An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-428
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
v. Johnston County
No. 10CRS50020
CARL DEION JOHNSON
Appeal by defendant by writ of certiorari from judgment
entered 5 November 2012 by Judge James G. Bell in Johnston
County Superior Court. Heard in the Court of Appeals 6 November
2013.
Attorney General Roy Cooper, by Assistant Attorney General
Ellen A. Newby, for the State.
Mark Hayes for defendant-appellant.
HUNTER, Robert C., Judge.
Defendant appeals by writ of certiorari from the superior
court’s judgment revoking his probation and activating his
suspended sentence. We reverse and remand the judgment for
further proceedings.
On 8 April 2010, defendant entered a plea of guilty to
malicious conduct by a prisoner and assault on a government
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official. The trial court sentenced defendant to a suspended
term of 21 to 26 months imprisonment and placed defendant on
probation for 36 months.
On 4 June 2012, the trial court entered an order finding
that defendant violated the conditions of his probation. The
trial court imposed a 90-day confinement in response to
violation (“CRV”) pursuant to N.C. Gen. Stat. § 15A-1344(d2).
Additionally, the conditions of defendant’s probation were
modified on three occasions between February 2012 and September
2012.
On 15 October 2012, defendant’s probation officer filed a
violation report charging defendant with violating the following
conditions of probation: (1) “Report as directed by the Court,
Commission or the supervising officer to the officer at
reasonable times and places”; (2) “Be assigned to the Electronic
House Arrest/Electronic Monitoring program for the specified
period and obey all rules and regulations of the program until
discharge”; (3) “Remain within the jurisdiction of the Court
unless granted written permission to leave by the Court or the
probation officer”; and (4) “Commit no criminal offense in any
jurisdiction[.]” The trial court held a probation violation
hearing on 5 November 2012 and found that defendant committed
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the first three alleged violations. Based on these findings,
the trial court revoked defendant’s probation and activated his
suspended sentence.
On 9 November 2012, defendant filed a pro se notice of
appeal that fails to fully comply with the requirements of
N.C.R. App. P. 4. Defendant, however, has filed an alternative
petition for writ of certiorari acknowledging that his notice of
appeal is deficient. In the interest of justice, we hereby
allow his petition. See State v. Hammonds, __ N.C. App. __, __,
720 S.E.2d 820, 823 (2012) (allowing petition for writ of
certiorari in the interest of justice where the defendant failed
to comply with Rule 4).
Defendant first argues that the trial court lacked
statutory authority to revoke his probation in light of the
Justice Reinvestment Act of 2011 (“JRA”), which placed limits on
a trial court’s authority to revoke probation. See N.C. Gen.
Stat. § 15A-1344(a) (2013). For probation violations occurring
on or after 1 December 2011, a trial court may only revoke
probation where a defendant: (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
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prior periods of CRV under N.C. Gen. Stat. § 15A–1344(d2). N.C.
Gen. Stat. § 15A–1344(a). For all other probation violations, a
trial court has authority to alter the conditions of probation
or impose a period of CRV, but does not have authority to revoke
probation. N.C. Gen. Stat. §§ 15A–1344(a), (d2).
We agree that the trial court erred in revoking defendant’s
probation. In addition to limiting a trial court’s revoking
authority, “the JRA made the following a regular condition of
probation: ‘Not to abscond, by willfully avoiding supervision or
by willfully making the defendant’s whereabouts unknown to the
supervising probation officer.’” State v. Hunnicutt, ___ N.C.
App. ___, ___, 740 S.E.2d 906, 910 (2013) (quoting N.C. Gen.
Stat. § 15A–1343(b)(3a)). Although the JRA’s limited revoking
authority applies to violations occurring on or after 1 December
2011, the new absconding condition applies only to offenses
committed on or after 1 December 2011. Id. at ___, 740 S.E.2d
at 911 (citing 2011 N.C. Sess. Laws 412, sec. 2.5).
In the instant case, defendant’s underlying offenses were
committed in 2010; therefore, defendant was not yet subject to
the new absconding condition added by the JRA. See N.C. Gen.
Stat. § 15A-1343(b)(3a); Hunnicutt, ___ N.C. App. at ___, 740
S.E.2d at 910-11. Additionally, defendant did not commit a new
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crime, and had only served one prior period of CRV. Finally, we
note that the statutory authority does not authorize revocation
based on the remaining violations found by the trial court.
Therefore, the trial court did not have authority to revoke
defendant’s probation.
Accordingly, we reverse the judgment revoking defendant’s
probation and remand the case to the trial court for entry of an
appropriate judgment for defendant’s violations consistent with
the provisions of N.C. Gen. Stat. § 15A-1344. In light of our
disposition, we need not address defendant’s alternative
argument that the trial court erred by allowing defendant to
proceed pro se without inquiring as to whether he made that
decision knowingly, intelligently, and voluntarily.1
1
Were we to address this argument, we would hold that the trial
court erred by failing to conduct the requisite inquiry pursuant
to N.C. Gen. Stat. § 15A-1242 (2013). Section 15A-1242 states
that the trial court may allow a defendant to proceed pro se
only after making a “thorough inquiry” and is satisfied that the
defendant “(1)[h]as been clearly advised of his right to the
assistance of counsel, including his right to the assignment of
counsel when he is so entitled; (2) [u]nderstands and
appreciates the consequences of this decision; and (3)
[c]omprehends the nature of the charges and proceedings and the
range of permissible punishments.” Here, the record is devoid
of any inquiry, before or after defendant signed the waiver of
his right to counsel, as to the three prongs of section 15A-
1242. “[A]lthough a written waiver sets forth a presumption of
a knowing, intelligent and voluntary waiver, that presumption
can be overcome if the record demonstrates otherwise.” State v
Hyatt, 132 N.C. App. 697, 703, 513 S.E.2d 90, 94 (1999). There
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Conclusion
After careful review, we reverse the trial court’s judgment
and remand for further proceedings.
REVERSED AND REMANDED.
Judges CALABRIA and ROBERT N.HUNTER, JR. concur.
Report per Rule 30(e).
were multiple instances throughout the hearing where defendant
seemed confused as to the nature of the proceeding and the
charges against him. Specifically, he was not aware of the
possible punishment that he faced on the underlying convictions.
Should defendant elect to proceed pro se on remand, we caution
the trial court to conduct the necessary inquiry pursuant to
section 15A-1242.