A legislative session wouldn’t be complete without a new jail credit rule for confinement in response to violation (CRV). Continue reading
Tag Archives: probation violations
There aren’t very many federal cases about North Carolina probation. When we get one, I’m inclined to write about it. In Jones v. Chandrasuwan, __ F.3d __ (4th Cir. 2016), the Fourth Circuit announced a new rule about the level of suspicion required to arrest a probationer for a suspected probation violation. Continue reading →
Can a probationer be revoked for a violation of the “commit no criminal offense” probation condition if the violation report alleges only that the person has been charged with a crime? Continue reading →
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. Continue reading →
Have you ever eaten cake decorated with the name of a prison facility? I hadn’t until a few weeks ago, when I attended the ribbon cutting ceremony for the Division of Adult Correction’s new CRV Center in Robeson County. I’m glad I made the trip down to Lumberton—not just because of the cake (which turned out to be pretty good), but also because of what I learned about DAC’s vision for its new form of confinement for probation violators. Today’s post is intended to pass some of that information along to the judges and prosecutors who will send probationers to the CRV centers, and to the defense lawyers who will advise their clients about what to expect there. Continue reading →
Last year, I wrote this post asking whether the probation tolling law in former G.S. 15A-1344(d) survived a 2009 statutory change. In State v. Sitosky, decided on the last day of 2014, the court of appeals held that it does not. Continue reading →
A recent case from the Supreme Court of North Carolina appears to have relaxed the limits on the use of hearsay at a probation violation hearing. The case also sheds light on the persistent question of whether a pending criminal charge may be considered as a violation of probation.
In State v. Murchison, the defendant was on probation with two 24–38 month suspended sentences. Less than a year into his probation, he was charged with first-degree burglary, first-degree kidnapping, and assault with a deadly weapon. His probation officer filed a probation violation report alleging that he violated the “commit no criminal offense” condition by being charged with the new crimes.
At the ensuing violation hearing, the defendant’s probation officer testified that the defendant’s mother said over the phone that the defendant had broken into her house with a knife, causing her and the defendant’s girlfriend to hide in a closet. The State also introduced a computer printout from the AOC showing that the defendant had been indicted for the burglary, with the case set for court later that week. Finally, the probation officer testified that she had “a feeling he’s going to kill somebody.” Based on that information, the trial judge found that the defendant committed the new criminal offenses and revoked. The defendant appealed.
In an unpublished opinion the court of appeals reversed, holding that the trial court erred when it revoked probation based solely on the probation officer’s hearsay testimony. The court cited to prior cases—State v. Pratt, 21 N.C. App. 538 (1974) and State v. Hewett, 270 N.C. 348 (1967)—indicating that hearsay alone is not competent evidence to support a trial judge’s finding of violation. The State petitioned for discretionary review.
The supreme court unanimously reversed the court of appeals. Beginning with the incantation that “[p]robation or suspension of sentence comes as an act of grace”—never a good sign for a probationer on appeal—the high court stressed that probation violation hearings are informal. By statute (G.S. 15A-1345(e)) formal rules of evidence do not apply, and a trial judge has broad discretion to admit any evidence relevant to revocation of the defendant’s probation. When considered alongside the probation officer’s concerns about the defendant’s dangerousness, the hearsay evidence was relevant and admissible and the revocation should have been affirmed.
I wouldn’t describe Murchison as groundbreaking, but earlier cases tended to be more restrictive regarding hearsay at violation hearings. In Pratt the court reversed a revocation based on a probationer’s improper change of address when the primary evidence showing the establishment of a new residence was hearsay—even though there was “direct evidence that on eight or ten occasions defendant was not found at the place that was supposed to be her residence.” 21 N.C. App. at 541. In Hewett, the supreme court went so far as to say that hearsay evidence should not have been considered by the revoking judge at all (although the revocation was ultimately upheld based on other competent evidence). 270 N.C. at 356. Even if the hearsay standard is lowered after Murchison, defendant-probationers should not forget their statutory and due process right to confront adverse witnesses at a violation hearing. That right, discussed here, requires the trial court to make findings of good cause if confrontation is not allowed.
Finally, to focus on the hearsay issue in Murchison feels a little like burying the lede. The only violation alleged by the probation officer and found by the trial court in Murchison was that the defendant committed new criminal offenses. The officer’s report focused exclusively on the pendency of the charges, and they clearly were still pending at the time of the violation hearing.
I have long been of the opinion that a probation court is free to consider a “new criminal offense” violation while the charge is still pending, so long as the judge makes independent findings of the alleged criminal behavior. Murchison supports that view. Nevertheless, I have often wondered if more process might be due when holding a hearing on that sort of violation than a run of the mill technical violation, on the theory that the violation hearing becomes a sort of mini-trial on the new criminal charge. Looking at the types of information considered in Murchison—a secondhand telephone conversation, a copy of an indictment, the “defendant’s demonstrated propensity for violence,” and the probation officer’s concern about the defendant’s dangerousness—it does not appear that any special rules apply.