A Case of Actual Absconding

A string of recent cases have shown what absconding isn’t. A case from the court of appeals this week gives us an example of what absconding is.

In State v. Newsome, the defendant was on felony probation for a drug offense. About two years into the probation, the probation officer filed a violation report alleging, among other technical violations, that the defendant had absconded. That violation report was based on the officer’s “numerous attempts to contact the defendant at the last known address.” Slip op. at 2. The probationer was arrested on that violation report and held for almost two months.

He eventually posted a bond and was released, but he failed to follow instructions to report to the probation office within 72 hours. That prompted the officer to make a home visit. Though the officer apparently saw the probationer enter the house, the probationer’s mother told the officer he wasn’t home. That visit prompted the officer to file another violation report.

At the ensuing violation hearing, the court revoked the defendant’s probation.

On appeal, the defendant argued that the alleged violating behavior was, at its core, merely failing to report for an office visit. And in light of State v. Williams, 243 N.C. App. 198 (2015) (discussed here), and State v. Krider, __ N.C. __ (2018) (discussed here), missed appointments alone are technical violations, not revocation-eligible absconding. Slip op. at 9.

The court of appeals disagreed, concluding that “the defendant did not simply miss an appointment or phone call with his probation officer.” Id. Instead, there were numerous instances over a span of two months where the defendant made himself unavailable for supervision, with numerous attempts by the officer to contact him at his last known address. The court emphasized the defendant’s failure to notify his officer of his release from custody within the requisite 72 hours, citing that as evidence of his willful avoidance of supervision. Slip op. at 7 (“The requirement for Defendant to contact the probation officer within 72 hours of release from custody alerted Defendant that his probation officer was attempting to actively monitor him.”). Absconding revocation affirmed.

Despite affirming the revocation, the court did remand the case for correction of a clerical error that comes up a lot. The probation revocation form includes a box the court can check to say that each alleged violation is, in and of itself, a sufficient basis upon which the court should revoke probation.

Before Justice Reinvestment, when a person could be revoked for any type of violation, checking that box when the court found multiple violations would insulate the revocation from reversal if any individual violation were found to be erroneous. Nowadays, that box can only be checked when all of the defendant’s violations are eligible for revocation (because they are for a new criminal offense, absconding, or some other violation after two prior CRVs or quick dips, as the case may be)—assuming, of course, the court indeed deems them each to be a sufficient basis for revocation.

Even after Justice Reinvestment, that box is often checked even when the defendant has technical violations in the mix. That’s what happened in Newsome’s case. But because the court had also checked the box indicating that revocation was permissible because the defendant had absconded, the court deemed the checking of the other box a clerical error and remanded it for correction. Still, the “each violation in and of itself” box probably shouldn’t be checked nearly as often as it is in practice.

Notwithstanding the result in Newsome, there are still many questions about what behavior is sufficient to constitute absconding. With that in mind, Community Corrections is in the midst of a pilot initiative to clarify which probationers will be brought before the court on absconding allegations. The general idea is to have specialized officers conduct a longer, more thorough investigation prior to filing a violation report based on absconding.

The results so far appear positive, with more absent offenders being found, but fewer meeting the heightened policy standard for filing an absconding violation. And in those cases where a violation is filed, the officers have a more thorough investigation record upon which testify, intentionally designed to touch on the facts deemed important by the appellate courts in the cases in which absconding revocations were affirmed—long absences, multiple missed appointments, repeated attempts by the officer to contact the probationer, and other evidence of intentional and knowing avoidance.

The pilot is currently underway in New Hanover/Pender, Wake, Guilford, Mecklenburg, and Buncombe. It will soon expand to Pitt/Craven/Carteret/Onslow/Pamlico, Chatham/Durham/Orange, Cabarrus/Rowan, and Cleveland/Gaston/Lincoln.

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