State v. Morgan

IN THE SUPREME COURT OF NORTH CAROLINA

No. 150A18

Filed 16 August 2019

STATE OF NORTH CAROLINA

v.
BILLY DEAN MORGAN

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

the Court of Appeals, 814 S.E.2d 843 (N.C. Ct. App. 2018), affirming in part and

vacating and remanding in part judgments entered on 9 September 2016 by Judge

Jeffrey P. Hunt in Superior Court, McDowell County. Heard in the Supreme Court

on 8 April 2019.

Joshua H. Stein, Attorney General, by Brenda Eaddy, Assistant Attorney
General, for the State.

Glenn Gerding, Appellate Defender, by Sterling Rozear, Assistant Appellate
Defender, for defendant-appellant.

DAVIS, Justice.

The issue before us in this case is whether a trial court is permitted to revoke

a defendant’s probation after his probationary period has expired without making a

finding of fact that good cause exists to do so under the circumstances. Because we

conclude that such a finding is statutorily required, we reverse the decision of the

Court of Appeals and remand this matter for further proceedings.

Factual and Procedural Background
 STATE V. MORGAN

Opinion of the Court

On 20 May 2013, defendant Billy Dean Morgan was indicted by a McDowell

County Grand Jury on two counts of assault with a deadly weapon inflicting serious

injury. A hearing was held in Superior Court, McDowell County on 28 August 2013

before the Honorable J. Thomas Davis at which defendant pled no contest to those

charges. The court sentenced him to consecutive terms of twenty-nine to forty-seven

months of imprisonment, suspended the sentences, and placed him on supervised

probation for thirty-six months.

Defendant’s probation officer, Christopher Poteat, filed violation reports on 12

May 2016 alleging that defendant had willfully violated the terms of his probation by

(1) failing to report to Officer Poteat; (2) failing to pay money owed to the clerk of

superior court; (3) failing to pay probation supervision fees; and (4) committing a new

criminal offense. A warrant for defendant’s arrest for felony probation violations was

issued on that same date. On 23 May 2016, Officer Poteat filed an additional violation

report in which he asserted that defendant had absconded his probation. Defendant

was subsequently arrested for violating terms of his probation.

Defendant’s probationary term expired on 28 August 2016. Twelve days later,

a hearing was held in Superior Court, McDowell County before the Honorable Jeffrey

P. Hunt. At the hearing, defendant’s counsel admitted that defendant had “violated

probation by failing to report, failing to pay money and supervision fees, and being

convicted of a new crime while on probation and absconding.” Officer Poteat testified

that defendant had missed two consecutive appointments with him in May 2015. He

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Opinion of the Court

further stated that defendant “started going downhill” in October 2015 and “missed

appointments on November 10, February 3, and February 29 that all had to be

rescheduled.”

In addition, Officer Poteat testified that defendant had been admitted to Grace

Hospital on 29 March 2016 and remained in that facility’s mental health ward until

19 April. According to Officer Poteat, defendant did not contact him until 1 May,

which was twelve days after his release from the hospital. On that date, Officer Poteat

instructed defendant to report to him the following Wednesday. When defendant

failed to show up for that appointment, Officer Poteat filed the 23 May probation

violation report alleging that he had absconded.

Defendant did not testify on his own behalf at the 9 September 2016 hearing,

but his counsel informed the trial court that his mental health problems had

worsened in May 2015 when his ten-year-old son was removed from his custody.

Defense counsel further stated that defendant was able to comply with the terms of

his probation when he was taking his medication. Defense counsel asked the court to

grant a continuance to give defendant, who was then employed, a chance to pay his

outstanding probation fees. In response, the trial court stated: “No, I am going to

revoke his probation for absconding and for the conviction. He will do the sentences

that were imposed by the original judgments.”

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Opinion of the Court

On that same date, the trial court entered judgments using AOC Form CR-607

revoking defendant’s probation and activating his suspended sentences. The

judgments contained the following pertinent findings:

The defendant is charged with having violated specific
conditions of the defendant’s probation as alleged in
the . . . Violation Report(s) on file herein, which is
incorporated by reference.

....

The condition(s) violated and the facts of each violation are
as set forth . . . in Paragraph(s) 1 of the Violation Report or
Notice dated 05/23/2016 [and] in Paragraph(s) 1-4 of the
Violation Report or Notice dated 05/12/2016.

....

The Court may revoke defendant’s probation . . . for the
willful violation of the condition(s) that he/she not commit
any criminal offense . . . or abscond from supervision[.]

The judgments concluded as follows:

Based upon the Findings of Fact set out on the reverse side,
the Court concludes that the defendant has violated a valid
condition of probation upon which the execution of the
active sentence was suspended, and that continuation,
modification or special probation or criminal contempt is
not appropriate, and the Court ORDERS that the
defendant’s probation be revoked, that the suspended
sentence be activated, and the defendant be imprisoned[.]

On 16 September 2016, defendant filed a handwritten pro se “Inmate

Grievance/Request Form” with the McDowell County Jail indicating his intention to

appeal from the 9 September judgments. Defendant’s filing, however, failed to

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Opinion of the Court

specifically identify both the rulings from which his appeal was being taken and the

court to which he intended to appeal. Defendant’s appellate counsel filed a petition

for writ of certiorari with the Court of Appeals on 30 May 2017 requesting “review of

the judgments and orders of the McDowell County Superior Court.” The Court of

Appeals determined that defendant had failed to file a legally valid notice of appeal

but allowed his petition for certiorari.

In seeking relief from the trial court’s judgments before the Court of Appeals,

defendant argued that the court erred by revoking his probation after the expiration

of his thirty-six-month probationary period by failing to make a specific finding that

it was doing so for “good cause shown and stated” as required by N.C.G.S. § 15A-

1344(f)(3). State v. Morgan, 814 S.E.2d 843, 847 (N.C. Ct. App. 2018). The majority

in the Court of Appeals rejected this contention, citing that court’s earlier decision in

State v. Regan, 253 N.C. App. 351, 800 S.E.2d 436 (2017), in which it concluded that

N.C.G.S. § 15A-1344(f)(3) does not require trial courts to make any specific findings

of good cause shown in order to properly revoke a defendant’s probation after the

expiration of his probationary term. Id. at 357, 800 S.E.2d at 440. In Regan, the Court

of Appeals determined that a finding of good cause could be inferred from the

transcript of the defendant’s probation violation hearing and the judgments entered

by the court. See id. at 358, 800 S.E.2d at 440–41 (“Both the transcript of the

probation violation hearing and the judgments entered reflect that the trial court

considered the evidence and found good cause to revoke Defendant’s probation.”).

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 STATE V. MORGAN

Opinion of the Court

Noting that it was bound by its prior decision in Regan, Morgan, 814 S.E.2d at

847, the Court of Appeals majority held that the trial court did not err by revoking

defendant’s probation after the expiration of his probationary term, concluding that:

[A]t the hearing, defendant admitted all of the State’s
allegations. After hearing from Officer Poteat and
defendant’s attorney, the trial court announced its decision
to “revoke his probation for absconding and for the
conviction.” Consequently, “[b]oth the transcript of the
probation violation hearing and the judgments entered
reflect that the trial court considered the evidence and
found good cause to revoke” defendant’s probation.

Id. at 848 (quoting Regan, 253 N.C. App. at 358, 800 S.E.2d at 440–41).1

In a dissenting opinion, Chief Judge McGee asserted that Regan was both in

conflict with this Court’s decision in State v. Bryant, 361 N.C. 100, 637 S.E.2d 532

(2006), and inconsistent with the text of N.C.G.S. § 15A-1344(f). Morgan, 814 S.E.2d

at 851–53. (McGee, C.J., dissenting). For these reasons, Chief Judge McGee would

have held that “the trial court was required to make a finding of fact that the State

demonstrated ‘for good cause shown and stated that [Defendant’s] probation should

be . . . revoked.’ ” Id. at 853 (alterations in original) (quoting N.C.G.S. § 15A-

1344(f)(3)). Defendant appealed as of right to this Court based upon the dissent.

Analysis

1 The Court of Appeals also vacated a civil judgment for costs and attorneys’ fees that
had been entered against defendant by the trial court based on its determination that
defendant was not provided notice and an opportunity to be heard on the final amount of
attorneys’ fees awarded. Morgan, 814 S.E.2d at 849. This portion of the Court of Appeals’
opinion, however, is not currently before us.

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 STATE V. MORGAN

Opinion of the Court

The issue for resolution in this appeal is whether the Court of Appeals erred

by affirming the trial court’s revocation of defendant’s probation without making a

specific finding that good cause existed to do so despite the expiration of his

probationary period. For the reasons set out below, we conclude that the trial court’s

order failed to comply with N.C.G.S. § 15A-1344(f)(3).

This Court has made clear that a trial court “may, at any time during the

period of probation, require defendant to appear before it, inquire into alleged

violations of the conditions, and, if found to be true, place the suspended sentence

into effect.” State v. Camp, 299 N.C. 524, 527, 263 S.E.2d 592, 594 (1980) (citations

and emphasis omitted). But the trial court “may not do so after the expiration of the

period of probation except as provided in G.S. 15A-1344(f).” Id. at 527, 263 S.E.2d at

594 (citations and emphasis omitted).

Section 15A-1344(f) provides, in pertinent part:

(f) Extension, Modification, or Revocation after Period of
Probation. — The court may extend, modify, or revoke
probation after the expiration of the period of probation if
all of the following apply:

(1) Before the expiration of the period of probation
the State has filed a written violation report with
the clerk indicating its intent to conduct a hearing
on one or more violations of one or more conditions
of probation.

(2) The court finds that the probationer did violate
one or more conditions of probation prior to the
expiration of the period of probation.

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Opinion of the Court

(3) The court finds for good cause shown and stated
that the probation should be extended, modified,
or revoked.

N.C.G.S. § 15A-1344(f) (2017).

It is axiomatic that “[w]hen construing legislative provisions, this Court looks

first to the plain meaning of the words of the statute itself.” State v. Ward, 364 N.C.

157, 160, 694 S.E.2d 729, 731 (2010) (citation omitted). “When the language of a

statute is clear and without ambiguity, it is the duty of this Court to give effect to the

plain meaning of the statute, and judicial construction of legislative intent is not

required.” Diaz v. Div. of Soc. Servs., 360 N.C. 384, 387, 628 S.E.2d 1, 3 (2006)

(citation omitted); see also State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277 (2005)

(“If the statutory language is clear and unambiguous, the court eschews statutory

construction in favor of giving the words their plain and definite meaning.” (citation

omitted)).

We are further guided in our decision by the canon of statutory construction

that a statute may not be interpreted “in a manner which would render any of its

words superfluous.” State v. Coffey, 336 N.C. 412, 417, 444 S.E.2d 431, 434 (1994)

(citations omitted). This Court has repeatedly held that “a statute must be considered

as a whole and construed, if possible, so that none of its provisions shall be rendered

useless or redundant. It is presumed that the legislature intended each portion to be

given full effect and did not intend any provision to be mere surplusage.” Porsh

Builders, Inc. v. City of Winston-Salem, 302 N.C. 550, 556, 276 S.E.2d 443, 447 (1981)

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Opinion of the Court

(citations omitted).

In State v. Bryant, this Court construed language in a prior version of N.C.G.S.

§ 15A-1344(f) in connection with the revocation of a defendant’s probation following

the expiration of her probationary period. At the time Bryant was decided, N.C.G.S.

§ 15A-1344(f) provided, in relevant part:

(f) Revocation after Period of Probation. — The court may
revoke probation after the expiration of the period of
probation if:

(1) Before the expiration of the period of probation
the State has filed a written motion with the clerk
indicating its intent to conduct a revocation
hearing; and

(2) The court finds that the State has made reasonable
effort to notify the probationer and to conduct the
hearing earlier.

N.C.G.S. § 15A-1344(f) (2005) (emphasis added) (amended 2008).

In Bryant, the trial court activated the defendant’s suspended sentence seventy

days after the expiration of her period of probation “without making a finding that

the State had exerted reasonable efforts to conduct a hearing before the expiration of

the probationary period.” 361 N.C. at 104–05, 637 S.E.2d at 536. On appeal to this

Court, the State argued that, despite the absence of an express finding of fact on that

issue, the record contained evidence that would have supported such a finding and

that, as a result, the order was in compliance with N.C.G.S. § 15A-1344(f). Id. at 103,

637 S.E.2d at 535.

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Opinion of the Court

We rejected the State’s argument and held that the statutory language “[t]he

court finds” contained in N.C.G.S. § 15A-1344(f)(2) required the trial court to make a

specific finding of fact. Id. at 104–05, 637 S.E.2d at 536. We further held that this

requirement was not satisfied simply because evidence existed in the record that

could have supported such a finding. Id. at 103–04, 637 S.E.2d at 534–35. We

explained our reasoning as follows:

In analyzing this statute, we use accepted principles of
statutory construction by applying the plain and definite
meaning of the words therein, as the language of the
statute is clear and unambiguous. The statute
unambiguously requires the trial court to make a judicial
finding that the State has made a reasonable effort to
conduct the probation revocation hearing during the period
of probation set out in the judgment and commitment.

....

The State argues that the unsworn remarks of
defendant’s counsel, along with the scheduled hearing date
noticed on defendant’s probation violation report, satisfy
the statutory requirement. . . . Although this argument is
creative, it is contrary to the explicit statutory requirement
that “the court find . . . the State has made reasonable
effort to notify the probationer and to conduct the hearing
earlier.” The statute makes no exception to this finding of
fact requirement based upon the strength of the evidence
in the record.

Id. at 102–03, 637 S.E.2d at 534–35 (footnote and internal citations omitted).

We addressed a similar issue in State v. Coltrane, 307 N.C. 511, 299 S.E.2d 199

(1983), in which the trial court revoked the defendant’s probation without affording

her the opportunity to confront adverse witnesses at the probation revocation

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Opinion of the Court

hearing. Id. at 513, 299 S.E.2d at 201. The controlling statute stated that a defendant

at a probation revocation hearing is entitled to “confront and cross-examine adverse

witnesses unless the court finds good cause for not allowing confrontation.” Id. at 513,

299 S.E.2d at 201 (emphasis added). Because “[n]o findings were made [by the trial

court] that there was good cause for not allowing confrontation,” we held that the trial

court failed to comply with this statutory requirement and therefore reversed the

decision of the Court of Appeals affirming the trial court’s revocation order. Id. at 516,

299 S.E.2d at 202.

In the present case, it is undisputed that the trial court’s 9 September 2016

judgments contained no findings referencing the existence of good cause to revoke

defendant’s probation despite the expiration of his probationary term. Indeed, the

record is devoid of any indication that the trial court was even aware that defendant’s

probationary term had already expired when it entered its judgments.

We conclude that both the plain language of N.C.G.S. § 15A-1344(f)(3) and our

prior decisions in Bryant and Coltrane compel the conclusion that the trial court erred

by activating defendant’s sentences without first making such a finding. While

Bryant and Coltrane concerned different statutory provisions than the one at issue

here, both cases support the proposition that when the General Assembly has

inserted the phrase “the court finds” in a statute setting out the exclusive

circumstances under which a defendant’s probation may be revoked, the specific

finding described in the statute must actually be made by the trial court and such a

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Opinion of the Court

finding cannot simply be inferred from the record. See Bryant, 361 N.C. at 102–03,

637 S.E.2d at 534–35; Coltrane, 307 N.C. at 516, 299 S.E.2d at 202.

Our conclusion fully comports with the principles of statutory construction set

out above. Were we to hold, as the State argues, that N.C.G.S. § 15A-1344(f)(3) does

not require a specific finding of good cause to revoke a defendant’s probation after his

probationary period has ended as long as the court has found that the defendant

violated a condition of probation, subsection (f)(3) would be rendered superfluous.

Subsection (f)(2) of N.C.G.S. § 15A-1344 makes clear that in order to revoke a

defendant’s probation following the expiration of his probationary term, the trial

court must first make a finding that the defendant did violate a condition of his

probation. After making such a finding, trial courts are then required by subsection

(f)(3) to make an additional finding of “good cause shown and stated” to justify the

revocation of probation even though the defendant’s probationary term has expired.

Thus, by contending the trial court’s determination that defendant did, in fact,

violate conditions of his probation simultaneously satisfied subsections (f)(2) and

(f)(3), the State incorrectly conflates two separate and distinct findings that must be

made by the trial court under these circumstances. As such, the State’s argument is

inconsistent with well-settled rules for interpreting statutes. See, e.g., Lunsford v.

Mills, 367 N.C. 618, 628, 766 S.E.2d 297, 304 (2014) (“[I]t is a fundamental principle

of statutory interpretation that courts should ‘evaluate [a] statute as a whole

and . . . not construe an individual section in a manner that renders another provision

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Opinion of the Court

of the same statute meaningless.’ ” (alterations in original) (quoting Polaroid Corp. v.

Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998), cert. denied, 526 U.S. 1098

(1999), abrogated on other grounds by Lenox, Inc. v. Tolson, 353 N.C. 659, 548 S.E.2d

513 (2001)); Coffey, 336 N.C. at 418, 444 S.E.2d at 434 (“We construe each word of a

statute to have meaning, where reasonable and consistent with the entire statute,

because ‘[i]t is always presumed that the legislature acted with care and

deliberation . . . .’ ” (alterations in original) (quoting State v. Benton, 276 N.C. 641,

658, 174 S.E.2d 793, 804 (1970)). To the extent Regan holds that an express finding

of good cause shown and stated is not required by N.C.G.S. § 15A-1344(f)(3), that

portion of Regan is overruled.

Having determined that the Court of Appeals erred in affirming the trial

court’s 9 September 2016 judgments, the only remaining question is whether remand

to the trial court is appropriate for it to determine whether good cause exists to revoke

defendant’s probation despite the expiration of his probationary period and, if so, to

make an appropriate finding of fact as required by subsection (f)(3). We stated in

Bryant that “[i]n the absence of statutorily mandated factual findings, the trial court’s

jurisdiction to revoke probation after expiration of the probationary period is not

preserved.” Bryant, 361 N.C. at 103, 637 S.E.2d at 534. We further noted, however,

that “[o]rdinarily[ ] when [there is a failure] to make a material finding of fact . . .,

the case must be remanded . . . for a proper finding.” Id. at 104, 637 S.E.2d at 535

(first, third, fourth, and fifth alterations in original) (quoting N.C. Dep’t of Env’t &

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Opinion of the Court

Nat. Res. v. Carroll, 358 N.C. 649, 674, 599 S.E.2d 888, 904 (2004)).

In Bryant, after determining that the trial court had failed to comply with the

requirements of N.C.G.S. § 15A-1344(f), we proceeded to determine whether the

record contained sufficient evidence to permit the necessary finding of “reasonable

efforts” by the State to have conducted the probation revocation hearing earlier. Id.

at 104, 637 S.E.2d at 535–36. Noting that the record was “devoid of any persuasive

evidence as to why there was more than a two-month delay in conducting [the]

probation revocation hearing,” we concluded that “remand is not a proper

remedy . . . because the record lacks sufficient evidence to support such a finding.” Id.

at 104, 637 S.E.2d at 535–36.

In the present case, conversely, we are unable to say from our review of the

record that no evidence exists that would allow the trial court on remand to make a

finding of “good cause shown and stated” under subsection (f)(3). Accordingly, we

remand this matter to the Court of Appeals for further remand to the trial court for

a finding of whether good cause exists to revoke defendant’s probation despite the

expiration of his probationary period and—assuming good cause exists—to make a

finding in conformity with N.C.G.S. § 15A-1344(f)(3).

Conclusion

For the reasons stated above, we reverse the decision of the Court of Appeals

and remand this case to the Court of Appeals for further remand to the superior court

for proceedings not inconsistent with this opinion.

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Opinion of the Court

REVERSED AND REMANDED.

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