State v. Lucas

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-245 NORTH CAROLINA COURT OF APPEALS Filed: 19 August 2014 STATE OF NORTH CAROLINA v. Guilford County No. 11CRS081948 SY LUCAS, Defendant. Appeal by defendant from judgment entered 10 October 2013 by Judge James M. Webb in Guilford County Superior Court. Heard in the Court of Appeals 11 August 2014. Attorney General Roy A. Cooper III, by Assistant Attorney General Letitia C. Echols, for the State. Willis Johnson & Nelson, defendant-appellant. PLLC, by Drew Nelson for STROUD, Judge. Defendant Sy Edward Lucas appeals upon revocation of his probation. herein, we reverse the judgment from judgment entered For the reasons discussed and remand for further proceedings. On 3 February 2012, pursuant to a plea agreement, defendant entered an Alford plea to one count of accessory after the fact -2to discharge of a weapon into occupied property. In accordance with the plea agreement, the trial court sentenced defendant to thirteen to suspended sixteen the months sentence and imprisonment. placed The defendant trial court on supervised officer filed probation for thirty-six months. On 20 July 2012, defendant s probation a violation report alleging defendant violated the conditions of his probation in that he failed to pay court costs and probation supervision fees, admitted to recently using an illegal drug, and was convicted of attempted larceny. criminal conviction the trial court In response to the modified defendant s probation at the 30 October 2012 violation hearing so that he was required to serve two days at Guilford County Farm, undergo a TASC substance abuse assessment and complete the One Step Further program. Defendant s probation officer filed an additional violation report on 26 July 2013 alleging that defendant tested positive for marijuana twice, failed to pay court costs and probation supervision fees, was discharged from TASC and the One Step Further program for non-compliance, attempted to falsify a drug screen, and occasions. admitted to using marijuana on two separate -3On 6 September 2013, defendant s probation officer filed a violation report alleging defendant failed to appear in superior court for his violation hearing on 20 August 2013, and failed to report to his probation September 2013. officer on 20 August 2013 and 3 An order for arrest was issued and defendant was arrested on 11 September 2013. The matter came on for a probation violation hearing on 30 September 2013. The defendant admitted and the trial court found that he violated the conditions of his probation willfully and without lawful excuse. probation and activated The trial court revoked defendant s his suspended sentence. Defendant timely gave oral notice of appeal. Defendant s erred in argument revoking his on appeal probation is that the because: trial (1) court defendant s underlying offense was committed prior to 1 December 2011, (2) he did not abscond, (3) the court s oral judgment was based on the 6 September 2013 violation report which did not document a new criminal offense, and (4) he had not previously received two periods of confinement in response to a violation. We agree that the trial court erred in revoking defendant s probation, and the State concedes that the judgment should be reversed. -4We are unable to distinguish the present case from our recent decision in State v. Nolen, ___ N.C. App. ___, 743 S.E.2d 729 (2013). In Nolen, the defendant argued the trial court lacked statutory authority to revoke her probation based upon the violations alleged by her probation officer. 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. Nolen, ___ N.C. App. at ___, 743 S.E.2d at 730. [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)). This Court found that the trial court erred in finding her in violation of the new absconding condition set forth in N.C. Gen. Stat. § 15A1343(b)(3a) because it was not in existence at the time she committed her offenses. Id. at ___, 743 S.E.2d at 731. Under -5the JRA, the new absconding condition [is] applicable only to offenses limited committed revoking on or after authority 1 December remained 2011, effective while the for probation violations occurring on or after 1 December 2011. State v. Hunnicutt, ___ N.C. App. ___, ___, 740 S.E.2d 906, 911 (2013). In the present case, although the probation officer told the trial court that defendant absconded and the trial court found that defendant had absconded, the absconding condition was not applicable to defendant. condition only applies to As noted above, the absconding offenses committed on or after 1 December 2011, and defendant s underlying offense was committed on 13 July 2011. Accordingly, the trial court erred in revoking defendant s probation absconding based supervision on under an inapplicable N.C. Gen. finding Stat. § of 15A- 1343(b)(3a)(2013). Here, the oral rendering of judgment was based only on the allegations in the 6 September 2013 violation report, which did not include any criminal law violations. The trial court solely found that defendant had: unlawfully, willfully, and without legal justification violated the terms and conditions of his probation as is alleged in the violation report file-stamped September 6, 2013, and incorporates those allegations herein and -6specifically finds that absconded supervision. the The sentence activated[.] suspended heretofore respondent is has to be Defendant s positive tests for marijuana from the 17 July 2013 violation report were not convicted crimes nor was the report presented to or before the trial court when it rendered judgment. Defendant s criminal conviction for attempted larceny from the 20 July 2012 violation report was already addressed through presented judgment. probation to or modification, before Therefore, the and trial neither that court violation report when it report was not rendered could be considered by the trial court or used as additional grounds for probation revocation in the written judgment.1 In summary, the absconding supervision condition of N.C. Gen. Stat. § 15A-1343(b)(3a) is not applicable; there was no evidence at the hearing that defendant had committed a new crime in violation of N.C. Gen. Stat. § 15A-1343(b)(1); and defendant had not served two prior periods of confinement in response to violation under N.C. Gen. Stat. § 15A-1344(d2). See N.C. Gen. Stat. § 15A-1344(a) (2013); Nolen, ___ N.C. App. at ___, 743 1 While the written judgment cites a violation report dated 7/7/13 it is referring to the violation report dated 7/17/13. -7S.E.2d at 730. Therefore, we conclude the trial court erred in revoking defendant s probation. defendant s remaining arguments. As a result, we do not address We reverse the judgment and remand for further proceedings consistent with this opinion. REVERSED and REMANDED. Judges BRYANT and HUNTER, JR., Robert N. concur. Report per Rule 30(e).

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