Can a probationer be revoked for a violation of the “commit no criminal offense” probation condition if the violation report alleges only that the person has been charged with a crime?
A violation of the “commit no criminal offense” probation condition set out in G.S. 15A-1343(b)(1) is one of the two things for which a person’s probation may be revoked (the other is absconding). A frequently asked question over the years is whether the defendant must be convicted of that new criminal offense before the probation court may consider it as a violation. As discussed elsewhere, I think the court may act on a criminal offense violation before conviction if it makes independent findings of the criminal behavior.
What I want to focus on today, however, is the wording of the violation report. It is clearly wrong for a judge to revoke a defendant’s based solely on the fact that a person has been charged with a crime, without further investigation of and findings related to the criminal behavior itself. State v. Guffey, 253 N.C. 43 (1960). Does it follow that a violation report is invalid if it mentions only the pendency of a new charge without any express allegation of the underlying criminal behavior?
No. In State v. Lee, 232 N.C. App. 256 (2014), the defendant’s probation was revoked based on a “commit no new criminal offense” violation that was alleged like this:
The defendant argued that the court did not have jurisdiction to act on the violation because it was framed solely around the pending charges. The court of appeals disagreed, concluding that the critical issue here was notice. The defendant clearly was on notice that the violation in question was of the revocation-eligible “commit no criminal offense” condition. Of course additional evidence beyond the mere fact of the charges would be required to find the violations and revoke, but the violation report was sufficient to allow the defendant to prepare his defense.
The Lee court distinguished prior cases like State v. Tindall, __ N.C. App. __ 742 S.E.2d (2013) (discussed here), and State v. Kornegay, __ N.C. App. __, 745 S.E.2d 880 (2013). In those cases, revocations were overturned when the trial court treated allegations of technical violations—e.g., “use, possess, or control a controlled substance,” or “possess no firearm or other deadly weapon”—as new criminal offenses. Sure, the behavior underlying those technical violations could (perhaps) have constituted a crime. But the important thing for purpose of the probation violation hearing was that they were not alleged that way, and so the defendants could not be revoked. In Lee, by contrast, the pending charges were presented as a “new criminal offense” from the get-go.
So, a “commit no criminal offense” violation report that refers to pending charges is not necessarily invalid. Probation officers should note, however, that their administrative policy steers them away from alleging new crimes in that way. Instead, the boilerplate language in the policy tracks the language of the condition itself, focusing on the commission of the crime itself, rather than the fact that the defendant was charged with committing it: “The offender willfully violated the regular condition that he or she commit no criminal offense in any jurisdiction by committing the crime of [insert name of crime] on [date of offense].”
Finally, just because a “pending charge” violation report may be valid in terms of the notice it provides to the defendant does not mean that a court is obliged to find the violation and revoke. The judge may respond to the violation with some other sanction (except CRV) or no sanction at all, or wait to see if the charges result in a conviction before acting on them.