State v. Gorman

ERVIN, Judge,

concurring in separate opinion.

Although I concur in the Court’s ultimate decision and in almost all of its reasoning, I write separately for the purpose of discussing an appealability issue raised in the State’s brief which the Court has not explicitly addressed and to express my concern about a small portion of the Court’s discussion of the tolling issue. Subject to these two caveats, I concur in the Court’s opinion.

Appealability

In its brief, the State argues that we are precluded from examining the lawfulness of the 28 July 2008 Onslow County orders extending Defendant’s probation in light of Defendant’s failure to note an appeal from those orders given our decision in State v. Mauck, 204 N.C. App. 583, 585-86, 694 S.E.2d 481, 483-84 (2010). Although the Court has implicitly rejected the contention that the State has advanced in reliance upon Mauck, I believe that we should expressly address this aspect of the State’s argument for the purpose of clarifying the manner in which the principle enunciated in Mauck should be applied.

In Mauck, the defendant pled guilty to two drug-related charges in Haywood County and was placed on probation. 204 N.C. App. at 584, 694 S.E.2d at 482. Subsequently, the terms and conditions of the defendant’s probation were modified in Buncombe County in 2007. Id. After the defendant’s probation was revoked in Buncombe County in 2009 based on violations of the terms and conditions imposed upon *338him in the 2007 modification order, the defendant noted an appeal to this Court from the 2009 revocation order and argued that the Buncombe County Superior Court lacked the authority to revoke his probation given the absence of any evidence tending to show that the probationary judgment had been entered in Buncombe County, that he had violated the terms and conditions of his probation in Buncombe County, or that he lived in Buncombe County. Id. at 584, 694 S.E.2d at 483. In refusing to grant the defendant’s request for relief on the basis of this contention, we noted that the defendant’s argument was, in essence, a challenge to the 2007 Buncombe County modification order, from which the defendant had not noted an appeal. Id. at 586, 694 S.E.2d 483. Given that the defendant had appealed from the order revoking his probation and not from the modification order, we held that we lacked jurisdiction to hear his appeal in light of his failure to properly “ ‘designate the judgment or order from which [his] appeal [was] takenf.]’ ” Id. (quoting N.C. R. App. P. 4(b)).

. In seeking to persuade us to refrain from disturbing the trial court’s revocation orders in this case, the State contends that, as in Mauck, Defendant’s challenge to the Davidson County revocation order is “really based upon [a challenge to] the [28 July] 2008 Onslow County [mjodification [o]rder[s,]” from which Defendant failed to note an appeal. As a result, the State argues that “the scope of the instant appeal is limited to the Davidson County trial court’s decision to revoke Defendant’s probation,” rendering “Defendant’s contention that the [mjodification [o]rder[s] [are] invalid [] outside the scope of the applicable issues in the case[.]” I do not find the State’s argument persuasive.

Aside from the fact that, as the Court notes, the record strongly suggests that Defendant was not notified about and had no opportunity to appeal the 28 July 2008 Onslow County orders,1 Defendant’s challenge to those orders differs substantially from the challenge to the 2007 order at issue in Mauck. The only basis upon which the defendant appeared to have challenged the 2007 order at issue in Mauck was that the record did not reflect that his probation had been properly transferred from Haywood County to Buncombe County. 204 N.C. App. at 584, 694 S.E.2d at 483. As a result of the fact that N.C. Gen. Stat. § 15A-1343(b)(2) contemplates the transfer of probation from one county to another in appropriate instances, such as when *339the probationer wishes to change residences, and the fact that the record in Mauck provided no basis for believing that there had been any “impropriety in the transfer of the defendant’s case from Haywood County to Buncombe County prior to the entry of the modification order in 2007,” Id. at 586, 694 S.E.2d at 483, the clear implication of Mauck is that a defendant is not entitled to attack a probation revocation order on the basis of a possible procedural defect in an earlier order that the trial judge did, as a general proposition, have the authority to enter and which does not, based on an examination of the face of the record, appear to have been entered in error in the event that the defendant failed to note an appeal from that earlier order.

In this case, on the other hand, as the Court clearly demonstrates, the trial judge had absolutely no authority to enter the 28 July 2008 Onslow County orders. Simply put, the face of the record clearly establishes that the trial court extended Defendant’s probationary period from five to eight years without having had any authority to act in that manner. Given that set of circumstances, the trial court’s orders were void, as compared to merely voidable. Hamilton v. Freeman, 147 N.C. App. 195, 204, 554 S.E.2d 856, 861 (2001) (stating that, “ ‘[w]here a court has authority to hear and determine the questions in dispute and has control over the parties to the controversy, a judgment issued by the court is not void, even if contrary to law’ ” (quoting Allred v. Tucci, 85 N.C. App. 138, 142, 354 S.E.2d 291, 294, disc. review denied, 320 N.C. 166, 358 S.E.2d 47 (1987)), disc. review denied, 355 N.C. 285, 560 S.E.2d 803 (2002); State v. Wilson, 154 N.C. App. 127, 131, 571 S.E.2d 631, 633 (2002) (stating that “[t]he fact that the original sentencing in this case was in error does not render the judgment void” (citing Hamilton, 147 N.C. App. at 204, 554 S.E.2d at 861)), aff'd, 357 N.C. 498, 586 S.E.2d 89 (2003). I do not believe that Mauck, contrary to well-established North Carolina law, holds that a criminal defendant attempting to resist the revocation of his or her probation is precluded from attacking the validity of a void order in a subsequent revocation proceeding despite the defendant’s failure to appeal that order at the time that it was entered. Allred, 85 N.C. App. at 144, 354 S.E.2d at 295, (stating that “[a] void judgment... order binds no one”); see also Casey v. Barker, 219 N.C. 465, 467-68, 14 S.E.2d 429, 431 (1941) (stating that “[a] void judgment may be treated as a nullity, disregarded, vacated on motion, [or] attacked directly or collaterally”). Such an interpretation of Mauck, which involves an order that was, at most, voidable, would run counter to numerous decisions of this Court and the Supreme Court. As a result, *340I cannot agree with the State’s contention that Defendant should be prevented from attacking the revocation of his probation in this case because he failed to note an appeal from an order extending the length of his probationary period which the trial judge, based on an examination of the face of the record, had absolutely no authority to enter under any set of circumstances.

Tolling

Secondly, although the Court has correctly determined that this case should be remanded to the trial court for the purpose of determining the extent, if any, to which the running of Defendant’s probationary period should be tolled during the period required to resolve the charges that had been lodged against Defendant in New Jersey, I am concerned that the Court’s treatment of our prior decisions in State v. Henderson, 179 N.C. App. 191, 195, 632 S.E.2d 818, 821 (2006) and State v. Patterson, 190 N.C. App. 193, 197-98, 660 S.E.2d 155, 158 (2008), could be read to suggest that those decisions were not consistent with each other. On the other hand, I believe that both decisions stand for the proposition that the running of Defendant’s probationary period would be tolled until any unrelated charges had been fully resolved, with that interval including the time required for any necessary appellate review. As a result, I believe that both of the decisions mentioned by the Court suggest that the trial court’s focus on remand in this case should be whether the charges brought against Defendant in New Jersey would, if proven true, have been sufficient to justify the revocation of Defendant’s probation and, if so, how much time elapsed between the date upon which Defendant was charged with committing these offenses and the date upon which the proceedings necessary to resolve those charges, including any proceedings on appeal, had been concluded.

Conclusion

Thus, for the reasons set forth above, I believe that the Court should address the State’s appealability argument and am concerned that the Court’s treatment of the tolling issue suggests the existence of some inconsistency in the law where I do not believe that any exists. Subject to those exceptions, however, I concur in the result reached by the Court and almost all of its reasoning.

. As an aside, I believe that adopting the State’s argument, which would effectively require Defendant to appeal an order of which he appears to have had no notice, would raise serious due process issues.