State v. Hancock, decided this week by the court of appeals, sheds new light on violations of the commit no criminal offense probation condition involving a pending charge.
Brian Hancock was sentenced to five years of probation for an offense committed back in 2011. In 2013, his probation officer filed violation reports alleging about a dozen violations. Most of violations were technical violations (things other than a new crime or absconding), including a “not use, possess or control any illegal drug or controlled substance” violation alleged on February 8, 2013.
Another violation report, filed on March 27, 2013, alleged (among other things) a violation of the commit no criminal offense condition, referencing the defendant’s pending charges for possession of drug paraphernalia, possession of marijuana, and other crimes—charges that likely arose out of the probation search conducted on February 7 and mentioned in the February 8 violation report.
Over two years later, Mr. Hancock had a violation hearing. By then, the probation officer who had filed the violation reports had retired. So, another officer read the violations into the record. The judge found all of the alleged violations (except for an absconding violation, but that’s not important for today’s discussion). The court also checked the box on the AOC-CR-607 indicating that “[e]ach violation is, in and of itself, a sufficient basis upon which this court should revoke probation and activate the suspended sentence.” The judge revoked probation and activated the defendant’s 15–18 month sentence.
The defendant appealed. He argued that the trial court erred by checking that box that each violation was, in and of itself, a sufficient basis upon which to revoke, and that the court erred by finding a new criminal offense violation without any actual evidence of the defendant’s criminal behavior. The State actually conceded the errors, saying in its brief that “the proper remedy is to reverse the trial court’s order . . . .” Appellee Br. at 8.
The court of appeals disagreed with everyone, noting that it was not bound by the State’s concession.
As to the defendant’s first argument, the appellate court acknowledged that the trial judge was incorrect to check the box indicating that every violation was, in and of itself, a sufficient basis for revocation. That simply isn’t the case as a legal matter; after Justice Reinvestment, none of the defendant’s violations other than the new criminal offense violation were revocation-eligible. Nevertheless, the court said, “a trial court’s ruling must be upheld if it is correct upon any theory of law.” Slip op. at 7 (internal quotations omitted). As long as the “commit no criminal offense” violation was valid, the revocation could stand.
The court concluded that it was valid. The court began with a premise that has been clear for some time: “[A] defendant need not be convicted of a criminal offense in order for the trial court to find that a defendant violated [G.S.] 15A-1343(b)(1) [the commit no criminal offense condition].” Slip op. at 8. The probation court may revoke before conviction as long as it makes independent findings of the alleged criminal act at the probation violation hearing.
Applying those principles in Hancock, the court of appeals concluded that the trial court did make the requisite independent determination. The appellate court deemed the original probation officer’s sworn violation report on the use, possess or control violation (the February 8 violation report discussed above) to be “competent evidence sufficient to support the trial court’s finding” of the commit no criminal offense violation. In other words, the facts alleged in support of a technical violation were—standing alone, as far as I can tell—a sufficient basis for finding the revocation-eligible violation.
If it wasn’t clear before, it seems fairly clear after Hancock that no special procedural or evidentiary rules apply when a pending charge is considered as a violation of probation. If anything, the commit no criminal offense case law appears to be going in the opposite direction from absconding, where the appellate courts have demanded proof beyond that which might be use to show a violation of a mere technical condition. See State v. Johnson, __ N.C. App. __, 783 S.E.2d 21, 26 (“[A] defendant informing his probation officer he would not attend an office visit the following day and then subsequently failing to report for the visit, does not, without more, violate [G.S.] 15A–1343(b)(3a) when these exact actions violate the explicit language of a wholly separate regular condition of probation which does not allow for revocation and activation of a suspended sentence.”).