State v. Guinn

Decision Date18 January 2022
Docket NumberCOA21-153
Citation868 S.E.2d 672
Parties STATE of North Carolina v. Lumarris GUINN
CourtNorth Carolina Court of Appeals

Attorney General Joshua H. Stein, by Assistant Attorney General Heather Haney, for the State.

Blass Law PLLC, by Danielle Blass, for defendant-appellant.

ZACHARY, Judge.

¶ 1 Defendant Lumarris Guinn appeals from the trial court's judgment revoking his probation and activating his suspended sentence for two counts of uttering a forged instrument. After careful review, we vacate the judgment.

I. Background

¶ 2 On 11 July 2014, Defendant entered an Alford plea1 to two counts of uttering a forged instrument in exchange for the State's dismissal of two counts of obtaining property by false pretenses. The trial court accepted Defendant's plea and that same day entered a judgment sentencing Defendant to 6 to 17 months in the custody of the North Carolina Division of Adult Correction, suspending the sentence, placing Defendant on supervised probation for 30 months, and ordering Defendant to pay restitution along with court costs and fees.

¶ 3 On 18 July 2016, Defendant's probation officer filed a probation violation report alleging that Defendant had violated the conditions of his probation by failing to make required monetary payments. The trial court held a probation violation hearing, at which Defendant was not represented by counsel, on 31 August 2016. On 13 September 2016, the trial court entered an order ("the 2016 Order") finding the probation violations alleged by the State and modifying the terms of Defendant's probation. The trial court extended Defendant's term of probation by 12 months and ordered Defendant to complete 40 hours of community service within six months, for which Defendant would receive $20 credit per hour worked against the balance of the restitution that he was originally ordered to pay as a condition of his probation. The trial court further ordered that Defendant be placed on unsupervised probation upon completion of his community service.

¶ 4 On 29 September 2017, Defendant's probation officer filed a second probation violation report, this time alleging that Defendant did not comply with the conditions of his probation, in that (1) he twice tested positive for marijuana; (2) he left the jurisdiction of the court without the permission of his probation officer; (3) he failed to report for scheduled office appointments; and (4) he failed to make required monetary payments. The probation officer also alleged that Defendant had a new criminal charge pending against him. On 3 October 2017, the probation officer filed the 29 September report again, together with an addendum alleging that Defendant had absconded.

¶ 5 On 28 October 2020, the trial court held another probation violation hearing, at which Defendant was represented by counsel. By judgment entered that same day, ("the 2020 Judgment") the trial court found that Defendant had willfully violated the terms and conditions of his probation, revoked Defendant's probation, and activated Defendant's original sentence. The trial court also reduced the balance owed by Defendant to a civil judgment. Defendant timely filed his notice of appeal.

II. Discussion

¶ 6 Defendant argues on appeal that the trial court lacked subject-matter jurisdiction to revoke his probation because his right to counsel was violated at the 2016 probation violation hearing, rendering void the 2016 Order extending his probation; thus, the 2017 probation violation reports were filed after the expiration of Defendant's probation. Alternatively, Defendant argues that the trial court lacked subject-matter jurisdiction to revoke his probation for absconding because he was on unsupervised probation, and thus no longer subject to the conditions of supervised probation, when the probation officer filed the 2017 violation reports.

¶ 7 Defendant further argues that the trial court (1) erred by finding that he had committed a new criminal offense because the State presented insufficient evidence to support that finding, (2) abused its discretion by revoking his probation because the State presented insufficient evidence that he had absconded, and (3) erred by failing to make a finding of "good cause" before denying him the opportunity to confront and cross-examine his probation officer.

¶ 8 After careful review, we conclude that the trial court lacked subject-matter jurisdiction to revoke Defendant's probation because the 2016 Order was void, and thus we must vacate the 2020 Judgment. Accordingly, we need not reach Defendant's remaining arguments.

A. Collateral Attack

¶ 9 As an initial matter, the State argues that Defendant's subject-matter jurisdiction argument "amounts to an impermissible collateral attack" on the 2016 Order. We disagree.

¶ 10 Our Supreme Court has repeatedly held that "a direct appeal from the original judgment lies only when the sentence is originally entered." State v. Pennell , 367 N.C. 466, 470, 758 S.E.2d 383, 386 (2014) (citation omitted). Accordingly, "a defendant may not challenge the jurisdiction over the original conviction in an appeal from the order revoking his probation and activating his sentence." Id. at 472, 758 S.E.2d at 387.

¶ 11 In its brief, the State relies on State v. Rush , in which this Court dismissed an appeal from a judgment entered pursuant to a plea agreement where the defendant "failed to file a motion to withdraw her guilty plea, failed to give oral or written notice of appeal within ten days after the judgment was entered, and failed to petition for writ of certiorari[.]" 158 N.C. App. 738, 741, 582 S.E.2d 37, 39 (2003) (italics omitted). We held that "[b]y failing to exercise any of [these] options, [the] defendant waived her right to challenge the judgment[,]" and her "appeal amount[ed] to an impermissible collateral attack on the initial judgment." Id.

¶ 12 However, the State's attempt to paint the instant appeal as "an impermissible collateral attack" is misguided. Indeed, we rejected a similar argument in State v. Hoskins , where the defendant was "not challenging the trial court's jurisdiction over her original convictions; rather she contend[ed] that the ... trial court lacked statutory authority to extend her probation."

242 N.C. App. 168, 170, 775 S.E.2d 15, 17 (2015). Although the State relied on both Rush and Pennell to argue that the appeal in Hoskins was an impermissible collateral attack, id. at 167, 775 S.E.2d at 17, we distinguished those cases because "[u]nlike an original conviction, a probation extension order is not immediately appealable.... N.C. Gen. Stat. § 15A-1347 provides the only avenues for appeal from a probation order[,]" id. at 170, 775 S.E.2d at 17. Under that statute, a "defendant may only appeal a probation order that either activates his sentence or places the defendant on ‘special probation.’ " Id. ; see N.C. Gen. Stat. § 15A-1347(a) (2019). Accordingly, because the Hoskins defendant "had no mechanism to appeal her probation extension orders[,]" we held that she had not waived her right to challenge those orders on appeal from the trial court's subsequent order terminating her probation. Hoskins , 242 N.C. App. at 170, 775 S.E.2d at 17.

¶ 13 In the present case, Defendant is not challenging his original conviction; rather, he challenges the validity of the 2016 Order extending his probation. Here, as in Hoskins , the 2016 Order neither activated Defendant's sentence nor placed him on special probation. Thus, Defendant "had no mechanism to appeal" the 2016 Order, and under Hoskins he "has not waived [his] right to challenge" the 2016 Order on appeal from the 2020 Judgment activating his sentence. Id.

¶ 14 Nonetheless, after the State challenged the permissibility of Defendant's appeal, out of an abundance of caution, Defendant filed with this Court a petition for writ of certiorari requesting review of the 2016 Order, if the issue was not preserved by law. However, we conclude that Defendant's argument concerning his right to counsel at the 2016 probation violation hearing is properly before us on appeal from the 2020 Judgment revoking his probation and activating his suspended sentence. Accordingly, we dismiss as moot Defendant's petition for writ of certiorari and proceed to the merits of his appeal.

B. Standard of Review

¶ 15 This Court reviews de novo "the issue of whether a trial court had subject[-]matter jurisdiction to revoke a defendant's probation." State v. Moore , 240 N.C. App. 461, 462, 771 S.E.2d 766, 767 (2015). We similarly review de novo issues concerning a defendant's waiver of the right to counsel under N.C. Gen. Stat. § 15A-1242. State v. Lindsey , 271 N.C. App. 118, 124, 843 S.E.2d 322, 327 (2020). When conducting de novo review, "this Court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal." Id. (citation omitted).

C. Analysis

¶ 16 Defendant argues that the trial court lacked subject-matter jurisdiction to revoke his probation. Defendant's argument hinges on whether the trial court erred by extending his probation in the 2016 Order where the hearing was allegedly conducted in violation of his right to counsel under N.C. Gen. Stat. § 15A-1345(e) and the procedural requirements of § 15A-1242. Because an order modifying probation that is entered without statutory authority is "void and of no effect," State v. Gorman , 221 N.C. App. 330, 333, 727 S.E.2d 731, 733 (2012) (citation omitted), Defendant contends that his probationary term expired on 11 January 2017, as originally scheduled. After careful review, we agree.

1. Subject-Matter Jurisdiction

¶ 17 "[O]ther than as provided in N.C. Gen. Stat. § 15A-1344(f), a trial court lacks jurisdiction to revoke a defendant's probation after the expiration of the probationary term." Moore , 240 N.C. App. at 463, 771 S.E.2d at 767. Section 15A-1344(f) provides that a trial court may only

extend, modify, or revoke probation after the expiration of the period of probation if all
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