No Appeal for District Court Probationers Who Waive Their Right to a Hearing

Under G.S. 15A-1347(b), if a defendant waives a probation revocation hearing in district court, he or she may not appeal the revocation or imposition of a split sentence to superior court for a de novo violation hearing. That law was enacted in 2013 as part of legislation designed to streamline the superior court caseload, focusing it on contested cases and those implicating a defendant’s right to a jury trial. S.L. 2013-385. I wrote a post about that law in 2014, here, wondering about some of the then-new law’s wrinkles. The Court of Appeals considered its first case under G.S. 15A-1347(b) last year in State v. Flanagan, 2021-NCCOA-456, 279 N.C. App. 228 (2021).

In Flanagan, the defendant was on probation for two misdemeanor offenses. While on probation, he pled guilty to several new crimes, including felony larceny and attempted assault with a deadly weapon on a government official. His probation officer also alleged absconding and numerous technical violations. The violations were heard in district court, where the defendant “both waived his violation hearing and admitted he violated the conditions of probation.” The district court revoked his probation and activated his suspended sentences in the misdemeanor cases. After learning his probation was being revoked, the defendant ran out of the courtroom but was quickly apprehended, whereupon he appealed to superior court.

A couple of months later the defendant appeared in superior court, where the judge considered the appealed district court violations in addition to new violations in his felony cases. The superior court judge found revocable violations and activated the defendant’s suspended sentences in both the misdemeanor and felony cases. The defendant appealed to the Appellate Division. Eventually, only the misdemeanor cases wound up before the Court of Appeals.

A threshold question for the Court of Appeals was whether the superior court even had jurisdiction to hear the appealed misdemeanors in light of the defendant’s waiver of a violation hearing in district court—a matter of first impression since the enactment of G.S. 15A-1347(b) in 2013. Looking at the language of that subsection, the Court of Appeals concluded that the defendant’s waiver of a hearing in district court left the superior court without jurisdiction to hear his appeal. Because the superior court lacked jurisdiction, the Court vacated the superior court revocation and reinstated the district court’s revocation order.

One of the questions I explored back in that 2014 post was whether a defendant who admits to a violation in district court should necessarily be deemed to have waived his or her right to a hearing there. Might a defendant who admits nonetheless wish to be heard on the sanction imposed in response to the violation? And if so, has that defendant “waived” within the meaning of G.S. 15A-1347(b)?

Ultimately, Flanagan does not clearly resolve that question. The Court noted that the defendant “both waived his violation hearing and admitted to violating the conditions of his probation,” and “in no way contested the charges against him.” Some of the Court’s language perhaps suggests that the admission to the fact of the violation is the waiver that matters for G.S. 15A-1347(b) purposes; the Court said it was the defendant’s failure to “contest or object to the alleged violations,” that caused him to “los[e] the right to appeal the District Court’s finding of a violation of probation.” But to be clear, there’s no indication in the record that the defendant expressed a desire to be heard on the sanction to be imposed in response to his admitted violations. (His attempted flight does, however, suggest that he may not have been expecting to be revoked.) Regardless, if a district court defendant wishes to admit to a probation violation but contest the resultant sanction or make other arguments, he or she may want to expressly state that the admission is not a waiver of the full hearing in order to preserve the right to appeal to superior court.