Waiver of revocation hearing also waived right to appeal 

A defendant whose probation was revoked by a district court judge won’t be able to appeal that decision to superior court because he waived his right to a revocation hearing, the North Carolina Court of Appeals has unanimously ruled in a case of first impression.  

Leaning on the plain language of state law and relevant state Supreme Court decisions, the appeals court found in its Sept.7 opinion that when a defendant assents during a conviction, he generally may not later appeal on the basis of that to which he previously assented. 

“After careful review, we find the Stokes County Superior Court lacked jurisdiction to hear Defendant’s appeal,” Judge April Wood wrote for the court. “To hold otherwise would permit the Superior Court to exceed its jurisdiction and operate beyond the jurisdictional boundaries established by our General Assembly.”  

In 2018 and 2019, Jared Flanagan pleaded guilty in Forsyth County and Stokes County to numerous crimes, including attempted assault with a deadly weapon on a government official, trespassing, shoplifting, larceny, possession of drug paraphernalia, and eluding arrest.  

Courts in both counties sentenced Flanagan to jail but suspended those sentences to supervised probation with special conditions, including serving 10 weekends in the Forsyth County Jail.  

Flanagan did not comply with those conditions, according to court documents stating that he failed to appear in court, failed to report to the county jail, and failed to attend court-ordered substance abuse treatment and other mandated management services. Flanagan’s probation officer repeatedly recommended probation revocation, telling the court that Flanagan was “a danger to himself and to the community.” 

Finally, on Dec. 12, 2019, the Stokes County District Court revoked Flanagan’s probation, sentencing him to several months in jail. Upon hearing the news, Flanagan bolted from the courtroom but was quickly apprehended and ordered to serve an additional 30 days in jail for criminal contempt of court.  

Flanagan appealed to Stokes County Superior Court, claiming that the trial court failed to find good cause to revoke his probation. At his Feb. 5, 2020 hearing, Flanagan admitted to willfully violating his probation. The court revoked his probation and activated the suspended sentences.  

On appeal, Flanagan failed to specify which court his appeal was taken from, as required by the rules of appellate procedure, but the appeals court agreed to review the revocation on certiorari. It determined that state law limits a court’s ability to review a probationer’s compliance with the terms of his probation, noting that a defendant may not appeal a probation violation, the activation of a sentence, or the imposition of special probation to the superior court after waiving a revocation hearing.  

“Despite Defendant’s waiver of his violation hearing in the District Court, the Stokes County Superior Court heard Defendant’s appeal on February 5, 2020,” Woods wrote. 

The state’s appellate courts had never considered whether the statute in question functions as a jurisdictional bar, but the appeals courts cited several cases that provided some useful guidance. In the state Supreme Court’s 1945 ruling in State v. Miller, the court held that because a suspended sentence is favorable to a defendant, he impliedly consents and abandons his right to appeal on the principal issue of guilt or innocence when he “sits by as the order is entered and does not then appeal.”  

Five years after Miller, the Supreme Court held in State v. Smith that a defendant who didn’t object when a condition of probation was implemented “impliedly consented and … committed himself to abide by the terms.” And more recently, the appeals court held in State v. Tozzi and State v. Romero (1987 and 2013, respectively) that a defendant waives a challenge when he fails to object to probation requirements at some point during the revocation hearing.  

The upshot of this line of cases, Wood wrote, was that Flanagan’s waiver of his violation hearing likewise precluded him from appealing the activation of his suspended sentence. 

“Defendant assented to waiving the violation hearing and admitted violating the conditions of his probation,” Woods wrote. “Defendant in no way contested the charges against him.” 

Judges Lucy Inman and Jefferson Griffin concurred in the decision. 

Attorney General Josh Stein and Assistant Attorney General Robert Ennis represented the state. Ennis did not immediately return a request for comment.  

Flanagan’s attorney, Jason Yoder of Carrboro, said that he’s unsure whether Flanagan will seek discretionary review from the Supreme Court, but noted a small victory for his client that wasn’t evident from the opinion. 

“The district court revocations were ordered differently than the superior court revocations,” Yoder said. “As a result of this difference, the opinion reduces Mr. Flanagan’s total time by 60 days, so he obtained real relief from this opinion.”  

The 12-page decision is State v. Flanagan (Lawyers Weekly No. 011-171-21). The full text of the opinion is available online at nclawyersweekly.com.  

Follow Heath Hamacher on Twitter @NCLWHamacher