An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-891
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
v. Alamance County
Nos. 11 CRS 50193, 51683
TRAVIS DYSHAUWN WATLINGTON
Appeal by defendant from judgments entered 21 February 2013
by Judge Robert F. Johnson in Alamance County Superior Court.
Heard in the Court of Appeals 30 December 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Tiffany Y. Lucas, for the State.
Gerding Blass, PLLC, by Danielle Blass, for defendant-
appellant.
HUNTER, JR., Robert N., Judge.
Defendant Travis Dyshauwn Watlington (“Defendant”) appeals
from judgments entered upon revocation of his probation. For
the reasons discussed herein, we reverse the judgments and
remand for further proceedings.
On 21 February 2012, pursuant to a plea agreement,
Defendant pleaded guilty to four counts of common law robbery
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and two counts of felony larceny. In accordance with the plea
agreement, Defendant was to receive an active sentence for the
common law robbery convictions. With respect to his larceny
convictions, Defendant received two consecutive sentences of
eight to ten months imprisonment, which were suspended and
Defendant was placed on supervised probation for twenty-four
months.
On 13 September 2012, Defendant’s probation officer filed
violation reports alleging Defendant violated the conditions of
his probation in that he failed to pay court costs and probation
supervision fees and that he committed the offense of
misdemeanor possession of drug paraphernalia. Defendant’s
probation officer filed additional reports on 5 October 2012
alleging Defendant tested positive for marijuana. On 27 and 29
November 2012, Defendant’s probation officer filed reports
alleging Defendant failed to appear in superior court for his
probation violation, failed to appear in district court for his
pending charge of misdemeanor possession of drug paraphernalia,
failed to report for his scheduled office visit on 1 November
2012, and that on 31 October 2012 Defendant left his place of
residence and failed to make his whereabouts known to his
probation officer.
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The matter came on for hearing on 21 February 2013. The
State withdrew the allegation that Defendant violated his
probation by committing the offense of misdemeanor possession of
drug paraphernalia and Defendant admitted the remaining
allegations. The trial court found Defendant 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 filed written notice of
appeal.
Defendant’s sole argument on appeal is that the trial court
erred in revoking his probation because Defendant did not commit
a new criminal offense, did not abscond, and had not previously
received two periods of confinement in response to violation.
We agree that the trial court erred in revoking Defendant’s
probation, and the State concedes that the judgments should be
reversed.
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. Id. at ___,
743 S.E.2d at 730. The defendant contended that her violations
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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.
[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)). 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.
1
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, Defendant’s larceny offenses were committed on 8
January 2011 and 2 March 2011.
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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,
her probation could not be revoked.
Id. at ___, 743 S.E.2d at 731.
In the present case, the State withdrew the allegation that
defendant committed a new criminal offense. Also there is no
evidence that Defendant served any CRVs. Moreover, 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,
the new absconding condition only applies to offenses committed
on or after 1 December 2011, and Defendant’s underlying offenses
were committed prior to 1 December 2011. Accordingly, we
conclude the trial court erred in revoking Defendant’s
probation. Therefore, we reverse the judgments and remand for
further proceedings consistent with this opinion.
Reversed and remanded.
Chief Judge MARTIN and Judge DILLON concur.
Report per Rule 30(e).