State v. Talbert
| Decision Date | 17 July 2012 |
| Docket Number | No. COA12–240.,COA12–240. |
| Citation | 727 S.E.2d 908 |
| Parties | STATE of North Carolina v. David Eldon TALBERT. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal pursuant to writ of certiorari by defendant from judgment entered 3 November 2011 by Judge Alan Z. Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 21 May 2012.
Attorney General Roy Cooper, by Assistant Attorney General Phyllis A. Turner, for the State.
Daniel F. Read, Durham, for defendant.
David Eldon Talbert (defendant) appeals from a judgment and commitment revoking his probation and activating his sentence. We reverse the judgment because defendant did not willfully violate the terms of his probation.
On 20 September 2010, defendant pled guilty to one count of felony failure to register as a sex offender. The trial court imposed an intermediate punishment, sentencing defendant as a Level III offender to a term of 19 to 23 months. The sentence was suspended, and defendant was placed on supervised probation for 24 months, subject to several special conditions of probation, including that defendant “abide by all terms of the sex offender control program.” The first special condition of the sex offender control program, as set out by the Division of Community Corrections (DCC), is that defendant “[r]eside at a residence to be approved by the supervising officer.”
On 4 October 2010, defendant was also convicted of felony larceny after breaking and entering in Yancey County. He received an active sentence of ten to twelve months' imprisonment. He was scheduled to be released from prison on 29 April 2011. That day, defendant's probation officer met defendant in prison. However, defendant had not yet obtained a place to live following his release. While still in prison, defendant had worked with his case worker to find a place to live, but they had been unsuccessful. Defendant could not stay with family members because he was adopted but had been removed from his adoptive family's care at the age of 15 because of physical and sexual abuse. He also had no money, as indicated by his affidavit of indigency. In addition, the probation officer explained, it is sometimes difficult for convicted sex offenders to find residences after they are released from prisonbecause they cannot live near schools or daycares and “just the fact that they are a sex offender limits their possibilities of having a residence.” Although defendant contacted several shelters and rescue missions, they all turned him down because he was a convicted sex offender.
On 29 April 2011, before he was released from jail or ever “touched outside,” defendant's probation officer filed a violation report and took defendant into custody for violating the terms of his probation. The violation report asserted: “[D]efendant has willfully violated sex offender special condition no. 1 that he reside at a residence to be approved by the supervising officer, in that as of 4/29/11, [defendant] doesn't have an approved residence.” Defendant professed to both his probation officer and his attorney that he would be willing to live on the streets and provide his probation officer with coordinates, and his attorney even proposed that “the sidewalk out in front of the federal courthouse” could be a suitable residence. However, the probation officer opined that, pursuant to DCC policy, registered sex offenders cannot live on the streets while they are on probation; being homeless is not a “suitable residence.”
At the hearing, defendant's attorney asked the court to give his client 24 or 48 hours to find a suitable residence, explaining:
It seems just illogical, I suppose, to allow an individual to be released from DOC custody, but at the very moment he is to be released from DOC custody, and find an appropriate place to reside, that you take him into custody and put him in the Buncombe County Detention Facility where the opportunities to make phone calls and contact individuals, including shelters, is basically nil. He just doesn't have this opportunity to get out there and find a place to stay.
Defendant's probation officer recommended revocation because he did not believe that defendant would be able to find a suitable residence: Though defense counsel asked that defendant be released for 24 or 48 hours to call friends and ask if he could stay with them, which he had been unable to do while incarcerated, the trial court revoked defendant's probation and activated his sentence. The trial court found that defendant had willfully violated the terms of his probation, “without valid excuse,” by failing to find a suitable residence.
Defendant now appeals, pursuant to a petition for writ of certiorari, which we grant. Defendant argues that his failure to find a suitable residence was not a willful violation of his probation. He argues that he had no “meaningful opportunity” to find a residence while he was incarcerated. Defendant also points to N.C. Gen.Stat. § 14–208.7, which requires a registered sex offender to register his address within three business days of his release from a penal institution. N.C. Gen.Stat. § 14–208.7 (2011). Defendant contends that he was entitled to this three-day period to find a suitable residence before having his probation revoked, arguing that the DCC policy of requiring an offender to obtain a suitable residence before he is released “impos[es] a penalty the legislature did not envision.”
We first address whether defendant's violation was willful and hold that it was not and that the trial court erred by so finding. Because we reverse on the basis that the trial court erred by finding that defendant's violation was willful, we do not reach defendant's argument that DCC's policy is incompatible with N.C. Gen.Stat. § 14–208.7.
We review a trial court's decision to revoke probation only for “manifest abuse of discretion.” State v. Tennant, 141 N.C.App. 524, 526, 540 S.E.2d 807, 808 (2000)...
To continue reading
Request your trial
-
State v. Crompton
...the task falls upon the defendant to demonstrate his inability to comply with the terms of his probation. State v. Talbert , 221 N.C. App. 650, 652, 727 S.E.2d 908, 910-11 (2012). Phrased differently, the task falls upon the defendant to demonstrate that his noncompliance was not "willful."......
-
Ortiz v. Breslin
...probation simply because he could not find a residence that complied with the State's residency restriction. State v. Talbert , 221 N.C.App. 650, 727 S.E.2d 908 (2012). In Wisconsin, after litigation challenged the State's policy of jailing people convicted of sex offenses past their mandat......
-
State v. Johnson
...426, 427, 737 S.E.2d 768, 770, disc. review denied, 366 N.C. 590, 743 S.E.2d 196 (2013) ; State v. Talbert, 221 N.C.App. 650, 651, 727 S.E.2d 908, 910 (2012).B. Probation RevocationDefendant argues the trial court erred by revoking his probation and activating his sentences based upon imper......
-
State v. Melton
...burden is on the defendant to demonstrate through competent evidence an inability to comply with the terms." State v. Talbert , 221 N.C. App. 650, 652, 727 S.E.2d 908, 910-11 (2012) (citation and quotation marks omitted).We review a trial court's decision to revoke a defendant's probation f......