State v. Tucker

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-219 NORTH CAROLINA COURT OF APPEALS Filed: 5 August 2014 STATE OF NORTH CAROLINA v. Forsyth County No. 11 CRS 55247 ANGELICA CORNISE TUCKER Appeal from judgment entered 12 July 2013 by Judge David Hall in Forsyth County Superior Court. Heard in the Court of Appeals 21 July 2014. Attorney General Roy Cooper, by Assistant Attorney General Adam M. Shestak, for the State. James N. Freeman, Jr., for defendant-appellant. HUNTER, JR., Robert N., Judge. Defendant appeals from a judgment entered upon revocation of her probation. We reverse the judgment and remand for further proceedings. On 21 May 2012, defendant pled guilty to negligent child abuse resulting in serious bodily injury, which she committed on 28 December 2010. The trial court sentenced her to a suspended -2prison term of twenty to thirty-three months and placed her on eighteen months of supervised probation. In reports filed on 19 December 2012 and 2 April 2013, defendant was charged with violating multiple conditions of her probation. found After a hearing on 12 July 2013, the trial court defendant violations.1 had willfully committed Further concluding that violations authorizes revocation of activation of defendant s her suspended probation and her her of the alleged least at sentence, activated five one of the probation and . . . the court prison revoked sentence of twenty to thirty-three months. Citing this Court s holding in State v. Nolen, ___ N.C. App. ___, ___, 743 S.E.2d 729, 730 31 (2013), defendant now argues that the trial court lacked the authority to revoke her probation due to the constraints Reinvestment Act of 2011 ( JRA ). enacted by the Justice The State concedes that the court erred for the reasons set forth in Nolen. We agree with the parties analysis. [F]or probation violations occurring on or after 1 December 2011, the JRA limited trial courts authority to revoke 1 Although the trial court found a sixth violation in open court, i.e., defendant s failure to provide a DNA sample to the local sheriff, the judgment does not reflect this finding. -3probation 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. § 15A-1343(b)(3a); or (3) violates any condition of probation after serving two prior periods of [confinement in response to violation] under N.C. Gen. Stat. § 15A-1344(d2). Nolen, ___ N.C. App. at ___, 743 S.E.2d at 730 (citing N.C. Gen. Stat. § 15A-1344(a) (2013)). Moreover, the absconding condition in § 15A-1343(b)(3a) (2013), which was enacted as part of the JRA, probation for 2011[.] applies only offenses to defendants committed on or who are after placed 1 on December Id. at ___, 743 S.E.2d at 731 (quoting State v. Hunnicutt, ___ N.C. App. ___, ___, 740 S.E.2d 906, 911 (2013)). In the case sub judice, defendant committed her probation violations criminal in 2012 offense in and 2013, 2010. and committed Therefore, the the underlying trial court s revocation authority was limited by the JRA s amendments to N.C. Gen. Stat. § 15A-1344(a), and defendant was not subject to the new absconding condition codified in N.C. Gen. Stat. § 15A1343(b)(3a). Paragraph 2 of the report filed 2 April 2013 alleged that defendant had violated the regular condition of probation found -4in N.C. Gen. Stat. § 15A-1343(b)(2) (2013), which required her to [r]emain within the jurisdiction of the Court unless granted written permission officer[.] alleged to leave by the Court or the probation In support of this charge, the report specifically that [d]efendant has absconded whereabouts are unknown at this time. supervision and her Moreover, in finding this violation, the court announced itself satisfied that the defendant did number 2[.] describe a abscond supervision as indicated in paragraph Notwithstanding this use of the term abscond to defendant s violation of N.C. Gen. Stat. § 15A- 1343(b)(2), the fact remains that defendant was not subject to the condition that she [n]ot abscond in N.C. Gen. Stat. § 15A1343(b)(3a); nor was she subject to revocation for the charged violation of (b)(2). 731. Nolen, ___ N.C. App. at ___, 743 S.E.2d at Insofar as the court revoked defendant s probation for absconding supervision, the court exceeded its authority under N.C. Gen. Stat. § 15A-1344(a). Id. at ___, 743 S.E.2d at 731. Paragraph 4 of the report filed on 19 December 2012 alleged defendant s commission of a new crime, in violation of N.C. Gen. Stat. § 15A-1343(b)(1), in that she misdemeanor larceny on December 7, 2012[.] was charged with Defendant adduced evidence that she had pled guilty to the Class 3 misdemeanor of -5shoplifting. See N.C. Gen. Stat. § 14-72.1(e) (2013). Although the State contested the issue, the trial court expressly found as follows: As to paragraph number [4] the misdemeanor larceny, the court does not find that, or is not substantially satisfied. . . . However, [defendant] was convicted of a [C]lass 3 misdemeanor, which does bear on her performance. It s just not independent and in and of itself a reason to revoke her probation. Thus, while the court found the violation alleged in paragraph 4, it correctly noted that probation may not be revoked solely for conviction of a Class 3 misdemeanor. 15A-1344(d) (2013). N.C. Gen. Stat. § Because defendant was not found to have committed another violation of N.C. Gen. Stat. § 15A-1343(b)(1), she was not subject to revocation for committing a new crime. Finally, both violation reports indicate defendant had served no periods of confinement in response to violation under N.C. Gen. Stat. § 15A-1344(d2). As the trial court made no finding to the contrary, defendant s probation could not revoked on this ground. The judgment includes a finding by the trial court that it was authorized to revoke defendant s probation . . . for the willful violation of the condition(s) that []she not commit any criminal offense, G.S. 15A-1343(b)(1), or abscond from -6supervision, erroneous. G.S. 15A-1343(b)(3a)[.] This finding is Nolen, ___ N.C. App. at ___, 743 S.E.2d at 731. We must therefore reverse the judgment and remand to the trial court for entry of an appropriate judgment for Defendant's . . . probation violations consistent with the provisions of N.C. Gen. Stat. § 15A-1344. Id. at ___, 743 S.E.2d at 731. Reversed and remanded. Judges BRYANT and STROUD concur. Report per Rule 30(e).

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