State v. Krider , 258 N.C. App. 111 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-272
Filed: 20 February 2018
Iredell County, No. 14 CRS 55742
STATE OF NORTH CAROLINA
v.
JERMEL TORON KRIDER
Appeal by defendant from judgment entered 3 October 2016 by Judge Mark E.
Klass in Iredell County Superior Court. Heard in the Court of Appeals 6 September
2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Allison
Angell, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Emily H.
Davis, for defendant-appellant.
CALABRIA, Judge.
Jermel Toron Krider (“defendant”) appeals from the trial court’s judgment
revoking his probation and activating his suspended sentence. After careful review,
we conclude that the State presented insufficient evidence to support a finding of
willful absconding pursuant to N.C. Gen. Stat. § 15A-1343(b)(3a) (2017). As a result,
the trial court lacked jurisdiction to revoke defendant’s probation after his
probationary term expired. Accordingly, we vacate the trial court’s judgment
revoking defendant’s probation.
STATE V. KRIDER
Opinion of the Court
I. Background
On 2 April 2015, defendant pleaded guilty to possession of cocaine in Iredell
County District Court. The district court, having jurisdiction to accept his guilty plea
to a Class I felony, sentenced defendant to 6-17 months in the custody of the North
Carolina Division of Adult Correction, suspended his sentence, and placed defendant
on 12 months of supervised probation. As a term of his probation, defendant was
ordered to obtain substance abuse treatment, in addition to complying with all of the
regular conditions of probation pursuant to N.C. Gen. Stat. § 15A-1343(b).
On 14 December 2015, defendant’s probation officer (“Officer Thomas”) visited
his reported address. However, defendant was not present, and an unidentified
woman advised Officer Thomas that “he didn’t live there.” As a result, on 21
December 2015, Officer Thomas filed a report alleging that defendant had willfully
violated his probation by: (1) absconding on 14 December 2015; (2) testing positive for
marijuana on 18 August 2015; (3) failing to report to his probation officer on 4
November 2015; (4)-(5) being in arrears as to his case and supervision fees; and (6)
failing to obtain court-ordered substance abuse treatment. An arrest warrant was
issued based on the absconding allegation. On 4 February 2016, defendant was
arrested for violating his probation. Officer Thomas continued to supervise defendant
until his probation expired on 2 April 2016.
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Opinion of the Court
On 3 October 2016, a probation violation hearing was held in Iredell County
Superior Court. Defendant denied the alleged violations, contending that he
“substantially complied with [the] terms of his probation.” However, Officer Thomas
recommended revocation, “[b]ecause he absconded probation and his whereabouts
were unknown for two months.” Following testimony from both parties, the trial
court found that defendant willfully violated the conditions alleged, revoked his
probation, and activated his suspended sentence. Defendant appeals.
II. Analysis
On appeal, defendant contends that the trial court erred by revoking his
probation based on its finding that he willfully absconded from supervision. We
agree.
A hearing to revoke a defendant’s probationary sentence
only requires that the evidence be such as to reasonably
satisfy the judge in the exercise of his sound discretion that
the defendant has willfully violated a valid condition of
probation or that the defendant has violated without lawful
excuse a valid condition upon which the sentence was
suspended. The judge’s finding of such a violation, if
supported by competent evidence, will not be overturned
absent a showing of manifest abuse of discretion.
State v. Young, 190 N.C. App. 458, 459, 660 S.E.2d 574, 576 (2008) (citations and
quotation marks omitted). However, “when a trial court’s determination relies on
statutory interpretation, our review is de novo because those matters of statutory
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STATE V. KRIDER
Opinion of the Court
interpretation necessarily present questions of law.” State v. Johnson, __ N.C. App.
__, __, 783 S.E.2d 21, 24 (2016) (citation and quotation marks omitted).
Once a defendant’s probationary term expires, the trial court must comply with
N.C. Gen. Stat. § 15A-1344(f) in order to “extend, modify, or revoke” the defendant’s
probation. The statute provides, in pertinent part:
The court may extend, modify, or revoke probation after
the expiration of the period of probation if all of the
following apply:
(1) Before the expiration of the period of probation
the State has filed a written violation report
with the clerk indicating its intent to conduct a
hearing on one or more violations of one or more
conditions of probation.
(2) The court finds that the probationer did violate
one or more conditions of probation prior to the
expiration of the period of probation.
(3) The court finds for good cause shown and stated
that the probation should be extended, modified,
or revoked.
N.C. Gen. Stat. § 15A-1344(f)(1)-(3). This statute is jurisdictional. See State v. Moore,
240 N.C. App. 461, 463, 771 S.E.2d 766, 767 (2015) (explaining that “other than as
provided in N.C. Gen. Stat. § 15A-1344(f), a trial court lacks jurisdiction to revoke a
defendant’s probation after the expiration of the probationary term”); State v. High,
230 N.C. App. 330, 337, 750 S.E.2d 9, 14 (2013) (holding that the trial court lacked
jurisdiction over the defendant because the State’s violation reports did not bear a
time stamp evincing that they were filed within the probationary period).
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STATE V. KRIDER
Opinion of the Court
Furthermore, for violations occurring on or after 1 December 2011, the trial
court may only revoke a defendant’s probation where the defendant (1) commits a
new criminal offense in violation of N.C. Gen. Stat. § 15A-1343(b)(1); (2) absconds “by
willfully avoiding supervision or by willfully making the defendant’s whereabouts
unknown to the supervising probation officer,” in violation of N.C. Gen. Stat. § 15A-
1343(b)(3a); or (3) violates any condition after previously serving two periods of
confinement in response to violations (“CRV”) pursuant to N.C. Gen. Stat. § 15A-
1344(d2). N.C. Gen. Stat. § 15A-1344(a). For all other violations, the trial court may
either modify the conditions of the defendant’s probation or impose a 90-day period
of CRV. Id.
In the instant case, defendant’s probation expired on 2 April 2016. The
violation hearing was held more than six months later, on 3 October 2016. However,
on 21 December 2015, the State filed a written report alleging six violations of
defendant’s probation. Therefore, the State timely “indicat[ed] its intent to conduct
a hearing on one or more violations” of defendant’s probation, as required by N.C.
Gen. Stat. § 15A-1344(f)(1). The violation report indicated that defendant had not
previously served any periods of CRV as allowed by N.C. Gen. Stat. § 15A-1344(d2),
and the State did not allege that defendant committed a new criminal offense in
violation of N.C. Gen. Stat. § 15A-1343(b)(1). Accordingly, pursuant to N.C. Gen.
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Opinion of the Court
Stat. § 15A-1344(a), the trial court was only authorized to revoke defendant’s
probation for a violation of N.C. Gen. Stat. § 15A-1343(b)(3a).
The State alleged the following with regard to absconding:
1. Regular Condition of Probation: “Not to abscond, by
willfully avoiding supervision or by willfully making the
supervisee’s whereabouts unknown to the supervising
probation officer” in that,
THE DEFENDANT ABSCONDED SUPERVISION ON
12/14/15 BY MAKING HIS WHEREABOUTS
UNKNOWN TO THIS OFFICER. ON OR ABOUT
12/14/15, THE OFFICER WAS ADVISED THAT THE
OFFENDER DID NO LONGER RESIDE AT THE
RESIDENCE GIVEN. THE DEFENDANT HAS . . .
AVOIDED SUPERVISION AND MADE HIMSELF
UNAVAILABLE FOR SUPERVISION; THEREFORE
ABSCONDING SUPERVISION.
The State’s allegations and supporting evidence are very similar to that which
we rejected in State v. Williams, 243 N.C. App. 198, 776 S.E.2d 741 (2015). In
Williams, the State filed a report alleging that the defendant had violated seven
conditions of his probation, including:
1. Regular Condition of Probation: “Not to abscond, by
willfully avoiding supervision or by willfully making the
supervisee’s whereabouts unknown to the supervising
probation officer” in that, THE DEFENDANT IS NOT
REPORTING AS INSTRUCTED OR PROVIDING THE
PROBATION OFFICER WITH A VALID ADDRESS AT
THIS TIME. THE DEFENDANT IS ALSO LEAVING
THE STATE WITHOUT PERMISSION. DUE TO THE
DEFENDANT KNOWINGLY AVOIDING THE
PROBATION OFFICER AND NOT MAKING HIS
TRUE WHEREABOUTS KNOWN THE DEFENDANT
HAS ABSCONDED SUPERVISION.
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STATE V. KRIDER
Opinion of the Court
243 N.C. App. at 200-01, 776 S.E.2d at 743. In support of this allegation, the
probation officer testified that when she visited the defendant’s residence, a woman
informed her that the defendant had “never really lived at the address.” Id. at 198,
776 S.E.2d at 742. In addition, the officer testified that the defendant had failed to
attend multiple scheduled appointments; was traveling “back and forth from North
Carolina to New Jersey” without permission; and “wasn’t making himself available
for supervision,” although the officer acknowledged that she had phone contact with
the defendant during his unauthorized trips to New Jersey. Id. at 198-99, 776 S.E.2d
at 742.
On appeal, we held that the evidence was insufficient to support a finding of
willful absconding under N.C. Gen. Stat. § 15A-1343(b)(3a) and reversed the
revocation of the defendant’s probation. Id. at 205, 776 S.E.2d at 746. While “[t]he
evidence was clearly sufficient to find violations of N.C. Gen. Stat. §§ 15A-1343(b)(2)
and (3), . . . N.C. Gen. Stat. § 15A-1344(a) does not authorize revocation based upon
violations of those conditions,” unless the requirements of N.C. Gen. Stat. § 15A-
1344(d2) have been met. Id.; see also N.C. Gen. Stat. §§ 15A-1343(b)(2)-(3) (requiring,
as regular conditions of probation, that a defendant must “[r]emain within the
jurisdiction of the court unless granted written permission to leave” and “[r]eport as
directed . . . to the officer at reasonable times and places and in a reasonable manner,
permit the officer to visit him at reasonable times, answer all reasonable inquiries by
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STATE V. KRIDER
Opinion of the Court
the officer and obtain prior approval from the officer for, and notify the officer of, any
change in address or employment”).
Officer Thomas experienced a situation that was similar to the officer in
Williams. Officer Thomas testified that when he visited defendant’s reported address
on 14 December 2015, an “elderly black female” informed him that defendant “didn’t
live there.” Cf. Williams, 243 N.C. App. at 198, 776 S.E.2d at 742. The State failed
to present evidence regarding the identity of the person who greeted Officer Thomas,
or her relationship to defendant. However, Officer Thomas testified that after
speaking with her, he never attempted to contact defendant again, “[b]ecause when
we w[ere] told . . . that he didn’t live at the residence, no reason for us to go back out
there.” Nevertheless, Officer Thomas also testified that when defendant contacted
him following his absconding arrest, he met defendant “at the residence.” Officer
Thomas subsequently had “regular contact” with defendant until his case expired on
2 April 2016. During that time, defendant completed substance abuse treatment,
held seasonal employment, and made payments toward his arrears.
“Under this Court’s precedents, [defendant’s] actions, while clearly a violation
of N.C. Gen. Stat. § 15A-1343(b)(3), . . . do not rise to ‘absconding supervision’ in
violation of N.C. Gen. Stat. § 15A-1343(b)(3a).” Johnson, __ N.C. App. at __, 783
S.E.2d at 25. We are unable to meaningfully distinguish this case from Williams, and
we are bound by our Court’s decision. In re Appeal from Civil Penalty, 324 N.C. 373,
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STATE V. KRIDER
Opinion of the Court
384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the
same issue, albeit in a different case, a subsequent panel of the same court is bound
by that precedent, unless it has been overturned by a higher court.”).
The dissent contends that the instant case is analogous to State v. Trent, __
N.C. App. __, 803 S.E.2d 224, temp. stay allowed, __ N.C. __, 802 S.E.2d 725 (2017).
As in this case, the Trent defendant was not at home when his supervising officer
made an unscheduled visit on 24 April 2016. __ N.C. App. at __, 803 S.E.2d at 226.
However, the defendant’s “very upset” wife told the officer that the defendant had
taken her car and bank card without permission when he left the residence the
previous day. Id. According to the defendant’s wife, “it was [his] ‘normal pattern . . .
to go out and be gone for days on drugs.’ ” Id. “These allegations prompted [the
officer’s] second unscheduled visit less than two weeks later[,]” on 5 May 2016. Id. at
__, 803 S.E.2d at 231. Since the defendant still had not returned and his wife “did
not know where he was[,]” the officer filed violation reports for absconding. Id.
At the violation hearing, the defendant testified that contrary to his wife’s
allegations, he was actually in Raleigh on an eight-day painting job during the
officer’s visits to his residence. Id. at __, 803 S.E.2d at 230. Nevertheless, the
defendant admitted that “[e]ven after learning about [the officer’s] unscheduled visits
during his travels, [he] still did not contact her to correct any allegedly inaccurate
information that [his wife] may have communicated.” Id. at __, 803 S.E.2d at 232.
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STATE V. KRIDER
Opinion of the Court
Instead, the defendant “went to stay at his mother’s house ‘for a couple days’ until he
was arrested in Greensboro on 9 May 2016.” Id.
The instant case is distinguishable from Trent, where the probation officer
gleaned information about the defendant’s whereabouts from his wife. Here, Officer
Thomas testified only that he spoke with an “elderly black female” at defendant’s
reported address. The State failed to establish the woman’s identity, or whether she
even lived at the residence. Furthermore, unlike in Trent, Officer Thomas did not
revisit defendant’s residence or otherwise attempt to verify the unidentified woman’s
allegations. Contra id. at __, 803 S.E.2d at 231.
The dissent contends that “[a]s in Trent, through the exercise of logic and
reason, the trial court could have considered [d]efendant was not in contact with his
probation officer for two months” in finding that he absconded from supervision.
(Murphy, J., dissenting, at 4). However, unlike Trent, there was no evidence that
defendant was even aware of Officer Thomas’s unannounced visit until after his
arrest. Contra id. at __, 803 S.E.2d at 232. A trial court may only revoke probation
where the defendant “abscond[s] by willfully avoiding supervision or by willfully
making the defendant’s whereabouts unknown to the supervising officer[.]” N.C.
Gen. Stat. § 15A-1343(b)(3a) (emphasis added). Here, there was no evidence of
willfulness.
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STATE V. KRIDER
Opinion of the Court
Moreover, at the violation hearing, defendant testified that he attempted to
contact Officer Thomas “[p]lenty of times”:
[DEFENDANT:] I called, called in the morning, I’m coming
– notified to come. I called. He never in his office. Ring,
ring. He never answer. I leave voice mail, call. He never
answer or call me back.
[DEFENSE COUNSEL:] Okay.
A. I come by a few times and never – he never there. A few
times I came but never signed my name on the line that
was on my behalf, but rest of the times I come and call, he
never there. I ain’t never heard from him.
Although the State argues on appeal that defendant’s testimony was “not credible,”
at the hearing, the State failed to cross-examine defendant or to impeach his
testimony by recalling Officer Thomas to the witness stand. Cf. Trent, __ N.C. App.
at __, 803 S.E.2d at 231 (“Despite defendant’s accusation that [his wife] misinformed
[his probation officer] in his absence, during cross-examination by the State,
defendant admitted that he failed to contact [the officer] even after he returned from
Raleigh[.]”).
We agree with the dissent that the State is never required to cross-examine a
defendant, and that “the demeanor of the witness on the stand is always in evidence.”
(Dissent at 4). Nevertheless, despite the “informal or summary” nature of probation
hearings, the State bears the burden of presenting sufficient evidence “to reasonably
satisfy the judge in the exercise of his sound discretion that the defendant has
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STATE V. KRIDER
Opinion of the Court
willfully violated a valid condition of probation.” State v. Murchison, 367 N.C. 461,
464, 758 S.E.2d 356, 358 (2014). In the instant case, the State failed to carry its
burden. Williams, not Trent, is controlling here. As in Williams, we conclude that
the evidence in this case does not support a violation of N.C. Gen. Stat. § 15A-
1343(b)(3a). 243 N.C. App. at 205, 776 S.E.2d at 746; accord State v. Brown, __ N.C.
App. __, 791 S.E.2d 662 (2016) (unpublished).
Here, however, the trial court’s decision was not only an abuse of discretion
but also an error that deprived the court of jurisdiction to revoke defendant’s
probation. The violation hearing was conducted after defendant’s case expired, and
“other than as provided in N.C. Gen. Stat. § 15A-1344(f), a trial court lacks
jurisdiction to revoke a defendant’s probation after the expiration of the probationary
term.” Moore, 240 N.C. App. at 463, 771 S.E.2d at 767. Before defendant’s probation
expired, the State filed a written report alleging violations of six conditions of
defendant’s probation. N.C. Gen. Stat. § 15A-1344(f)(1). However, of the six
violations alleged, the trial court was only authorized to revoke defendant’s probation
for absconding. N.C. Gen. Stat. § 15A-1344(a). Since the State’s evidence was
insufficient to support that allegation, we conclude that the trial court lacked
jurisdiction to revoke defendant’s probation after his case expired.
“Where jurisdiction is statutory and the Legislature requires the Court to
exercise its jurisdiction in a certain manner, to follow a certain procedure, or
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STATE V. KRIDER
Opinion of the Court
otherwise subjects the Court to certain limitations, an act of the Court beyond these
limits is in excess of its jurisdiction.” State v. Gorman, 221 N.C. App. 330, 333, 727
S.E.2d 731, 733 (2012) (citation and quotation marks omitted). “If the court was
without authority, its judgment . . . is void and of no effect.” Id. Therefore, we vacate
the trial court’s judgment revoking defendant’s probation.
VACATED.
Judge ZACHARY concurs.
Judge MURPHY dissents in a separate opinion.
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No. COA17-272 – State v. Krider
MURPHY, Judge, dissenting.
I respectfully dissent from the Majority’s determination that the trial court
lacked jurisdiction to revoke Defendant’s probation and the mandate to vacate the
judgment revoking Defendant’s probation.
Abuse of Discretion
As an initial matter, the trial court did not abuse its discretion by revoking
Defendant’s probation.
A hearing to revoke a defendant’s probationary sentence
only requires that the evidence be such as to reasonably
satisfy the judge in the exercise of his sound discretion that
the defendant has willfully violated a valid condition of
probation or that the defendant has violated without lawful
excuse a valid condition upon which the sentence was
suspended.
State v. Young, 190 N.C. App. 458, 459, 660 S.E.2d 574, 576 (2008) (citation and
quotation marks omitted). “[O]nce the State has presented competent evidence
establishing a defendant’s failure to comply with the terms of probation, the burden
is on the defendant to demonstrate through competent evidence an inability to comply
with the terms.” State v. Trent, ___ N.C. App. ___, ___, 803 S.E.2d 224, 227 (2017)
(citation and quotation marks omitted).
We review the trial court’s decision to revoke a defendant’s probation for abuse
of discretion. State v. Miller, 205 N.C. App. 291, 293, 695 S.E.2d 149, 150 (2010)
(citation omitted). “Abuse of discretion occurs when a ruling is manifestly
unsupported by reason or is so arbitrary that it could not have been the result of a
STATE V. KRIDER
MURPHY, J., dissenting
reasoned decision.” Trent, ___ N.C. App. at ___, 803 S.E.2d at 227 (citation and
quotation marks omitted).
Here, Defendant argues the State’s evidence was insufficient to support the
conclusion that he violated N.C.G.S. § 15A-1343(b)(3a) (2015). Under this statute, as
a regular condition of probation, a defendant must “[n]ot abscond by willfully avoiding
supervision or by willfully making the defendant’s whereabouts unknown to the
supervising probation officer, if the defendant is placed on supervised probation.”
N.C.G.S. § 15A-1343 (b)(3a). As the Majority explains, citing to State v. Williams,
243 N.C. App. 198, 205, 776 S.E.2d 741, 745 (2015) and State v. Johnson, ___ N.C.
App. ___, ___, 783 S.E.2d 21, 26 (2016), our case law has made it clear that violations
of §§ 15A-1343(b)(2) and (3) are insufficient to establish the revocable violation of
absconding under § 15A-1343(b)(3a). N.C.G.S. § 15A-1343(b)(3) requires, as a regular
condition of probation, that a defendant:
[r]eport as directed by the court or his probation officer to
the officer at reasonable times and places and in a
reasonable manner, permit the officer to visit him at
reasonable times, answer all reasonable inquiries by the
officer and obtain prior approval from the officer for, and
notify the officer of, any change in address or employment.
In Williams, we held the evidence presented at the probation hearing was
insufficient to support a finding of willful absconding where, without more, the
evidence showed a defendant failed to show up to meetings and had been outside the
state without permission, although he had been communicating with the probation
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STATE V. KRIDER
MURPHY, J., dissenting
officer via phone. Williams, 243 N.C. App. at 198-99, 776 S.E.2d at 742. In Johnson,
emphasizing the defendant’s whereabouts were never “unknown” because defendant
was on electronic monitoring, we held that a defendant who informed his probation
officer he would not attend an office visit, and then subsequently failed to report to
that meeting does not, without more, violate (b)(3a) when those same actions violate
(b)(3). Johnson, ___ N.C. App. at ___, 783 S.E.2d at 26-27.
Here, in concluding it is bound by Williams and Johnson to determine that the
evidence in the instant case only evidences a violation of (b)(3), and does not
constitute a violation of (b)(3a), the Majority overlooks key facts that distinguish this
case. Unlike Williams and Johnson, the evidence showed that Defendant’s
“whereabouts were unknown for two months[,]” and during that time Defendant did
not communicate with the probation officer. Therefore, this case is more like State v.
Trent, ___ N.C. App. ___, 803 S.E.2d 224 (2017), where we distinguished Williams
and Johnson, determining a trial court did not abuse its discretion by finding a
defendant violated (b)(3a) because the probation officer “did not have the benefit of
tracking defendant’s movements” as in Johnson and had “absolutely no means of
contacting defendant” unlike in Williams. Trent, ___ N.C. App. at ___, 803 S.E.2d at
231 (internal citations omitted); see also State v. Hurley, ___ N.C. App. ___, 805 S.E.2d
563, slip op. at 6-7 (October 17, 2017) (unpublished) (explaining how Trent
distinguished Williams and Johnson). While Defendant provided self-serving
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MURPHY, J., dissenting
testimony at the revocation hearing, the trial court was in the proper position to
weigh and reject any or all of Defendant’s self-serving testimony. The Majority takes
into account the State’s failure to cross-examine or attempt impeachment of
Defendant, however, the demeanor of the witness on the stand is always in evidence.
State v. Mullis, 233 N.C. 542, 544, 64 S.E.2d 656, 657 (1951). There is no requirement
that the State attempt to cross-examine or impeach the Defendant and disregard of
the Defendant’s testimony does not demonstrate an abuse of discretion. Therefore,
the record does not support a conclusion that the trial court abused its discretion in
ruling that Defendant had absconded on probation. As in Trent, through the exercise
of logic and reason, the trial court could have considered Defendant was not in contact
with his probation officer for two months, his whereabouts were unknown, and he
was not subject to the supervision of the State. Our decision is not controlled by
Williams and Johnson and it was within the trial court’s discretion to find that
Defendant violated N.C.G.S. § 15A-1343(b)(3a).
Jurisdiction
While the Majority’s holding rests on Williams and Johnson, it also raises an
additional jurisdictional issue, stating that the trial court lacked jurisdiction to
revoke Defendant’s probation because the violation hearing was conducted after the
Defendant’s case expired. We review de novo whether a trial court had subject matter
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MURPHY, J., dissenting
jurisdiction to revoke a defendant’s probation. State v. Satanek, 190 N.C. App. 653,
656, 660 S.E.2d 623, 625 (2008) (citation omitted).
Pursuant to N.C.G.S. § 15A-1344(f) (2015), a trial court
may extend, modify, or revoke a defendant’s probation
after the expiration of the probationary term only if several
conditions are met, including findings by the trial court
that prior to the expiration of the probation period a
probation violation had occurred and a written probation
violation report had been filed. Also the trial court must
find good cause for the extension, modification, or
revocation.
State v. Moore, 240 N.C. App. 461, 463, 771 S.E.2d 766, 767 (2015)(alterations
omitted) (citing N.C.G.S. § 15A-1344(f)). As the Majority notes, Defendant’s hearing
took place after the expiration of his probationary term. However, the written
violation reports were filed prior to the expiration of the probation period, and the
trial court found that a probation violation occurred prior to the expiration of the
probationary period. Moreover, the trial court found good cause for the revocation.
Thus, the fact that the hearing took place after the expiration of the probationary
period did not deprive the trial court of jurisdiction.
Mandate
Finally, assuming arguendo that the State failed to present sufficient evidence
of Defendant’s absconding probation, the proper mandate is not to Vacate the
judgment of the trial court, but to Reverse and Remand as we did in Williams.
Williams, 243 N.C. App. at 206, 776 S.E.2d at 746. Here, the trial court found
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MURPHY, J., dissenting
Defendant violated the terms and conditions of his probation as alleged in
“[p]aragraph(s) 1-6 of the Violation Report . . . dated [21 December 2015]”. At a
minimum, it is proper to allow the trial judge the opportunity to enter an appropriate
judgment based on the remaining violations.
Conclusion
Under these facts, we are not bound by Williams and Johnson, and the timing
of the hearing does not present a jurisdictional bar. The trial court did not abuse its
discretion in finding that Defendant violated N.C.G.S. § 15A-1343(b)(3a) or in
revoking his probation. I respectfully dissent.
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