As a parent, I try to be a consistent disciplinarian. I do my best to avoid empty warnings about the consequences of some action (or failure to act, as is often the case). But despite my best efforts, even when a line has been crossed or a deadline has passed, I sometimes find myself giving my kids one last chance to get it right. I see the same “one last chance” phenomenon at work in State v. Yonce, 207 N.C. App. 658 (2010).
Lonnie Yonce was on probation for seven counts of obtaining property by false pretenses, with seven consecutive 15–18 month sentences hanging over his head. He owed over $50,000 in restitution. Less than a year into his probation, Yonce’s probation officer filed a violation report alleging that he was not making his restitution payments in a timely manner. This was back in 2008, when a person could be revoked for a violation like that.
And on October 27, 2008, Yonce was revoked—albeit with a catch. At the violation hearing, the defendant conceded that he was behind on his payments; at that point he had paid about $2,700 of the $7,700 he should have paid by then according to the payment schedule set by his probation officer. But he denied that the violation was willful, and told the judge he could get back on track if the VA and Social Security approved his application for additional benefits. The judge was persuaded to stay his revocation order, allowing the defendant until December 1, 2008 to come into compliance. The order was stayed until December 8, when a review hearing would be held to see if the defendant had followed through.
At that hearing, held before a different judge, the defendant reported that he had paid only $160 more toward his delinquent balance because he had not yet received his additional benefit payments. Despite some disagreement about what the defendant had actually agreed to do (was it to pay the money, period? Or to pay it if his application for additional benefits was successful?), the second judge found that the defendant had not taken advantage of his one last chance to comply, and placed the first judge’s revocation order into effect.
Yonce appealed, challenging both the first judge’s revocation order and the second judge’s order placing the first order into effect.
As to the first order, the court of appeals concluded that it lacked authority to hear the defendant’s appeal because it was not timely. More than 14 days passed between the revocation order (entered October 27) and the defendant’s notice of appeal (December 12), and the first judge’s decision to stay the initial judgment did not stop the running of the Rule 4 timeline. To the contrary, the order “is favorable to the defendant in that it postpones punishment and gives him an opportunity to escape it altogether,” and “[w]hen he sits by as the order is entered and does not then appeal, he impliedly consents . . . .” State v. Miller, 225 N.C. 213 (1945).
The second order was timely and the court of appeals had jurisdiction to review it, but the court concluded that it was free of error. The court rejected the defendant’s argument that he did not get a chance to show a good faith inability to pay at the second hearing. That was beside the point, the court concluded, because his probation had already been revoked at the first hearing. The only issue before the second judge was whether or not to continue the stay, and the defendant did not show that the judge had abused his discretion in deciding not to.
I understand the appeal of giving the defendant one last chance—as I said at the outset of this post, I do the same thing with my kids all the time. The Yonce case does, however, raise some issues. Sure, nothing happened to Mr. Yonce at the second hearing that couldn’t have happened (or, more accurately, did happen) at the first one. But once a reprieve is granted, it would seem that the same process is due at the review hearing as would be due at any violation hearing. I don’t know how common this sort of revoke-and-stay approach is (it strikes me as a bit like a PJC of a probation revocation), but defendants who receive additional time to comply should, in light of Yonce, remember that the clock is ticking on their appeal window from the time of the revocation itself.