More about What Is and Isn’t Absconding

Two new cases from the court of appeals, both involving defendants named Johnson, shed more light on the meaning of “absconding” from probation.

First, recall the basic Justice Reinvestment rule for probation violations: felony probation may be revoked only for a new criminal offense or absconding, or for any violation after a defendant has served two periods of confinement in response to violation. G.S. 15A-1344(d2). Absconding is defined by statute as willfully avoiding supervision or willfully making one’s whereabouts unknown to the supervising officer. G.S. 15A-1343(b)(3a).

Second, recall the recent case of State v. Williams, __ N.C. App. __, 776 S.E.2d 741 (2015), discussed here. In Williams, the court of appeals reversed a probation revocation, concluding that the probationer’s behavior did not constitute absconding within the meaning of G.S. 15A-1343(b)(3a). In that case, a Vance County probationer changed his address without permission, missed multiple appointments with his probation officer, and traveled back and forth to New Jersey several times. The behavior was not absconding, though, because it was covered under other technical violations—failing to remain within the jurisdiction under G.S. 15A-1343(b)(2), and failing to report the probation officer as directed under G.S. 15A-1343(b)(3). Without more, mere technical violations could not be framed as violations of the special, revocation-eligible absconding condition.

In both of this week’s Johnson cases, the defendants tried to leverage Williams to defend against allegations of absconding. One defendant succeeded, the other did not.

In State v. Jakeco Johnson, the defendant was on felony probation. About a month into his supervision, during a home visit, his probation officer told him to report to the probation office the next day at 9:00 a.m. The defendant told him he would not, because he wouldn’t be able to find a ride at that hour. The officer rejected his request to meet at a later time. The defendant didn’t go to the meeting. Three days later, the officer filed a violation report alleging (among other things) that the defendant absconded.

At the ensuing violation hearing, the probation officer acknowledged that Johnson’s whereabouts were never unknown—he was wearing a satellite monitor as part of his electronic house arrest. However, the officer testified that the offender committed the willfully avoiding supervision type of absconding by failing to come to his office meeting. “I would believe,” the officer said, “that when [the defendant] tells the probation officer that he has – he is not coming to probation then that is willfully absconding.” The trial court revoked.

The court of appeals vacated the revocation. In a nutshell, the court concluded that telling your probation officer that you can’t get to a meeting and then, the next day, not coming is not revocation-eligible absconding “when these exact actions violate the explicit language of a wholly separate regular condition of probation which does not allow for revocation and activation of a suspended sentence.” Slip op. at 11. As in Williams, something more than a baseline “failure to report” would be required to allow for revocation.

State v. Nicholas Johnson involved another felony probationer revoked for absconding. His was the failure to make whereabouts known variety of absconding: he neglected for a few months to tell his probation officer that he had moved from Nash County to McDowell County. (Initially he thought his girlfriend had been keeping his probation officer up to date, but he didn’t turn himself in when he learned that she hadn’t.) At his hearing, the defendant admitted to absconding. On appeal he changed course, arguing that his alleged absconding, like that in Williams, was a mere failure to report.

The court of appeals disagreed. Unlike the defendant in Williams, who talked to his probation officer via phone multiple times from New Jersey, Johnson was completely out of touch with his officer for “multiple months,” and never made his whereabouts known. This was absconding. Revocation affirmed.

I think there are a couple of key points to take away from these cases. First, absconding clearly cannot be shown by one missed appointment. Williams may have been a borderline case in that regard (the probationer there missed several appointments), but I don’t think Jakeco Johnson’s case was even close. In fact, that violation arguably shouldn’t have been filed at all—at least not so quickly. Probation policy requires an officer to undertake a fairly detailed investigation, which may be as long as 10 days, before declaring an offender to be an absconder. The policy goes on to say that “[i]f the offender is located during the investigation, he or she is not an absconder.” It’s hard to see how an absconding violation report could be filed three days after one missed appointment—particularly when the whereabouts of the offender in question were known to a precise latitude and longitude by virtue of the satellite monitor he was wearing.

Second, looking at Williams and the Nicholas Johnson cases, it seems that absconding is less about where you go and more about how long you stay out of touch. Mr. Williams went all the way to New Jersey—several times—but didn’t abscond because he stayed in contact with his officer by phone. Nicholas Johnson went from one North Carolina county to another, but did abscond because he never checked in. (I should, however, note that it’s not much further from Vance County to New Jersey than it is from Nash County to McDowell.)

That makes sense to me. Looking at the dictionary definition of absconding reminds me that the word connotes a type of hiding and secrecy. It is not merely failing to be where a judge or probation officer orders you to be. That is almost certainly a violation, but not one for which a person may be revoked.