A probationer is entitled to a hearing on an alleged probation violation, unless the hearing is waived. G.S. 15A-1345(e). What does it mean to waive a probation violation hearing? As a result of legislation passed in 2013, the answer to that question matters more than it used to for probation violations in district court.
Ordinarily, when a person’s probation is revoked or a split sentence is imposed in district court, the probationer may appeal to superior court for a de novo violation hearing. G.S. 15A-1347. (Other modifications of probation, including imposition of confinement in response to violation, are not appealable, as discussed here.) Under new G.S. 15A-1347(b), “if a defendant waives a revocation hearing, the finding of a violation of probation, activation of sentence, or imposition of special probation may not be appealed to the superior court.” The new law appears to apply to probation violations occurring on or after December 1, 2013—language I generally interpret to refer to the date of the alleged offending behavior, not the date of the hearing. S.L. 2013-385.
The problem is that a waiver of a probation violation hearing is not as clear of a thing—not as identifiable of a moment—as a guilty plea to a new criminal charge. Aside from the mention of a hearing waiver in G.S. 15A-1345(e), the statutes don’t really say anything about it. What little case law we have has stressed that a probation violation hearing is not a formal trial, and that “[u]nlike when a defendant pleads guilty, there is no requirement that the trial court personally examine a defendant regarding his admission that he violated his probation.” State v. Sellars, 185 N.C. App. 726, 728–29 (2007).
Given that relative informality, it may not always be clear when a violation hearing has been waived. If a probationer explicitly waives his or her right to a hearing and consents to a modification imposed out of court, then the hearing probably has been waived. But what about the probationer who admits to a violation, but still wishes to be heard on its circumstances, or on how the court will respond to it? Is the admission tantamount to a waiver, or is the argument regarding the proper sanction (house arrest in lieu of revocation, for instance) still a hearing of sorts?
I don’t see a clear answer in our statutes or case law. Given the uncertainty, some practitioners have taken the position that they will not admit to any violation in district court. They fear that the admission will be deemed a hearing wavier, and in turn a waiver of the right to appeal. Others have been careful to accompany any admission with some indication that the hearing was not waived. That requires a small modification to the relevant AOC forms (for example, AOC-CR-607), which generally place waiver and admission together on the same line, with a single check-box.
Similarly, as is customary in some districts to enter a plea of “not guilty but does not resist a verdict of guilty” in a plea to a criminal offense in district court, does a response to a probation violation of “denied, but does not resist a finding of violation” safely achieve the result of not having waived hearing and thus preserving the right to appeal to superior court?