State v. Moore

IN THE SUPREME COURT OF NORTH CAROLINA

No. 22A17

Filed 8 December 2017

STATE OF NORTH CAROLINA

v.
PIERRE JE BRON MOORE

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, ___ N.C. App. ___, 795 S.E.2d 598 (2016), finding no error after

appeal from judgments entered on 15 January 2016 by Judge R. Allen Baddour in

Superior Court, Orange County. Heard in the Supreme Court on 11 October 2017.

Joshua H. Stein, Attorney General, by Jessica V. Sutton and Teresa M. Postell,
Assistant Attorneys General, for the State.

Allegra Collins for defendant-appellant.

MARTIN, Chief Justice.

Defendant was convicted of committing four crimes over a two-month period.

He received two suspended sentences and was placed on probation. His probation

was revoked after he was charged with committing additional crimes. We now

consider whether defendant received adequate notice of his probation revocation

hearing pursuant to N.C.G.S. § 15A-1345(e). We modify and affirm the decision of

the Court of Appeals and uphold the revocation of defendant’s probation.
 STATE V. MOORE

Opinion of the Court

In August 2012, defendant was arrested for and charged with breaking and

entering and larceny after breaking and entering. Defendant was released on bond

and then, in September 2012, was arrested for and charged with committing those

same offenses again. Defendant pleaded guilty to the August crimes and entered an

Alford plea for the September crimes. Defendant received a suspended sentence of

eight to nineteen months and supervised probation for twenty-four months for the

August crimes. He received a suspended sentence of six to seventeen months and

supervised probation for twenty-four months for the September crimes. The

punishments for these crimes were to run consecutively. The judgments in both

instances listed many of the “regular conditions of probation” under N.C.G.S. § 15A-

1343(b). The listed conditions included that “defendant shall . . . [c]ommit no criminal

offense in any jurisdiction,” consistent with the language of N.C.G.S.

§ 15A-1343(b)(1).

Defendant’s probation for the September crimes was modified and extended a

number of times due to violations of probation conditions. On 3 June 2015, the State

filed two probation violation reports relating to defendant’s probation for the August

and September 2012 crimes, respectively. The reports alleged violations of monetary

conditions of probation. Each report also alleged an “Other Violation” that listed

various pending criminal charges. Specifically, under “Other Violation” the reports

each stated the same thing:

The defendant has the following pending charges in

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Opinion of the Court

Orange County. 15CR 051315 No Operators License
6/8/15, 15CR 51309 Flee/Elude Arrest w/MV 6/8/15. 13CR
709525 No Operators License 6/15/15, 14CR 052225
Possess Drug Paraphernalia 6/16/15, 14CR 052224
Resisting Public Officer 6/16/15, 14CR706236 No
Motorcycle Endorsement 6/29/15, 14CR 706235 Cover Reg
Sticker/Plate 6/29/15, and 14CR 706234 Reg Card Address
Change Violation.

(Original in all uppercase.)

In January 2016, after many months of continuances, the trial court held a

hearing on these violation reports.1 Defendant’s probation officer testified about the

new offenses alleged in the reports, and two police officers testified about defendant’s

fleeing to elude arrest two different times. The trial court found that defendant had

violated the condition of probation to commit no criminal offense, and specifically

found that defendant had “committed the charges of” fleeing to elude arrest and of

not having an operator’s license. The trial court accordingly revoked defendant’s

probation and activated the suspended sentences for defendant’s August and

September 2012 crimes, to be served consecutively.

Defendant appealed to the Court of Appeals, claiming that the probation

violation reports did not give him adequate notice because they did not specifically

state the condition of probation that he allegedly violated. In a divided opinion, the

Court of Appeals affirmed the trial court’s judgments. State v. Moore, ___ N.C. App.

1 During the time period covered by the continuances, defendant was also charged
with first-degree murder.

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Opinion of the Court

___, ___, 795 S.E.2d 598, 600 (2016). The Court of Appeals concluded that the notice

was adequate—that there was “no ambiguity”—because the allegations in the

violation reports could point only to the revocation-eligible violation of the condition

to commit no new criminal offense. Id. at ___, 795 S.E.2d at 600. Defendant appealed

to this Court based on the dissenting opinion in the Court of Appeals.

Before revoking a defendant’s probation, a trial court must conduct a hearing

to determine whether the defendant’s probation should be revoked, unless the

defendant waives the hearing. N.C.G.S. § 15A-1345(e) (2015). “The State must give

the probationer notice of the hearing and its purpose, including a statement of the

violations alleged.” Id. Probation can be revoked only if a defendant (1) commits a

criminal offense in any jurisdiction in violation of N.C.G.S. § 15A-1343(b)(1); (2)

absconds from supervision in violation of N.C.G.S. § 15A-1343(b)(3a); or (3) has

already served two periods of confinement for violating other conditions of probation

according to N.C.G.S. § 15A-1344(d2). Id. § 15A-1344(a) (2015). Only the first of

these statutorily-enumerated instances—the commission of a criminal offense—is at

issue here.

Defendant argues that, because the probation violation reports did not

specifically list the “commit no criminal offense” condition as the condition violated,

the reports did not provide the notice that subsection 15A-1345(e) requires. We must

address whether these reports complied with the statute’s notice requirement. To do

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Opinion of the Court

that, we need to examine what exactly that statutory provision means. This is a

matter of first impression for this Court.

“In resolving issues of statutory construction, this Court must first ascertain

legislative intent to assure that both the purpose and the intent of the legislation are

carried out. In undertaking this task, we look first to the language of the statute

itself.” Poole v. Miller, 342 N.C. 349, 351, 464 S.E.2d 409, 410 (1995) (citation

omitted). “[O]rdinarily words of a statute will be given their natural, approved, and

recognized meaning.” Victory Cab Co. v. City of Charlotte, 234 N.C. 572, 576, 68

S.E.2d 433, 436 (1951).

Subsection 15A-1345(e) provides that “[t]he State must give the probationer

notice of the hearing and its purpose, including a statement of the violations alleged.”

Neither the term “violation” nor the term “violations,” as used in the statutory

framework of which subsection 15A-1345(e) is a part, are defined by statute. Black’s

Law Dictionary defines “violation” as “1. An infraction or breach of the law; a

transgression. . . . 2. The act of breaking or dishonoring the law; the contravention

of a right or duty.” Violation, Black’s Law Dictionary (10th ed. 2014). Similarly,

Merriam-Webster’s Collegiate Dictionary defines “violation” as “the act of violating”

and indicates in its definition of “violate” that “violating” means “break[ing]” or

“disregard[ing].” Merriam-Webster’s Collegiate Dictionary 1396 (11th ed. 2007).

These definitions show that a violation is an action that violates some rule or law; a

violation is not the underlying rule or law that was violated. In section 15A-1345,

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Opinion of the Court

and hence in subsection 15A-1345(e), the words “violation” and “violations” refer to

violations of conditions of probation. See, e.g., N.C.G.S. § 15A-1345(a) (2015)

(discussing when “[a] probationer is subject to arrest for violation of conditions of

probation”). It follows that the phrase “a statement of the violations alleged” refers

to a statement of what a probationer did to violate his conditions of probation. It does

not require a statement of the underlying conditions that were violated.

“[I]n effectuating legislative intent, it is our duty to give effect to the words

actually used in a statute and not to delete words used or to insert words not used.”

Lunsford v. Mills, 367 N.C. 618, 623, 766 S.E.2d 297, 301 (2014). Defendant would

have us insert a requirement into the statute that simply is not there: one that

requires the State to provide notice of the specific condition of probation that

defendant allegedly violated. This approach would effectively add words to the

statute so that the statute would read “a statement of the violations alleged and the

conditions of probation allegedly violated.” But the statute as it actually reads,

without the italicized words, requires only a statement of the actions that violated

the conditions, not of the conditions that those actions violated.

Our straightforward interpretation is further supported by looking at the use

of the word “violation” in N.C.G.S. § 15A-1344(a). This provision appears in the

statute that directly precedes the statute in which subsection 15A-1345(e) appears

and is part of the same statutory framework regarding probation. Subsection

15A-1344(a) pertains to the authority of trial courts to modify or revoke probation.

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Opinion of the Court

In discussing when a court can revoke probation, the provision states that “[t]he court

may only revoke probation for a violation of a condition of probation under” certain

specified provisions. N.C.G.S. § 15A-1344(a) (emphasis added). So the word

“violation” cannot be synonymous with the phrase “condition of probation,” because

subsection 15A-1344(a) uses “condition of probation” to modify “violation.” And that

makes sense, because the phrase “condition of probation” is describing what was

violated rather than the action that constituted the violation.

This interpretation is also consistent with the notice provision’s purpose. Just

as with the notice provided by criminal indictments, see, e.g., State v. Russell, 282

N.C. 240, 243-44, 192 S.E.2d 294, 296 (1972), “[t]he purpose of the notice mandated

by [N.C.G.S. § 15A-1345(e)] is to allow the defendant to prepare a defense and to

protect the defendant from a second probation violation hearing for the same act,”

State v. Hubbard, 198 N.C. App. 154, 158, 678 S.E.2d 390, 393 (2009) (citing Russell,

282 N.C. at 243-44, 192 S.E.2d at 296). A statement of a defendant’s alleged actions

that constitute the alleged violation will give that defendant the chance to prepare a

defense because he will know what he is accused of doing. He will also be able to

determine the possible effects on his probation that those allegations could have, and

he will be able to gather any evidence available to rebut the allegations. Our

interpretation is therefore consistent with both the language of the statute and its

purpose.

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Opinion of the Court

The Court of Appeals in this case based its holding on, and the parties

primarily argue over, a line of cases with which we disagree. Before the Justice

Reinvestment Act (JRA) was enacted in 2011, the Court of Appeals correctly

interpreted subsection 15A-1345(e) in State v. Hubbard, 198 N.C. App. 154, 678

S.E.2d 390 (2009). In Hubbard, the Court of Appeals held that the State had complied

with the notice requirement because, “while the condition of probation which

Defendant allegedly violated might have been ambiguously stated in the [violation]

report, the report also set forth the specific facts that the State contended constituted

the violation.” Id. at 158, 678 S.E.2d at 394. “Defendant received notice of the specific

behavior Defendant was alleged and found to have committed in violation of

Defendant’s probation.” Id. at 159, 678 S.E.2d at 394. In other words, notice of the

factual allegations—the specific behavior—that constituted the violation was enough.

After the JRA was passed, however, the Court of Appeals began imposing an

additional notice requirement that is not found in the text of subsection 15A-1345(e).

Starting with State v. Tindall, 227 N.C. App. 183, 742 S.E.2d 272 (2013), the Court

of Appeals began requiring that, when the State seeks to revoke a defendant’s

probation at a revocation hearing, the notice of the hearing provided by the State

must indicate the revocation-eligible condition of probation that the defendant has

allegedly violated. See id. at 187, 742 S.E.2d at 275. The Court of Appeals noted in

Tindall that the JRA changed the law by making only some of the conditions of

probation revocation-eligible instead of all of them. Id. at 185, 742 S.E.2d at 274; see

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Opinion of the Court

also Justice Reinvestment Act of 2011, ch. 192, sec. 4(b), 2011 N.C. Sess. Laws 758,

767-68 (amending N.C.G.S. § 15A-1344(a)). The Court of Appeals then concluded that

Hubbard did not apply because it was decided before the JRA changed the law.

Tindall, 227 N.C. App. at 187, 742 S.E.2d at 275. The Court of Appeals reasoned

that, after the JRA, a probationer needs to “receive[ ] notice that the alleged violation

was the type of violation that could potentially result in a revocation of her probation.”

Id. at 187, 742 S.E.2d at 275.

In State v. Kornegay, 228 N.C. App. 320, 745 S.E.2d 880 (2013), the Court of

Appeals recognized that it was bound by Tindall and applied that decision. See id.

at 323, 745 S.E.2d at 883. The Court of Appeals stated that, in order “[t]o 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). The Court of Appeals later applied the Tindall and

Kornegay line of cases in State v. Lee, 232 N.C. App. 256, 753 S.E.2d 721 (2014).

But the JRA did not change the notice requirements for probation revocation

hearings. So, to the extent that Tindall, Kornegay, and Lee created a new notice

requirement not found in the text of subsection 15A-1345(e), they are overruled.

It is true that, before the JRA was enacted in 2011, trial courts had authority

to revoke probation for a violation of any probation condition. See N.C.G.S. § 15A-

1344 (2010). After the JRA, by contrast, only violations of any of the three conditions

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Opinion of the Court

specified in N.C.G.S. § 15A-1344(a) are revocation-eligible. Yet the purpose of the

JRA had nothing to do with heightened notice requirements for revocation hearings.

The JRA’s purpose was “to reduce prison populations and spending on corrections

and then to reinvest the savings in community-based programs.” James M.

Markham, The North Carolina Justice Reinvestment Act 1 (2012). Before the JRA

was enacted, over half of the individuals entering North Carolina prisons were doing

so because of violations of conditions of probation. Id. at 2. In fiscal year 2009,

moreover, three-quarters of these individuals were entering “for violations of

supervision conditions, not the result of a new conviction or absconding.” Council of

State Gov’ts Justice Ctr., Justice Reinvestment in North Carolina: Three Years Later

3 (Nov. 2014). The changes to the law that the JRA effected were consistent with

these concerns because subsection 15A-1344(a), as amended by the JRA, now makes

only committing a new criminal offense or absconding revocation-eligible unless a

defendant has already served two periods of confinement for violating other

conditions of probation. See Ch. 192, sec. 4(b), N.C. Sess. Laws at 767-68. The

decrease in revocation-eligible conditions—that is, the decrease in conditions whose

violation would land a probationer back in prison—would have the natural effect of

reducing the prison population.

Even more fundamental than purpose, of course, is text. As we have discussed,

the phrase “a statement of the violations alleged” in subsection 15A-1345(e)’s notice

requirement has a straightforward meaning when each of the words in that phrase

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Opinion of the Court

is “given [its] natural, approved, and recognized meaning.” Victory Cab Co., 234 N.C.

at 576, 68 S.E.2d at 436. And the JRA did not change the text of this phrase, compare

Act of June 23, 1977, ch. 711, sec. 1, 1977 N.C. Sess. Laws 853, 870-71 (captioned “An

Act to Amend the Laws Relating to Criminal Procedure”), with N.C.G.S. § 15A-

1345(e) (2015), so it did not change the phrase’s meaning. That should not be

surprising, because keeping the notice requirement as-is comports with the JRA’s

purpose. Just as reducing the number of substantive crimes could reduce the prison

population without any change in indictment requirements, reducing the number of

revocation-eligible conditions of probation can reduce the prison population without

any change in notice requirements.

Turning to the specifics of this case, the State sought to prove that defendant

had violated the condition that he commit no criminal offense. As we have seen,

subsection 15A-1345(e) required the State to give defendant notice of his probation

revocation hearing that “includ[ed] a statement of the violations alleged.” This means

that the notice needed to contain a statement of the actions defendant allegedly took

that constituted a violation of a condition of probation—that is, a statement of what

defendant allegedly did that violated a probation condition. Here the alleged

violation was the act of committing a criminal offense. Defendant therefore needed

to receive a statement of the criminal offense or offenses that he allegedly committed.

The violation reports in this case stated that “the defendant has the following

pending charges in Orange County,” and then went on to list, among other things,

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Opinion of the Court

the names of the specific offenses and the criminal case file numbers. While incurring

criminal charges is not a violation of a probation condition, criminal charges are

alleged criminal offenses. And committing a criminal offense is a violation of a

probation condition. A statement of pending criminal charges, then, is a statement

of alleged violations. The information in the violation reports therefore constituted

“a statement of the violations alleged” because it notified defendant of the actions he

allegedly took that violated a probation condition.2 As the Court of Appeals stated in

Hubbard, “[d]efendant received notice of the specific behavior [d]efendant was alleged

and found to have committed in violation of [his] probation.” 198 N.C. App. at 159,

678 S.E.2d at 394. That is all that is required under subsection 15A-1345(e).

Both the concurring opinion and the dissenting opinion in this case suggest

that our interpretation of subsection 15A-1345(e) could result in due process

violations. The dissent appears to take that analysis even further and finds that

defendant’s due process rights were violated in this case. But defendant appealed

this case to this Court based solely on a dissent in the Court of Appeals, and neither

party petitioned for discretionary review of additional issues. Our review is therefore

limited to the issue or issues “specifically set out in the dissenting opinion as the basis

for that dissent.” N.C. R. App. P. 16(b). In this case, the basis for the dissent in the

2 We do not hold that a probation violation report must necessarily contain all of the
information that these violation reports included in order to constitute “a statement of the
violations alleged.” We hold only that the information in these reports was enough.

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Opinion of the Court

Court of Appeals was only that the majority had not properly applied subsection 15A-

1345(e). See Moore, ___ N.C. App. at ___, 795 S.E.2d at 600-02 (Hunter, Jr., J.,

dissenting). The Court of Appeals dissent said nothing at all about due process or the

Fourteenth Amendment. See generally id. As a result, there is no constitutional issue

before us. This case is simply about statutory interpretation.

The “statement of the violations alleged” requirement in N.C.G.S.

§ 15A-1345(e) is satisfied by a statement of the actions that a defendant has allegedly

taken that constitute a violation of a condition of probation. We therefore modify the

Court of Appeals’ decision to the extent that it holds otherwise. In this case, the

probation violation reports included a list of the criminal offenses that defendant

allegedly committed. That list provided a statement of alleged acts by defendant that,

if proved, would violate a probation condition, as required by subsection 15A-1345(e).

Accordingly, we modify and affirm the decision of the Court of Appeals and uphold

the trial court’s revocation of defendant’s probation.

MODIFIED AND AFFIRMED.

Justice ERVIN, concurring, in part, and concurring in the result, in part.

In this case, the Court holds that the trial court had jurisdiction to revoke

defendant’s probation because “the probation violation reports included a list of the

criminal offenses that defendant allegedly committed” and “[t]hat list provided a

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Ervin, J., concurring in result only

statement of defendant’s alleged acts that violated a probation condition, as required

by subsection 15A-1345(e).” In reaching this conclusion, the Court has overruled the

Court of Appeals’ decisions in State v. Lee, 232 N.C. App. 256, 753 S.E.2d 721 (2014);

State v. Kornegay, 228 N.C. App. 320, 745 S.E.2d 880; and State v. Tindall, 227 N.C.

App. 183, 742 S.E.2d 272 (2013), on the grounds that the State is not required to give

probationers “notice of the particular revocation-eligible violation,” Lee, 232 N.C. App.

at 260, 753 S.E.2d at 723 (2014), and that a statement of the probationer’s alleged

conduct is all that is required to support a trial court’s revocation decision. Although

I fully concur in the Court’s decision to uphold the revocation of defendant’s

probation, I cannot agree with all of the reasoning in which the Court has engaged in

order to reach that result or with its decision to overrule the Court of Appeals’

decisions in Tindall, Kornegay, and Lee.1

As the majority notes, “[a]fter the [Justice Reinvestment Act] was passed”

“only some of the conditions of probation [became] revocation-eligible instead of all of

them.” See Tindall, 227 N.C. App. at 185, 742 S.E.2d at 274. More specifically,

following the enactment of the Justice Reinvestment Act, a trial court was only

entitled to revoke a defendant’s probation in the event that the defendant has (1)

committed a criminal offense; (2) absconded supervision; or (3) served two periods of

1 As an aside, I note that the State did not seek discretionary review in either Tindall
or Kornegay and has not questioned the correctness of any of the decisions that the Court has
overruled in the brief that it filed with us in this case. Instead, the only issue debated in the
parties’ briefs was the extent to which the allegations contained in the violation notices at
issue in this case satisfied the test enunciated in Tindall, Kornegay, and Lee.

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Ervin, J., concurring in result only

confinement in response to violation of other conditions of probation. N.C.G.S. § 15A-

1344(a) (2015).

Before revoking or extending probation, the court must, . . .
hold a hearing to determine whether to revoke or extend
probation and must make findings to support the decision
and a summary record of the proceedings. The State must
give the probationer notice of the hearing and its purpose,
including a statement of the violations alleged.

Id. § 15A-1345(e) (2015). The ultimate issue before the Court in this case is the

meaning of the statutory requirement that the probationer receive “a statement of

the violations alleged” before a trial court can revoke his or her probation.

“A probation revocation proceeding is not a formal criminal prosecution, and

probationers thus have ‘more limited due process right[s].’ ” State v. Murchison, 367

N.C. 461, 464, 758 S.E.2d 356, 358 (2014) (alteration in original) (quoting Gagnon v.

Scarpelli, 411 U.S. 778, 789, 93 S. Ct. 1756, 1763, 36 L. Ed. 2d 656, 666 (1973),

superseded by statute, Parole Commission and Reorganization Act, Pub. L. No. 94-

233, 90 Stat. 228 (1976)). As a matter of due process, however,

[t]he probationer is entitled to written notice of the claimed
violations of his probation; disclosure of the evidence
against him; an opportunity to be heard in person and to
present witnesses and documentary evidence; a neutral
hearing body; and a written statement by the factfinder as
to the evidence relied on and the reasons for revoking
probation.

Black v. Romano, 471 U.S. 606, 612, 105 S. Ct. 2254, 2258, 85 L. Ed. 2d 636, 642-43

(1985) (citing Gagnon, 411 U.S. at 786, 93 S. Ct. at 1761, 36 L. Ed. 2d at 664). The

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Ervin, J., concurring in result only

General Assembly has effectuated this notice-related due process requirement by

enacting N.C.G.S. § 15A-1345(e), the proper construction of which is the only issue

that is before us in this case.

As should be obvious, “[t]he purpose of the notice mandated by this section is

to allow the defendant to prepare a defense and to protect the defendant from a second

probation violation hearing for the same act.” State v. Hubbard, 198 N.C. App. 154,

158, 678 S.E.2d 390, 393 (2009) (citation omitted). For that reason, I am inclined to

believe that the notice required by N.C.G.S. § 15A-1345(e) must adequately inform

the probationer of the condition that he or she is alleged to have violated, given that,

following the enactment of the Justice Reinvestment Act,2 violations of certain

conditions of probation justify revocation while violations of other conditions of

probation do not. I am frankly at a loss to see how a probationer can adequately

prepare a defense in the event that he or she cannot determine the consequences to

2 The Court is, of course, correct in pointing out that the enactment of the Justice
Reinvestment Act made no change to the notice requirement spelled out in N.C.G.S. § 15A-
1345(e). On the other hand, the enactment of the Justice Reinvestment Act did substantially
change the effect of particular probation violations. Prior to the enactment of the Justice
Reinvestment Act, a probationer alleged to have violated any term or condition of probation
knew that he or she was subject to having his or her probation revoked. The same is not true
in the aftermath of the enactment of the Justice Reinvestment Act. As a result, additional
allegations may, in some instances, be necessary before a probationer receives the same
notice after the enactment of the Justice Reinvestment Act that he or she received prior to
its enactment.

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the continued existence of his “conditional liberty” that might flow from a

determination in the State’s favor.3

According to the Court, the statutory reference to “a statement of the violations

alleged” contained in N.C.G.S. § 15A-1345(e) “requires only a statement of the actions

that violated the conditions, not of the conditions that those actions violated,” with

this determination being predicated, at least in part, on the understanding that “the

word ‘violation’ cannot be synonymous with the phrase ‘condition of probation,’

because subsection 15A-1344(a) uses ‘condition of probation’ to modify ‘violation.’ ”

After examining the plain language of N.C.G.S. § 15A-1345(e), I am inclined to refrain

from parsing the relevant statutory language that finely. Instead of being limited

solely to a statement of conduct, it seems to me that the statutory reference to “a

statement of the violations alleged,” when read as a unified whole, necessarily refers

to both the specific conduct in which a defendant allegedly engaged and the likely

effect of that conduct upon the continuation of the defendant’s conditional liberty.

A defendant does, in many instances, receive adequate notice as required by

N.C.G.S. § 15A-1345(e) in the event that a violation report includes nothing more

than “a statement of the actions defendant allegedly took that constituted a violation

of a condition of probation.” Such a situation exists when the conduct alleged “could

only point to a revocation-eligible violation.” State v. Moore, ___ N.C. App. ___, ___,

3This interpretation is reinforced by the language in N.C.G.S. § 15A-1345(e) requiring
that the probationer be notified of “the hearing and its purpose.”

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795 S.E.2d 598, 600 (2016). For instance, in State v. Lee, the violation report alleged

that the “defendant had violated four conditions of his probation,” including “that he

commit no criminal offense,” 232 N.C. App. at 258, 753 S.E.2d at 722, and listed

“several new pending charges which were specifically identified,” id. at 259, 753

S.E.2d at 723. I believe that the Court of Appeals correctly held in Lee that the notice

provided to the defendant in that case sufficed for purposes of N.C.G.S. § 15A-1345(e)

given that “[t]he violation report identified the criminal offense on which the trial

court relied to revoke defendant's probation.”4 Id. at 260, 753 S.E.2d at 724. On the

other hand, there are also occasions when a mere statement of the probationer’s

alleged conduct does not unambiguously “point to a revocation-eligible violation.”

Moore, ___ N.C. App. at ___, 795 S.E.2d at 600. In State v. Tindall, for example, the

violation report “indicat[ed] that defendant had violated her probation by using

illegal drugs . . . and by failing to ‘complete Crystal Lakes treatment program’ as

ordered.” 227 N.C. App. at 184, 742 S.E.2d at 274. Unlike the allegations contained

in the violation report at issue in Lee, the facts alleged in the violation report at issue

in Tindall sufficed to allege both a violation of the condition of probation that the

probationer “[c]ommit no criminal offense in any jurisdiction,” N.C.G.S. § 15A-

1343(b)(1) (2013), and the condition that the probationer “[n]ot use, possess, or control

4I would, in fact, be inclined to uphold the sufficiency of the notice at issue in State v.
Lee even if it had not referenced the condition of probation which the defendant was alleged
to have violated given that the defendant’s alleged conduct could only have been relevant to
the “commit no criminal offense” condition of probation.

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Ervin, J., concurring in result only

any illegal drug or controlled substance unless it has been prescribed for him or her

by a licensed physician and is in the original container with the prescription number

affixed on it,” id. § 15A-1343(b)(15) (2013). Obviously, a violation of the condition of

probation set out in N.C.G.S. § 15A-1343(b)(1) is “revocation-eligible” while a

violation of the condition of probation set out in N.C.G.S. § 15A-1343(b)(15) is not. In

light of that set of circumstances, I do not believe that the probationer in Tindall

received an adequate “statement of the violations alleged” and conclude that the

Court of Appeals did not err by finding the notice at issue in that case insufficient.

Tindall, 227 N.C. App. at 187, 742 S.E.2d at 275.5 As a result, while I share the

Court’s discomfort with some of the language that the Court of Appeals used in its

opinions in these decisions and do not believe that they should be understood as

holding that, in each and every case, a violation notice fails to support the revocation

of a probationer’s probation unless it specifically and explicitly alleges a violation of

a “revocation-eligible” condition of probation, I do believe that each of these cases was

correctly decided on the facts and cannot, for that reason, join the Court’s decision to

overrule them.

5 The violation notice before the Court in State v. Kornegay was even less likely to give
the probationer adequate notice than the violation notice at issue in Tindall, given that the
trial court in Kornegay revoked the probationer’s probation based upon a finding that the
probationer had violated the conditions of probation set out in N.C.G.S. § 15A-1343(b)(1)
despite the fact that the violation notice alleged, among other things, that the probationer
had violated the condition that he “ ‘[n]ot use, possess or control any illegal drug’ ” without
making any reference to the “commit no criminal offense” condition. Kornegay, 228 N.C. App.
at 321, 323, 745 S.E.2d at 881, 883.

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Ervin, J., concurring in result only

Admittedly, the violation notice at issue in this case, unlike the violation notice

at issue in Lee, does not make an explicit reference to an alleged violation of the

condition of probation set out in N.C.G.S. § 15A-1343(b)(1). On the other hand, given

the terms and conditions of defendant’s probation, I am unable to understand, for the

reasons stated by the Court, how the allegation that defendant had been charged with

committing various criminal offenses could be understood as anything other than an

allegation that he had violated the condition of probation that he “[c]ommit no

criminal offense in any jurisdiction.” N.C.G.S. § 15A-1343(b)(1). In fact, as I read the

briefs and record before us in this case, defendant does not seem to have had any

doubt that the proceeding held in the trial court was focused upon the issue of

whether he had violated the condition of probation set out in N.C.G.S. § 15A-

1343(b)(1). As a result, given that defendant had ample notice of the violation of the

terms and conditions of probation that he was alleged to have committed and the

effect of a determination that he had committed the alleged violation, I agree with

both the Court and the majority in the Court of Appeals that the trial court’s order

revoking defendant’s probation should be affirmed.

Justice HUDSON joins in this concurring opinion.

Justice BEASLEY dissenting.

The majority concludes that defendant had adequate notice of the alleged

violations of probation, where the probation report contained a laundry list of “Other

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Beasley, J., dissenting

Violation[s]” and failed to designate a statutory condition under N.C.G.S. §§ 15A-

1343(b)(1), 15A-1343(b)(3a), or 15A-1344(d2). The majority further holds that a

probation violation report need only describe behavior to provide sufficient notice.

This holding does not comport with Fourteenth Amendment Due Process or the

Justice Reinvestment Act’s changes to North Carolina’s probation system because it

does not require proper notice to a defendant that her probation may be revoked.

Therefore, I respectfully dissent.

Due process under the Federal Constitution and our state statute requires

notice to the defendant of the alleged violations against her before a hearing on

probation revocation may take place. See Morrissey v. Brewer, 408 U.S. 471, 486-87,

33 L. Ed. 2d 484, 497 (1972) ( “[T]he parolee should be given notice that the hearing

will take place and that its purpose is to determine whether there is probable cause

to believe he has committed a parole violation. The notice should state what parole

violations have been alleged.”); see also N.C.G.S. § 15A-1345(e) (2015) (“The State

must give the probationer notice of the hearing and its purpose, including a statement

of the violations alleged.”). In Morrissey v Brewer, two Iowa parolees had their parole

revoked without the benefit of a hearing. 408 U.S. at 472-73, 33 L. Ed. 2d at 489-90.

The United States Supreme Court held in Morrissey that when the State attempts to

curtail a parolee’s constitutionally protected liberty interest by revoking parole, due

process mandates certain procedural safeguards. See id. at 481-82, 33 L. Ed. 2d at

495. Specifically, the Court said in Morrissey that

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Beasley, J., dissenting

the liberty of a parolee, although indeterminate, includes
many of the core values of unqualified liberty and its
termination inflicts a “grievous loss” on the parolee and
often on others. . . . By whatever name, the liberty is
valuable and must be seen as within the protection of the
Fourteenth Amendment. Its termination calls for some
orderly process, however informal.

Id. at 482, 33 L. Ed. 2d at 495 (emphasis added).

While Morrissey addressed liberty interests of parolees facing parole

revocation, in Gagnon v. Scarpelli the Court applied the same analysis to conclude

that the liberty interests were synonymous for purposes of parole and probation, both

requiring notice of the violations alleged against a defendant. Gagnon v. Scarpelli,

411 U.S. 778, 782, 786, 36 L. Ed. 2d 656, 664 (1973), superseded by statute, Parole

Commission and Reorganization Act, Pub. L. No. 94-233, 90 Stat. 228 (1976). The

Court in Gagnon clarified that probation revocation, like parole revocation “is not a

stage of a criminal prosecution, but does result in a loss of liberty.” Id. at 782, 36 L.

Ed. 2d at 662. Because a probationer risks the loss of liberty, she is entitled to notice

of the asserted violations in compliance with the due process requirements of the

Fourteenth Amendment. Id. at 786, 36 L. Ed. 2d at 664.

The import of these cases is that the State must not only give the defendant

written notice of the violation at issue but also provide a number of other due process

protections, including:

(b) disclosure to the parolee of evidence against him; (c)
opportunity to be heard in person and to present witnesses
and documentary evidence; (d) the right to confront and

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Beasley, J., dissenting

cross-examine adverse witnesses (unless the hearing
officer specifically finds good cause for not allowing
confrontation); (e) a ‘neutral and detached’ hearing body
such as a traditional parole board, members of which need
not be judicial officers or lawyers; and (f) a written
statement by the factfinders as to the evidence relied on
and reasons for revoking parole.

Morrissey, 408 U.S. at 489, 33 L. Ed. 2d at 492. Importantly, Morrissey and Gagnon

reject older concepts based on the tenet that because probation was only an “act of

grace,” a defendant had little recourse to contest the violations asserted against her.

See e.g., State v. Duncan, 270 N.C. 241, 246, 154 S.E.2d 53, 57 (1967) (“[P]robation or

suspension of sentence is an act of grace and not of right[.]”). Definitively, the right

to due process during probation proceedings is derived from the Fourteenth

Amendment’s liberty interest protections, and therefore, the right to proper notice

cannot be so lightly dismissed.

The Justice Reinvestment Act of 2011 (JRA), in implementing a plan for

criminal justice reform, mirrored the Court’s rationale in Morrissey, which

emphasized the importance probation plays in rehabilitation and reduction in costs

of incarceration. See Morrissey, 408 U.S. at 477, 33 L. Ed. 2d at 492. Part of the basis

for the JRA was a report commissioned in 2009 by North Carolina state government

officials. Council of State Gov’ts Justice Ctr., Justice Reinvestment in North Carolina

1 (Apr. 2011). The State asked the Council of State Governments Justice Center to

provide data-driven analysis, that would produce recommendations for new policies

designed to both improve public safety and reduce the costs of our corrections system.

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Beasley, J., dissenting

Id. A key finding of the report was that “[p]robation revocations accounted for greater

than 50 percent of admissions to prison in FY 2009,” id. at 2, which led the Council

to recommend three priorities: “strengthen probation supervision, hold offenders

accountable in more meaningful ways, and reduce the risk of reoffending,” id. at 1.

Researchers struck a balance among these three priorities by stressing the

importance of holding offenders accountable, while encouraging completion of

probation programs through community-driven approaches. See id. at 3. One of the

Council’s recommendations for holding offenders accountable, which is at issue in this

case, was to limit revocation to those defendants who have committed a new criminal

offense or absconded from supervision. Id. at 15. The JRA implemented this

recommendation, among others, and codified the requirement that “[t]he court may

only revoke probation for a violation of a condition of probation under G.S. 15A-

1343(b)(1)[1] or G.S. 15A-1343(b)(3a),[2] except as provided in G.S. 15A-1344(d2).[3]

1 “(b) Regular Conditions. — As regular conditions of probation, a defendant must: (1)
Commit no criminal offense in any jurisdiction.” N.C.G.S. § 15A-1343(b)(1) (2015).
2 “(b) Regular Conditions. — As regular conditions of probation, a defendant must: . .

. (3a) Not abscond by willfully avoiding supervision or by willfully making the defendant's
whereabouts unknown to the supervising probation officer, if the defendant is placed on
supervised probation.” Id. § 15A-1343(b)(3a) (2015).
3 “(d2) Confinement in Response to Violation. — When a defendant under supervision

for a felony conviction has violated a condition of probation other than G.S. 15A-1343(b)(1) or
G.S. 15A-1343(b)(3a), the court may impose a period of confinement of 90 consecutive days to
be served in the custody of the Division of Adult Correction of the Department of Public
Safety. The court may not revoke probation unless the defendant has previously received a
total of two periods of confinement under this subsection. A defendant may receive only two
periods of confinement under this subsection. The 90-day term of confinement ordered under
this subsection for a felony shall not be reduced by credit for time already served in the case.
Any such credit shall instead be applied to the suspended sentence. However, if the time

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Beasley, J., dissenting

Imprisonment may be imposed pursuant to G.S. 15A-1344(d2) for a violation of a

requirement other than G.S. 15A-1343(b)(1) or G.S. 15A-1343(b)(3a).” Justice

Reinvestment Act of 2011, ch.192, sec. 4(b), 2011 N.C. Sess. Law 758, 767-68. Before

the insertion of this language, any judge entitled to sit in the court that imposed

probation could revoke it, with the exception of drug treatment probation4 and

unsupervised probation,5 both of which had jurisdictional limits. See id.

The majority discusses the JRA’s purpose, but fails to consider the changes it

has made in North Carolina’s probation procedures. While it is true that the JRA

did not amend the specific provision relating to notice in N.C.G.S. § 15A-1345(e), the

notice requirement cannot be read outside the context of the remainder of the

statutory framework for probation created by the JRA. Currently, N.C.G.S. § 15A-

1345(e) requires that

remaining on the maximum imposed sentence on a defendant under supervision for a felony
conviction is 90 days or less, then the term of confinement is for the remaining period of the
sentence. Confinement under this section shall be credited pursuant to G.S. 15-196.1.” Id. §
15A-1344(d2) (2015).
4 “(a1) Authority to Supervise Probation in Drug Treatment Court. — Jurisdiction to

supervise, modify, and revoke probation imposed in cases in which the offender is required
to participate in a drug treatment court or a therapeutic court is as provided in G.S. 7A-272(e)
and G.S. 7A-271(f). Proceedings to modify or revoke probation in these cases must be held in
the county in which the drug treatment court or therapeutic court is located.” Id. § 15A-
1344(a1) (2015).
5 “(b) Limits on Jurisdiction to Alter or Revoke Unsupervised Probation. — If the

sentencing judge has entered an order to limit jurisdiction to consider a sentence of
unsupervised probation under G.S. 15A-1342(h), a sentence of unsupervised probation may
be reduced, terminated, continued, extended, modified, or revoked only by the sentencing
judge or, if the sentencing judge is no longer on the bench, by a presiding judge in the court
where the defendant was sentenced.” Id. § 15A-1344(b) (2015).

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Beasley, J., dissenting

[b]efore revoking or extending probation, the court must,
unless the probationer waives the hearing, hold a hearing
to determine whether to revoke or extend probation and
must make findings to support the decision and a summary
record of the proceedings. The State must give the
probationer notice of the hearing and its purpose, including
a statement of the violations alleged.

N.C.G.S. § 15A-1345(e) (emphasis added). However, as already explained, before the

JRA was enacted a judge could revoke probation for virtually any violation, while

after the JRA judges were limited to only three types of probation violations that

could result in revocation (i.e., N.C.G.S. §§ 15A-1343(b)(1), 15A-1343(b)(3a), or 15A-

1344(d2)).

Therefore, post JRA, probation violations can result in revocable or

nonrevocable consequences to a defendant. For example, nonrevocable consequences

could include probation modification under N.C.G.S. § 15A-1344(d), holding a

defendant in contempt under N.C.G.S. § 15A-1344(e1), or ordering a period of

confinement under N.C.G.S. § 15A-1343(a1)(3). Additionally, some conditions of

probation may fall into either category of revocable and nonrevocable violations. An

illustration can be found in State v. Tindall, in which the defendant had a substance

abuse problem and was ordered to submit to substance abuse treatment. 227 N.C.

App. 183, 184, 742 S.E.2d 272, 273 (2013). There “the violation reports alleged that

defendant violated two conditions of her probation: to ‘[n]ot use, possess or control

any illegal drug’ and to ‘participate in further evaluation, counseling, treatment or

education programs recommended [ ] and comply with all further therapeutic

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Beasley, J., dissenting

requirements.’ ” Id. at 186, 742 S.E.2d at 275. The Court of Appeals correctly found

that this description of the defendant’s behavior, while providing notice generally

that the defendant’s conduct violated her probation, was not enough to support

revocation of probation. Id. at 187, 742 S.E.2d at 275. The mere allegation that the

defendant possessed or used a controlled substance was insufficient to put the

defendant on proper notice of a potential revocation because the behavior could

constitute a revocable violation (due to the nature of the conduct as a criminal offense)

but could also be a technical violation triggering one of a host of nonrevocable

consequences. See, e.g., id. at 187, 742 S.E.2d at 275; see also N.C.G.S. § 15A-

1343(b)(15) (2015) (requiring as a regular condition of probation that a defendant

“[n]ot use, possess, or control any illegal drug or controlled substance”).

As defense counsel discussed at oral argument before this Court, the facts of

this case provide another example in which allegations of behavior are insufficient to

put a defendant on notice of the probation hearing’s possible consequences. Here the

probation officer’s report included in the section labeled “Other Violation[s]” that

defendant had the pending charge of “No Operators License,” in violation of N.C.G.S.

§ 20-7(a) (2015) (requiring a license to operate a motor vehicle). However, operating

a vehicle without a license can be either an infraction or a criminal misdemeanor.

See N.C.G.S. § 20-35 (2015) (listing differing circumstances under which the offense

of driving a motor vehicle without a driver’s license is classified as a misdemeanor or

an infraction). Therefore, the infraction relating to driving without an operator’s

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Beasley, J., dissenting

license might result only in a modification of probation because the court may impose

additional requirements, such as the defendant surrendering her driver’s license, or

defendant’s probation could be subject to revocation for committing a criminal

offense. Id. § 15A-1343(b)(1). Thus, only stating the defendant’s behavior in the

notice, without more specificity, does not always notify the defendant of the class of

the offense or if the court plans to modify or revoke her probation.

Similarly, in State v. Cunningham, the Court of Appeals found error when the

defendant was given notice only of probation violations upon which the trial court did

not rely in its decision to revoke the defendant’s probation. 63 N.C. App. 470, 475,

305 S.E.2d 193, 196 (1983). The alleged violation was that the defendant created a

noise disturbance by playing loud music during late night hours. Id. at 474, 305

S.E.2d at 196. But, the trial court found defendant in violation of probation not for

the noise disturbance but for trespassing and destroying his neighbor’s property,

offenses that were not included in his probation violation report and for which he did

not have notice. Id. at 475, 305 S.E.2d at 196. As the Court of Appeals in

Cunningham correctly held, only the allegations contained in the violation report can

serve as notice to a defendant of conditions for which the trial court can consider

revocation. Id. at 475, 305 S.E.2d at 196.

The majority’s effort to define the word “violation” by using its dictionary

definition and its belief that a description of the defendant’s behavior is all that is

legally required completely fails to reflect the specificity required for proper notice.

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Beasley, J., dissenting

Despite the majority’s contention to the contrary, a statement describing “the specific

behavior [d]efendant was alleged and found to have committed,” State v. Hubbard,

198 N.C. App. 154, 159, 678 S.E.2d 390, 394 (2009), lacks the specificity sufficient to

give notice to a defendant that her probation could be revoked at a hearing.

Constitutionally and statutorily, notice requires a description of the violation alleged.

See Morrissey, 408 U.S. at 486-87, 33 L. Ed. 2d at 497; see also N.C.G.S. § 15A-1345

(2015). Logically, to satisfy notice, the term “violation” also requires a specific

description of the condition of probation violated (in this case N.C.G.S. § 15A-

1343(b)(1)) and not simply a description of the behavior that constituted the violation.

If the notice describes the defendant’s behavior alone without reference to a probation

condition violated, the defendant, before entering the hearing, would not know

whether the State might seek to revoke her probation or impose some lesser

consequence.6 Describing only general types of behavior that may or may not fall

under one of the three revocable conditions is insufficient because such an incomplete

description permits the State to pick and choose when to proceed with revocation.

Descriptions of general behavior only will cause a defendant to be ill-prepared for the

hearing and do not “allow the defendant to prepare a defense and to protect the

6 I also note that the majority’s holding that a description of behavior alone is
sufficient to provide notice goes far beyond the reasonable inference standard applied by the
Court of Appeals below. Furthermore, the majority overrules a line of cases decided by the
Court of Appeals that have correctly applied constitutional and statutory mandates since the
passage of the JRA. See generally, State v. Lee, 232 N.C. App. 256, 753 S.E.2d 721 (2014);
State v. Kornegay, 228 N.C. App. 320, 745 S.E.2d 880 (2013); State v. Tindall, 227 N.C. App.
183, 742 S.E.2d 272 (2013).

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Beasley, J., dissenting

defendant from a second probation violation hearing for the same act.” Hubbard, 198

N.C. App. at 158, 678 S.E.2d at 393 (citing State v. Russell, 282 N.C. 240, 243-44, 192

S.E.2d 294, 296 (1972)).

The Supreme Court of the United States has ruled that probation implicates

“core values of unqualified liberty and its termination inflicts a ‘grievous loss,’ ” and

thus the State may not impinge upon that constitutionally protected liberty interest

without appropriate process. Morrissey, 408 U.S. at 482, 33 L. Ed. 2d at 495. The

majority ignores this mandate by failing to ensure that a defendant receives notice

before her probation is revoked. Although I do not condone this defendant’s alleged

behavior,7 the process required under the Fourteenth Amendment, for him as well as

all other defendants is fundamental. As a result, I respectfully dissent.

7 As the majority points out, defendant was also charged with first degree murder
during the time defendant’s hearing was continued.

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