Collateral Attacks on Probationary Sentences

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Sometimes a good defense to an alleged probation violation is not about the violation itself, but rather about the underlying conviction or sentence. For example, if a violation occurred in month 38 of a probation period that shouldn’t have been any longer than 36 months without the judicial finding required under G.S. 15A-1343.2(d), the defendant will have a good argument that the violation is without merit because it occurred after a lawful probation period would have ended. (I discussed that general issue in this prior post.) A defendant might also argue that the condition allegedly violated was improper. The General Statutes expressly provide for that sort of defense, saying that a defendant’s failure to object to a condition at the outset does not constitute a waiver of the right to object to it “at a later time.” G.S. 15A-1342(g). But “at a later time” does not mean forever. Rather, the defendant must object to the condition no later than the hearing at which the violation is alleged. State v. Cooper, 304 N.C. 180 (1981).

That question of timing brings me to the subject of today’s post. One type of argument a defendant facing a probation violation might raise is that there was some problem with the indictment that originally charged the offense for which he or she is on probation. That type of challenge was the subject of a recent case, State v. Pennell, __ N.C. __, 758 S.E.2d 383 (2014). The question before the supreme court in Pennell was this: when is it too late to raise a jurisdictional argument of that sort?

In Pennell, the defendant was on probation for larceny (among other things). His probation was revoked. On appeal of his revocation, the defendant argued to the court of appeals—for the first time—that his revocation was improper because the original indictment for the larceny offense was fatally defective. If the underlying judgment was void, the defendant argued, so was the finding of violation. The issue was never raised in the trial court, but the defendant contended that jurisdictional arguments “may be raised at any time.” The State countered that the appellate division was not a permissible place to raise this sort of collateral attack on the underlying judgment for the first time. Prior appellate cases were conflicting. Compare State v. Hunnicutt, __ N.C. App. __, 740 S.E.2d 906 (2013) (holding that a defendant could not challenge the jurisdictional validity of an indictment for the first time on appeal of his probation revocation), with State v. Simpson, 25 N.C. App. 176 (1975) (holding just the opposite, because jurisdictional arguments “may be made at any time, even in the appellate court”). In Pennell, the court of appeals agreed with the defendant and arrested judgment on the revocation. __ N.C. App. __, 746 S.E.2d 431 (2013).

The supreme court allowed the State’s petition for discretionary review and reversed. The court concluded that the defendant failed to appeal directly from his original judgment suspending sentence, and that he would not be allowed to do so “collaterally via a proceeding contesting the activation of the sentence.” Slip op. at 9. But the defendant was not out of luck entirely. The court noted that the defendant could still challenge the indictment via motion for appropriate relief or petition for a writ of habeas corpus—avenues not prejudiced by the court’s conclusion regarding the limited scope of Pennell’s revocation appeal. The court also wrote in a footnote that there is one exception to its rule against collateral attacks: a defendant may argue for the first time on appeal of a probation revocation that he or she was unconstitutionally denied counsel at the original trial. State v. Neeley, 307 N.C. 247 (1982).

Pennell tightens up the rule about what may be raised for the first time on appeal of a probation revocation. But to be clear, the case does not have any direct bearing on the propriety of violation hearing arguments regarding the length of probation or the validity of a condition that I mentioned at the outset of the post. Pennell does not say that such arguments are collateral attacks that may not be raised in the trial court. To the contrary, the case makes clear that if such arguments are to be raised at all, the violation hearing in the trial division is precisely the time to do so, because after Pennell, the appellate division won’t hear them in the first instance.

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