State v. Wynn ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-337
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
STATE OF NORTH CAROLINA
v. Hertford County
No. 10 CRS 51612
QUAYSHAUN WYNN,
Defendant.
Appeal by defendant from judgment entered 10 December 2012
by Judge Cy A. Grant in Hertford County Superior Court. Heard
in the Court of Appeals 9 September 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Carolyn McLain and Assistant Attorney General Kimberly N.
Callahan, for the State.
Yoder Law PLLC, by Jason Christopher Yoder, for defendant-
appellant.
GEER, Judge.
Defendant Quayshaun Wynn appeals from the trial court's
judgment revoking his probation and activating his suspended
sentence for conspiracy to commit robbery with a dangerous
weapon. On appeal, defendant primarily argues that the trial
court revoked his probation based upon an absconding condition
provided for in the Justice Reinvestment Act ("JRA") that,
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because of the effective date of the applicable JRA provision,
did not apply to defendant's probation.
We hold that even though the absconding provision of the
JRA did not apply to defendant's probation, the trial court
properly revoked defendant's probation based on his violation of
the probationary conditions that defendant not (1) change
residences without prior approval or (2) leave the jurisdiction
of the trial court without permission. Consequently, we affirm
the trial court's judgment, but remand for correction of a
clerical error.
Facts
On 8 February 2011, defendant pled guilty to conspiracy to
commit robbery with a dangerous weapon in Hertford County, North
Carolina. The trial court sentenced defendant to a presumptive-
range term of 20 to 33 months imprisonment, but suspended the
sentence and ordered defendant to serve six months active
imprisonment followed by 24 months of supervised probation. The
court ordered as a condition of probation that defendant report
as directed to the "Day Reporting Center" for 24 months.
On 7 March 2012, defendant's probation officer, Todd
Sellers, filed a verified probation violation report in Hertford
County alleging that defendant willfully violated the conditions
of his probation by (1) being $400.00 in arrears in payments on
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his case and (2) failing to report as directed to the Day
Reporting Center since October 2011. In addition, the report
alleged that defendant also committed the following probation
violations:
3. Condition of Probation ". . . obtain
prior approval from the officer for,
and notify the officer of, any change
in address . . ." in that
ON OR ABOUT 11/15/2011 OFFENDER LEFT
HIS PLACE OF RESIDENCE AT 104 WATFORD
PARK LN. AND FAILED TO MAKE IS [sic]
WHEREABOUTS KNOWN.
4. Condition of Probation "Remain within
the jurisdiction of the Court unless
granted written permission to leave by
the Court or the probation officer" in
that
OFFENDER ABSCONDED SUPERVISION AND HAS
FAILED TO REPORT OR GIVE A VALID
ADDRESS TO HIS PROBATION OFFICER SINCE
11/15/12.
At a 10 December 2012 hearing on the probation violation
report, defendant admitted the existence of the first two
violations alleged in the report but denied the existence of the
third and fourth violations. The probation officer who filed
the report, Mr. Sellers, did not testify at the hearing because
he had moved out of Hertford County. It appears, however, from
the transcript, that defendant's supervision was transferred to
Bertie County at some point.
In place of Mr. Sellers, the State presented the testimony
of Dessie Outlaw, a probation officer in Hertford County to whom
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defendant was assigned following his arrest in Plymouth, North
Carolina on a warrant for absconding from his probation. Ms.
Outlaw testified that when defendant was discovered in Plymouth,
he was supposed to be living at 104 Watford Park Lane in
Colerain, North Carolina, but he was not living at that address.
Ms. Outlaw testified that other than this basic information, she
only knew the information on the violation report since
defendant had not been assigned to her prior to being arrested
in Plymouth.
Defendant testified at the hearing that in April 2011, Mr.
Sellers gave defendant permission to move to Nags Head.
Defendant admitted that his last contact with Mr. Sellers was in
April 2011, although defendant claimed he tried to contact Mr.
Sellers at other times. According to defendant, Mr. Sellers
said he would transfer defendant's file to the appropriate
probation office in Nags Head, but he never did. Consequently,
defendant returned to Bertie County at some point in 2011 to
find out what was happening with his probation.
When defendant returned to Bertie County, he lived with his
mother at an address that defendant never provided to the
probation office. Defendant claimed that he went to the Bertie
County probation office to find Mr. Sellers, but Mr. Sellers was
never in the office.
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Defendant further testified that he most recently tried to
report to a probation officer in November 2012. Defendant
admitted he was arrested on 24 November 2012 at a traffic
checkpoint in Plymouth for absconding from probation. Defendant
had been in jail since his arrest.
At the conclusion of the hearing, the trial court ordered
defendant's probation revoked "for absconding." The same day,
10 December 2012, the trial court entered a judgment revoking
defendant's probation and activating defendant's sentence, with
credit for the active imprisonment defendant already served
under the prior split sentence. In its judgment, using the form
AOC-CR-607, Rev. 12/12, entitled "JUDGMENT AND COMMITMENT UPON
REVOCATION OF PROBATION -- FELONY (STRUCTURED SENTENCING) (For
Revocation Hearings On Or After Dec. 1, 2011)," the court found
that defendant violated his probation based on all four
violations alleged in the probation violation report. We have
granted defendant's petition for writ of certiorari seeking
review of the trial court's judgment revoking defendant's
probation.
I
Defendant first contends that the trial court erred in
revoking his probation for "absconding" because the absconding
condition of probation only came into existence with the
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enactment of the JRA, and the JRA is inapplicable to defendant's
probation. Defendant further claims he was not given notice
that the new absconding provision applied to his probation.
This Court has previously recognized that
for probation violations occurring on or
after 1 December 2011, the JRA limited trial
courts' authority to revoke probation to
those circumstances in which the
probationer: (1) commits a new crime in
violation of N.C. Gen. Stat. § 15A–
1343(b)(1) [(2011)]; (2) absconds
supervision in violation of N.C. Gen. Stat.
§ 15A–1343(b)(3a); or (3) violates any
condition of probation after serving two
prior periods of [confinement in response to
violations ("CRV")] under N.C. Gen. Stat. §
15A–1344(d2) [(2011)]. See N.C. Gen. Stat.
§ 15A–1344(a). For all other probation
violations, the JRA authorizes courts to
alter the terms of probation pursuant to
N.C. Gen. Stat. § 15A–1344(a) or impose a
CRV in accordance with N.C. Gen. Stat. §
15A–1344(d2), but not to revoke probation.
Id.
State v. Nolen, ___ N.C. App. ___, ___, 743 S.E.2d 729, 730
(2013).
Further, "the JRA made the following a regular condition of
probation: 'Not to abscond, by willfully avoiding supervision or
by willfully making the defendant's whereabouts unknown to the
supervising probation officer.'" State v. Hunnicutt, ___ N.C.
App. ___, ___, 740 S.E.2d 906, 910 (2013) (quoting N.C. Gen.
Stat. § 15A–1343(b)(3a)). Following amendments to the JRA, "the
new absconding condition [is] applicable only to offenses
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committed on or after 1 December 2011, while the limited
revoking authority [is] effective for probation violations
occurring on or after 1 December 2011." Id. at ___, 740 S.E.2d
at 911.
Defendant correctly asserts that the new absconding
condition provided for in the JRA does not apply to his
probation, since his probation was based upon an offense
committed on 28 September 2010. We, however, disagree with
defendant's contention that since he was not subject to the new
absconding condition, the trial court's revocation of his
probation "for absconding" was necessarily invalid.
In Hunnicutt, as here, the defendant argued that the trial
court erred in activating his sentence on the grounds that he
"'absconded by willfully avoiding supervision'" since "no such
condition was ever imposed upon him, . . . he had no notice of
such a condition, and . . . the trial court had no authority to
impose any condition prohibiting 'absconding by willfully
avoiding supervision.'" Id. at ___, 740 S.E.2d at 910. The
violation report at issue in Hunnicutt alleged:
"Of the conditions of probation imposed in
[the] judgment, the defendant has willfully
violated:
1. Condition of Probation 'Report as
directed by the Court or the probation
officer to the officer at reasonable times
and places . . .' in that THE DEFENDANT
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FAILED TO REPORT TO HIS SUPERVISING OFFICER
AS DIRECTED ON 11/10/2011 AND 11/21/2011.
2. Condition of Probation 'Remain within the
jurisdiction of the Court unless granted
written permission to leave by the Court or
the probation officer' in that DESPITE
NUMEROUS ATTEMPTS BY THE SUPERVISING
OFFICER, THE DEFENDANT REFUSES TO REPORT AS
DIRECTED AND DOES NOT RESPOND TO CONTACT
NOTICES LEFT BY THE SUPERVISING OFFICER.
THE DEFENDANT HAS RENDERED HIMSELF
UNAVAILABLE FOR SUPERVISION."
Id. at ___, 740 S.E.2d at 911.
At the conclusion of the revocation hearing, the trial
court in Hunnicutt found that the defendant's probation officer
called the defendant on a certain date, and the defendant hung
up on her; that on a different date, the defendant reported to
the probation office on a day he was supposed to report, but at
an improper time; and that on the latter day, the defendant left
the office on his own despite being told to wait by the
probation officer until the officer finished a meeting. Id. at
___, 740 S.E.2d at 912.
On appeal, this Court held that neither the JRA's limited
revoking authority nor the new absconding condition applied to
the defendant because "both the offenses and the probation
violations at issue occurred prior to 1 December 2011." Id. at
___, 740 S.E.2d at 911. The Court then turned to the
defendant's contention that the trial court necessarily relied
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upon the new absconding condition in revoking his probation
given the trial court's statements at the hearing that the
defendant "'did abscond'" and that "'[i]t's not that he made his
whereabouts unknown, it's that he absconded by willfully
avoiding supervision.'" Id. at ___, 740 S.E.2d at 911. The
defendant further noted that the trial court checked the box on
the Administrative Office of the Courts form judgment that
stated the defendant had "'abscond[ed] from supervision'
pursuant to 'G. S. 15A–1343(b)(3a).'" Id. at ___, 740 S.E.2d at
911.
This Court rejected the argument that the trial court's
references to absconding and the AOC form showed the trial court
improperly relied upon the new, inapplicable absconding
condition of the JRA when revoking the defendant's probation,
explaining:
Although N.C. Gen. Stat. § 15A–
1343(b)(3a) introduced the term "abscond"
into our probation statutes for the first
time, the term "abscond" has frequently been
used when referring to violations of the
longstanding statutory probation conditions
to "remain within the jurisdiction of the
court" or to "report as directed to the
officer." See, e.g., State v. Brown, ___
N.C. App. ___, 731 S.E.2d 530 (2012); State
v. High, 183 N.C. App. 443, 645 S.E.2d 394(2007); State v. Coffey, 74 N.C. App. 137,
327 S.E.2d 606 (1985). Both are regular
conditions of probation under N.C. Gen.
Stat. § 15A–1343 and, therefore, "are in
every circumstance valid conditions of
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probation." N.C. Gen. Stat. § 15A–1342(g)
(2011).
Id. at ___, 740 S.E.2d at 911. The Court observed that the
defendant "had notice of his obligation to 'remain within the
jurisdiction of the court' and to 'report as directed to the
[probation] officer'" based on the language providing for those
conditions in the defendant's original judgment suspending
sentence. Id. at ___, 740 S.E.2d at 911.
This Court in Hunnicutt then held that "[d]espite its
colloquial and perhaps imprecise usage of the term 'abscond,' it
is clear from the record that the trial court activated
Defendant's sentence on the basis of [the probation officer's]
testimony explaining the circumstances surrounding the
violations listed in the reports." Id. at ___, 740 S.E.2d at
912. Accordingly, the Court rejected the defendant's argument
"that the trial court retroactively engrafted the condition
created by the JRA onto his existing probation conditions." Id.
at ___, 740 S.E.2d at 912.
Here, the third alleged violation in the report was that
defendant failed to "'obtain prior approval from the officer
for, and notify the officer of, any change in address'" when he
left his residence of record on 15 November 2011 and failed to
make his whereabouts known to his probation officer after that
date. Since the alleged violation occurred prior to 1 December
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2011, the JRA's limited revoking authority did not apply to that
violation.
Defendant does not dispute that his original judgment
suspending sentence provided as a condition of probation that he
"obtain prior approval from the officer for, and notify the
officer of, any change in address." We believe that the
reasoning of Hunnicutt applies to this violation, and that the
trial court's statement that defendant's probation was revoked
for "absconding" was a reference to the third alleged violation
in the report. See High, 183 N.C. App. at 445, 645 S.E.2d at
395 (referring to probation violation report allegation that
"'[o]n or about 6–13–03 the defendant left his residence . . .
in Knightdale and has failed to make himself available for
supervision or notify his probation officer of his whereabouts'"
as allegation that defendant "violated his probation by
absconding").
Turning to the fourth alleged violation, the 7 March 2012
report alleged that defendant failed to "'[r]emain within the
jurisdiction of the Court unless granted written permission to
leave by the Court or the probation officer'" since defendant
"ABSCONDED" supervision and had failed to give his probation
officer a valid address "SINCE 11/15/12." In other words, the
report, which was filed in March 2012, alleged that defendant
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had violated his probation eight months in the future in
November 2012. Although defendant argues that the report should
be read as referring to a 2012 violation, obviously, the
reference to 2012 is a typographical error. Comparing the
allegations in the third alleged violation and in the fourth
violation, it appears that the probation officer intended the
fourth violation to have the same date as the third violation,
15 November 2011.
Indeed, defendant himself testified that he failed to
contact any probation officer after April 2011 and moved back to
Bertie County, to an address not known to his probation officer,
at some point in 2011. Defendant's testimony thus also
indicates that the trial court and the parties all understood
the fourth alleged violation to refer to a violation in November
2011 and not November 2012. Under these circumstances, we
conclude that the fourth alleged violation, actually referring
to a violation on 15 November 2011, was also not subject to the
JRA's limited revoking authority.
Defendant nonetheless cites State v. Jarman, 140 N.C. App.
198, 535 S.E.2d 875 (2000), in support of his argument that we
should interpret the probation violation report, and the
proceedings based upon it, as providing for an alleged violation
in November 2012 that was subject to the court's limited
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revoking authority. In Jarman, this Court explained that
"[w]here there has been uncertainty in whether an error was
'clerical,' the appellate courts have opted to 'err on the side
of caution and resolve [the discrepancy] in the defendant's
favor.'" Id. at 203, 535 S.E.2d at 879 (first alteration added)
(quoting State v. Morston, 336 N.C. 381, 410, 445 S.E.2d 1, 17
(1994)).
Jarman, however, provides no authority for defendant's
argument that this court is bound to interpret the alleged
fourth violation of the report, as incorporated by reference
into the trial court's judgment revoking probation, without
taking into account the date listed for the factually similar
third alleged violation, the filing date of the report, and
defendant's own testimony at trial. We do not believe, given
the entire record, that there is any uncertainty regarding
whether there was a typographical error as to the date of the
fourth violation alleged in the report.
Given the fourth violation occurred in November 2011, under
Hunnicutt, we believe the trial court's reference in the hearing
to "absconding" expressed the court's intent to revoke based on
the fourth, as well as the third, violation. As with the third
violation, defendant does not dispute that his original judgment
suspending sentence required defendant to "[r]emain within the
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jurisdiction of the Court unless granted written permission to
leave by the Court or the probation officer."
In sum, we hold that the trial court's reference to
"absconding" does not show that the court improperly revoked
defendant's probation based on the JRA's new absconding
provision. Further, defendant had notice of the conditions for
which his probation was revoked.
However, the court's judgment revoking probation
incorporates the four paragraphs of the violation report by
reference, including the error regarding the date of the fourth
violation. Accordingly, we must remand the judgment to the
trial court to correct the clerical error in the date of the
violation, found by the court, based upon the fourth paragraph
in the report. See State v. Smith, 188 N.C. App. 842, 845, 656
S.E.2d 695, 696 (2008) ("When, on appeal, a clerical error is
discovered in the trial court's judgment or order, it is
appropriate to remand the case to the trial court for correction
because of the importance that the record 'speak the truth.'"
(quoting State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d
781, 784 (1999))).
II
Defendant next contends that the trial court abused its
discretion in revoking his probation. When the trial court's
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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.
Young, 190 N.C. App. 458, 459, 660 S.E.2d 574, 576 (2008).
The verified violation report in this case provided
competent evidence from which the trial court could find that
defendant left his residence of record on 15 November 2011 and
subsequently failed to make his whereabouts known to his
probation officer. See State v. Gamble, 50 N.C. App. 658, 661,
274 S.E.2d 874, 876 (1981) ("Defendant's allegation that the
State presented no evidence is erroneous, because introduction
of the sworn probation violation report constituted competent
evidence sufficient to support the order revoking his
probation.").
In addition, defendant testified that he last successfully
contacted Mr. Sellers in April 2011 and that he moved from Nags
Head to Bertie County later that year. Defendant admitted that
he never provided his new Bertie County address to his probation
officer. Thus, the report and defendant's testimony constituted
competent evidence that defendant violated his probation by
moving from Nags Head to Bertie County without prior approval
and failing to keep his probation officer aware of his
whereabouts.
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Moreover, with respect to the court's decision to revoke
defendant's probation, defendant admitted to violating his
probation by being in arrears with respect to court indebtedness
in the amount of $400.00 and by failing to attend the Day
Reporting Center as directed since October 2011. Following the
presentation of evidence, the trial court further questioned
defendant about why he left Nags Head and returned to Bertie
County in 2011, and the court indicated that it did not believe
defendant's story that defendant returned in order to check on
his probation and, yet, never turned himself in for absconding.
Indeed, as the trial court noted, defendant admitted that he
never actually made contact with his probation officer after
April 2011, and defendant was out of touch with the probation
office until he was arrested for absconding from probation in
November 2012 at a traffic checkpoint in Plymouth.
Defendant nonetheless cites State v. Boone, ___ N.C. App.
___, 741 S.E.2d 371 (2013), in support of his argument that the
court abused its discretion in revoking his probation. There,
the defendant's probation officer "filed a violation report
alleging that 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 $150 in arrears of
his supervision fee." Id. at ___, 741 S.E.2d at 371-72. On
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appeal, the defendant argued "there was no evidence presented
that he violated the terms of his probation because the State
failed to present evidence of a payment plan and schedule for
community service . . . ." Id. at ___, 741 S.E.2d at 372.
This Court agreed and reversed the judgment revoking the
defendant's probation since the judgment suspending sentence
left the schedule for payment of fees and community service to
be set by the probation officer, the officer never testified to
any schedule for the fees or community service, and, at the time
of the violation report, six months remained on the defendant's
probation. Id. at ___, 741 S.E.2d at 372.
Defendant argues here, similarly, that "the State never
established a schedule for reporting or any evidence that he
failed to report to his probation officer" and "never cited a
single instance that [defendant] was asked to report or was
asked to provide a valid address to his probation officer."
However, in this case, defendant's original judgment suspending
sentence required defendant to "obtain prior approval" for any
change in address and "[r]emain within the jurisdiction of the
Court unless granted written permission to leave." Thus, unlike
the original judgment in Boone, the judgment here specifically
provides that defendant must obtain prior approval when changing
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his address or leaving the jurisdiction; no further "schedule"
was necessary.
Defendant also argues that because of the clerical error in
the fourth alleged violation in the report, the verified report
could not constitute competent evidence supporting the court's
revocation of his probation and must be treated as an unverified
report. However, defendant does not cite any authority, and we
have found none, supporting defendant's contention.
Although defendant further challenges the testimony of Ms.
Outlaw as based upon hearsay and as insufficient to support the
court's findings, his hearsay argument was not made below and is
therefore not preserved for appeal. See N.C.R. App. P.
10(a)(1). In any event, the other competent evidence -- the
verified report and defendant's own testimony -- supported the
court's findings and judgment. The trial court did not,
therefore, abuse its discretion in revoking defendant's
probation.
Affirmed in part; remanded in part.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).