Another Case on Probation Hearings After Expiration

As the courts expand operations in the coming months, they’ll likely be holding probation violation hearings on cases where the probation period has already expired. A case decided by the Court of Appeals yesterday offers some insight into the type of findings needed to give a court jurisdiction to act.

Under G.S. 15A-1344(f), a court can extend, modify, or revoke probation after it has expired as long as:

1. The State files a written violation report before the case expired;
2. The court finds a violation; and
3. The court finds for good cause shown and stated that the probation should be extended, modified or revoked.

In State v. Morgan, 372 N.C. 609 (2019), discussed here, the Supreme Court of North Carolina held that the third requirement—the requirement for a finding of good cause—was no mere surplusage. Without a finding of good cause, the trial court does not have jurisdiction to act.

What wasn’t clear after Morgan was how detailed that finding needed to be. State v. Sasek, decided yesterday, sheds a little light.

In Sasek, the defendant had pending criminal charges and a pending probation violation. He was tried on the new charges first. After the jury convicted him of the substantive charges, he pled guilty to being a habitual felon in exchange for the State’s agreement that his activated suspended sentence on the probation case would run concurrently with the sentence for the new convictions.

One of the issues on appeal was that all of this was done fourteen months after the probation had expired. The defendant argued that, under Morgan, the trial judge’s failure to make a finding of “good cause shown and stated” for acting on the probation case after expiration deprived the court of jurisdiction to act on it at all.

The Court of Appeals agreed and vacated the revocation. Not only that, the court decided that, in the absence of any information in the appellate record as to why the hearing was not held before the case expired, it would vacate the revocation without any remand for findings. The court cited to cases like State v. Bryant, 361 N.C. 100 (2006), applying a pre-2008 version of G.S. 15A-1344(f), which said that the court could only act on a probation violation after expiration with a finding that “the State has made reasonable effort to notify the probationer and to conduct the hearing earlier.” I mentioned those “reasonable effort” cases here, https://nccriminallaw.sog.unc.edu/absconding-from-probation/, in the early days of this blog.

Here, the record did not indicate why a violation hearing originally scheduled for June 2017 did not take place until March 2019—well after the defendant’s probation had expired. The Court of Appeals rejected the State’s argument that a reasonable inference as to the reason for the delay was that the defendant wished to have his day in court on the new criminal charges first. (Judge Berger, concurring in the result only, would have found the agreement between the State and the defendant about the old and new sentences running concurrently to be a sufficient basis for remand.)

It’s interesting to see the old law about findings of “reasonable effort” applied to the post-Morgan requirement for findings of “good cause shown and stated.” Obviously they have a connection; they are both findings required to preserve a court’s jurisdiction to act. But they are substantively different. The findings under the old law pertained to the State’s actions leading up to the eventual hearing (trying to notify the defendant and conducting the hearing earlier). The new “good cause” finding is, by contrast, more directed at what should happen going forward—whether the court thinks that “probation should be extended, modified, or revoked.”

Regardless, the Court of Appeals’ application of that older case law and seeming skepticism about inferring good cause lead me to recommend a particularized approach to the requisite finding. Both the opinion of the court and Judge Berger’s concurrence refer to “findings of fact.” And after all, the findings of good cause must be “shown and stated.” With that in mind, litigants in after-expiration cases may wish to prepare evidence and arguments about whether the cause really is good, and trial judges who decide to act after expiration may wish to note the specific reasons they decided to do so despite the delay.