] in New Hanover County on 8/8/12 and then he committed the
offense of possession of marijuana up to one half [ounce] in New
Hanover County on 8/9/12." She testified defendant was
"convicted of those two on October 18, 2012." Ms. Carter also
testified that defendant had "a pending charge and if he were
convicted of driving while license revoked in Brunswick County,
that would be a violation."
Defendant testified at the hearing and admitted that he had
missed some scheduled appointments, although he stated it
"didn't happen very many times." Defendant further admitted
that he had pled guilty to the New Hanover County marijuana
convictions alleged in the November 2012 report. Defendant
claimed that the marijuana charges were based upon an incident
in which defendant had marijuana in his pocket and had "a dollar
bill with some marijuana in it."
On 5 December 2012, the trial court entered a judgment
revoking defendant's probation and activating his suspended
sentence. In its order, the court found that defendant had
violated his probation based upon the allegations set out in the
November 2012 report regarding the two New Hanover County
marijuana convictions and the pending charge for DWLR in
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Brunswick County. Defendant timely filed written notice of
appeal.
Discussion
As an initial matter, we must address this Court's
jurisdiction to hear this appeal. Defendant did not give oral
notice of appeal at the probation revocation hearing, but the
record includes a timely filed pro se Columbus County Clerk of
Superior Court form document that contains defendant's name and
signature and the signature of the deputy clerk of superior
court. The form document states defendant gave "Notice of
Appeal to the Superior Court in the case(s) of 07 CRS 53687."
This document does not comply with Rule 4 because it
erroneously states that the appeal is to "Superior Court," it
does not identify the judgment or order appealed from, and there
is no indication in the record that the document was served on
the State. See N.C.R. App. P. 4(a)(2) (requiring service of
written notice of appeal "upon all adverse parties within
fourteen days after entry of the judgment or order"); N.C.R.
App. P. 4(b) (providing written notice "shall designate the
judgment or order from which appeal is taken and the court to
which appeal is taken").
"[W]hen a defendant has not properly given notice of
appeal, this Court is without jurisdiction to hear the appeal."
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State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320
(2005). We, therefore, dismiss defendant's appeal for lack of
jurisdiction. However, defendant has also filed a petition for
writ of certiorari with this Court. Pursuant to Rule 21 of the
Rules of Appellate Procedure, we exercise our discretion to
grant defendant's petition for writ of certiorari and reach the
merits of his appeal.
Defendant first contends that the trial court erred in
revoking his probation because there was no competent evidence
supporting the trial court's finding that defendant violated his
probation by being convicted of the Class 1 misdemeanor offense
of possession of more than one-half ounce but less than one and
one-half ounces of marijuana as alleged in the November 2012
probation violation report. Defendant contends that the
competent evidence showed only that he had been convicted of two
Class 3 misdemeanor offenses of possession of up to one-half
ounce of marijuana and that, under N.C. Gen. Stat. § 15A-
1344(d), the court had no authority to revoke his probation
solely for two convictions of Class 3 misdemeanors.
It is well established that when a trial court's findings
that a defendant violated his probation are supported by
competent evidence, we review the court's decision to revoke the
defendant's probation for an abuse of discretion. State v.
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Young, 190 N.C. App. 458, 459, 660 S.E.2d 574, 576 (2008).
Here, defendant's probation required that he "[c]ommit no
criminal offense in any jurisdiction." Generally, if the State
proves a violation of a condition of probation, the trial court
has authority to revoke the defendant's probation under N.C.
Gen. Stat. § 15A–1344(a) and § 15A–1343(b)(1) (2013). However,
as defendant points out, N.C. Gen. Stat. § 15A-1344(d) provides
"probation may not be revoked solely for conviction of a Class 3
misdemeanor."
The State argues that under N.C. Gen. Stat. § 15A-1344(d),
a court could revoke defendant's probation for commission of two
or more Class 3 misdemeanors or for commission of a Class 3
misdemeanor and other probation violations that would not alone
be sufficient for revocation. See id. (providing "probation may
not be revoked solely for conviction of a Class 3 misdemeanor"
(emphasis added)). However, since defendant admitted the
convictions alleged in the November 2012 verified probation
violation report, which included a conviction for a Class 1
misdemeanor, we need not address the State's contention.
At the hearing, defendant testified as follows:
Q. As far as the allegations in
regards to the new convictions [sic]. Now
you -- originally when you were served with
this probation violation, there was nothing
on it about a conviction; is that correct?
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A. No, when I was first served with
the probation violation, no.
Q. And you were represented by Ms.
Miller from New Hanover County, correct?
A. Yes, sir.
Q. You don't deny that you were
convicted of these two charges?
A. No.
Q. Was it a trial or did you plead
guilty?
A. I guess I pled guilty to it.
Q. What was the plea deal?
A. Repeat the question.
Q. What was the plea deal such that
you pled guilty? Did you get probation or
did you get time served?
A. It was time served.
. . . .
Q. And obviously those convictions
were not a part of your original violation
[sic] they did an addendum to your violation
report November 15th; is that correct?
A. Right.
(Emphasis added.)
At the hearing, the probation officer referred to the 15
November 2012 report as an addendum to the August 2012 report,
as defendant acknowledged. The 15 November 2012 report alleged
two 18 October 2012 convictions: (1) a conviction for "POSS
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MARIJUANA >1/2 TO 1 1/2 OZ" with an offense date of 9 August
2012; and (2) a conviction for "POSS MARIJUANA UP [TO] 1/2 OZ"
with an offense date of 8 August 2012. There were no other
allegations of convictions contained in the 15 November 2012
report. Thus, defendant's testimony that he did not deny being
convicted of "these two charges," and that he "pled guilty to
it," clearly references "those convictions" alleged in the
"November 15th" violation report, including the conviction for
possession of more than one-half ounce but less than one and
one-half ounces of marijuana.
Defendant's admission constituted competent evidence that
he committed the offense of possession of more than one-half
ounce but less than one and one-half ounces of marijuana. See
State v. Henderson, 179 N.C. App. 191, 198, 632 S.E.2d 818, 822-
23 (2006) ("In light of defendant's clear admission of
violations of the conditions of his probation and the probation
officer's testimony that he was personally aware of defendant's
arrearage, competent evidence exists in the record to support
revocation of defendant's probation."). Possession of more than
one-half ounce but less than one and one-half ounces of
marijuana is a Class 1 misdemeanor. See N.C. Gen. Stat. § 90-
95(d)(4) (2013).
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Because the trial court found that defendant violated his
probation based upon the allegations in the November 2012 report
and because those allegations -- admitted by defendant --
established that defendant had committed a Class 1 misdemeanor,
the trial court's findings of fact support the trial court's
revocation of defendant's probation.
Defendant further contends that Ms. Carter's testimony
regarding the convictions and the allegations in the November
2012 verified probation violation report -- the State's other
evidence of the convictions -- constituted hearsay and, thus,
were not competent evidence to support the trial court's finding
that defendant committed a Class 1 misdemeanor. Defendant
further argues that, even if it was not hearsay, Ms. Carter's
testimony at the hearing only showed that defendant had been
convicted of, at most, two Class 3 misdemeanors for possession
of up to one-half ounce of marijuana.
However, given defendant's admission of the Class 1
misdemeanor conviction alleged in the report, the verified
report and Ms. Carter's testimony were merely cumulative and
were not necessary to support the court's finding. State v.
Hewett, 270 N.C. 348, 356, 154 S.E.2d 476, 482 (1967) (holding
that although some of trial court's findings were improperly
based upon hearsay, "there [was] enough competent evidence in
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the record to support the judge's crucial findings of fact" that
defendant violated his probation as concluded in order).
Compare State v. Pratt, 21 N.C. App. 538, 541, 204 S.E.2d 906,
907 (1974) (holding that probation revocation was improper when
only evidence that defendant violated probation by changing her
residence was hearsay and "defendant and several witnesses
presented by her testified that defendant had not changed her
residence"). Therefore, even assuming, without deciding, that
the challenged evidence was inadmissible, the record contained
sufficient evidence to support the trial court's finding that
defendant was convicted of a Class 1 misdemeanor.
Defendant next argues that the trial court could not
properly revoke his probation based upon the violations alleged
in the 1 August 2012 report: that defendant (1) failed to report
to his probation officer as directed and (2) failed to pay
monies owed to the clerk. Defendant reasons that all of the
alleged violations in this case occurred after 1 December 2011
and, therefore, the trial court could only revoke defendant's
probation under a limited set of circumstances as provided in
the Justice Reinvestment Act. See N.C. Gen. Stat. § 15A-
1344(a); 2011 N.C. Sess. Laws ch. 192, § 4(a)-(c) (effective
December 1, 2011); 2011 N.C. Sess. Laws ch. 412, § 2.5
(effective December 1, 2011).
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However, in its written order revoking defendant's
probation, the trial court found only that defendant violated
his probation based upon the allegations in the November 2012
report. The order does not mention the allegations in the
August 2012 report as a basis for revoking defendant's
probation.
Defendant points to the fact that, at the hearing, the
court orally found that of "the violations alleged, each
occurred." Nevertheless, the court went on to specifically find
"[t]hat the allegations regarding the violations include
commission of new offenses and convictions of the same while on
probation." After specifically discussing defendant's
violations based on the marijuana convictions, the court stated:
"[T]he Court finds based upon the foregoing that his probation
should be and the same is hereby ordered revoked."
Since the oral order of revocation immediately followed the
court's comments regarding the convictions, it appears from the
transcript that, as provided in the written order, the court was
revoking defendant's probation based upon its findings that
defendant was convicted of the marijuana offenses while on
probation. Defendant concedes that the court could properly
revoke his probation for commission of a criminal offense
(greater than a Class 3 misdemeanor), and we have already upheld
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the trial court's finding, based upon defendant's admission of
an allegation in the November 2012 report, that defendant
committed a Class 1 misdemeanor.
Consequently, the trial court revoked defendant's probation
consistent with its limited revocation authority under the
Justice Reinvestment Act. To the extent that the court also
orally found defendant to have violated his probation based upon
his failure to report as directed and failure to pay monies
owed, the absence of findings on those matters in the written
order does not impact the validity of the court's judgment,
since revocation was proper based upon the court's findings that
defendant committed the marijuana offenses.
Defendant also argues that the trial court erred in finding
in its written order that defendant "violated" the condition of
his probation that he commit no criminal offense based upon the
allegation in the November 2012 report that defendant "HAS BEEN
CHARGED WITH" DWLR "AND IF HE IS CONVICTED THEN [IT] WILL BE [A]
VIOLATION[]." Defendant contends that the allegations in the
verified report refer only to a pending charge, and that the
only relevant evidence at the hearing, Ms. Carter's testimony,
showed the charge was still pending and provided no independent
evidence that defendant actually committed the offense.
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"[A] revocation of suspension cannot be bottomed solely
upon a pending criminal charge; a conviction or a plea of guilty
is required." State v. Causby, 269 N.C. 747, 749, 153 S.E.2d
467, 469 (1967) (emphasis added). However, if the court
receives competent evidence of the facts underlying a charged
offense and, based upon that evidence, the court makes
independent findings that the defendant committed the charged
offense, the court may revoke a defendant's probation based upon
those independent findings. State v. Monroe, 83 N.C. App. 143,
145, 349 S.E.2d 315, 317 (1986).
Ms. Carter's testimony at the hearing regarding the DWLR
charge consisted of the following:
Q. What other violations have been
filed?
A. The only other part for the
addendum is that he has a pending charge and
if he were convicted of driving while
license revoked in Brunswick County, that
would be a violation.
Q. When was the -- that charge?
A. February 21st of this year.
The verified report alleged only that defendant had been
charged with DWLR and, if defendant was convicted, that charge
would constitute a violation. There was no other evidence
regarding the pending DWLR charge presented. Under Causby and
Monroe, we agree with defendant that the trial court was not
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presented with sufficient evidence to support its finding that
defendant violated his probation based upon the allegations in
the November 2012 report that he had a pending DWLR charge.
The State argues, however, that because the 15 November
2012 violation report did not actually allege that the DWLR
charge was a violation and "the pending charge was never
intended to be part of the basis for Defendant's revocation,"
the fact that the trial judge referenced the paragraph alleging
the pending DWLR charge was "of no moment." We cannot agree.
The judgment revoking defendant's probation specifically
states that "[t]he condition(s) violated and the facts of each
violation are as set forth . . . in Paragraph(s) 1-2 of the
Violation Report or Notice dated 11/07/2012[.]" Consequently,
the judgment provides that paragraph 2 of the 15 November 2012
report is one of the bases for the probation revocation. In
addition, the trial court did not check the box on the form that
specifies that "[e]ach violation is, in and of itself, a
sufficient basis upon which this Court should revoke probation
and activate the suspended sentence."
Therefore, the judgment does not permit us to conclude that
the trial court would still have revoked defendant's probation
in the absence of paragraph 2 of the 15 November 2012 report.
We must, therefore, reverse the judgment revoking defendant's
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probation and remand for a determination whether the violation
in paragraph 1 of the 15 November 2012 report is a sufficient
basis upon which to revoke defendant's probation.
Reversed and remanded.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).