An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-825
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
v. Pitt County
Nos. 09 CRS 059887, 059891
MINDY LEIGH-ANNA JACKSON
Appeal by defendant from judgments entered 10 December 2012
by Judge W. Russell Duke, Jr. in Pitt County Superior Court.
Heard in the Court of Appeals 30 December 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Micheal E. Butler, for the State.
Mary McCullers Reece for defendant-appellant.
HUNTER, JR., Robert N., Judge.
Defendant Mindy Leigh-Anna Jackson (“Defendant”) appeals
from judgments entered upon revocation of her probation. We
reverse the judgments and remand for further proceedings.
On 9 March 2011, Defendant pleaded guilty to two counts of
felony breaking or entering of a motor vehicle and two counts of
misdemeanor larceny. The trial court sentenced Defendant to six
to eight months imprisonment for each felony breaking or
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entering conviction and to forty-five days in jail for each
misdemeanor larceny conviction. The sentences were suspended
and Defendant was placed on forty-eight months of supervised
probation.
On 22 October 2012, Defendant’s probation officer filed
violation reports as to both of the breaking or entering
convictions and one of the larceny convictions. The reports
alleged that Defendant: (1) “FAILED TO REPORT ON ASSIGNED DAY
THE LAST FIVE OFFICE APPOINTMENTS[;]” (2) “HAS NOT BEEN SEEN AT
A VALID ADDRESS SINCE 7/11/12 . . . . OFFENDER HAS ABSCONDED
AND IS ACTIVELY AVOIDING SUPERVISION[;]” and (3) “HAS FAILED TO
BE AT ASSIGNED RESIDENCE WHEN TOLD ON 8/08 AT 1540, 9/05 AT
1915, 9/23 AT 1522, & 9/26 AT 1421.” One of the violation
reports also alleged that Defendant “IS IN ARREARS $7,497.82.”
On 30 November 2012, the probation officer filed a violation
report as to the other larceny conviction. The allegations were
the same as in the prior reports, except there was no allegation
regarding Defendant being in arrears.
The matter came on for hearing on 10 December 2012.
Defendant admitted she was in arrears, but denied the other
allegations. After hearing testimony from Defendant’s probation
officer and Defendant, the trial court found that Defendant
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failed to report for her last five office visits, she was behind
on her court indebtedness, she had absconded, she had not made
herself available for supervision, and she had failed to be at
her residence at set times. The trial court found the
violations were willful and revoked Defendant’s probation. The
trial court activated Defendant’s suspended sentence and
sentenced her to twelve to sixteen months imprisonment.
Defendant filed timely notice of appeal.
Citing State v. Nolen, ___ N.C. App. ___, 743 S.E.2d 729
(2013), Defendant argues the trial court erred by revoking her
probation and activating her suspended sentences. We agree that
the trial court lacked statutory authority to revoke Defendant’s
probation and the State concedes that the judgments should be
reversed.
In Nolen, the defendant argued that 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
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.
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[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.
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,
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, each of Defendant’s underlying offenses were
committed in April 2009.
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her probation could not be revoked.
Id. at ___, 743 S.E.2d at 731.
We are unable to distinguish the present case from Nolen.
Here, Defendant did not commit any new crimes, she did not serve
any CRVs, and her underlying offenses were committed prior to
the new absconding condition’s effective date. Accordingly, 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).