State v. Lee

NO. COA13-775

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

STATE OF NORTH CAROLINA

v. Sampson County
No. 13CRS54
TRAVIS ANTONIO LEE,
Defendant.

Appeal by defendant from Judgment entered on or about 2 April

2013 by Judge W. Douglas Parsons in Superior Court, Sampson County.

Heard in the Court of Appeals 19 November 2013.

Attorney General Roy A. Cooper, III by Assistant Attorney
General Andrew O. Furuseth, for the State.

Yoder Law PLLC by Jason Christopher Yoder, for defendant-
appellant.

STROUD, Judge.

Travis Lee (“defendant”) appeals from the judgment entered on

or about 2 April 2013 revoking his probation and activating his

sentence. We remand for correction of the clerical errors in the

judgment.

I. Background

In June 2012, defendant was indicted in Harnett County for

obtaining property by false pretenses, felony larceny of a motor

vehicle, and felony possession of a stolen motor vehicle. On 24
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September 2012, defendant pled guilty to larceny of a motor vehicle

and was sentenced to 10-12 months imprisonment, suspended for 24

months of supervised probation. On 17 January 2013, defendant’s

probation officer filed a violation report in Sampson County

alleging that defendant had violated four conditions of his

probation: (1) that he report as directed to the supervising

officer, (2) that he pay all fees owed, (3) that he participate in

substance abuse treatment through TASC, and (4) that he commit no

criminal offense. On 2 April 2013, the superior court in Sampson

County found that defendant had violated his probation as alleged

in paragraphs one through four of the violation report, revoked

his probation, and sentenced him to 8-10 months imprisonment.

Defendant filed written notice of appeal to this Court on 12 April

2013.

II. Subject Matter Jurisdiction

On appeal, defendant contends that the trial court lacked

jurisdiction because Sampson County was not in a judicial district

which had jurisdiction over his probation and because he received

inadequate notice of the State’s allegations against him. We

disagree.

A. Correct County
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Defendant argues for the first time on appeal that the trial

court lacked jurisdiction to revoke his probation because Sampson

County was not in the judicial district where probation was

imposed, Judicial District 11A, there was no evidence he lived in

Sampson County, Judicial District 4A, and there was no evidence

that any of his alleged violations took place in Sampson County.

Under N.C. Gen. Stat. § 15A-1344(a) (2011),

probation may be reduced, terminated,
continued, extended, modified, or revoked by
any judge entitled to sit in the court which
imposed probation and who is resident or
presiding in the district court district as
defined in G.S. 7A-133 or superior court
district or set of districts as defined in
G.S. 7A-41.1, as the case may be, where the
sentence of probation was imposed, where the
probationer violates probation, or where the
probationer resides.

Defendant fails to note that both his affidavit of indigency

and the violation report filed by his probation officer list his

residence as one on County Manor Lane in Dunn, North Carolina. The

State contends that this address is situated in Sampson County.

Defendant does not argue on appeal—and did not argue to the trial

court—that this address is not actually in Sampson County, nor

that he did not live at that address at the relevant time.

Therefore, we deem such arguments abandoned. N.C.R. App. P. 28(a).

Accordingly, we conclude that the trial court had jurisdiction
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over defendant’s probation under N.C. Gen. Stat. § 15A-1344(a)

because he was residing in Sampson County, part of Judicial

District 4A.

B. Notice

Defendant next argues that the trial court lacked

jurisdiction because he had inadequate notice that the State

intended to revoke his probation on the basis of a new criminal

offense. He contends that “[b]ecause the violation report alleged

only criminal charges, and not convictions, it cannot be the sole

basis for revoking probation.”

Under the Justice Reinvestment Act, a defendant’s probation

is subject to revocation if he violates the normal condition of

probation that he “[c]ommit no criminal offense in any

jurisdiction.” N.C. Gen. Stat. § 15A-1343(b)(1) (2011); N.C. Gen.

Stat. § 15A-1344(a) (2011). A conviction by jury trial or guilty

plea is one way for the State to prove that a defendant committed

a new criminal offense. See State v. Guffey, 253 N.C. 43, 45, 116

S.E.2d 148, 150 (1960) (“[W]hen a criminal charge is pending in a

court of competent jurisdiction, which charge is the sole basis

for activating a previously suspended sentence, such sentence

should not be activated unless there is a conviction on the pending

charge or there is a plea of guilty entered thereto.” (emphasis
 -5-
added)). The State may also introduce evidence from which the trial

court can independently find that the defendant committed a new

offense. See, e.g., State v. Monroe, 83 N.C. App. 143, 145-46,

349 S.E.2d 315, 317 (1986), State v. Debnam, 23 N.C. App. 478,

480-81, 209 S.E.2d 409, 410-11 (1974).

The State is required to give defendant notice “of the

[probation] hearing and its purpose, including a statement of the

violations alleged.” N.C. Gen. Stat. § 15A-1345(e)(2011). Thus,

the relevant piece of information is the violation alleged, not

the manner of proving the violation. “The purpose of the notice

mandated by this section is to allow the defendant to prepare a

defense and to protect the defendant from a second probation

violation hearing for the same act.” State v. Hubbard, 198 N.C.

App. 154, 158, 678 S.E.2d 290, 293 (2009).

Here, the violation report specifically alleged that

defendant violated the condition of probation that he commit no

criminal offense in that he had several new pending charges which

were specifically identified, including that “on 12/18/12 the

defendant was charged with possession of firearm by felon in

12CR057780 and possess marijuana up to 1/2 oz in 12 CR 057779 in

Johnston County.” The violation report went on to state that “If
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the defendant is convicted of any of the charges it will be a

violation of his current probation.”

Defendant is correct that charges alone are insufficient to

show that he committed a new criminal offense. See Guffey, 253

N.C. at 45, 116 S.E.2d at 150. Nevertheless, the issue here is

notice—i.e., whether the information provided was sufficient “to

allow the defendant to prepare a defense and to protect the

defendant from a second probation hearing for the same act.”

Hubbard, 198 N.C. App. at 158, 678 S.E.2d at 293. Additionally,

because of the changes effected by the Justice Reinvestment Act,

we have required that defendants be given notice of the particular

revocation-eligible violation alleged by the State. See, e.g.,

State v. Tindall, ___ N.C. App. ___, ___, 742 S.E.2d 272, 275

(2013) (holding that defendant received insufficient notice

because “defendant did not have notice that her probation could

potentially be revoked when she appeared at the hearing.”), State

v. Kornegay, ___ N.C. App. ___, ___, 745 S.E.2d 880, 883 (2013)

(“Under Tindall, which violation is alleged dictates whether the

trial court has the jurisdiction to revoke a defendant’s probation

or not.” (emphasis added)).

Unlike Tindall and Kornegay, the violation report here put

defendant on notice that the State was alleging a revocation-
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eligible violation, namely that he committed a new criminal

offense. The probation officer specifically alleged in the

violation report that defendant had violated the condition that he

not commit any criminal offense. The violation report identified

the criminal offense on which the trial court relied to revoke

defendant’s probation—possession of a firearm by a felon—and the

specific county and case file number of that alleged offense. Given

such notice, defendant was aware that the State was alleging a

revocation-eligible violation and he was aware of the exact

violation upon which the State relied. Defendant could have denied

the violation and presented evidence in his own defense had he

chosen to do so. Therefore, we conclude that the trial court had

jurisdiction to revoke defendant’s probation for violation of the

“commit no criminal offense” condition.1

III. Findings of Fact

Defendant next argues that the trial court made inadequate

findings to support its judgment revoking his probation. We agree

that the trial court’s written judgment is missing several key

findings, including findings that, “[u]pon due notice or waiver of

notice,” defendant admitted the violations and that that defendant

1 Because we conclude that the notice provided was adequate we do
not address the issue of waiver.
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had violated the condition that he not commit a new criminal

offense. We conclude that these omissions are clerical errors and

remand for entry of a corrected judgment.

The form which was used here, “Judgment and Commitment Upon

Revocation of Probation—Felony,” AOC Form CR-607 Rev. 12-12,

includes five potential findings of fact with various optional

subsections. Finding 1 addresses the particular probation

violations alleged against the defendant. Finding 2 addresses

“due notice,” waiver of notice, and hearing. Finding 3 addresses

the specific conditions which the court finds that defendant has

violated. Finding 4 addresses the willfulness and timing of

violations, and does not require that a box be “checked,” unless

the subsection is applicable (and here it was not marked, nor

should it have been). Finding 5 includes the direction: “NOTE TO

COURT: This finding is required when revoking probation for

violations occurring on or after December 1, 2011” (emphasis in

original), gives the Court two optional findings, and at least one

of these is necessary to revoke probation.

Here, the trial court made only two findings: No. 3(a), which

was “checked” and Finding 4, which does not require any additional

notation. The only optional finding on Form AOC-CR-607 that the

trial court checked was 3(a), where it found that “The condition(s)
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violated and the facts of each violation are as set forth” in

paragraphs 1-4 of the violation report. By failing to check the

right boxes, the trial court failed to incorporate the violation

reports by reference (Finding 1(a)), made no finding that defendant

admitted the violations (Finding 2), and failed to find a willful

violation of one of the revocation-eligible conditions under the

Justice Reinvestment Act (Finding 5). Finding 5 is particularly

important here because only one of the four alleged violations was

revocation-eligible. See State v. Jones, ___ N.C. App. ___, ___,

736 S.E.2d 634, 637-38 (2013) (concluding that “the trial court

should have checked the box finding that it had the authority to

revoke defendant’s probation under the Justice Reinvestment Act

‘for the willful violation of the condition(s) that he/she not

commit any criminal offense, G.S. 15A–1343 (b)(1), or abscond from

supervision, G.S. 15A–1343(b)(3a), as set out above.’”).

But in this case, the record clearly supports the grounds,

reasoning, and authority for the trial court’s order of revocation

of probation, so any error in failing to check a box on the

revocation form is clerical only. See id. at ___, 736 S.E.2d at

637-38 (concluding that the trial court made a clerical error when

it failed to check the right boxes on the AOC form to revoke

probation). Defendant admitted the alleged violations through
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counsel, including that he had been convicted of a new criminal

offense on 18 December 2012. The trial court found from the bench

that defendant had admitted the violations. Nevertheless, the

order must document the findings necessary to the trial court’s

decision to revoke defendant’s probation. See N.C. Gen. Stat. §

15A-1345(e) (2011) (“Before revoking or extending probation, the

court must, unless the probationer waives the hearing, hold a

hearing to determine whether to revoke or extend probation and

must make findings to support the decision and a summary record of

the proceedings.”); State v. Williamson, 61 N.C. App. 531, 534,

301 S.E.2d 423, 425 (1983) (noting that due process requires “a

written judgment by the judge which shall contain (a) findings of

fact as to the evidence relied on, [and] (b) reasons for revoking

probation.”). The failure to check the appropriate boxes

constitutes a clerical error. Jones, ___ N.C. App. at ___, 736

S.E. 2d at 637-38. Therefore, we remand for correction of the

clerical errors.

IV. Conclusion

Although we conclude from the current record that the trial

court had subject matter jurisdiction to adjudicate defendant’s

alleged probation violations, due to the failure to “check the

boxes” on the order, the trial court’s written findings are
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inadequate to support its decision to revoke defendant’s

probation. Therefore, we remand for the trial court to correct

the clerical errors in the judgment.

REMANDED.

Judges MCGEE and BRYANT concur.