State v. Johnson
| Decision Date | 01 March 2016 |
| Docket Number | No. COA15–1051.,COA15–1051. |
| Citation | 246 N.C.App. 139,783 S.E.2d 21 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Jakeco JOHNSON. |
Attorney General, Roy Cooper, by Assistant Attorney General, Jason R. Rosser, for the State.
Stephen G. Driggers, Raleigh, for defendant-appellant.
Jakeco Johnson ("Defendant") appeals from judgment and commitment upon revocation of probation. We vacate the orders revoking Defendant's probation and remand for further proceedings.
On 10 December 2014, Defendant appeared before the Catawba County Superior Court and pled guilty, pursuant to an Alford plea, to discharge of a weapon into occupied property and possession of a firearm by a convicted felon. In exchange, the State agreed to dismiss the charge of assault with a deadly weapon with intent to kill.
The court accepted Defendant's plea. On the charge of discharge of a weapon into occupied property, the court sentenced Defendant to 29 to 47 months imprisonment. On the charge of possession of a firearm by a felon, the court sentenced Defendant to 14 to 26 months imprisonment. Both sentences were suspended while Defendant served 36 months of supervised probation. As an additional condition of Defendant's probation, he was ordered to submit to house arrest with electronic monitoring for a period of 120 days.
Defendant's case was assigned to Probation Officer Joshua Benfield ("Officer Benfield"). Over the course of his supervision of Defendant, Officer Benfield filed three violation reports: two on 16 January 2015, and a third on 16 March 2015.
One of the 16 January 2015 Violation Reports alleged Defendant had violated the terms of his probation by: (1) willfully absconding; (2) using, possessing, or controlling a controlled substance; (3) failing to report as directed by his probation officer; and (4) failing to pay court costs. The second 16 January 2015 Violation Report repeated the first three allegations, and additionally alleged: (1) Defendant failed to pay different amounts of court costs; and (2) Defendant left his residence while on house arrest several times spanning five days. The 16 March 2015 Violation Report alleged Defendant had violated one condition of probation: making unauthorized trips to unapproved locations while under house arrest.
A revocation hearing was held 7 May 2015. Officer Benfield testified concerning the factual basis undergirding the two 16 January 2015 and the 16 March Violation Reports. Regarding the allegation asserting Defendant had absconded contained in the two 16 January 2015 Violation Reports, Officer Benfield testified he visited with Defendant at his residence on 12 January 2015 and informed Defendant his first office visit would be the next day.
Officer Benfield testified Defendant told him on 12 January 2015 that he would not report for the office meeting scheduled for the following day. Officer Benfield testified Defendant failed to report to the 9:00 a.m. meeting, despite receiving an "electronic message" ordering him to report.
At the hearing, Defendant testified he told Officer Benfield he did not have a car, would not be able to find a ride to the probation office at 9:00 a.m., and asked if he could meet at a later time. Officer Benfield rejected Defendant's request, and instructed him to arrive on time. At the hearing, Officer Benfield explained probationers do not have a choice regarding attendance at meetings with their probation officers.
During Officer Benfield's testimony, the following colloquy occurred:
On cross-examination, Officer Benfield admitted the electronic monitoring device Defendant wore transmitted all of Defendant's locations and movements to the officer.
At the close of the revocation hearing, the trial court concluded Defendant's "statement to [Officer Benfield] on [12 January 2015] that he wasn't going to show up" to his scheduled meeting on 13 January 2015 "satisfies the absconding by willfully avoiding supervision" condition of probation. The court thereafter entered judgment and revoked Defendant's probation in each of Defendant's sentences using a preprinted form ("Form AOC–CR–607").
Defendant gave notice of appeal in open court.
Defendant's sole argument is that the trial court erred by revoking his probation and activating his suspended sentences. He argues the State failed to prove a violation of the "absconding provision" of N.C. Gen.Stat. § 15A–1343(b)(3a).
A hearing to revoke a defendant's probationary sentence "only requires 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) (citation and quotation marks omitted). "The judge's finding of such a violation, if supported by competent evidence, will not be overturned absent a showing of manifest abuse of discretion." Id. "Nonetheless, when a trial court's determination relies on statutory interpretation, our review is de novo because those matters of statutory interpretation necessarily present questions of law." Moore v. Proper, 366 N.C. 25, 30, 726 S.E.2d 812, 817 (2012) (citations omitted).
Conditions of probation are set out in N.C. Gen.Stat. § 15A–1343. N.C. Gen.Stat. § 15A–1343 (2015). Under North Carolina's statutory scheme, sixteen "regular conditions" of probation "apply to each defendant placed on supervised probation" unless specifically exempted by the presiding judge when the sentence is imposed. See N.C. Gen.Stat. §§ 15A–1343(b)(1)–(16). Included in the sixteen regular conditions, as relevant here, a defendant must: (1) "Commit no criminal offense in any jurisdiction;" (2) "Report as directed by the court or his probation officer to the officer at reasonable times and places and in a reasonable manner;" and (3) "Not abscond by willfully avoiding supervision or by willfully making the defendant's whereabouts unknown to the supervising probation officer, if the defendant is placed on supervised probation." N.C. Gen.Stat. §§ 15A–1343(b)(1), (b)(3), (b)(3a).
In addition to the regular conditions of probation, a trial court imposing community or intermediate punishment, including probation, may impose any of the conditions provided in N.C. Gen.Stat. § 15A–1343(a1). As relevant here, the court also imposed the additional condition of house arrest with electronic monitoring. N.C. Gen.Stat. § 15A–1343(a1)(1).
In 2011, our General Assembly enacted N.C. Sess. Law 2011–192, known as the Justice Reinvestment Act ("JRA"). The JRA was a "part of a national criminal justice reform effort" which, among other changes, "made it more difficult to revoke offenders' probation and send them to prison." Jeff Welty, Article: Overcriminalization in North Carolina, 92 N.C.L. Rev. 1935, 1947 (2014).
Prior to enactment of the JRA, a court could revoke probation and activate the suspended sentence for any violation of the conditions of probation. See, e.g., State v. Tozzi, 84 N.C.App. 517, 521, 353 S.E.2d 250, 253 (1987) (). After enactment of the JRA, however, a court may revoke probation and activate a previously suspended sentence only in the three circumstances provided in N.C. Gen.Stat. § 15A–1344(a). N.C. Gen.Stat. § 15A–1344(a) provides in relevant part:
Authority to Alter or Revoke.—... The court may only revoke probation for a violation of a condition of probation under [N.C. Gen.Stat. § ] 15A–1343(b)(1) or [N.C. Gen.Stat. § ] 15A–1343(b)(3a), except as provided in [N.C. Gen.Stat. § ] 15A–1344(d2). Imprisonment may be imposed pursuant to [N.C. Gen.Stat. § ] 15A–1344(d2) for a violation of a requirement other than [N.C. Gen.Stat. § ] 15A–1343(b)(1) or [N.C. Gen.Stat. § ] 15A–1343(b)(3a).
N.C. Gen.Stat. § 15A–1344(a) (2015).
Defendant argues the trial court could not revoke his probation and activate the suspended sentences on both of the underlying judgments because the findings of fact fail to show Defendant "absconded." We consider each revocation in turn.
The Form AOC–CR–607 the trial court used in case 13 CRS 056075 included, inter alia, a "Findings" section. In the "Findings" section, the court found as fact that "the condition(s) violated and the facts of each violation are as set forth ... in paragraph(s) 1–4 of the Violation Report or Notice dated 01/16/2015." The court found Defendant had "willfully and without valid excuse" committed the violations listed in the 16 January 2015 Violation Reports.
The court also checked a box on the form indicating it "may revoke [Defendant's] probation ... for the willful violation of the condition(s) that he ... not commit any criminal offense, [N.C. Gen.Stat. § ] 15A–1343(b)(1), or abscond from supervision, [N.C. Gen.Stat. § ] 15A–1343(b)(3a), as set out" in the "Findings" section. Pursuant to the trial court's order revoking...
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