State v. Sitosky, COA14–639.

• Docket Nº: No. COA14–639.
• Citation: 767 S.E.2d 623, 238 N.C.App. 558
• Case Date: December 31, 2014
• Court: Court of Appeal of North Carolina (US)

238 N.C.App. 558
767 S.E.2d 623

STATE of North Carolina
v.
Crystal SITOSKY.

No. COA14–639.

Court of Appeals of North Carolina.

Dec. 31, 2014.

Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant Attorney General, for the State.

Staples S. Hughes, Appellate Defender, by Jason Christopher Yoder, for defendant-appellant.

DAVIS, Judge.

238 N.C.App. 559

Crystal Sitosky ("Defendant") appeals from the trial court's judgments revoking her probation and activating her suspended sentences in file numbers 07 CRS 60072–74 and

767 S.E.2d 624

10 CRS 53201–03. On appeal, she argues that the trial court (1) lacked jurisdiction to revoke her probation in file numbers 07 CRS 60072–74; and (2) erred in revoking her probation in file numbers 10 CRS 53201–03. After careful review, we vacate the trial court's judgments and remand for further proceedings.

Factual Background

On 10 July 2008, Defendant pled guilty to three counts of obtaining a controlled substance by fraud or forgery. The trial court sentenced Defendant to three consecutive sentences of 5 to 6 months imprisonment, suspended the sentences, and placed Defendant on supervised probation for a period of 36 months. On 22 September 2011, Defendant pled guilty to one count of attempted trafficking in heroin and three counts of obtaining a controlled substance by fraud or forgery. The trial court sentenced Defendant to three consecutive sentences of 6 to 8 months imprisonment for the obtaining a controlled substance by fraud or forgery offenses and 90 to 117 months imprisonment following the expiration of the above sentences for the attempted trafficking in heroin offense. The trial court then suspended these sentences and placed Defendant on supervised probation for 36 months.

Defendant's probation officer filed violation reports on 3 May 2013, 18 June 2013, 26 November 2013, and 10 January 2014, alleging that Defendant had violated various conditions of her probation. The 3 May 2013 violation reports alleged that Defendant had been charged with driving while license revoked, simple possession of a Schedule II controlled substance, simple possession of a Schedule IV controlled substance, and maintaining a vehicle or dwelling place for the purpose of keeping or selling a controlled substance. The 18 June 2013 violation reports alleged that Defendant had violated a condition of her probation by testing positive for opiates on 7 June 2013. The 26 November 2013 violation reports alleged that Defendant had violated a condition of her probation by testing positive for opiates on 21 November 2013. Finally, the 10 January 2014 violation reports alleged that Defendant had been charged with multiple counts of (1) driving with expired registration and

238 N.C.App. 560

expired inspection; (2) driving while license revoked; (3) misdemeanor larceny; and (4) obtaining property by false pretenses.

A hearing on the alleged probation violations was held in New Hanover County Superior Court on 5 March 2014. At the hearing, Defendant admitted to three of the alleged probation violations: (1) testing positive for opiates on 7 June 2013; (2) testing positive for opiates on 21 November 2013; and (3) being charged with and convicted on 27 February 2014 of one count of driving while license revoked. Defendant did not admit to any of the other violations alleged in the violation reports, and the State presented no evidence regarding these remaining alleged violations. The trial court revoked Defendant's probation and activated her suspended sentences. Defendant appealed to this Court.

Analysis

I. Appellate Jurisdiction

Defendant has filed a petition for writ of certiorari requesting appellate review in the event that her notice of appeal is deemed insufficient to confer jurisdiction upon this Court. The record shows that Defendant filed a handwritten letter indicating her intent to appeal but failed to serve a copy of the letter on the State as required by Rule 4(a) of the North Carolina Rules of Appellate Procedure. Defendant's trial counsel also filed a notice of appeal on Defendant's behalf, which was served on the State. This notice of appeal, however, failed to designate the court to which the appeal was being taken and listed the incorrect date for the judgments being appealed. We do not believe that either of these errors are fatal to Defendant's appeal.

We have previously held that a defendant's failure to designate this Court in a notice of appeal does not warrant dismissal of the appeal where this Court is the only court possessing jurisdiction to hear the matter and the State has not suggested that it was misled by the defendant's flawed notice of appeal. State v. Ragland, ––– N.C.App. ––––, ––––, 739 S.E.2d 616, 620 ("Here, defendant's intent to appeal is plain, and since

767 S.E.2d 625

this Court is the only court with jurisdiction to hear defendant's appeal, it can be fairly inferred defendant intended to appeal to this Court. The State does not suggest that it was in any way misled by the notice of appeal. Accordingly, defendant's ... mistake in failing to name this Court in his notice of appeal do[es] not warrant dismissal."), disc. review denied, 367 N.C. 220, 747 S.E.2d 548 (2013).

We have also deemed a defendant's notice of appeal sufficient to confer jurisdiction upon this Court when, despite an error in designating

238 N.C.App. 561

the judgment, the notice of appeal as a whole indicates the defendant's intent to appeal from a specific judgment. See State v. Rouse, –––N.C.App. ––––, ––––, 757 S.E.2d 690, 692 (2014) ("A mistake in designating the judgment should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake." (citation, quotation marks, brackets, ellipses, and emphasis omitted)).

Here, because (1) Defendant's notice of appeal lists the file numbers of the judgments she seeks to appeal; (2) this Court is the only court with jurisdiction to hear Defendant's appeal; and (3) the State has not suggested that it was misled by either of the errors in her notice of appeal, we conclude that a dismissal of Defendant's appeal is not warranted. We therefore dismiss Defendant's petition for writ of certiorari and proceed to address the merits of the appeal.

II. Revocation of Probation

A. File Numbers 07 CRS 60072–74

Defendant first alleges that the trial court lacked jurisdiction to revoke her probation and activate her suspended sentences in file numbers 07 CRS 60072–74. We agree.

In file numbers 07 CRS 60072–74, Defendant was placed on 36 months of supervised probation on 10 July 2008 for offenses she committed in June and July of 2007. The State contends that Defendant remained on probation for these offenses at the time of the 5 March 2014 revocation hearing because her probationary period was tolled each time she acquired new criminal charges until those new charges were resolved.

It is true that the tolling provision of N.C. Gen.Stat. §...