Some FAQ about Probation Violation Appeals

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Today’s post gives my best answers to a few frequently asked questions about appeals of probation violation hearings.

Which outcomes of a probation violation hearing may be appealed. Revocation or imposition of special probation. G.S. 15A-1347(a). There is no right to appeal the imposition of other sanctions, such as electronic house arrest or community service. State v. Edgerson, 164 N.C. App. 712 (2004). To the extent that the procedure for imposing contempt in lieu of revocation under G.S. 15A-1344(e1) incorporates regular contempt procedures from Chapter 5A, a defendant probably may appeal contempt confinement. See G.S. 5A-17.

What about Confinement in Response to Violation (CRV)? May it be appealed? We know from State v. Romero, 228 N.C. App. 348 (2013), that there is no right to appeal a non-terminal CRV (that is, a CRV period that does not use up the entirety of a defendant’s suspended sentence). But in Romero, the court of appeals explicitly declined to express any opinion about the appealability of a terminal CRV. Id. at 366 n. 1 (“We decline to express any opinion on the issue of whether CRV under such a circumstance would constitute a de facto revocation, as the time remaining on Defendant’s maximum imposed sentence far exceeds 90 days.”). No subsequent case has taken up the issue.

Nevertheless, I have heard of many instances of defendants being told—often by a clerk—there is no right to appeal any CRV, including a terminal one. With no appellate case on point, I’m inclined to say it’s an open question. And to the extent that there’s any doubt, the better practice would seem to be to let the court that might have jurisdiction to hear the appeal (superior court or the court of appeals, as the case may be) do the deciding.

How about quick dip confinement? There is no statutory right to appeal quick dip confinement imposed by a judge under G.S. 15A-1343(a1)(3). No appellate case has considered the issue, but it seems safe to say that if there’s no right to appeal a CRV, then there’s likewise no right to appeal a quick dip.

I thought the General Assembly removed the appeal right for defendants who admit to a violation. Did it? Not quite. In 2014, G.S. 15A-1347 was amended to add a new subsection (b) saying that “[i]f a defendant waives a revocation hearing, the finding of a violation of probation, activation of sentence, or imposition of special probation may not be appealed to the superior court.” The issue is that admitting a violation and waiving a violation hearing are not the same thing.

As discussed in this prior post, a defendant may well admit to a violation, but still want to be heard on the sanction that will be imposed in response to it. That does not strike me as a hearing waiver sufficient to remove the right to appeal under G.S. 15A-1347(b). Apparently some disagree, because I regularly hear about courts—often through the clerk as gatekeeper—flatly disallowing appeals for defendants who admit to violations. As with terminal CRVs, if there’s any doubt about whether a defendant has a right to appeal something, I think it ought to be resolved by the court on the receiving end.

Note that the limit on probation appeals applies only to district-to-superior-court de novo appeals; it does not apply to appeals from superior court to the appellate division. So, even a defendant who clearly waived a violation hearing in superior court may appeal to the court of appeals (assuming the sanction imposed is appealable).

If a violation hearing on a Class H or Class I felony pled in district court is held in district court, where does the appeal go? Superior court for a de novo violation hearing. State v. Hooper, 358 N.C. 122 (2004). With that in mind, some districts hold those violation hearings in superior court in the first place. In fact, superior court has exclusive jurisdiction over those hearings by default, but they may be held in district court with the consent of the State and the defendant (the judge does not get a vote). G.S. 7A-271(e).

Finally, I have a question for you. How—if at all—is G.S. 15A-1347(c) being applied in practice (particularly in superior court)? As you may recall from this prior post, that provision was added in 2015 to say that, for revoked probationers, “probation supervision will continue under the same conditions until the termination date of the supervision period or disposition of the appeal, whichever comes first.” Read literally, the law appears to say that revoked probationers would stay on probation, regardless of whether the court set conditions of release pending appeal. Is that happening? Or is the provision being read to apply only in the (rare?) case where the court allows the activated sentence to be stayed under G.S. 15A-1451(a)(3) by setting conditions?

One comment on “Some FAQ about Probation Violation Appeals

  1. Although the defendant generally has no right to appeal from the outcomes of a probation violation hearing other than those mentioned at the top of the post, a defendant can sometimes obtain appellate review through a petition for writ of certiorari. Our Court of Appeals has granted the writ in cases where there was an allegation of the denial of a constitutional right at the hearing or the trial court lacked jurisdiction to hold the hearing. See, e.g., State v. McCurry, ___, N.C. App. ___, 781 S.E.2d 351 (2015) (after grant of petition for writ of certiorari, reviewing denial of continuance to obtain counsel and other alleged errors in order imposing ninety-day confinement in response to violation); State v. Hoskins, ___ N.C. App. ___, 775 S.E.2d 15 (2015) (allowing certiorari and vacating probation termination orders because the trial court lacked jurisdiction at the violation hearing); State v. Sexton, 141 N.C. App. 344, 346, 539 S.E.2d 675, 676 (2000) (granting certiorari from a probation modification order to address denial of the assistance of counsel). Thus, while there is no right of direct appeal, the proceedings are not immune from review.

    I realize certiorari is slightly outside the scope of the post, but it seems worth adding for those who may look here seeking a procedure to address serious errors in probation violation hearings.

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