An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-112
Filed: 15 September 2015
McDowell County, Nos. 11-CRS-51965, 11-CRS-51971-73
STATE OF NORTH CAROLINA
v.
DONALD WESLEY WEATHERS
Appeal by defendant from judgments entered 11 August 2014 by Judge J.
Thomas Davis in McDowell County Superior Court. Heard in the Court of Appeals
10 August 2015.
Roy Cooper, Attorney General, by Deborah M. Greene, Assistant Attorney
General, for the State.
James W. Carter for defendant-appellant.
DAVIS, Judge.
Donald Wesley Weathers (“Defendant”) appeals from the trial court’s
judgments revoking his probation and activating his suspended sentences. On
appeal, he contends that the trial court lacked the statutory authority to revoke his
probation and activate his suspended sentences. After careful review, we vacate the
trial court’s judgments and remand for further proceedings.
Factual Background
STATE V. WEATHERS
Opinion of the Court
On 4 April 2012, Defendant pled guilty to four counts each of felony breaking
or entering, felony larceny after breaking or entering, and attempted breaking or
entering. All of these offenses were committed on 13 October 2011. The trial court
sentenced Defendant to eight consecutive sentences of six to eight months
imprisonment, suspended the sentences, and placed Defendant on supervised
probation for a period of 48 months.
Defendant’s probation officer filed violation reports on 27 November 2012 in
all eight cases. The violation reports uniformly alleged that Defendant violated his
probation by failing to (1) report for scheduled office visits on two dates; (2) comply
with electronic monitoring (based on the allegation that Defendant cut off his
electronic monitoring unit on 16 November 2012); and (3) make his whereabouts
known to his North Carolina and South Carolina probation officers. The following
day, Defendant’s probation officer filed an addendum to each report further alleging
that Defendant had additionally violated his probation by failing to (1) report for
scheduled office visits on five other dates; (2) pay probation supervision fees (having
fallen in arrears in the amount of $1,839.50); and (3) attend substance abuse
counseling referrals.
On 1 July 2014, Defendant was arrested and served with the violation reports
and the addenda thereto. A hearing on the alleged probation violations was held in
McDowell County Superior Court on 11 August 2014 before the Honorable J. Thomas
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STATE V. WEATHERS
Opinion of the Court
Davis. At the conclusion of the hearing, the trial court revoked Defendant’s probation
and activated his suspended sentences. In each judgment, the trial court found that
Defendant had committed the violations charged in the violation reports and
addenda. The trial court concluded that Defendant’s probation should be revoked “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) . . . .”
Defendant gave oral notice of appeal in open court.
Analysis
Defendant argues on appeal that the trial court lacked the statutory authority
to revoke his probation for absconding from supervision because the offenses for
which he was sentenced occurred prior to the 1 December 2011 effective date of the
Justice Reinvestment Act of 2011 (“JRA”). Defendant additionally contends that the
trial court lacked the authority to revoke his probation for violating the condition of
his probation that he not commit a new criminal offense because the violation reports
and addenda thereto did not actually allege a violation of that condition. We address
each of these arguments in turn.
I. Absconding from Supervision
In State v. Nolen, __ N.C. App. __, 743 S.E.2d 729 (2013), we held that a trial
court lacks authority under the JRA to revoke probation and activate a sentence on
the basis that the defendant absconded from supervision when the offense for which
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STATE V. WEATHERS
Opinion of the Court
the defendant was sentenced occurred prior to 1 December 2011. Id. at __, 743 S.E.2d
at 730. In the present case, Defendant committed each of the underlying offenses
giving rise to his probation prior to 1 December 2011. Therefore, the trial court lacked
the statutory authority to revoke Defendant’s probation and activate his suspended
sentences on the basis of his absconding from the supervision of his probation officers.
II. Commission of New Criminal Offense
We next address Defendant’s argument that because he was not given advance
notice of this ground for revocation, the trial court erred in activating his probation
on the basis that he had committed a new criminal offense. We agree.
In both State v. Tindall, __ N.C. App. __, 742 S.E.2d 272 (2013), and State v.
Kornegay, __ N.C. App. __, 745 S.E.2d 880 (2013), the defendants’ probation was
revoked based on their commission of a new criminal offense despite the fact that
they failed to receive advance notice that this ground was being asserted as the basis
for seeking the revocation of their probation. See Kornegay, __ N.C. App. at __, 745
S.E.2d at 883; Tindall, __ N.C. App. at __, 742 S.E.2d at 275. In each case, we held
that the trial court lacked jurisdiction to revoke the defendant’s probation because
the violation reports did not expressly allege that the defendants committed criminal
offenses that could result in their probation being revoked and, therefore, the
defendants were not given adequate notice. See Kornegay, __ N.C. App. at __, 745
S.E.2d at 883; Tindall, __ N.C. App. at __, 742 S.E.2d at 275.
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STATE V. WEATHERS
Opinion of the Court
In the present case, the trial court similarly lacked jurisdiction to revoke
Defendant’s probation on this basis. Although Defendant’s counsel admitted that
Defendant had recently been incarcerated in South Carolina due to his commission
of another crime, the violation reports did not allege that his probation was subject
to possible revocation on this ground or even that Defendant had committed a new
offense at all. As a result, at the time of the hearing, Defendant had not been provided
with advance notice that his probation could potentially be revoked for the
commission of a new offense, and Defendant did not waive his right to receive such
notice. See Kornegay, __ N.C. App. at __, 745 S.E.2d at 883 (“To establish jurisdiction
over specific allegations in a probation revocation hearing, the defendant either must
waive notice or be given proper notice of the revocation hearing, including the specific
grounds on which his probation might be revoked.”). Therefore, the trial court erred
in revoking his probation on this ground.
Conclusion
For the reasons stated above, we vacate the trial court’s judgments revoking
Defendant’s probation and activating his sentences and remand for further
proceedings.
VACATED AND REMANDED.
Judges STROUD and INMAN concur.
Report per Rule 30(e).
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