IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-756
Filed 12 September 2023
Pitt County, No. 20 CRS 53739
STATE OF NORTH CAROLINA
v.
KENDRA MARIA DANIELS, Defendant.
Appeal by Defendant from judgment entered 17 February 2022 by Judge
Thomas D. Haigwood in Pitt County Superior Court. Heard in the Court of Appeals
7 March 2023.
Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly
Randolph, for the State.
Currie Law Offices, PC, by Patrick W. Currie, for defendant-appellant.
MURPHY, Judge.
A trial court may only revoke a defendant’s probation if the defendant commits
a new criminal offense, absconds, or violates any condition after previously serving
two periods of confinement in response to violations. As long as one of these
conditions is met, the trial court may exercise its sound discretion in determining
whether revocation is appropriate. When a trial court indicates in its written order
that factors outside of these three conditions constituted sufficient bases to revoke
the defendant’s probation and we cannot determine what weight the trial court gave
to each of the relevant factors at defendant’s revocation hearing, we vacate the
STATE V. DANIELS
Opinion of the Court
revocation order and remand for a new revocation hearing in which the trial court
properly exercises its discretion. However, when the written order improperly
indicates that additional factors constituted sufficient bases to revoke probation, but
we are nevertheless able to determine that the trial court understood and exercised
its discretion by weighing the appropriate bases for revocation, we modify the
findings to reflect only the appropriate bases for revocation and affirm the revocation.
BACKGROUND
On 1 March 2021, Defendant pled guilty to driving while impaired based on an
arrest on 8 July 2020. The trial court gave her a 12-month sentence, suspended for
36 months of supervised probation; ordered her to surrender her license; and added
a condition to her probation forbidding the possession or consumption of alcohol or
controlled substances and authorizing warrantless searches for such substances.
On 12 November 2021, Defendant’s probation officer filed a violation report
with the court, citing three positive results for marijuana drug screens, delinquency
on court payments, and commission of a new criminal offense on 14 June 2021. On
13 January 2022, Defendant’s probation officer filed a second violation report for a
fourth positive marijuana drug screen.
On 17 February 2022, Defendant admitted to the violations contained in the
two reports. During the revocation hearing, the State noted that Defendant attended
her meetings with her probation officer, and, because of this partial compliance,
Defendant requested the trial court exercise its discretion to order a confinement in
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Opinion of the Court
response to violation rather than revocation. However, the trial judge stated, “I find
the violations to be willful and intentional[,] and therefore I am going to revoke her
probation . . . .” He subsequently activated her 12-month sentence. On 24 February
2022, the trial court amended its 17 February 2022 judgment to reflect an activated
sentence of 6 months.
In both its Impaired Driving Judgment and Commitment Upon Revocation of
Probation, form AOC-CR-343, and its amended version of this form judgment, the
trial court checked boxes indicating it made the following findings:
4. Each of the conditions violated as set forth [in
Paragraphs 1-4 of the 12 November 2021 Violation Report
and Paragraph 1 of the 13 January 2022 Violation Report]
is valid. The defendant violated each condition willfully
and without valid excuse and each violation occurred at a
time prior to the expiration or termination of the period of
the defendant’s probation.
....
5. The [trial court] may revoke defendant’s probation . . .
a. for the willful violation of the condition(s) that
he/she not commit any criminal offense, [N.C.G.S. §]
15A-1343(b)(1), or abscond from supervision,
[N.C.G.S. §] 15A-1343(b)(3a), as set out above.
Defendant timely appealed.
ANALYSIS
“A trial court may only revoke probation for committing a criminal offense or
absconding, except as provided in N.C.G.S. § 15A-1344(d2).” State v. Newsome, 264
N.C. App. 659, 661 (2019) (marks omitted); see N.C.G.S. § 15A-1344(a) (2022). For
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Opinion of the Court
other violations of probation, “a defendant under supervision for a felony conviction”
may be subject to “a period of confinement of 90 consecutive days” and “a defendant
under supervision for a misdemeanor conviction not sentenced pursuant to Article
81B[,]” such as a defendant in an impaired driving case, may be subject to “a period
of confinement of up to 90 consecutive days.” N.C.G.S. § 15A-1344(d2) (2022)
(emphasis added).
We have previously held that, when a trial court makes a written finding that
each violation is a sufficient basis upon which it may revoke probation, “the written
order controls for purposes of appeal.” State v. Hemingway, 278 N.C. App. 538, 544
(2021) (quoting State v. Johnson, 246 N.C. App. 677, 684 (2016)) (marks omitted). In
Hemingway, although the trial court judge made a verbal finding that “the basis of []
revocation is that [the defendant] has committed a new criminal offense,” id., we
reversed the trial court’s written finding that the defendant’s positive drug test was
adequate to revoke his probation. However, the judgment revoking the defendant’s
probation in Hemingway was ultimately vacated and remanded on other grounds. Id.
at 552.
In its judgment revoking Defendant’s probation, the trial court checked finding
box 4, which states “each violation is, in and of itself, a sufficient basis upon which
[the trial court] should revoke probation and activate the suspended sentence.”
Defendant argues this is an “obvious[] err[or]” in violation of N.C.G.S. § 15A-1344(a)
because the trial court made a finding of fact that all alleged violations constitute a
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basis for revocation. Defendant contends the trial court improperly failed to consider
“that some of the alleged violations were not revocable offenses, and therefore the
totality of the circumstances may not justify the ultimate punishment of revocation
of probation.”
Defendant further asserts the trial court’s finding within box 4 reflects a
failure to exercise its discretion, which resulted in prejudice to Defendant. Defendant
is correct that, under N.C.G.S. § 15A-1344(a), only Defendant’s commission of a new
offense on 14 June 2021 would support the trial court’s decision to revoke her
probation. However, the trial court also checked the box for finding 5 and the box for
subpart (a) within that finding. This subpart made the finding that the trial court
“may revoke [D]efendant’s probation . . . for the willful violation of the condition(s)
that he/she not commit any criminal offense . . . .” While Defendant contends that
the written order reflects that the trial court “believed that all of the violations of
probation constituted a basis of revocation, and not just [the one] authorized by
statute” and therefore it “could not have properly exercised its discretion in
determining the appropriate judgment for [Defendant,]” the State argues the trial
court’s finding in 5(a) demonstrates that “checking box number 4 was a clerical error.”
In Hemingway, we declined to hold that such an error was clerical in nature and
reversed the finding; however, in Hemingway, we did not have an opportunity to
analyze the appropriate remedy for this reversible error by the trial court. We have,
however, had opportunities to address similar issues with regard to sentencing.
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In State v. Hardy, we held the appropriate remedy “[w]hen a trial court
consolidates multiple convictions into a single judgment but one of the convictions
was entered in error . . . is to remand for resentencing when the appellate courts ‘are
unable to determine what weight, if any, the trial court gave each of the separate
convictions . . . in calculating the sentences imposed upon the defendant.’” State v.
Hardy, 242 N.C. App. 146, 160 (2015) (quoting State v. Moore, 327 N.C. 378, 383
(1990)) (emphasis added); see also State v. Jones, 265 N.C. App. 644, 651 (2019) (“As
we are unable to determine what weight, if any, the trial court gave to the erroneously
entered assault conviction, we must remand for resentencing.”) (emphasis added).
Although we review an order revoking probation based upon multiple violations in
this case rather than a sentencing order based upon multiple convictions, the
underlying jurisprudential considerations remain the same. The principle that we
remand when the trial court considered an erroneous basis in its discretionary
punishment decision and we are unable to determine what weight the trial court gave
to each of the violations of law, including the erroneous one, in reaching its decision
ensures the trial court exercised its discretion and restrained Defendant’s liberty as
a conscious and fully informed decision. See State v. Robinson, 383 N.C. 512, 523
(2022) (holding that, if a review of the trial court’s commentary and rationale
underlying its sentencing decision makes apparent “that the trial court was fully
familiar with its given statutory discretion” to impose a lesser judgment if it “desired
to do so[,]” an appellate court may find no abuse of discretion, despite remarks which
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a defendant argues may suggest the trial court’s misunderstanding of its ability to
exercise such discretion).
In Hardy, the defendant was convicted of both larceny and felonious possession
of stolen goods and sentenced at the midpoint of the allowable mitigated range under
the appropriate guidelines. Hardy, 242 N.C. App. at 160-61. Later that same day,
the trial court – likely upon its recognition that a defendant cannot be convicted of
both of these offenses for the same conduct – arrested judgment on the conviction for
possession of stolen goods but did not alter the length of the defendant’s sentence. Id.
at 161. The trial court’s initial sentence based on the two convictions remained within
the allowable guidelines for larceny; however, we remanded the case to the trial court
for resentencing within the trial court’s discretion, as we had no way to determine
“whether the trial court gave any weight to [the improper conviction] when it
[originally] sentenced defendant in the middle of the mitigated range instead of at a
lower point in that range.” Id. In Jones, we applied Hardy and remanded to the trial
court for resentencing where the defendant was erroneously convicted of two assault
charges, rather than one, and sentenced at the high end of the presumptive range.
Jones, 265 N.C. App. at 650-51.
Here, unlike in Hardy and Jones, we are able to ascertain that the trial court
properly weighed the probation violations, as it acknowledged by checking the box for
finding 5(a) that the revocation of Defendant’s probation was based upon the
commission of a new criminal offense.
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CONCLUSION
Although the trial court improperly found that each of Defendant’s probation
violations constituted sufficient bases upon which to revoke her probation, it is clear
from the trial court’s indication in the same judgment that it properly considered and
understood the statutory basis for revoking Defendant’s probation and properly
exercised its discretion. We affirm the trial court’s judgment revoking Defendant’s
probation; however, we reverse the trial court’s finding 4.
AFFIRMED AS MODIFIED.
Judges ARROWOOD and RIGGS concur.
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