State v. Gorman

• Decision Date: 19 June 2012
• Docket Number: No. COA11–840.,COA11–840.
• Citation: 727 S.E.2d 731
• Parties: STATE of North Carolina v. Richard J. GORMAN, Jr.
• Court: North Carolina Court of Appeals

727 S.E.2d 731

STATE of North Carolina

v.Richard J. GORMAN, Jr.

No. COA11–840.

Court of Appeals of North Carolina.

June 19, 2012.

Appeal by defendant from judgments entered 8 February 2011 by Judge Theodore S. Royster in Davidson County Superior Court. Heard in the Court of Appeals 8 February 2012.

Attorney General Roy Cooper, by Associate Attorney General Christina S. Hayes, for the State.

Bushnaq Law Office, PLLC, by Faith S. Bushnaq, for defendant-appellant.

BRYANT, Judge.

Where the record is insufficient to determine when defendant's probation commenced and whether defendant's probation period was tolled during the resolution of unrelated charges against defendant in another jurisdiction but where defendant's reported probation violation may have occurred after the original period of probation expired, we reverse the orders activating defendant's sentences and remand the matter for further consideration.

On 3 June 2005, in Onslow County Superior Court, defendant Richard Gorman pled guilty to two counts of felony worthless check and five counts of obtaining property by false pretenses. The trial court entered judgment that same day. Consolidating the two counts of felony worthless check, the trial court sentenced defendant to a term of 6 to 8 months. On the charges of obtaining property by false pretenses, the trial court entered three judgments; each judgment sentenced defendant to a term of 8 to 10 months. All sentences were to be served consecutively; however, the trial court suspended all sentences and placed defendant on supervised probation. Finding that “a longer period of probation is necessary than that which was specified in N.C. Gen.Stat. 15A–1343.2(d)[,]” the trial court imposed supervised probation for a period of sixty months.

The record indicates that subsequent to the trial court's entry of judgments imposing probation, defendant was extradited to New Jersey for offenses which took place prior to his 3 June 2005 plea agreement. The record also indicates that from 2005 to 2010 defendant served a five year active sentence in a New Jersey correctional facility.

On 28 July 2008, the Onslow County Superior Court reviewed the 2005 judgments and commitments. The Superior Court entered four orders modifying the terms of defendant's probation, extending the probation period by thirty-six months from 2 June 2010 to 1 June 2013.

Upon his release from the New Jersey correctional facility, defendant returned to Onslow County. Defendant then moved to Davidson County after making appropriate arrangements with the Davidson County probation office.

On 6 December 2010, defendant's probation officer filed a violation report in Davidson County Superior Court stating that defendant had failed to be at his designated residence since 27 November 2010; that defendant had left his approved residence and failed to make his whereabouts known; and that defendant had failed to report, failed to return phone calls, and failed to be at his residence during curfew hours. On 9 December 2010, two orders for arrest were issued for defendant for felony probation violations. Defendant turned himself in to law enforcement in Pennsylvania and was extradited back to North Carolina.

Following a probation violation hearing held on 8 February 2011, the trial court found that defendant had willfully violated his probation and entered judgment and commitment orders upon revocation of probation activating defendant's suspended sentences. In accordance with the judgments entered on 3 June 2005 in Onslow County Superior Court, the Davidson County Superior Court activated one sentence of 6 to 8 months and three sentences of 8 to 10 months, all to be served consecutively. Defendant appeals.

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On appeal, defendant questions whether the Davidson County Superior Court had jurisdiction to revoke his probation. Defendant contends that (A) the 28 July 2008 Onslow County Superior Court orders extending his probation were invalid as no reasonable notice of the proceedings to review the terms of his probation was provided, (B) the 28 July 2008 orders were invalid because they exceeded the court's statutory authority by imposing a probation period longer than five years, and, (C) because the original sixty-month probation period expired prior to the reported conduct that resulted in a revocation of defendant's probation, the Davidson County Superior Court lacked jurisdiction to revoke his probation and activate his sentence. We agree in part and remand in part for further consideration.

Grounds for Appeal

“When a superior court judge, as a result of a finding of a violation of probation, activates a sentence or imposes special probation, either in the first instance or upon a de novo hearing after appeal from a district court, the defendant may appeal under G.S. 7A–27.” N.C. Gen.Stat.' 15A–1347 (2011).

Standard of Review

“[T]he issue of a court's jurisdiction over a matter may be raised at any time, even for the first time on appeal or by a court sua sponte.” State v. Webber, 190 N.C.App. 649, 650, 660 S.E.2d 621, 622 (2008) (citation omitted). “It is well settled that a court's jurisdiction to review a probationer's compliance with the terms of his probation is limited by statute.” State v. Reinhardt, 183 N.C.App. 291, 292, 644 S.E.2d 26, 27 (2007) (citation omitted). “Where jurisdiction is statutory and the Legislature requires the Court to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the Court to certain limitations, an act of the Court beyond these limits is in excess of its jurisdiction.” Allred v. Tucci, 85 N.C.App. 138, 143, 354 S.E.2d 291, 295 (1987) (citation omitted). “If the court was without authority, its judgment ... is void and of no effect.” Id. (citations omitted).

“[A]n appellate court necessarily conducts a statutory analysis when analyzing whether a trial court has subject matter jurisdiction in a probation revocation hearing, and thus conducts a de novo review.” State v. Satanek, 190 N.C.App. 653, 656, 660 S.E.2d 623, 625 (2008) (citing State v. Bryant, 361 N.C. 100, 637 S.E.2d 532 (2006)).

A

Defendant first contends that the orders entered 28 July 2008 in Onslow County Superior Court were invalid because the court failed to adhere to applicable notice requirements under N.C. Gen.Stat.' 15A–1342(d).

While defendant presents strong arguments on the issues of whether his 3 June 2005 probation orders were properly reviewed in Onslow County Superior Court on 28 July 2008 pursuant to N.C.G.S.' 15A–1342(d) and whether reasonable notice of the review proceeding was provided to him as mandated by the statute, because we find the issue addressed in subsection B dispositive, we do not further address arguments defendant presented in subsection A.

B

Assuming without deciding that reasonable notice of the 2008 probation review hearing was provided, defendant contends that the orders entered 28 July 2008, extending his probation beyond the original sixty-month period, were entered without statutory authority. We agree.

Under General Statutes, section 15A–1343.2(d), the length of the original period of probation for felons sentenced under Article 81B—Structured Sentencing of Persons Convicted of Crimes—to intermediate punishment is “not less than 18 nor more than 36 months.” N.C. Gen.Stat.' 15A–1343.2(d)(4) (2011).

If the court finds at the time of sentencing that a longer period of probation is necessary, that period may not exceed a maximum of five years, as specified in G.S. 15A–1342 and G.S. 15A–1351.¹

Extension.—The court may with the consent of the offender extend the original period of the probation if necessary to complete a program of restitution or to complete medical or psychiatric treatment ordered as a condition of probation. This extension may be for no more than three years, and may only be ordered in the last six months of the original period of probation.

N.C.G.S.' 15A–1343.2(d) (2011) (emphasis added).

Defendant's original probation period was imposed on 3 June 2005. In the judgments entered 3 June 2005, defendant's active sentences were suspended and an intermediate punishment imposed. At that time, the trial court found that “a longer period of probation [was] necessary than that which was specified in N.C. Gen.Stat.' 15A–1343.2(d).” The Onslow County Superior Court imposed a probation period of sixty months. On 28 July 2010, the Onslow County Superior Court entered four orders modifying defendant's probation period: “[t]he defendant's term of probation is extended for a period of 36 months from 06–02–2010 to 06–01–2013.” The trial court orders were not entered in the last six months of the original sixty-month probation period nor is there any indication defendant consented to the thirty-six month probation period extension. Therefore, the orders extending defendant's probation beyond five years were not entered pursuant to N.C.G.S.' 15A–1343.2(d).

Pursuant to General Statutes, section 15A–1344(d), “Extension and Modification; Response to Violations,”

[a]t any time prior to the expiration or termination of the probation period or in accordance with subsection (f) [ (Extension, Modification, or Revocation after Period of Probation) ] of this section, the court may after notice and hearing and for good cause shown extend the period of probation up to the maximum allowed under G.S. 15A–1342(a) and may modify the conditions of probation.

N.C. Gen.Stat.' 15A–1344(d) (2011) (emphasis added). Pursuant to N.C. Gen.Stat.' 15A–1342(a), “[t]he court may place a convicted offender on probation for the appropriate period as specified in G.S. 15A–1343.2(d), not to exceed a maximum of five years.” N.C. Gen.Stat. 15A–1342(a) (2011) (emphasis added).

The orders modifying defendant's probation period resulted in a term imposed on 3 June 2005 and extended to 1 June 2013—eight years. Such a probation period clearly exceeds the statutory five year...