An unpublished opinion of the North Carolina Court of Appeals does not constitute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, PLLC, by Drew Nelson for
defendant-appellant.
STROUD, Judge.
Defendant Sy Edward Lucas appeals from judgment entered
upon revocation of his probation. For the reasons discussed
herein, we reverse the judgment 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
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to discharge of a weapon into occupied property. In accordance
with the plea agreement, the trial court sentenced defendant to
thirteen to sixteen months imprisonment. The trial court
suspended the sentence and placed defendant on supervised
probation for thirty-six months.
On 20 July 2012, defendant’s probation officer filed 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. In response to the
criminal conviction the trial court 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 admitted to using marijuana on two separate
occasions.
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On 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 officer on 20 August 2013 and 3
September 2013. 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. The trial court revoked defendant’s
probation and activated his suspended sentence. Defendant
timely gave oral notice of appeal.
Defendant’s argument on appeal is that the trial court
erred in revoking his probation because: (1) 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.
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We 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. § 15A-
1343(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 CRV [confinement in response to
violation] under N.C. Gen. Stat. § 15A-
1344(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. § 15A-
1343(b)(3a) because it was not in existence at the time she
committed her offenses. Id. at ___, 743 S.E.2d at 731. Under
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the JRA, “the new absconding condition [is] applicable only to
offenses committed on or after 1 December 2011, while the
limited revoking authority remained effective 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. As noted above, the absconding
condition only applies to 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 based on an inapplicable finding of
absconding supervision under N.C. Gen. Stat. § 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
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specifically finds that the respondent has
absconded supervision.
The sentence heretofore suspended is to be
activated[.]
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 probation modification, and that report was not
presented to or before the trial court when it rendered
judgment. Therefore, neither violation report 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.
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S.E.2d at 730. Therefore, we conclude the trial court erred in
revoking defendant’s probation. As a result, we do not address
defendant’s remaining arguments. 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).