State v. Black

• Decision Date: 02 June 2009
• Docket Number: No. COA08-1009.,COA08-1009.
• Citation: 677 S.E.2d 199
• Parties: STATE of North Carolina v. Byron BLACK.
• Court: North Carolina Court of Appeals

677 S.E.2d 199

STATE of North Carolina v. Byron BLACK.

No. COA08-1009.

Court of Appeals of North Carolina.

June 2, 2009.

Appeal by defendant from judgment entered 14 April 2008 by Judge Thomas D. Haigwood in Durham County Superior Court. Heard in the Court of Appeals 25 February 2009.

Attorney General Roy Cooper, by Assistant Attorney General Karissa J. Davan, for the State.

Lucas & Ellis, PLLC, by Anna S. Lucas, Sanford, for defendant-appellant.

CALABRIA, Judge.

Byron Black ("defendant") appeals a judgment revoking his probation. The trial court lacked jurisdiction to hold the probation hearing because the hearing was held after his probation had expired and the State did not follow the requirements found in N.C. Gen.Stat. § 15A-1344(f) necessary to hold a probation revocation hearing after the expiration of defendant's term of probation. We vacate the judgment of the trial court.

I. Background

On 11 January 2006, defendant pled guilty in Durham County District Court to the misdemeanor charges of obtaining property by false pretenses, resisting a public officer, careless and reckless driving, driving with a revoked license, attempted larceny, and two counts of larceny. The charges were consolidated for judgment and defendant was sentenced to a term of 120 days in the custody of the Sheriff of Durham County. This sentence was suspended and defendant was placed on supervised probation for twelve months.

Defendant violated the conditions of his probation by failing to comply with the monetary conditions of his probation, and failing to keep in regular contact with his probation officer. A probation violation report was filed with the court on 26 October 2006, however no date, time, or place of the hearing appears on the report. An order for defendant's arrest was issued on 31 October 2006 for violating the conditions of his probation. He was arrested for other offenses on 16 October 2007.

Defendant filed a motion to dismiss the probation violation charge and argued the court was without jurisdiction to conduct the revocation hearing because defendant's probationary period had expired and the State failed to follow the procedures set forth in N.C. Gen.Stat. § 15A-1344(f). Specifically defendant argued that the State failed to properly file a motion indicating its intent to conduct the revocation hearing and failed to make reasonable efforts to notify defendant of the hearing. This motion was denied. The trial court found that the 31 October 2006 order for arrest, which transferred the case to a surveillance officer, constituted reasonable effort under N.C. Gen.Stat. § 15A-1344(f)(2). On 14 April 2008, defendant was found in violation of his probation and his 120 day suspended sentence was activated. Defendant appealed.

II. Appellate Jurisdiction

Although not included in the record on appeal, we take judicial notice that defendant has completed this sentence, and under prior case law this appeal would be dismissed as moot.

As a general rule this Court will not hear an appeal when the subject matter of the litigation has been settled between the parties or has ceased to exist. By reason of the discharge of the Defendant from custody, the subject matter of this appeal has ceased to exist and the issue is moot.

State v. Cross, 188 N.C.App. 334, 335, 655 S.E.2d 725, 725 (2008) (internal quotations omitted). In Cross, as here, the defendant received suspended sentences and was placed on supervised probation. After the defendant's probation was revoked, his sentences were activated. Id. Since the defendant's sentences expired prior to review by this Court, the appeal was dismissed as moot. Id. at 336, 655 S.E.2d at 726. At the time Cross was decided, when the defendant completed his sentence, there were no additional legal consequences for a defendant willfully violating the conditions of probation.

However, in July 2008, the General Assembly amended N.C. Gen.Stat. § 15A-1340.16(d), which sets forth the aggravating factors that can be used to deviate from the presumptive range of minimum sentences. See Act of July 28, 2008, 2008 N.C. Sess. Laws 129. The General Assembly's amendment added a new aggravating factor. Specifically, a trial court could consider a defendant's willful violation of the conditions of a probationary sentence imposed within the previous ten years as an aggravating factor during sentencing. N.C. Gen.Stat. § 15A-1340.16(d)(12a) (Supp.2008).

Before determining whether an appeal is moot when the defendant has completed his sentence, it is necessary to determine whether collateral legal consequences of an adverse nature may result. "[W]hen the terms of the judgment below have been fully carried out, if collateral legal consequences of an adverse nature can reasonably be expected to result therefrom, then the issue is not moot and the appeal has continued legal significance." In re Hatley, 291 N.C. 693, 694, 231 S.E.2d 633, 634 (1977). The amendment to N.C. Gen.Stat. § 15A-1340.16(d) created collateral legal consequences of an adverse nature even though defendant's judgment, as a result of his probation violation, had been fully carried out, therefore Cross no longer controls.

The State argues the amended statute has prospective effect and probation violations that occurred prior to the effective date of the legislation would not be considered as aggravating factors. The State further argues this appeal is still moot because defendant's probation violation could not be used as an aggravating factor in a later sentencing hearing. While the session laws do indicate that the section in question is only to have prospective effect, the statute and our case law indicate the prospective mandate applies to sentencing in which the aggravating factors may be used, not the offenses on which the aggravating factors are based.

In State v. Taylor, 128 N.C.App. 394, 496 S.E.2d 811 (1998), affirmed 349 N.C. 219, 504 S.E.2d 785 (1998), this Court considered whether changes made to the very statute at issue here could be applied to offenses committed prior to the effective date of the change. Taylor was adjudicated delinquent in 1993 for an offense that would have been a Class C felony if committed by an adult. Id. at 397, 496 S.E.2d at 814. At the time of the commission of the offense, and the adjudication of delinquency, the applicable sentencing statute would not allow this adjudication of delinquency to be considered as an aggravating factor for a later offense. Id. In 1995, the sentencing statute was modified permitting a trial court to consider as an aggravating factor in sentencing that "the defendant has previously been adjudicated delinquent for an offense that would be a Class A, B1, B2, C, D, or E felony if committed by an adult." N.C. Gen.Stat. § 15A-1340.16(d)(18a)(1996).

Taylor challenged the use of his 1993 delinquency adjudication as an aggravating factor during sentencing for an offense he committed in 1995, after the effective date of the legislation. This Court upheld the use of the delinquency adjudication as an aggravating factor, holding that it did not violate the ex post facto protections in the North Carolina Constitution and the United States Constitution, nor did it violate the due process rights of the defendant. Taylor, 128 N.C.App. at 397-98, 496 S.E.2d at 814.

Further examples can be found in the habitual felon statute, see Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948); State v. Todd, 313 N.C. 110, 117-18, 326 S.E.2d 249, 253 (1985), and the sex offender registry, see Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); State v. White, 162 N.C.App. 183, 590 S.E.2d 448 (2004). Since courts would interpret N.C. Gen.Stat. § 15A-1340.16(d)(12a) as a sentencing enhancement statute, defendant's probation violation may be used as an aggravating factor in a subsequent sentencing hearing. Therefore, "collateral legal consequences of an adverse nature can reasonably be expected to result therefrom ... and the appeal has continued legal significance" for defendant. Hatley, 291 N.C. at 694, 231 S.E.2d at 634. This appeal is not moot, and we must address whether the trial court had jurisdiction to conduct the probation revocation hearing.

III. Trial Court Jurisdiction

Defendant argues that the trial court lacked jurisdiction to hold the probation revocation hearing because the hearing was held after his probation had expired and the State did not follow the necessary requirements found in N.C. Gen.Stat. § 15A-1344(f) for conducting a probation revocation hearing after the expiration of defendant's term of probation. "[W]hether a trial court has subject matter jurisdiction is a question of law, which is reviewable on appeal de novo." Childress v. Fluor Daniel, Inc., 172 N.C.App. 166, 167, 615 S.E.2d 868, 869 (2005).

The State may not inquire into alleged violations of the conditions of probation if the term of probation has expired, unless the State complies with N.C. Gen.Stat. § 15A-1344(f). Pursuant to N.C. Gen.Stat. § 15A-1344(f), the court has the jurisdiction to revoke probation after the expiration of the period of probation if two conditions are satisfied. First, the State must "file[ ] a written motion with the clerk indicating its intent to conduct a revocation hearing" prior to the expiration of the period of probation. N.C. Gen.Stat. § 15A-1344(f)(1) (2007). Second, "[t]he court finds that the State has made reasonable effort to notify the probationer and to conduct the hearing earlier." N.C. Gen.Stat. § 15A-1344(f)(2) (2007)¹. If these two conditions are met, then the lower court has jurisdiction to revoke defendant's probation and impose an active sentence.

This case is similar to State v. Burns, 171 N.C.App. 759, 615 S.E.2d 347 (2005). In Burns, the defendant's probation was to expire in July 2001. On 1 March 2001, the defendant's probation officer filed a violation report, and on 6 March 2001, an...