State v. Washington, No. COA08-868 (N.C. App. 4/7/2009)
| Decision Date | 07 April 2009 |
| Docket Number | No. COA08-868,COA08-868 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA, v. SCOTT F. WASHINGTON. |
Michele Goldman, for Defendant-Appellant.
Scott F. Washington ("Defendant") appeals a Superior Court order that reversed the District Court's dismissal of Defendant's alleged probation violations based upon a lack of subject matter jurisdiction and remanded this case to the District Court for further proceedings. We affirm in part, reverse in part, and remand this case to the Superior Court for further proceedings.
On 27 July 2005, Defendant pled guilty to misrepresentation to obtain Employment Security Commission benefits, loitering for drug activity, and possession of drug paraphernalia. The District Court imposed a suspended sentence of forty-five days imprisonment and placed Defendant on eighteen months supervised probation for his misrepresentation conviction. The District Court further imposed a concurrent twelve month probationary sentence for Defendant's other convictions. Defendant's probationary periods in these cases were due to expire on 26 July 2006 and 26 January 2007, respectively. Defendant was required to report to his probation officer, Sherry Larsen ("Officer Larsen"), once a month as a condition of his probation.
On 13 July 2006, Officer Larsen filed two probation violation reports against Defendant. With respect to the probation imposed upon Defendant for his drug-related convictions, Officer Larsen alleged that Defendant: (1) had tested positive for cocaine on 3 April 2006; (2) failed to complete "TASC[;]" and (3) failed to report to the probation office on four occasions. Officer Larsen further alleged that she "ha[d] been by Defendant's residence many times and left written notes for him to report to probation office [sic] and he had not responded." In addition, Officer Larsen filed a second probation violation report relating to Defendant's conviction of misrepresentation to obtain Employment Security Commission benefits in which she alleged that Defendant had failed to pay restitution in the amount of $780.50. Two arrest warrants were subsequently filed, and this case was transferred to North Carolina Department of Correction Intensive Surveillance Officer Hal McNeely ("Officer McNeely"). On 27 December 2007, almost one year after his probationary period had expired, Defendant was arrested for his alleged probation violations, possession of cocaine, and resisting arrest. On 2 January 2008, Officer McNeely "sent [his] notice of arrest in to DCI in Raleigh, and . . . transferred the case back to Officer Larsen."
On 4 February 2008, the District Court granted Defendant's motions to dismiss the probation violation notices and terminated these probation violation proceedings based upon the State's failure to schedule a revocation hearing prior to Defendant's arrest. The State gave timely notice of appeal to the Superior Court. On 20 March 2008, Defendant filed two pre-trial motions to dismiss his probation violations based upon a lack of subject matter jurisdiction. Defendant argued that the State had failed to comply with N.C. Gen. Stat. § 15A-1344(f), which sets forth the statutory requirements under which the State may seek to revoke a defendant's probation and activate his suspended sentence after his probationary period has expired.
Defendant's case was called for hearing before the Honorable William Z. Wood, Jr., Judge of the Superior Court (the trial court), on 28 March 2008. At that time, both parties were given an opportunity to present evidence and otherwise be heard. The State tendered two witnesses, Officers Larsen and McNeely, to describe their attempts to locate Defendant both prior and subsequent to the date the probation violation reports were filed.
Officer Larsen testified that Defendant failed to report to the probation office on 3 November 2005, 26 March 2006, 12 May 2006, and 30 May 2006. Officer Larsen did not testify regarding her efforts to locate Defendant after his failure to report on 3 November 2005. When Defendant failed to report for his scheduled appointment on 26 March 2006, Officer Larsen called Defendant on 31 March 2006 and left a voice mail informing him that she "would come by his house on Sunday." Officer Larsen also reiterated that Defendant was required by law to report to the probation office once a month. At approximately 1:30 p.m. on 1 April 2006, Officer Larsen traveled to Defendant's residence and talked to his daughter, who informed Officer Larsen that Defendant was at the grocery store. Officer Larsen left a note directing Defendant to report to the probation office on 3 April 2006 at 4:30 p.m. Defendant complied with Officer Larsen's instructions.
On both 26 and 30 May 2006, subsequent to Defendant's third and fourth failures to report, Officer Larsen again traveled to Defendant's residence and left Defendant multiple notes directing him to report to the probation office. When Defendant failed to comply with these requests, Officer Larsen telephoned Defendant's employer and left a message for Defendant to contact her as soon as possible. Officer Larsen testified that 3 April 2006 was the final time she had established contact with Defendant.
The State's second witness, Officer McNeely, testified he had received Defendant's file on 25 July 2006. In his role as a surveillance officer, Officer McNeely's primary responsibility is to "try to make contact [with the probationer] as soon as [he] receive[s] the case[.]" In order to attempt to locate Defendant, Officer McNeely reviewed daily jail logs, spoke with law enforcement officers, and made monthly record checks. Officer McNeely also testified he "went by [Defendant's] residence." Officer McNeely also added that "I will be honest with you, I was trying to find other people too, at the same time, so [sic]." During the week of Christmas in 2007, Officer McNeely received notice that Defendant had been arrested, so his file was transferred back to Officer Larsen.
After hearing the evidence, the trial court entered an order containing fourteen findings of fact and six conclusions of law. The trial court concluded, inter alia:
3. Pursuant to North Carolina General Statutes Section 15A-1344(f)(1), Probation Officer Larsen timely filed the probation violation reports in each case prior to the expiration of the defendant's probation.
4. Pursuant to North Carolina General Statutes Section 15A-1344(f)(2), the State made reasonable efforts to notify the probationer. Probation Officer Larsen attempted to contact the defendant regarding the probation violations before the violation reports were filed. Officer McNeely tried to contact the defendant once at his home after the probation violation reports were filed and checked the jail list daily to see whether the defendant had been arrested.
5. The efforts by the officers in this case may not have been the best means used but were reasonable. While the State could have extended the defendant's probation by holding a modification hearing in the defendant's absence under North Carolina General Statutes Section 15A-1344(d), it was not required to hold such hearing.
6. Pursuant to North Carolina General Statutes Section 15A-1344(f)(2), reasonable efforts to conduct the hearing earlier pertains to the time after the defendant was served. The probation violation hearing in this case was scheduled by the magistrate after the defendant was arrested on December 27, 2007.
In sum, the trial court determined that the State had complied with the requirements of N.C. Gen. Stat. § 1344(f) and that the District Court was vested with subject matter jurisdiction to adjudicate the issues raised by the probation violation notices. The trial court reversed the District Court's order granting Defendant's motions to dismiss and remanded this case to the District Court for further proceedings. Defendant appeals pursuant to N.C. Gen. Stat. § 15A-1432(d).
The sole issue brought forth on appeal is whether the trial court erred by finding that the District Court was vested with subject matter jurisdiction to conduct Defendant's probation revocation hearing pursuant to N.C. Gen. Stat. § 15A-1344. The Defendant advances a number of arguments in support of his contention that the trial court erred in reaching this conclusion.
When the trial court sits without a jury and renders judgment, the standard of review on appeal is "whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment." State v. Simon, 185 N.C. App. 247, 250, 648 S.E.2d 853, 855 (quoting Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d 160, 163 (2001)), disc. review denied, 361 N.C. 702, 653 S.E.2d 158 (2007). The court's findings of fact are conclusive if supported by [substantial] evidence, and judgment supported by them will be affirmed even though there is evidence contra. Where there is no evidence to support an essential finding of fact, however, and where conclusions are not supported by sufficient factual findings, the judgment cannot be sustained.
Spivey v. Porter, 65 N.C. App. 818, 819, 310 S.E.2d 369, 370 (1984) (citation omitted). State v. Pickard, 178 N.C....
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