State v. Duff

• Decision Date: 02 April 2019
• Docket Number: No. COA18-874,COA18-874
• Citation: 825 S.E.2d 277 (Table)
• Parties: STATE of North Carolina v. John Christopher DUFF, Defendant.
• Court: North Carolina Court of Appeals

825 S.E.2d 277 (Table)

STATE of North Carolina

v.John Christopher DUFF, Defendant.

No. COA18-874

Court of Appeals of North Carolina.

Filed: April 2, 2019

Attorney General Joshua H. Stein, by Assistant Attorney General Andrew L. Hayes, for the State.

Yoder Law PLLC, by Jason Christopher Yoder, for Defendant.

INMAN, Judge.

Defendant John Christopher Duff ("Defendant") appeals two judgments revoking his probation. Defendant has also filed a petition for writ of certiorari as a result of defects in his notice of appeal and a motion for appropriate relief ("MAR") challenging the jurisdiction of the trial court to revoke his probation in one of the two cases because he had completed his lawful period of probation prior to the filing of the violation report. After careful review, we allow Defendant's petition for writ of certiorari, deny his MAR, and affirm the revocation of his probation in both file numbers with a remand to correct clerical errors in each.

I. FACTUAL AND PROCEDURAL HISTORY

Defendant pled guilty to two counts of felony breaking and entering in file numbers 14CRS092098-99 and was sentenced on 5 March 2015. In 14CRS092098, Defendant was sentenced to 10-21 months in prison, which was suspended for intermediate punishment: a 108-day split sentence and 36 months of supervised probation. The trial court also required that Defendant obtain a mental health evaluation, make and keep appointments with the Veteran's Affairs hospital in Durham for mental health treatment, and reside with his ex-wife. In 14CRS092099, Defendant was sentenced to a 10-21 month prison term to run consecutively with 14CRS092098; this, too, was suspended for 36 months of supervised probation on the same special conditions set forth in 14CRS092099. Defendant was ordered to pay restitution in both cases.

Defendant's probation officer filed violation reports in both file numbers in July 2017. On 24 August 2017, the trial court modified Defendant's probation after finding Defendant had violated his probation as alleged by the probation officer, requiring him to stop drinking alcohol, submit to a curfew enforced by electronic monitoring for 90 days, and receive substance abuse and mental health treatment.

33 months after Defendant's probation terms began, Defendant's probation officer once again filed violation reports in each case. These violation reports alleged that Defendant had: (1) absconded within the meaning of N.C. Gen. Stat. § 15A-1343(b)(3a) (2017) ; (2) failed to report for office visits; (3) failed to pay his court debts; (4) failed to obtain mental health and substance abuse assessments; (5) possessed alcohol; and (6) committed the criminal offense of assault with a deadly weapon.

The trial court held a hearing on these reports on 23 April 2018, more than a month after Defendant's probation had expired. Although Defendant admitted through counsel to all violations, his attorney requested that the trial court extend and modify his probation, rather than revoke it, by ordering him to participate in the county's combined mental health and drug treatment court, as he continued to suffer from major depression, anxiety, and psychosis. The trial court declined Defendant's suggestion and revoked his probation by written judgments entered on 24 April 2018. In its judgments, the trial court found in Finding of Fact 4 that "[e]ach violation is, in and of itself, a sufficient basis upon which this Court should revoke probation and activate the suspended sentence" and in Finding of Fact 5 that revocation was authorized "for the willful violations of the condition(s) that he ... not commit any criminal offense ... or abscond from supervision."

Defendant did not give oral notice of appeal at the time of the hearing; however, five days later, his counsel returned to the trial court and requested that Defendant be allowed "to file Notice of Appeal" and receive appellate counsel through the Appellate Defender. No written notice of appeal was ever filed. Recognizing that Defendant's trial counsel's attempt to notice an appeal did not comply with Rule 4(a) of the North Carolina Rules of Appellate Procedure, Defendant's appellate counsel filed a petition for writ of certiorari on 21 September 2018. On 3 October 2018, Defendant filed his MAR.

II. ANALYSIS

A. Defendant's Petition and MAR

This Court may, in its discretion, hear appeals by writ of certiorari "in appropriate circumstances ... when the right to prosecute an appeal has been lost by failure to take timely action." N.C. R. App. P. 21(a)(1) (2018). " ‘Appropriate circumstances’ may include when a defendant's right to appeal has been lost because of a failure of his or her trial counsel to give proper notice of appeal." State v. Gordon , 228 N.C. App. 335, 337, 745 S.E.2d 361, 363 (2013). Because Defendant's appeal has some merit and his right to prosecute it was lost due to his trial counsel's failure to give proper notice of appeal, we grant Defendant's petition for writ of certiorari.

Defendant's MAR asserts that the trial court lacked jurisdiction to revoke his parole in file number 14CRS092099, a question we review de novo . State v. Hoskins , 242 N.C. App. 168, 171, 775 S.E.2d 15, 18 (2015). He contends that, per the box checked on the judgment in that file,¹ Defendant was sentenced to a community punishment of 36 months supervised probation; pursuant to N.C. Gen. Stat. § 15A-1343.2(d) (2017), the maximum period of probation that may be imposed as a community punishment on a felony conviction is 30 months unless the trial court makes specific findings that a longer term is necessary. Defendant, however, was sentenced without those findings. He contends that because the probation violation report in file number 14CRS092099 was filed 33 months into his probation—three months after the alleged lawful period of probation on his community punishment had expired—it was invalid to invoke the trial court's jurisdiction. See, e.g., State v. Harwood , 243 N.C. App. 425, 428, 777 S.E.2d 116, 119 (2015) ("[I]n order for a trial court to revoke a defendant's probation after the expiration of the period of probation, the State must have filed a written violation report before the expiration of the period of probation.").

The State does not address the merits of Defendant's MAR in its response. Rather, it argues that: (1) we should dismiss it as improperly before this Court due to Defendant's failure to properly notice his appeal; and (2) we should deny the MAR as a collateral attack on the judgment entered in 14CRS092099. We are not persuaded by these arguments.

At the time Defendant filed his MAR, a validly pending petition for writ of certiorari—which we have now allowed—was before this Court. We are therefore permitted to address the MAR pursuant to N.C. Gen. Stat. § 15A-1418. See, e.g., State v. Hadden , 175 N.C. App. 492, 497, 624 S.E.2d 417, 420 (2006) ("However, since defendant has a petition for writ of certiorari pending before this Court, we may address defendant's MAR." (citation omitted)).

We also are not compelled to deny Defendant's MAR as an impermissible collateral attack on the related judgment. In State v. Pennell , 367 N.C. 466, 758 S.E.2d 383 (2014), a defendant argued in his direct appeal that the trial court lacked jurisdiction to revoke his probation due to an alleged fatal variance in the indictment on which he was convicted. 367 N.C. at 467, 758 S.E.2d at 384. In resolving the appeal, our Supreme Court concluded:

Because a jurisdictional challenge may only be raised when an appeal is otherwise proper, we hold that a defendant may not challenge the jurisdiction over the original conviction in an appeal from the order revoking his probation and activating his sentence. The proper procedure through which defendant may challenge the facial validity of the original indictment is by filing a motion for appropriate relief .... Our holding here does not prejudice defendant from pursuing these avenues.

Id. at 471-72, 758 S.E.2d at 387 (citation omitted) (emphasis added). Following Pennell , Defendant's MAR is an appropriate means of challenging the trial court's jurisdiction in these circumstances.

Furthermore, Defendant is not challenging the trial court's jurisdiction to convict him or to sentence him for his offense. He is only challenging the trial court's jurisdiction to revoke his probation where the underlying sentence was invalid on grounds specifically reviewable by MAR. N.C. Gen. Stat. § 15A-1415(b)(8) (2017). The State's position, relying entirely on precedent² dealing with waivers of rights of direct appeal—as opposed to MARs—is unavailing.

Although Defendant has scored a jurisdictional victory—insofar as we will review his MAR on the merits—he is not entitled to the relief he seeks. We agree with Defendant that an error exists in the judgment at issue; we disagree, however, as to what the error is. Defendant pled guilty in 14CRS092099 to breaking and entering, a Class H felony, at prior record level III. Under the statutory sentencing guidelines applicable to Defendant's offenses, the trial court was authorized to impose either an intermediate or active sentence . N.C. Gen. Stat. § 15A-1340.17(c) (2017). The relevant definitional statute, N.C. Gen. Stat. § 15A-1340.11(6) (2017) defines an intermediate punishment as "[a] sentence in a criminal case that places an offender on supervised probation." By sentencing Defendant to 36 months of supervised probation within the statutory definition of intermediate punishment, the trial court imposed the authorized intermediate punishment rather than an unauthorized community punishment as indicated by the box checked on the face of the judgment.³ We therefore deny Defendant's MAR but remand file number 14CRS092099 to the trial court for correction of this clerical error by entering a judgment marked as an intermediate punishment. See State v. Smith , 188 N.C. App. 842, 845, 656 S.E.2d 695, 696-97 (2008) ("When, on appeal, a clerical error...