State v. Krider

• Decision Date: 20 February 2018
• Docket Number: No. COA17-272,COA17-272
• Citation: 810 S.E.2d 828,258 N.C.App. 111
• Parties: STATE of North Carolina v. Jermel Toron KRIDER
• Court: North Carolina Court of Appeals

258 N.C.App. 111

810 S.E.2d 828

STATE of North Carolina

v.Jermel Toron KRIDER

No. COA17-272

Court of Appeals of North Carolina.

Filed: February 20, 2018

Attorney General Joshua H. Stein, by Assistant Attorney General Allison Angell, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant.

CALABRIA, Judge.

Jermel Toron Krider ("defendant") appeals from the trial court’s judgment revoking his probation and activating his suspended sentence. After careful review, we conclude that the State presented insufficient evidence to support a finding of willful absconding pursuant to N.C. Gen. Stat. § 15A–1343(b)(3a) (2017). As a result, the trial court lacked jurisdiction to revoke defendant’s probation after his probationary term expired. Accordingly, we vacate the trial court’s judgment revoking defendant’s probation.

I. Background

On 2 April 2015, defendant pleaded guilty to possession of cocaine in Iredell County District Court. The district court, having jurisdiction to accept his guilty plea to a Class I felony, sentenced defendant to 6–17 months in the custody of the North Carolina Division of Adult Correction, suspended his sentence, and placed defendant on 12 months of supervised probation. As a term of his probation, defendant was ordered to obtain substance abuse treatment, in addition to complying with all of the regular conditions of probation pursuant to N.C. Gen. Stat. § 15A–1343(b).

On 14 December 2015, defendant’s probation officer ("Officer Thomas") visited his reported address. However, defendant was not present, and an unidentified woman advised Officer Thomas that "he didn’t live there." As a result, on 21 December 2015, Officer Thomas filed a report alleging that defendant had willfully violated his probation by: (1) absconding on 14 December 2015; (2) testing positive for marijuana on 18 August 2015; (3) failing to report to his probation officer on 4 November 2015; (4)-(5) being in arrears as to his case and supervision fees; and (6) failing to obtain court-ordered substance abuse treatment. An arrest warrant was issued based on the absconding allegation. On 4 February 2016, defendant was arrested for violating his probation. Officer Thomas continued to supervise defendant until his probation expired on 2 April 2016.

On 3 October 2016, a probation violation hearing was held in Iredell County Superior Court. Defendant denied the alleged violations, contending that he "substantially complied with [the] terms of his probation." However, Officer Thomas recommended revocation, "[b]ecause he absconded probation and his whereabouts were unknown for two months." Following testimony from both parties, the trial court found that defendant willfully violated the conditions alleged, revoked his probation, and activated his suspended sentence. Defendant appeals.

II. Analysis

On appeal, defendant contends that the trial court erred by revoking his probation based on its finding that he willfully absconded from supervision. We agree.

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. 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.

State v. Young , 190 N.C.App. 458, 459, 660 S.E.2d 574, 576 (2008) (citations and quotation marks omitted). However, "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." State v. Johnson , 246 N.C.App. 139, 142, 783 S.E.2d 21, 24 (2016) (citation and quotation marks omitted).

Once a defendant’s probationary term expires, the trial court must comply with N.C. Gen. Stat. § 15A–1344(f) in order to "extend, modify, or revoke" the defendant’s probation. The statute provides, in pertinent part:

The court may extend, modify, or revoke probation after the expiration of the period of probation if all of the following apply:

(1) Before the expiration of the period of probation the State has filed a written violation report with the clerk indicating its intent to conduct a hearing on one or more violations of one or more conditions of probation.

(2) The court finds that the probationer did violate one or more conditions of probation prior to the expiration of the period of probation.

(3) The court finds for good cause shown and stated that the probation should be extended, modified, or revoked.

N.C. Gen. Stat. § 15A–1344(f)(1)-(3). This statute is jurisdictional. See State v. Moore , 240 N.C.App. 461, 463, 771 S.E.2d 766, 767 (2015) (explaining that "other 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"); State v. High , 230 N.C.App. 330, 337, 750 S.E.2d 9, 14 (2013) (holding that the trial court lacked jurisdiction over the defendant because the State’s violation reports did not bear a time stamp evincing that they were filed within the probationary period).

Furthermore, for violations occurring on or after 1 December 2011, the trial court may only revoke a defendant’s probation where the defendant (1) commits a new criminal offense in violation of N.C. Gen. Stat. § 15A–1343(b)(1) ; (2) absconds "by willfully avoiding supervision or by willfully making the defendant’s whereabouts unknown to the supervising probation officer," in violation of N.C. Gen. Stat. § 15A–1343(b)(3a) ; or (3) violates any condition after previously serving two periods of confinement in response to violations ("CRV") pursuant to N.C. Gen. Stat. § 15A–1344(d2). N.C. Gen. Stat. § 15A–1344(a). For all other violations, the trial court may either modify the conditions of the defendant’s probation or impose a 90–day period of CRV. Id.

In the instant case, defendant’s probation expired on 2 April 2016. The violation hearing was held more than six months later, on 3 October 2016. However, on 21 December 2015, the State filed a written report alleging six violations of defendant’s probation. Therefore, the State timely "indicat[ed] its intent to conduct a hearing on one or more violations" of defendant’s probation, as required by N.C. Gen. Stat. § 15A–1344(f)(1). The violation report indicated that defendant had not previously served any periods of CRV as allowed by N.C. Gen. Stat. § 15A–1344(d2), and the State did not allege that defendant committed a new criminal offense in violation of N.C. Gen. Stat. § 15A–1343(b)(1). Accordingly, pursuant to N.C. Gen. Stat. § 15A–1344(a), the trial court was only authorized to revoke defendant’s probation for a violation of N.C. Gen. Stat. § 15A–1343(b)(3a).

The State alleged the following with regard to absconding:

1. Regular Condition of Probation: "Not to abscond, by willfully avoiding supervision or by willfully making the supervisee’s whereabouts unknown to the supervising probation officer" in that, THE DEFENDANT ABSCONDED SUPERVISION ON 12/14/15 BY MAKING HIS WHEREABOUTS UNKNOWN TO THIS OFFICER. ON OR ABOUT 12/14/15, THE OFFICER WAS ADVISED THAT THE OFFENDER DID NO LONGER RESIDE AT THE RESIDENCE GIVEN. THE DEFENDANT HAS ... AVOIDED SUPERVISION AND MADE HIMSELF UNAVAILABLE FOR SUPERVISION; THEREFORE ABSCONDING SUPERVISION.

The State’s allegations and supporting evidence are very similar to that which we rejected in State v. Williams , 243 N.C.App. 198, 776 S.E.2d 741 (2015). In Williams , the State filed a report alleging that the defendant had violated seven conditions of his probation, including:

1. Regular Condition of Probation: "Not to abscond, by willfully avoiding supervision or by willfully making the supervisee’s whereabouts unknown to the

supervising probation officer" in that, THE DEFENDANT IS NOT REPORTING AS INSTRUCTED OR PROVIDING THE PROBATION OFFICER WITH A VALID ADDRESS AT THIS TIME. THE DEFENDANT IS ALSO LEAVING THE STATE WITHOUT PERMISSION. DUE TO THE DEFENDANT KNOWINGLY AVOIDING THE PROBATION OFFICER AND NOT MAKING HIS TRUE WHEREABOUTS KNOWN THE DEFENDANT HAS ABSCONDED SUPERVISION.

243 N.C.App. at 200–01, 776 S.E.2d at 743. In support of this allegation, the probation officer testified that when she visited the defendant’s residence, a woman informed her that the defendant had "never really lived at the address." Id. at 198, 776 S.E.2d at 742. In addition, the officer testified that the defendant had failed to attend multiple scheduled appointments; was traveling "back and forth from North Carolina to New Jersey" without permission; and "wasn’t making himself available for supervision," although the officer acknowledged that she had phone contact with the defendant during his unauthorized trips to New Jersey. Id. at 198–99, 776 S.E.2d at 742.

On appeal, we held that the evidence was insufficient to support a finding of willful absconding under N.C. Gen. Stat. § 15A–1343(b)(3a) and reversed the revocation of the defendant’s probation. Id. at 205, 776 S.E.2d at 746. While "[t]he evidence was clearly sufficient to find violations of N.C. Gen. Stat. §§ 15A–1343(b)(2) and (3), ... N.C. Gen. Stat. § 15A–1344(a) does not authorize revocation based upon violations of those conditions," unless the requirements of N.C. Gen. Stat. § 15A–1344(d2) have been met. Id. ; see also N.C. Gen. Stat. §§ 15A–1343(b)(2)-(3) (requiring, as regular conditions of probation, that a defendant must "[r]emain within the jurisdiction of the court unless granted written permission to leave" and "[r]eport as directed ... to the officer at reasonable times and places and in a reasonable manner, permit the officer to visit him at reasonable times, answer all reasonable inquiries by the officer and obtain...