Court of Appeals Decides an Absconding Donut Hole Case

Last week the court of appeals decided State v. Nolen, its first absconding “donut hole” case. Pardon the mixed metaphor, but here is the donut hole in a nutshell:

• The Justice Reinvestment Act said probationers who “abscond” under G.S. 15A-1343(b)(3a) after December 1, 2011 may have their probation revoked.
• But the absconding condition in G.S. 15A-1343(b)(3a) only applies to persons on probation for an offense that occurred on or after December 1, 2011.
• Thus, thousands of offenders on probation for pre-December 1, 2011 offenses are not subject to the revocation-eligible absconding condition.

I analogized this coverage gap to the Medicare donut hole in this prior post.

Corey Nolen fell within that group. She was placed on probation for attempted drug trafficking in 2010. In June 2012 her probation officer filed a violation report alleging that on June 15, 2012, she violated the condition that she “remain within the jurisdiction of the court” by not being present during a home visit. The officer alleged that the defendant made her whereabouts unknown, “therefore absconding supervision.” At the ensuing violation hearing the court found that Nolen had absconded and revoked her probation, checking the box for finding 5.a. on the revocation judgment.

On appeal, Nolen argued that because her alleged violation occurred after December 1, 2011, the JRA limited the court’s authority to revoke to new criminal offenses, absconding under G.S. 15A-1343(b)(3a), and violations occurring after she served two periods of confinement in response to violation (CRV). G.S. 15A-1344(d2). Her probation officer alleged that she “absconded,” but Nolen pointed out that she was not subject to G.S. 15A-1343(b)(3a). That condition didn’t exist when she was placed on probation in 2010, and the legislation creating it applied only to offenses committed on or after December 1, 2011. S.L. 2011-412, sec. 2.5. How could she be revoked for a violation of a condition that didn’t apply to her?

She couldn’t be. The mere fact that the probation officer called the violation “absconding” was not sufficient to make it eligible for revocation. After Justice Reinvestment, a violation of the “remain within the jurisdiction” condition such as Nolen’s is a technical violation, subject at most to CRV. To be revoked for absconding, a person must be subject to the revocation-eligible absconding condition. And to be subject to that condition, the person must be on probation for an offense that occurred on or after December 1, 2011. Ms. Nolen was not, so the court of appeals reversed.

Going forward, court and corrections officials should be careful to distinguish between true statutory absconders (who are eligible for revocation) and violators like Ms. Nolen (who aren’t). The only way a person on probation for an offense committed before December 1, 2011 may be revoked for “absconding” is if the alleged violation actually happened before December 1, 2011, and thus predated the JRA’s limit on revocation authority. The issue will eventually fade away as pre-December 1, 2011 cases expire, but it’s something to watch for in the short run.