State v. Cottrell
| Decision Date | 07 April 2020 |
| Docket Number | No. COA19-981,COA19-981 |
| Citation | 840 S.E.2d 539 (Table) |
| Parties | STATE of North Carolina v. Cabot Tyree COTTRELL |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Heather Haney, for the State.
Sigler Law PLLC, High Point, by Kerri L. Sigler, for defendant.
Cabot Tyree Cottrell ("defendant") appeals from judgment revoking his probation and activating his suspended sentence. Defendant contends the trial court abused its discretion by revoking his probation for absconding where there was not sufficient and reliable evidence that he absconded, and by considering events not alleged in the violation reports and incorrectly alleged to be violations. Defendant also contends the trial court erred in denying his right to confrontation without a finding of good cause. For the following reasons, we find no abuse of discretion and affirm the judgment of the trial court.
On 5 July 2016, a grand jury indicted defendant on charges of robbery with a dangerous weapon and attempted first-degree murder. On 15 March 2018, defendant entered into a plea agreement in which he pled guilty to common law robbery and false imprisonment. Defendant was given a suspended sentence of 13 to 25 months imprisonment and placed on supervised probation for 30 months. In addition to regular conditions of probation, defendant was also subject to certain special conditions, including a curfew and the requirement that he remain gainfully employed.
On 12 April 2018, Probation Officer Shakiria McGahee ("Officer McGahee") filed a violation report alleging three non-revocable violations. Specifically, defendant had failed to report to Officer McGahee’s office on 6 April 2018, refused to have an electronic monitor installed, and had failed to be present during two of Officer McGahee’s visits to the addresses provided by defendant. On 16 April 2018, the Honorable Gale Adams ordered defendant to serve a 90-day confinement due to his violation of the conditions of his probation.
Following his release from confinement, defendant reported to Officer McGahee on 26 July 2018. Officer McGahee requested that defendant sign a Security Risk Group Agreement ("SRG agreement") due to his admitted affiliation with the "Bloods" gang. Upon defendant’s refusal to sign, Officer McGahee filed a second violation report alleging defendant violated a condition of probation by refusing to sign the SRG agreement. The report listed a Raeford, North Carolina address for defendant. A hearing was scheduled for 30 July 2018 to address defendant’s latest violation, but defendant failed to appear. The Court subsequently issued an order for defendant’s arrest.
On 27 August 2018, Officer McGahee filed a third violation report. Officer McGahee alleged defendant absconded supervision on 15 August 2018 by leaving his place of residence and failing to make his whereabouts known. In addition, defendant failed to report as instructed on 23 August 2018. At the time of the violation report, defendant’s whereabouts remained unknown. On 27 June 2019, defendant was arrested at the Raeford address for failing to appear at the 30 July 2018 hearing.
On 1 July 2019, a hearing regarding the probation violations was held. At the hearing, defendant waived counsel and waived notice requirements regarding his receipt of the violation reports. Defendant admitted he had refused to sign an SRG agreement, but denied absconding supervision and failing to report to Officer McGahee on 23 August 2018. Probation Officer Brian Hunt ("Officer Hunt"), who replaced Officer McGahee as defendant’s probation officer, testified for the State using the file maintained by Officer McGahee. Officer Hunt testified that Officer McGahee filed the 26 July 2018 violation report after defendant had refused to sign an SRG agreement. When defendant subsequently failed to appear for his 30 July 2018 hearing, probation officers in Hoke County attempted to serve an order for arrest at the Raeford address provided by defendant.
Upon arriving at the Raeford address, the officers spoke with an individual named Shantae Millandel ("Millandel") and her boyfriend. Millandel informed the officers that defendant had stayed at that address off and on, but that he had taken all of his belongings with him when he left earlier that day. Millandel’s boyfriend further informed the officers that he had dropped defendant off at Fayetteville State University to perform a paint job earlier, but would not be picking him up from work that day.
The Hoke County probation officers sent the information to Fayetteville State University police to see if they could locate defendant on the campus, and also notified Officer McGahee. Probation officers later also attempted to contact defendant’s relatives using the phone numbers provided by defendant, but were unable to get in touch with anyone. Additionally, they noted that defendant was neither incarcerated nor checked in as a patient at the hospital during that time. The last contact Officer McGahee had with defendant was on 26 July 2018.
Defendant testified that following his release from his 90-day confinement, he gave his case worker his Raeford address and she informed him she would provide this information to Officer McGahee and transfer his probation to Hoke County. Defendant believed the transfer never occurred because he had refused to sign the SRG agreement. Defendant further testified that he told Officer McGahee that he would not have transportation to get back and forth to Cumberland County because he would no longer be a resident. Defendant also admitted he was aware an order for his arrest had been issued after he failed to appear for his 30 July 2018 court date, and failed to turn himself in.
The trial court found that defendant violated his probation by refusing to sign the SRG agreement. It further found that defendant absconded for the reasons listed on the 27 August 2018 report, and noted in its oral findings that defendant had no contact with his probation officer for at least ten months, up until the time of his arrest, despite knowing there was an order issued for his arrest. The trial court revoked defendant’s probation and activated his suspended sentence. Defendant gave oral notice of appeal in open court.
On appeal, defendant contends the trial court abused its discretion by: (1) revoking defendant’s probation for absconding without sufficient evidence of such; (2) basing its finding that defendant absconded on events outside the scope of the violation reports; (3) admitting unreliable evidence; (4) finding defendant failed to report on 23 August 2018 without any evidence; and, (5) accepting defendant’s admission that he violated an invalid condition of his probation. In addition, defendant contends the trial court erred in denying defendant’s right to confrontation without first making a finding of good cause to do so. We disagree.
"We review a trial court’s decision to revoke a defendant’s probation for abuse of discretion." State v. Melton , 258 N.C. App. 134, 136, 811 S.E.2d 678, 680 (2018) (citing State v. Miller , 205 N.C. App. 291, 293, 695 S.E.2d 149, 150 (2010) ). An abuse of discretion occurs when the trial court’s ruling is " ‘manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.’ " State v. Campbell , 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005) (quoting State v. Hennis , 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988) ). "An alleged violation by a defendant of a condition upon which his sentence is suspended need not be proven beyond a reasonable doubt." State v. Johnson , 246 N.C. App. 132, 134, 782 S.E.2d 549, 551 (2016). All that is required is " ‘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) (quoting State v. Hewett , 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967) ).
A trial court may revoke probation and activate a defendant’s suspended sentence if the defendant: (1) commits a new criminal offense 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 a condition of probation after serving two prior periods of confinement in response to violations under N.C. Gen. Stat. § 15A-1344(d2). N.C. Gen. Stat. § 15A-1344(a) (2019). In the present case, the trial court revoked defendant’s probation and activated his suspended sentence based upon a finding that defendant absconded from supervision. Pursuant to N.C. Gen. Stat. § 15A-1343(b)(3a), a defendant must "[n]ot abscond by willfully avoiding supervision or by willfully making [his] whereabouts unknown to the supervising probation officer, if the defendant is placed on supervised probation." N.C. Gen. Stat. § 15A-1343(b)(3a) (2019).
Defendant first argues the trial court abused its discretion in finding he absconded from supervision because insufficient evidence shows he absconded. Defendant cites to several cases in support of his argument, including State v. Krider , 258 N.C. App. 111, 810 S.E.2d 828 (2018), State v. Jakeco Johnson , 246 N.C. App. 139, 783 S.E.2d 21 (2016), and State v. Williams , 243 N.C. App. 198, 776 S.E.2d 741 (2015).
In Krider , the defendant failed to be present during the probation officer’s visit to the address provided by the defendant, and the officer was advised by an unknown woman at the residence that the defendant no longer resided there. 258 N.C. App. at 115-16, 810 S.E.2d at 830-31. The officer made no further attempts to contact the defendant and filed a violation report alleging the defendant had absconded by failing to make his whereabouts...
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