The Court of Appeals recently held in State v. Summers that a defendant has no right to appeal when deferred prosecution probation is revoked.
Under G.S. 15A-1341(a1), certain defendants charged with a misdemeanor or a Class H or I felony can be placed on probation as part of a formal deferred prosecution. That probation, the law says, is “as provided in this Article”—which is to say Article 82, Probation. I have generally understood that to mean that, in the absence of specific guidance to the contrary, the regular conditions and procedures applicable in post-conviction probation cases apply to deferred prosecution probation cases, too. Summers clarifies one way in which deferrals are different.
In Summers, a defendant charged with felony embezzlement entered into a deferred prosecution agreement in district court. He was placed on 24 months of supervised probation. Eight months into his probation, his probation officer filed a violation report alleging that the defendant violated three conditions of probation: failure to pay restitution, failure to complete community service hours, and failure to report as directed. At a violation hearing held in district court, a judge found that the defendant committed the alleged violations and revoked probation.
The defendant attempted to appeal to superior court for a de novo violation hearing, but the superior court judge ruled that she did not have jurisdiction to hear it. Under G.S. 15A-1347, a district court probationer can appeal to superior court only when the district court judge “activates a sentence or imposes special probation.” The superior court judge concluded that “revocation” of deferred prosecution probation was neither of those things and dismissed the appeal.
The Court of Appeals affirmed the superior court judge’s ruling, agreeing that there is no statutory right to appeal revocation of deferred prosecution probation. In the deferred prosecution context, the defendant is not yet convicted and a sentence has yet to be imposed. There is therefore no sentence for the district court judge to “activate” within the meaning of G.S. 15A-1347, and thus no statutory right of appeal. The court rejected the notion that a “revocation” of deferred prosecution probation (to order the deferred charges brought to trial) was sufficiently analogous to revocation of regular post-conviction probation (to activate a sentence) to bring it within the scope of G.S. 15A-1347.
Summers raises some issues about deferred prosecution probation aside from the lack of a right to appeal revocation. For example, note that the defendant was revoked based on three technical violations; there was no allegation of a new criminal offense or absconding. Is that permissible? The court didn’t reach that substantive question, but G.S. 15A-1344(a) says that a “court may only revoke probation” for new criminal offenses and absconding. The statute says “revoke,” not “activate a sentence,” and so maybe—under the literal approach applied in Summers—the rule applies to deferred prosecution and regular probation alike.
I also wonder whether the Summers no-appeal rule extends to conditional discharges. Previously I would have said that revocations of conditional discharges can be appealed, because that’s exactly what happened in State v. Burns, 171 N.C. App. 759 (2005) (“In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under G.S. 90-96.”). However, conditional discharge cases are like deferred prosecution cases in the sense that a revocation is not an “activation of a sentence,” because there isn’t yet a sentence to activate. So perhaps the Summers rule applies to conditional discharges, too. On the other hand, G.S. 90-96(a) says that “[d]isposition of a case to determine discharge and dismissal under this section at the district court . . . shall be final for the purpose of appeal.” Regardless of the rule for conditional discharge violation appeals, remember that there is authority out there saying that a person who consents to a conditional discharge abandons the right to later appeal on the issue of guilt or innocence of the underlying offense. State v. Cordon, 21 N.C. App. 394 (1974).
The Court of Appeals noted that a deferred prosecution probationer revoked in district court is not entirely without an avenue for higher court review. The superior court has the authority under Rule 19 of the General Rules of Practice for the Superior and District Courts to grant writs of certiorari analogous to those issued by the Court of Appeals. After Summers, defendants seeking review of deferral revocations—either from district to superior court or from the superior court to the court of appeals—will need to petition for writ of certiorari in lieu of appeal.