New Criminal Offenses as a Probation Violation: Different Results at Violation Hearing and Trial

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Committing a new criminal offense while on probation is a violation of probation. Nowadays it’s one of the only things for which a person may be revoked. Sometimes the parties wait to see whether a new criminal charge will result in a conviction before proceeding on it as a violation of probation. Sometimes they don’t. Either way, when you have two different courts (the probation court and the trial court) considering roughly the same issue (did this person commit a crime?), you run into issues like double jeopardy, collateral estoppel, and inconsistent results. Today’s post considers some of the possibilities.

Conviction, then violation. If a defendant is convicted of a new crime committed while he or she was on probation, the ensuing probation violation hearing should be straightforward. If the crime has been pled to or proved beyond a reasonable doubt, there should be no trouble proving it to the probation court’s reasonable satisfaction. There may yet be technical reasons the conviction should not result in a finding of violation. For example, the crime may not have happened while the defendant was actually on probation, the violation report may not have been filed (and stamped) before the probation term expired, or the conviction might have been for a Class 3 misdemeanor (for which revocation is not allowed). But in the absence of any of those wrinkles, the hearing should be relatively easy for the State.

There is no double jeopardy concern if the probation court chooses to revoke. The probation violation hearing is not a successive prosecution that results in additional punishment for the same offense, but rather an administrative proceeding to determine whether to activate the suspended punishment already imposed for the prior offense for which the person was on probation. State v. Sparks, 362 N.C. 181 (2008).

Acquittal, then violation. If a person is found not guilty of a new criminal offense, can the behavior still support a “new criminal offense” probation violation? Yes, apparently. In State v. Greer, 173 N.C. 758 (1917), a probationer was revoked based on a new criminal offense even though he was found not guilty at his criminal trial on the charge. The Greer court reasoned that the jury verdict was not binding on the local judge who activated the suspended sentence, because he exercised his independent discretion based on the evidence before him.

Greer is an older case, obviously. And when recapping it 57 years later, the court of appeals did not exactly speak of it in glowing terms. See State v. Debnam, 23 N.C. App. 478, 481 (1974) (“It may not be desirable for a judge to activate a suspended sentence upon conduct where a jury has found the defendant not guilty of a charge arising out of that conduct, but it appears to be within the power of the judge to do so.”). But the Greer rule is in line with most other jurisdictions that have considered the issue. They generally reach the same conclusion on the theory that a lower standard of proof applies at the violation hearing, and the State may well be able to prove to a judge’s reasonable satisfaction what it was unable to prove to a jury beyond a reasonable doubt. See, e.g., State v. Smith, 721 A.2d 847 (R.I. 1998). But see Com. v. Brown, 469 A.2d 1371, 1376 (Pa. 1983) (concluding that collateral estoppel barred the use of acquitted conduct at a violation hearing, and rejecting the prosecution’s attempt to have a “second bite of the apple”).

Violation, then trial. It is pretty clear at this point that a North Carolina probationer need not be convicted of a new criminal charge before it may qualify as a probation violation. See, e.g., State v. Murchison, 367 N.C. 461 (2014) (discussed here). Suppose the State proceeds on a pending charge as a probation violation, and the probation court makes an independent finding that the defendant committed the new criminal offense. Is the defendant bound by that determination at his subsequent trial? No. The defendant is entitled to a jury trial on the new charge, and the court’s findings (to a lower standard of proof, with fewer procedural protections) would not have preclusive effect. There’s no North Carolina case on point, but the Supreme Court of Colorado reached that conclusion in State v. Byrd, 58 P.3d 50 (Colo. 2002). The Byrd court reasoned that the probation hearing and trial may have had the requisite identity of issues and parties for collateral estoppel to apply, but the violation hearing—with its more relaxed procedure—was not a “full and fair opportunity to litigate the issue.” Id. at 58. (And that, by the way, was in a state where new criminal offense violations apparently must be proved beyond a reasonable doubt! Colo. Rev. Stat. § 16-11-206(3).)

No violation, then trial? Finally, what happens if the State holds a probation violation hearing on a pending criminal charge and the probation court concludes that no new criminal offense occurred? At trial, is the State bound by the probation court’s ruling in the defendant’s favor? (Let’s assume that the probation court’s no-new-crime finding is clear and unambiguous on whatever paperwork emerges from the hearing.)

The issue is reminiscent of some of the collateral estoppel issues related to driver’s license revocations and DWI trials that Shea discussed here. State v. Summers, 351 N.C. 620 (2000), seems especially apt. In Summers, the court of appeals concluded that collateral estoppel barred relitigation at a defendant’s DWI trial of a prior superior court finding (made at an appeal of a DMV-issued license revocation) that a defendant did not willfully refuse a chemical analysis. I won’t go into all the details, but the supreme court found that all of the requisite elements of collateral estoppel (discussed on pages 13–15 of this benchbook chapter prepared by Bob Farb), were met such that the finding in the defendant’s favor at the administrative proceeding were binding on the State at trial.

Could the same logic apply with respect to a “no new criminal offense” finding at a probation violation hearing when the defendant’s trial on the pending charge rolls around? Well, a probation violation hearing is sort of like the administrative proceeding at issue in Summers. The requisite identity of issues arguably applies, and the State is represented at both the violation hearing and the trial by the district attorney.  Different procedures apply in each forum, but any relaxation in the rules at the violation hearing actually makes it easier for the State to prove its case there. If the State failed to prove the new offense to the probation judge’s reasonable satisfaction, then, a fortiori, it would not be able prove it to the jury beyond a reasonable doubt at trial. At least that’s how the argument—which could be couched as a motion to dismiss under G.S. 15A-954(a)(7)—might go.

And though it’s an interesting argument, state appellate courts across the country generally reject it. Even when the traditional elements of collateral estoppel seem to be satisfied, courts balk—on some form of “public policy” grounds—at having fundamental questions of guilt or innocence decided anywhere other than a trial. See, e.g., Lucido v. Superior Court, 795 P.2d 1223 (Cal. 1990) (“Because public policy requires that ultimate determinations of criminal guilt and innocence not be made at probation revocation hearings, barring relitigation of issues at trial will not preserve the integrity of the judicial system.”); State v. Brunet, 806 A.2d 1007, 1013 (Vt. 2002) (“Like the court in Lucido and the majority of other jurisdictions, we believe that the interests of justice and public confidence in the criminal justice system are best served through a full and fair determination of guilt or innocence in a criminal trial, notwithstanding a prior inconsistent ruling in a revocation proceeding.”); State v. McDowell, 699 A.2d 987 (Conn. 1997);  State v. Gautier, 871 A.2d 347 (R.I. 2005) (overruling earlier authority to the contrary); Green v. State, 463 So. 2d 1139 (Fla. 1985). But see Ex parte Tarver, 725 S.W.2d 195 (Tx. Crim. App. 1986); State v. Bradley, 626 P.2d 403 (Or. App. 1981) (concluding as a matter of Oregon state statute that an express finding of fact at a probation violation hearing would be binding on the state at a later criminal trial). Ultimately, it appears to be an open question in North Carolina.

12 comments on “New Criminal Offenses as a Probation Violation: Different Results at Violation Hearing and Trial

  1. What happens when someone has not done anything wrong to be revoked….that is the case all I see is laws that are not followed by the lee makers,all I see is you all pulling our husband and father from their homes and families and using taxes payers money to keep them locked up…then make your laws after you all know you have messed up someone life, then they have to start over and over again…it cost almost 25,000.00 to house these people in you all want give them a fare shoot….i bet if you all get your things together the law will work for all of us…not just the rich

  2. Yes my name michael morier I im getting a probation violation for not Rthia sex offender but why I was on probation before I Caught this charge I had a year of probation now I did my year she add six more month so I could pay my fees and I couldnt so since I did my whole year on my probation is it possible the judge can make me do my whole year in jail Regardless This is my first probation violation I had why I was on probation for tht year before I Caught my new charge is there any way the judge can Terminate Or should I be Expecting to go back to jail and do my year.

  3. I did 72 days of violation after a judge found me guilt of Disorderly Conduct. I appealed and requested a jury hearing. In the mean time I was sentenced to 90 days of violation of probation; with good time I did 72 days. 1 year later my trial was heard and I was found not guilty by a jury of my peers. All charges were related to a disputed custody battle. My son was 2 years old. I had to pay $150 to visit with my child during the end of my sentencing. Is there anything I can do to recompensate for anything. Loss of life!?

  4. does anyone know what class midemenor a obscounding violation is. i turned myself in and did my suspended sentence but probation violation is still on my criminal record.

    • it is a class one…one of the worse ones

  5. […] this prior post I talked about the interplay between probation violations and new criminal charges based on the […]

  6. what about the prosecuting attorney obtaining what and how your and evidence your going to use in your trial that u use in revoke hearing inst that malfeasance , doesnt it give unfair advantage to prosecutor

  7. a 30 yr old pregnant woman gets pulled over with the baby’s daddy and freind. He has her hide his drugs in her bra. the drugs are found and the woman goes to jail. She has her baby in rehab and she didn’t even test dirty at her arrest.any way she is released after months of rehab and returns to the baby’s daddy. before the baby gets two years old the woman is forced to leave the baby’s daddy and take the child to her mothers apt. in the adjoining state.The man files suit for joint custody and wins because in part of the woman’s false drug conviction.So while st her moms and without a car(the boyfriend trashed it) she hits hard times trying to get back and fourths to her appointments and almost gets revoked. She’s on her last resort when she asks a supposed friend of them both for a ride to probation. He agrees but tells her he has to go the night before. Her father asks the younger man if he has anything illegal in the car and the young man says no.The father even checks his license tags and insurance. all seems fine. They get pulled over in kentucky and the officers find a powder substance in the door of the car. They field tested the powder several times and it was still inconclusive.they arrested the young woman and drug tested her and she passed. The probation officer who she was trying to see was ok with her prior to the arrest but afterwards he sited her failure to come in as an aggravating circumstance and the drug arrest as the main cause for violation. then the drug charges were acquitted. but she remains revoked .even after all of this and the courts being aware that she was acquitted she was denied shock probation.As a father I think that’s just ridiculous.Her only crime was to leave a place of drugs and violence for the safety of her child, trusted the wrong man and asked for a ride and now shes the one in prison.my point being that if she was in good standing with the probation office (estoppel) and the others acquitted should she not be released?

  8. […] A great primer on North Carolina probation revocations (UNC School of Government) […]

  9. I’m from Jersey city nj if someone take me to court and I’m on probation is that a violation

  10. Incarcerated in PA 10/2013 while under probation for new criminal charges while living in in Ohio. ( legit transfer from PA to OH as supervising state )
    I was found not guilty on all charges at jury trial 03/2015 in OH court. My transfer request back to my home state of OH which I own a home and my husband resides, has been denied for reinstatement by PA. I spent all that time before trial inprisoned for a crime I did not commit, (the true party was arrested after my acquittal), I lost all my personal belongings, vehicle, money, job, my life, a civil suite for $10,000 was entered against me while in prison waiting for trial that I was denied the opportunity to be present , I lost my life during that time. Is there anything I can do to be ” reimbursed ”
    for the torment I am still having to endure for a crime I am now a victim of?

  11. Jamie, I read this article with interest. I am just about done with a motion to dismiss based on Res Judicata and Collateral Estoppel, having already come to the conclusion that it I’m unlikely to succeed using Double Jeopardy. My situation fits precisely with your final example. I’ve spent the past two years defending myself against literally hundreds of counts of ex-parte violations, every single one of which was based on an electronic communication of one kind or another. I have faced criminal charges and violation of probation hearings in two separate counties on each of them and haven’t lost one yet. In the most recent, in mid january, the State insisted on proceeding with a VOP hearing a week prior to the scheduled criminal trial, despite our strong objections, on the exact same set of facts and actions. I prevailed at that hearing under a preponderance of the evidence standard and in handing down her finding, the trial judge stated that the complaining witness lacked credibility, had admitted to lying, forging documents and had invoked her right against self incrimination on several questions that were at the heart of the only evidence, email screen shots printed by her. The criminal case was dismissed by the judge on venue grounds a week later and i’m now facing a criminal trial on those charges in a different county as a result, as well as a VOP hearing in that county on the same items.

    My question is, have there been any cases that you are aware of since you authored this article originally that change the landscape at all? I haven’t found anything that is a direct comparison but I think I’ve got enough to cover all the bases. Just don’t want to get surprised because I missed something. Any help would be appreciated. Thx.

    Andy

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