Absconding Continues to Come into Focus

Almost ten years after the Justice Reinvestment Act established a new statutory definition of absconding from probation, we’re starting to get a better sense of what behavior does and does not rise to the level of absconding.

By statute, it is a regular condition of probation that a defendant must not “abscond by willfully avoiding supervision or by willfully making the defendant’s whereabouts unknown to the supervising officer.” G.S. 15A-1343(b)(3a). That condition was added as part of the Justice Reinvestment Act in 2011, and it is one of only two conditions for which a person may be revoked upon a first violation (the other is committing a new criminal offense). Absconding is the most common violation for which probationers get revoked.

In State v. Williams, 243 N.C. App. 198 (2015), the Court of Appeals made clear that an absconding violation had to be something more than “simply a re-alleging” of technical violations for failing to report to a probation officer or failing to remain within the jurisdiction. In State v. Johnson, 246 N.C. App. 139 (2016), we learned that missing one appointment is not absconding—particularly when the defendant told the officer he would miss the appointment and was wearing an electronic monitor that made his whereabouts the opposite of unknown. In State v. Krider, 371 N.C. 466 (2018), the Supreme Court said that information from an unidentified person at the last known residence was insufficient evidence to establish that the defendant’s was aware that his probation officer was looking for him. And finally in State v. Melton, 258 N.C. App. 134 (2018), the Court of Appeals said the trial court erred by considering evidence of the defendant’s absconding that fell outside of the dates alleged in the violation report.

I think it’s fair to say that those cases raised the bar for what qualifies as absconding. Recent cases show that it is not, however, an insurmountable hurdle.

In State v. Rucker, ___ N.C. App. ___ (May 5, 2020), the Court of Appeals unanimously affirmed the defendant’s revocation for absconding. The court found the case distinguishable from Williams in that there was a period of several months where Rucker’s whereabouts were truly unknown to the probation officers. Rucker’s officers made six visits to his last known residence, and on two of those visits—unlike in Krider—identified people told the officers that the defendant no longer resided at the house. Moreover, the defendant had notice after an earlier release from custody that his officer was looking for him and he still stayed out of touch. On those facts, the trial court did not err by finding that the defendant absconded.

In State v. Mills, ___ N.C. App. ___, 840 S.E.2d 293 (2020), the defendant’s revocation for absconding was similarly affirmed. The defendant failed to report to his probation officer within three days of his release from custody, gave his sister’s phone number on his probation intake form even though he was rarely in contact with her, and listed the address of a homeowner who didn’t even know him. That sort of avoidance and misdirection was more than mere failure to report, and demonstrated willful avoidance of supervision.

I wouldn’t describe Rucker and Mills as bellwethers of a dramatic shift in the appellate courts’ absconding jurisprudence. I just think the cases just had facts different from the series of cases outlined above. The defendants were unavailable for an extended period and they failed to check in (even by phone) to make their whereabouts known—even when it was clear they knew officers were looking for them. The officers in question made multiple attempts to contact them, and, unlike Krider, the hearing testimony identified who gave the officers information about the probationers. Those facts made the cases more like State v. Trent, 254 N.C. App. 809 (2017) (discussed here), and State v. Newsome, ___ N.C. App. ___, 828 S.E.2d 495 (2019) (discussed here), than the cases described at the outset of the post, and the revocations were therefore upheld.

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