A recent appellate case sheds additional light on what it means to abscond from probation.
Under G.S. 15A-1343(b)(3a), it is a regular condition of probation that a defendant must not “abscond by willfully avoiding supervision or by willfully making [his or her] whereabouts unknown to the supervising probation officer.” The condition hasn’t been around very long—only since December 1, 2011, and only for offenses committed on or after that date—so we don’t have much case law to help explain what it means. It matters, of course, because absconding is one of the few things for which a person may be revoked after Justice Reinvestment.
Earlier cases have indicated that violating behavior should not be considered absconding “when these exact actions violate the explicit language of a wholly separate regular condition of probation which does not allow for revocation.” State v. Johnson, __ N.C. App. __, 783 S.E.2d 21 (2016) (discussed here). Applying that rule, the Johnson court concluded that a probationer did not abscond when he missed only one office appointment, because that was merely a violation of G.S. 15A-1343(b)(3), the requirement that a probationer report to his or her probation officer as directed. Additionally, the defendant’s whereabouts were not unknown—because he was wearing an electronic house arrest monitor.
Likewise in State v. Williams, __ N.C. App. __, 776 S.E.2d 741 (2015) (discussed here), the court of appeals held that a defendant did not abscond when he missed multiple appointments and traveled out of state without permission, because those behaviors violated the non-revocable “report as directed” and “remain within the jurisdiction” conditions, respectively. Again, importantly, the probationer’s whereabouts were not unknown to the officer, because the defendant stayed in touch with the officer by phone while he was out of state.
That brings us to the latest case. In State v. Trent, a probationer officer made an unannounced visit to the defendant-probationer’s home on April 24. The defendant’s wife told the officer that he wasn’t home and that he had taken her car and bank card. When the officer returned for another visit 11 days later, the defendant’s wife told the officer that he hadn’t returned and she didn’t know where he was. The officer filed a violation report alleging that the defendant absconded, noting that he had been absent from his home for 16 days and that his present whereabouts were unknown.
At the ensuing violation hearing, the defendant testified that he had been working a temporary job out of town when his officer visited, and that his wife had agreed to inform his probation officer about that during his absence. The defendant said his wife hadn’t relayed the message because she was having an affair and trying to get him locked up.
The trial court found that the defendant absconded and revoked his probation. Unlike Johnson and Williams, the court of appeals affirmed. The court distinguished those cases based on the “simple, but significant” fact that Mr. Trent’s probation officer never knew his whereabouts. He hadn’t stayed in touch by phone (despite acknowledging that he had an opportunity to do so). And he wasn’t wearing a tracking device.
The supreme court granted the defendant’s motion for a temporary stay of the decision in Trent. If the case holds up, though, it appears that the “whereabouts unknown” variety of absconding may be easier for probation officers to establish than the “avoiding supervision” variety.