IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-734
Filed: 18 July 2017
Currituck County, No. 12 CRS 646
STATE OF NORTH CAROLINA
v.
CHRISTOPHER MICHAEL JOHNSON
Appeal by defendant, by writ of certiorari, from judgment entered 14 March
2016 by Judge Milton Fitch in Currituck County Superior Court. Heard in the Court
of Appeals 25 January 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General W. Thomas
Royer, for the State.
Peter Wood, for defendant-appellant.
CALABRIA, Judge.
Christopher Michael Johnson (“defendant”) appeals, by writ of certiorari, from
a judgment revoking his probation and activating his suspended sentence. After
careful review, we conclude that the trial court lacked jurisdiction to revoke
defendant’s probation based on the violations alleged. Accordingly, we vacate the
trial court’s judgment and remand for further proceedings.
I. Background
STATE V. JOHNSON
Opinion of the Court
On 16 August 2013, defendant entered an Alford plea to two counts of taking
indecent liberties with a child. See generally North Carolina v. Alford, 400 U.S. 25,
27 L. Ed. 2d 162 (1970). These offenses occurred on or about 4 October 2011.
According to the plea arrangement, defendant was to “receive an active sentence on
one charge, and a probationary type sentence on the second count.”1 For the second
count, the trial court sentenced defendant to 16 to 20 months in the custody of the
North Carolina Division of Adult Correction but suspended his sentence and placed
him on 36 months of supervised probation.
On 5 February 2016, defendant’s probation officer (“Officer Gibbs”) filed a
report alleging that defendant had willfully violated the following conditions of his
probation:
1. “Report as directed by the Court, Commission or the
supervising officer to the officer at reasonable times and
places . . . ” in that
OFFENDER WAS ARRESTED IN VIRGINIA AND
FAILED TO REPORT TO THIS OFFICE WITHIN 72
HOURS AFTER ARREST. RELEASE DATE
ACCORDING TO JAIL WAS 1/21/16
2. Condition of Probation “The defendant shall pay to the
Clerk of Superior Court the ‘Total Amount Due’ as directed
by the Court or probation officer” in that
OFFENDER WAS ORDERED TO PAY COURT
INDEBTEDNESS BY JUDGE IN SUPERIOR COURT
AND AT THIS TIME HE HAS PAID $70.48 AND IS IN
ARREARS $454.52
1 The instant appeal only pertains to file number 12 CRS 646. Neither the appellate record
nor the parties’ briefs contain further information about the active sentence that defendant
purportedly received in file number 12 CRS 645.
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STATE V. JOHNSON
Opinion of the Court
3. Condition of Probation “The defendant shall pay to the
Clerk of Superior Court the monthly supervision fee as set
by law” in that
OFFENDER WAS ORDERED TO PAY SUPERVISION
FEES AND AS OF THIS DATE HE HAS PAID [$]104.52
AND IS IN ARREARS [$]815.48. WAS SUPPOSED TO
PAY $40 A MONTH
4. Condition of Probation “Remain within the jurisdiction
of the Court unless granted written permission to leave by
the Court or the probation officer” in that
OFFENDER WAS TOLD NOT TO LEAVE THE STATE
OF NORTH CAROLINA BY THIS OFFICER UNLESS HE
HAD PERMISSION AND ON 1/16/16 AN OFFICER
FROM VA BEACH POLICE DEPARTMENT INFORMED
ME THAT HE WAS FOUND ASLEEP IN VIRGINIA AND
ARRESTED FOR TRESPASSING. ALSO ON 8/8/15 HE
WAS CAOUGHT [sic] STAYING AT A PLACE CALLED
DERBY RUN IN VIRGINIA. BOTH NOT IN THE STATE
OF NC AND BOTH TIMES WITHOUT PERMISSION.
5. Other Violation
OFFENDER WAS TOLD THAT HE HAD TO GO BACK
TO SEX OFFENDER TREATMENT STARTING ON
1/13/16 BUT HE FAILED TO REPORT FOR THAT
TREATMENT.
On 16 February 2016, Officer Gibbs filed an addendum alleging the following
additional willful violations of defendant’s probation:
1. “Report as directed by the Court, Commission or the
supervising officer to the officer at reasonable times and
places . . . ” in that
OFFENDER MISSED HIS SCHEDULED OFFICE VISIT
WITH HIS OFFICER ON 2/4/16 AND THIS IS A
REGULAR CONDITION OF PROBATION. HE DID NOT
CALL TO LET ME KNOW HE WOULD NOT BE HERE.
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STATE V. JOHNSON
Opinion of the Court
2. Condition of Probation “Remain within the jurisdiction
of the Court unless granted written permission to leave by
the Court or the probation officer” in that
ON OR ABOUT 1/21/16 OFFENDER WAS RELEASED
FROM CUSTODY IN VA BEACH ACCORDING TO
THEIR RECORDS AND HE HAS FAILED TO MAKE HIS
WHEREABOUTS KNOWN TO THIS OFFICE. I CALLED
HIS NUMBER AND CHECKED HIS RESIDENCE ON
2/5/16 & 2/11/16. I WAS TOLD HE HAS NOT BEEN
THERE IN A WHILE. HE IS NOT IN THE LOCAL
HOSPITAL OR JAIL AND HE MISSED HIS LAST APPT
WITH ME. I AM NOW DECLARING HIM AN
ABSCONDER.
According to the violation reports filed by Officer Gibbs, defendant had not previously
served any periods of confinement in response to violations (“CRV”) pursuant to N.C.
Gen. Stat. § 15A-1344(d2) (2015).
A probation violation hearing was held in Currituck County Superior Court on
14 March 2016. Defendant admitted the violations, “but not the willfulness,” and
explained to the court that he was “not intending to abscond.” Defendant requested
that he be allowed to remain on probation so that he could continue to work and
proceed with sex offender treatment. Officer Gibbs testified that he deemed
defendant to be an absconder after “30 days without any contact” following
defendant’s arrest in Virginia. At the conclusion of the hearing, the trial court found
defendant “in willful violation of his probation, revoke[d] him, and invoke[d] his
active sentence.” The court incorporated both of the violation reports filed by Officer
Gibbs into its written judgment. The court also found, in pertinent part: that
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STATE V. JOHNSON
Opinion of the Court
defendant had violated each of the conditions alleged “willfully and without valid
excuse”; that “[e]ach violation is, in and of itself, a sufficient basis upon which th[e]
Court should revoke probation and activate the suspended sentence”; and that “[t]he
Court may revoke defendant’s probation . . . for the willful violation of the condition(s)
that he . . . not commit any criminal offense, G.S. 15A-1343(b)(1), or abscond from
supervision, G.S. 15A-1343(b)(3a) . . . .”
Three days later, on 17 March 2016, defendant reappeared before the trial
court requesting reconsideration of its decision to revoke his probation. The court
denied his motion. Defendant entered oral notice of appeal.
II. Petition for Writ of Certiorari
On 29 August 2016, defendant petitioned this Court to issue its writ of
certiorari (“PWC”) to review the trial court’s judgment revoking his probation and
activating his suspended sentence. See generally N.C.R. App. P. 21(a)(1). He
acknowledges that a criminal defendant’s oral notice of appeal is only effective when
given “at trial,” N.C.R. App. P. 4(a)(1) (emphasis added), and it is “unclear” whether
the events of 17 March 2016 were a continuation of the probation violation hearing
or a new proceeding. Accordingly, defendant explains that he filed his PWC out of
“an abundance of caution to ensure that [his] right to appellate review is not lost due
to technical defect in his notice of appeal.” Since the State did not file a response and
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STATE V. JOHNSON
Opinion of the Court
we have discretion pursuant to N.C.R. App. P. 21(a)(1), we conclude that defendant’s
PWC should be granted.
III. Revocation of Defendant’s Probation
On appeal, defendant’s sole argument is that the trial court erroneously failed
to exercise its statutorily mandated discretion in revoking his probation, based on the
following statement at the hearing:
THE COURT: Anything you want to tell me? He’s
admitted his violations, his PO officer pointed out the
addendum. The addendum says abscond. Either he is or
he is not. If he is the statute calls for revocation.
However, we do not reach defendant’s argument, since the record reveals that the
trial court lacked jurisdiction to revoke defendant’s probation based on the violations
alleged.
As an initial matter, neither the parties nor the trial court raised the issue of
jurisdiction, and typically, we only address questions that are properly before us. See,
e.g., State v. Johnston, 173 N.C. App. 334, 338, 618 S.E.2d 807, 809 (2005) (stating
that “it is not the role of the appellate courts . . . to create an appeal for an appellant”
(citation, quotation marks, and brackets omitted)). “Nevertheless, subject matter
jurisdiction may not be waived, and this Court has not only the power, but the duty
to address the trial court’s subject matter jurisdiction on its own motion or ex mero
motu.” State v. Kornegay, 228 N.C. App. 320, 321, 745 S.E.2d 880, 881 (2013) (citation
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STATE V. JOHNSON
Opinion of the Court
and quotation marks omitted). We have explained that in cases such as probation
revocations, where the trial court’s
jurisdiction is statutory and the Legislature requires the
[c]ourt to exercise its jurisdiction in a certain manner, to
follow a certain procedure, or otherwise subjects the [c]ourt
to certain limitations, an act of the [c]ourt beyond these
limits is in excess of its jurisdiction. If the court was
without authority, its judgment is void and of no effect.
Id. at 321-22, 745 S.E.2d at 882 (citation omitted). “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.” Id. at 324, 745 S.E.2d at 883
(emphasis added).
In the instant case, defendant allegedly violated various conditions of his
probation in January and February of 2016. Therefore, the Justice Reinvestment Act
of 2011 (“JRA”) applies. See State v. Nolen, 228 N.C. App. 203, 204-05, 743 S.E.2d
729, 730 (2013) (noting that the JRA controls probation “violations occurring on or
after 1 December 2011”).
“The enactment of the JRA brought two significant changes to North Carolina’s
probation system.” Id. at 205, 743 S.E.2d at 730. First, the JRA imposed stringent
limits on trial courts’ revocation authority. See id. “[I]t is no longer true that any
violation of a valid condition of probation is sufficient to revoke [a] defendant’s
probation.” Kornegay, 228 N.C. App. at 323, 745 S.E.2d at 882 (emphasis added)
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STATE V. JOHNSON
Opinion of the Court
(citation and internal quotation marks and brackets omitted). Instead, pursuant to
the JRA, trial courts are only authorized to revoke probation where the 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 prior periods of CRV under N.C. Gen. Stat. §
15A-1344(d2).” Nolen, 228 N.C. App. at 205, 743 S.E.2d at 730 (citing N.C. Gen. Stat.
§ 15A-1344(a)). “For all other probation violations, the JRA authorizes courts to alter
the terms of probation pursuant to N.C. Gen. Stat. § 15A-1344(a) or impose a CRV in
accordance with N.C. Gen. Stat. § 15A-1344(d2), but not to revoke probation.” Id.
Second, the JRA “introduced the term ‘abscond’ into our probation statutes for
the first time,” State v. Hunnicutt, 226 N.C. App. 348, 355, 740 S.E.2d 906, 911 (2013),
and established the requirement that a defendant must “[n]ot abscond by willfully
avoiding supervision or by willfully making the defendant’s whereabouts unknown to
the supervising probation officer,” pursuant to N.C. Gen. Stat. § 15A-1343(b)(3a).
Prior to the JRA, courts used the term “abscond” informally to describe violations of
N.C. Gen. Stat. §§ 15A-1343(b)(2)-(3), which respectively require a probationer to,
inter alia, “[r]emain within the jurisdiction of the court unless granted written
permission to leave” and “[r]eport as directed . . . to the [probation] officer at
reasonable times and places and in a reasonable manner . . . .” See Hunnicutt, 226
N.C. App. at 355, 740 S.E.2d at 911 (citations omitted). However, these terms are no
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STATE V. JOHNSON
Opinion of the Court
longer interchangeable. The JRA eliminated informal absconding as a basis for
revocation. See State v. Williams, __ N.C. App. __, __, 776 S.E.2d 741, 745 (2015)
(explaining that the State’s use of the phrase “absconding supervision” to describe
the defendant’s actions “cannot convert violations of N.C. Gen. Stat. §§ 15A-1343(b)(2)
and (3) into a violation of N.C. Gen. Stat. § 15A-1343(b)(3a)”). Today, courts may only
revoke probation for absconding based on violations of N.C. Gen. Stat. § 15A-
1343(b)(3a). Id. at __, 776 S.E.2d at 745-46.
Although N.C. Gen. Stat. §§ 15A-1343(b)(3a) and 15A-1344(a) were both
enacted as part of the JRA, the provisions have different—and sometimes
conflicting—effective dates. Initially, the JRA made both changes
effective for probation violations occurring on or after 1
December 2011. See 2011 N.C. Sess. Laws 192, sec. 4.(d).
The effective date clause was later amended, however, to
make the new absconding condition applicable only to
offenses committed on or after 1 December 2011, while the
limited revoking authority remained effective for probation
violations occurring on or after 1 December 2011. See 2011
N.C. Sess. Laws 412, sec. 2.5.
Nolen, 228 N.C. App. at 205, 743 S.E.2d at 731 (citation and quotation marks
omitted). Consequently, a defendant who committed the offense underlying his
probation before 1 December 2011 but who violated the conditions of his probation on
or after that date cannot have his probation revoked for absconding. See id. at 206,
743 S.E.2d at 731. This irregularity in the statutes is colloquially referred to as a
“donut hole.”
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STATE V. JOHNSON
Opinion of the Court
We recently considered the “absconding donut hole” in State v. Hancock, __
N.C. App. __, 789 S.E.2d 522 (2016), disc. review denied, __ N.C. __, 795 S.E.2d 218
(2017). In that case, the defendant committed the offense of possession with intent
to sell or deliver cocaine on 18 January 2011 and was placed on supervised probation.
Id. at __, 789 S.E.2d at 523. On 8 February and 27 March 2013, the defendant’s
supervising officer filed reports alleging that he had willfully violated his probation.
Id. On appeal, we determined that because the “defendant committed his underlying
offense prior to 1 December 2011, he was not subject to the JRA’s ‘absconding’
condition of probation enacted in N.C. Gen. Stat. § 15A-1343(b)(3a).” Id. at __, 789
S.E.2d at 524. Moreover, because the absconding condition did not apply to him, we
held that the trial court did not have the authority to revoke the defendant’s
probation on that basis. Id. at __, 789 S.E.2d at 525. Ultimately, however, we
affirmed the trial court’s revocation of his probation based on the defendant’s
commission of a new criminal offense, in violation of N.C. Gen. Stat. § 15A-1343(b)(1).
Id. at __, 789 S.E.2d at 526. Although “the mere fact that he was charged with certain
criminal offenses [wa]s insufficient to support a finding that he committed them[,]”
we concluded that the trial court made an adequate “independent determination that
[the] defendant committed the three offenses he was charged with . . . as alleged in
paragraphs ten and eleven of the 27 March 2013 violation report.” Id. (emphasis
added).
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STATE V. JOHNSON
Opinion of the Court
Probation proceedings are “often regarded as informal or summary.” State v.
Murchison, 367 N.C. 461, 464, 758 S.E.2d 356, 358 (2014). Nevertheless, as Hancock
demonstrates, the JRA’s notice requirements can have significant jurisdictional
implications in revocation cases. See __ N.C. App. at __, 789 S.E.2d at 526. “Absent
adequate notice that a revocation-eligible violation is being alleged, the trial court
lacks jurisdiction to revoke a defendant’s probation, unless the defendant waives the
right to notice.” State v. Moore, __ N.C. App. __, __, 795 S.E.2d 598, 599 (2016), appeal
docketed, No. 22A17, __ N.C. __, __ S.E.2d __ (filed Jan. 13, 2017).
“Our Court has never explicitly held that certain ‘magic’ words must be used”
in order to confer the trial court with jurisdiction. Id.; see also id. at __, 795 S.E.2d
at 600 (concluding “that where the notice fails to allege specifically which condition
was violated but where the allegations in the notice could only point to a revocation-
eligible violation, the notice is adequate”); State v. Lee, 232 N.C. App. 256, 259, 753
S.E.2d 721, 723 (2014) (holding that the trial court properly exercised jurisdiction
where “the violation report specifically alleged that [the] defendant violated the
condition of probation that he commit no criminal offense in that he had several new
pending charges which were specifically identified”). However, we have consistently
held that the trial court lacked jurisdiction to revoke probation where the underlying
violation reports failed to notify the probationer that the State intended to pursue
revocation-eligible violations. See State v. Jordan, 240 N.C. App. 90, 772 S.E.2d 13
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STATE V. JOHNSON
Opinion of the Court
(2015) (unpublished); Kornegay, 228 N.C. App at 324, 745 S.E.2d at 883 (vacating the
court’s judgment because the “defendant did not waive notice, and the trial court
revoked [the] defendant’s probation for violation of a condition not included in the
State’s violation reports”); State v. Tindall, 227 N.C. App. 183, 187, 742 S.E.2d 272,
275 (2013) (holding that the trial court lacked jurisdiction to revoke probation where
the supervising officer testified that the “defendant was ‘arrested’ but did not allege
in the violation report that she violated her probation by committing a criminal
offense”).
This case is functionally indistinguishable from our prior decisions holding
that the trial court lacked jurisdiction to revoke probation. Here, defendant did not
waive his right to notice of his alleged violations, Kornegay, 228 N.C. App at 324, 745
S.E.2d at 883, and the trial court mistakenly found that each violation provided
sufficient grounds for revocation. Regarding the absconding provision, N.C. Gen.
Stat. § 15A-1343(b)(3a) only applies to offenses committed on or after 1 December
2011. Hancock, __ N.C. App. at __, 789 S.E.2d at 524; Nolen, 228 N.C. App. at 205,
743 S.E.2d at 731. According to the judgment in the instant case, defendant
committed the offense of taking indecent liberties with a child on 4 October 2011,
prior to the JRA’s effective date. Therefore, the absconding condition did not apply
to defendant. Hancock, __ N.C. App. at __, 789 S.E.2d at 524; Nolen, 228 N.C. App.
at 206, 743 S.E.2d at 731. Accordingly, the trial court erred in revoking defendant’s
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STATE V. JOHNSON
Opinion of the Court
probation based on his purported violation of N.C. Gen. Stat. § 15A-1343(b)(3a).
Hancock, __ N.C. App. at __, 789 S.E.2d at 525.
If this case were similar to Hancock regarding defendant’s commission of a new
offense, then as in Hancock, we would affirm the trial court’s revocation of defendant’s
probation. See id. at __, 789 S.E.2d at 526. However, this case is distinguishable.
Unlike Hancock, where the officer alleged that the defendant’s new criminal charges
violated the “commit no criminal offense” condition of probation, id., here, the State
failed to notify defendant that his probation might be revoked based on his
trespassing arrest. Officer Gibbs did not specifically allege that defendant’s
trespassing arrest constituted a “new criminal offense,” in violation of N.C. Gen. Stat.
§ 15A-1343(b)(1). While it seems abundantly clear from the transcript that the trial
court’s decision to revoke defendant’s probation was based on absconding, the written
judgment could be construed to revoke his probation based on his commission of a
new criminal offense. Finding 5(a) on the AOC-CR-607 standardized form judgment
states: “[t]he Court may revoke defendant’s probation . . . for the willful violation of
the condition(s) that he . . . not commit any criminal offense, G.S. 15A-1343(b)(1), or
abscond from supervision, G.S. 15A-1343(b)(3a) . . . .” (emphasis added). Insofar as
the trial court found a violation of N.C. Gen. Stat. § 15A-1343(b)(1), we hold that the
violation reports were insufficient to notify defendant that the State intended to
revoke his probation based on his trespassing arrest in Virginia. See Tindall, 227
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STATE V. JOHNSON
Opinion of the Court
N.C. App. at 187, 742 S.E.2d at 275; cf. Hancock, __ N.C. App. at __, 789 S.E.2d at
525 (stating that “a trial court’s ruling must be upheld if it is correct upon any theory
of law” (citation and quotation marks omitted)).
IV. Conclusion
Since defendant did not waive his right to notice of his alleged probation
violations, and the State failed to allege a revocation-eligible violation, the trial court
lacked jurisdiction to revoke defendant’s probation. Kornegay, 228 N.C. App. at 324,
745 S.E.2d at 883. “When the record shows a lack of jurisdiction in the lower court,
the appropriate action on the part of the appellate court is to arrest judgment or
vacate any order entered without authority.” Id. at 323, 745 S.E.2d at 883 (citation
and quotation marks omitted). Accordingly, we vacate the trial court’s judgment
revoking defendant’s probation and remand for further proceedings.
VACATED AND REMANDED.
Chief Judge McGEE and Judge INMAN concur.
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