State v. Jackson

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-825 NORTH CAROLINA COURT OF APPEALS Filed: 21 January 2014 STATE OF NORTH CAROLINA v. Pitt County Nos. 09 CRS 059887, 059891 MINDY LEIGH-ANNA JACKSON Appeal by defendant from judgments entered 10 December 2012 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 30 December 2013. Attorney General Roy Cooper, by Assistant Attorney General Micheal E. Butler, for the State. Mary McCullers Reece for defendant-appellant. HUNTER, JR., Robert N., Judge. Defendant Mindy Leigh-Anna Jackson ( Defendant ) appeals from judgments entered upon revocation of her probation. We reverse the judgments and remand for further proceedings. On 9 March 2011, Defendant pleaded guilty to two counts of felony breaking or entering of a motor vehicle and two counts of misdemeanor larceny. to eight months The trial court sentenced Defendant to six imprisonment for each felony breaking or -2entering conviction and to forty-five days misdemeanor larceny conviction. in jail for each The sentences were suspended and Defendant was placed on forty-eight months of supervised probation. On 22 violation October reports 2012, as to Defendant s both of probation the officer breaking convictions and one of the larceny convictions. alleged that Defendant: or filed entering The reports (1) FAILED TO REPORT ON ASSIGNED DAY THE LAST FIVE OFFICE APPOINTMENTS[;] (2) HAS NOT BEEN SEEN AT A VALID ADDRESS SINCE 7/11/12 . . . . OFFENDER HAS ABSCONDED AND IS ACTIVELY AVOIDING SUPERVISION[;] and (3) HAS FAILED TO BE AT ASSIGNED RESIDENCE WHEN TOLD ON 8/08 AT 1540, 9/05 AT 1915, 9/23 AT 1522, & 9/26 AT 1421. One of the violation reports also alleged that Defendant IS IN ARREARS $7,497.82. On 30 November 2012, the probation officer filed a violation report as to the other larceny conviction. The allegations were the same as in the prior reports, except there was no allegation regarding Defendant being in arrears. The matter came on for hearing on 10 December 2012. Defendant admitted she was in arrears, but denied the other allegations. officer and After hearing testimony from Defendant s probation Defendant, the trial court found that Defendant -3failed to report for her last five office visits, she was behind on her court indebtedness, she had absconded, she had not made herself available for supervision, and she had failed to be at her residence found the violations were willful and revoked Defendant s probation. The trial and court sentenced at set activated her to times. The Defendant s twelve to trial court suspended sixteen sentence months imprisonment. Defendant filed timely notice of appeal. Citing State v. Nolen, ___ N.C. App. ___, 743 S.E.2d 729 (2013), Defendant argues the trial court erred by revoking her probation and activating her suspended sentences. We agree that the trial court lacked statutory authority to revoke Defendant s probation and the State concedes that the judgments should be reversed. In Nolen, the defendant argued that the trial court lacked statutory authority to revoke her probation violations alleged by her probation officer. S.E.2d at 730. based upon the Id. at ___, 743 The defendant contended that her violations occurred after the effective date of the Justice Reinvestment Act ( JRA ), which limited the trial court s authority to revoke probation for violations occurring on or after 1 December 2011. Id. -4[F]or probation violations occurring on or after 1 December 2011, the JRA limited trial courts authority to revoke probation to those circumstances in which the probationer: (1) commits a new crime in violation of N.C. Gen. Stat. § 15A1343(b)(1); (2) absconds supervision in violation of N.C. Gen. Stat. § 15A1343(b)(3a); or (3) violates any condition of probation after serving two prior periods of CRV [confinement in response to violation] under N.C. Gen. Stat. § 15A1344(d2). Id. (citing N.C. Gen. Stat. § 15A-1344(a)). The defendant further contended that the trial court erred in finding her in violation of the new absconding condition set forth in N.C. Gen. Stat. § 15A-1343(b)(3a) because it was not in existence at the time she committed her offenses.1 Id. This Court reversed and remanded the case for further proceedings, holding: The record establishes that Defendant violated only the condition of probation under N.C. Gen. Stat. § 15A-1343(b)(2) and the monetary conditions under N.C. Gen. Stat. § 15A-1343(b). She did not commit a new crime and was not subject to the new absconding condition codified by the JRA in N.C. Gen. Stat. § 15A-1343(b)(3a). In addition, the violation reports show that Defendant had served no prior CRVs under N.C. Gen. Stat. § 15A-1344(d2). Therefore, in light of the changes wrought by the JRA, Under the JRA, the new absconding condition [is] applicable only to offenses committed on or after 1 December 2011. State v. Hunnicutt, ___ N.C. App. ___, ___, 740 S.E.2d 906, 911 (2013). Here, each of Defendant s underlying offenses were committed in April 2009. 1 -5her probation could not be revoked. Id. at ___, 743 S.E.2d at 731. We are unable to distinguish the present case from Nolen. Here, Defendant did not commit any new crimes, she did not serve any CRVs, and her underlying offenses were committed prior to the new absconding condition s effective date. Accordingly, the trial court erred in revoking Defendant s probation. we reverse the judgments and remand for further consistent with this opinion. Reversed and remanded. Chief Judge MARTIN and Judge DILLON concur. Report per Rule 30(e). Therefore, proceedings

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