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

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 In State v. Greer, 173 N.C. 758 (1917), a probationer was revoked based on a new criminal offense even though he was found not guilty at his criminal trial on the charge.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.