State v. Tucker ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-219
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. Forsyth County
No. 11 CRS 55247
ANGELICA CORNISE TUCKER
Appeal from judgment entered 12 July 2013 by Judge David
Hall in Forsyth County Superior Court. Heard in the Court of
Appeals 21 July 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Adam M. Shestak, for the State.
James N. Freeman, Jr., for defendant-appellant.
HUNTER, JR., Robert N., Judge.
Defendant appeals from a judgment entered upon revocation
of her probation. We reverse the judgment and remand for
further proceedings.
On 21 May 2012, defendant pled guilty to negligent child
abuse resulting in serious bodily injury, which she committed on
28 December 2010. The trial court sentenced her to a suspended
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prison term of twenty to thirty-three months and placed her on
eighteen months of supervised probation.
In reports filed on 19 December 2012 and 2 April 2013,
defendant was charged with violating multiple conditions of her
probation. After a hearing on 12 July 2013, the trial court
found defendant had willfully committed five of the alleged
violations.1 Further concluding that “at least one of the
violations authorizes revocation of her . . . probation and
activation of her suspended sentence,” the court revoked
defendant’s probation and activated her prison sentence of
twenty to thirty-three months.
Citing this Court’s holding in State v. Nolen, ___ N.C.
App. ___, ___, 743 S.E.2d 729, 730–31 (2013), defendant now
argues that the trial court lacked the authority to revoke her
probation due to the constraints enacted by the Justice
Reinvestment Act of 2011 (“JRA”). The State concedes that the
court erred for the reasons set forth in Nolen. We agree with
the parties’ analysis.
“[F]or probation violations occurring on or after 1
December 2011, the JRA limited trial courts’ authority to revoke
1
Although the trial court found a sixth violation in open court,
i.e., defendant’s failure to provide a DNA sample to the local
sheriff, the judgment does not reflect this finding.
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probation to those circumstances in which the probationer: (1)
commits a new crime in violation of N.C. Gen. Stat. § 15A-
1343(b)(1); (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 violation] under N.C. Gen. Stat. § 15A-1344(d2).”
Nolen, ___ N.C. App. at ___, 743 S.E.2d at 730 (citing N.C. Gen.
Stat. § 15A-1344(a) (2013)). Moreover, the “absconding”
condition in § 15A-1343(b)(3a) (2013), which was enacted as part
of the JRA, applies only to defendants who are placed on
probation for “‘offenses committed on or after 1 December
2011[.]’” Id. at ___, 743 S.E.2d at 731 (quoting State v.
Hunnicutt, ___ N.C. App. ___, ___, 740 S.E.2d 906, 911 (2013)).
In the case sub judice, defendant committed her probation
violations in 2012 and 2013, and committed the underlying
criminal offense in 2010. Therefore, the trial court’s
revocation authority was limited by the JRA’s amendments to N.C.
Gen. Stat. § 15A-1344(a), and defendant was not subject to the
new “absconding” condition codified in N.C. Gen. Stat. § 15A-
1343(b)(3a).
Paragraph 2 of the report filed 2 April 2013 alleged that
defendant had violated the regular condition of probation found
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in N.C. Gen. Stat. § 15A-1343(b)(2) (2013), which required her
to “[r]emain within the jurisdiction of the Court unless granted
written permission to leave by the Court or the probation
officer[.]” In support of this charge, the report specifically
alleged that “[d]efendant has absconded supervision and her
whereabouts are unknown at this time.” Moreover, in finding
this violation, the court announced itself “satisfied that the
defendant did abscond supervision as indicated in paragraph
number 2[.]” Notwithstanding this use of the term “abscond” to
describe a defendant’s violation of N.C. Gen. Stat. § 15A-
1343(b)(2), the fact remains that defendant was not subject to
the condition that she “[n]ot abscond” in N.C. Gen. Stat. § 15A-
1343(b)(3a); nor was she subject to revocation for the charged
violation of (b)(2). Nolen, ___ N.C. App. at ___, 743 S.E.2d at
731. Insofar as the court revoked defendant’s probation for
absconding supervision, the court exceeded its authority under
N.C. Gen. Stat. § 15A-1344(a). Id. at ___, 743 S.E.2d at 731.
Paragraph 4 of the report filed on 19 December 2012 alleged
defendant’s commission of a new crime, in violation of N.C. Gen.
Stat. § 15A-1343(b)(1), in that she was “charged with
misdemeanor larceny on December 7, 2012[.]” Defendant adduced
evidence that she had pled guilty to the Class 3 misdemeanor of
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shoplifting. See N.C. Gen. Stat. § 14-72.1(e) (2013). Although
the State contested the issue, the trial court expressly found
as follows:
As to paragraph number [4] the misdemeanor
larceny, the court does not find that, or is
not substantially satisfied. . . . However,
[defendant] was convicted of a [C]lass 3
misdemeanor, which does bear on her
performance. It’s just not independent and
in and of itself a reason to revoke her
probation.
Thus, while the court found the violation alleged in paragraph
4, it correctly noted “that probation may not be revoked solely
for conviction of a Class 3 misdemeanor.” N.C. Gen. Stat. §
15A-1344(d) (2013). Because defendant was not found to have
committed another violation of N.C. Gen. Stat. § 15A-1343(b)(1),
she was not subject to revocation for committing a new crime.
Finally, both violation reports indicate defendant had
served no periods of confinement in response to violation under
N.C. Gen. Stat. § 15A-1344(d2). As the trial court made no
finding to the contrary, defendant’s probation could not revoked
on this ground.
The judgment includes a finding by the trial court that it
was authorized to “revoke defendant’s probation . . . for the
willful violation of the condition(s) that []she not commit any
criminal offense, G.S. 15A-1343(b)(1), or abscond from
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supervision, G.S. 15A-1343(b)(3a)[.]” “This finding is
erroneous.” Nolen, ___ N.C. App. at ___, 743 S.E.2d at 731. We
must therefore reverse the judgment and “remand to the trial
court for entry of an appropriate judgment for Defendant's . . .
probation violations consistent with the provisions of N.C. Gen.
Stat. § 15A-1344.” Id. at ___, 743 S.E.2d at 731.
Reversed and remanded.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).