Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Criminal Practice / Criminal Practice – Probation Revocation – Absconding – Jurisdiction

Criminal Practice – Probation Revocation – Absconding – Jurisdiction

Holding: Where (1) a probation officer relied on the statement of an unidentified woman that the defendant-probationer didn’t live at the address he had given as his residence; (2) the state failed to present evidence as to the identity of the woman or her relationship to defendant; (3) the probation officer never went back to the residence to look for defendant; but (4) after defendant’s arrest, the probation officer met defendant “at the residence” and had regular contact with defendant until his probation expired, the state has failed to prove that defendant absconded within the meaning of G.S. § 15A-1343(b)(3a).

We vacate the revocation of defendant’s probation.

Facts

On April 2, 2015, defendant was sentenced to 12 months of probation. On Dec. 14, 2015, defendant’s probation officer, Officer Thomas, visited defendant’s reported address. However, defendant was not present, and an unidentified woman said that “he didn’t live there.”

Officer Thomas filed a report alleging that defendant had willfully violated his probation by, inter alia, absconding. On Feb. 4, 2016, defendant was arrested for violating his probation. Officer Thomas continued to supervise him until his probation expired on April 2, 2016.

After a probation violation hearing on Oct. 3, 2016, the trial court found that defendant had willfully violated the conditions of his probation. The court revoked probation and activated defendant’s suspended sentence.

Analysis

Ordinarily, a judge’s finding of a probation violation is subject to review for abuse of discretion. However, when a trial court’s determination relies on statutory interpretation, our review is de novo.

This case is similar to State v. Williams, 243 N.C. App. 198, 776 S.E.2d 741 (2015). Officer Thomas testified that when he visited defendant’s reported address on Dec. 14, 2015, an “elderly black female” informed him that defendant “didn’t live there.” The state failed to present evidence regarding the identity of the person who greeted Officer Thomas, or her relationship to defendant. Officer Thomas never attempted to contact defendant again, “[b]ecause when we w[ere] told . . . that he didn’t live at the residence, no reason for us to go back out there.”

Nevertheless, Officer Thomas also testified that when defendant contacted him following his absconding arrest, he met defendant “at the residence.” Officer Thomas subsequently had “regular contact” with defendant until his case expired on April 2, 2016.

Under this court’s precedents, defendant’s actions, while clearly a violation of G.S. § 15A-1343(b)(3), do not rise to “absconding supervision” in violation of G.S. § 15A-1343(b)(3a). We are unable to meaningfully distinguish this case from Williams, and we are bound by our court’s decision.

The instant case is distinguishable from State v. Trent, 803 S.E.2d 224, temp. stay allowed, 802 S.E.2d 725 (2017), where the probation officer gleaned information about the defendant’s whereabouts from his wife. Here, Officer Thomas testified only that he spoke with an “elderly black female” at defendant’s reported address. The state failed to establish the woman’s identity, or whether she even lived at the residence. Furthermore, unlike in Trent, Officer Thomas did not revisit defendant’s residence or otherwise attempt to verify the unidentified woman’s allegations.

Also unlike Trent, there was no evidence that defendant was even aware of Officer Thomas’s unannounced visit until after his arrest. A trial court may only revoke probation where the defendant “abscond[s] by willfully avoiding supervision or by willfully making the defendant’s whereabouts unknown to the supervising officer[.]” G.S. § 15A-1343(b)(3a). Here, there was no evidence of willfulness.

Defendant testified that he attempted to contact Officer Thomas “plenty of times,” andt he state failed to impeach this testimony.

Even though the state is never required to cross-examine a defendant, and even though the demeanor of the witness on the stand is always in evidence, the state bears the burden of presenting sufficient evidence that the defendant has willfully violated a valid condition of probation. Here, the state failed to carry its burden.

Since the state’s evidence was insufficient to support its allegation of absconding, the trial court lacked jurisdiction to revoke defendant’s probation after his case expired.

Vacated.

Dissent

(Murphy, J.) We review the trial court’s decision to revoke a defendant’s probation for abuse of discretion.

Unlike Williams and State v. Johnson, 783 S.E.2d 21 (2016), the evidence showed that defendant’s “whereabouts were unknown for two months,” and during that time defendant did not communicate with his probation officer. Therefore, this case is more like Trent, where we determined a trial court did not abuse its discretion by finding a defendant violated (b)(3a) because the probation officer “did not have the benefit of tracking defendant’s movements” as in Johnson and had “absolutely no means of contacting defendant” unlike in Williams.

As in Trent, through the exercise of logic and reason, the trial court could have considered defendant was not in contact with his probation officer for two months, his whereabouts were unknown, and he was not subject to the supervision of the state. It was within the trial court’s discretion to find that defendant violated § 15A-1343(b)(3a).

Where (1) the written violation reports were filed prior to the expiration of the probation period, (2) the trial court found that a probation violation occurred prior to the expiration of the probationary period, and the trial court found good cause for the revocation, the fact that the hearing took place after the expiration of the probationary period did not deprive the trial court of jurisdiction.

State v. Krider (Lawyers Weekly No. 011-071-18, 19 pp.) (Ann Marie Calabria, J.) (Hunter Murphy, J., dissenting) Appealed from Iredell County Superior Court (Mark Klass, J.) Allison Angell for the state; Emily Davis for defendant. N.C. App.

 


Leave a Reply

Your email address will not be published. Required fields are marked *

*