Come December 1, dips will be the new dunks for Structured Sentencing misdemeanants. Continue reading
Tag Archives: probation violations
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.
When I talk about the “commit no criminal offense” probation condition, it’s almost always about one particular issue. May a pending charge (or even uncharged conduct) be considered as a violation of that condition? Or must there be a conviction for that offense before it may be considered? I talk about that issue at length in this prior post. It’s a longstanding question that matters more in a post–Justice Reinvestment world, where a new criminal offense is just about the only thing that can get someone revoked.
But sometimes even a conviction for a new criminal offense is not a proper basis for revocation. Under G.S. 15A-1344(d), a person’s probation “may not be revoked solely for conviction of a Class 3 misdemeanor.” Today’s post covers a few things about that rule.
First, it survived the Justice Reinvestment Act. The JRA’s rule making new criminal offenses one of the sole bases for revocation does not trump or even really conflict with the rule that probation may not be revoked solely for a Class 3 misdemeanor. Rather, the Class 3 misdemeanor provision is an exception to the general rule that probation may be revoked for a new criminal offense—just as it was previously an exception to the rule that probation could be revoked for any violation.
Second, though the Class 3 misdemeanor rule still stands, there is not universal agreement on exactly what it means. The principal point of debate is whether the word “solely” in G.S. 15A-1344(d) allows a person to be revoked for conviction of Class 3 misdemeanor when that conviction is not the defendant’s sole violation. For instance, may probation be revoked if a person has a Class 3 misdemeanor conviction plus some other technical violation, or perhaps multiple Class 3 misdemeanor convictions? I tend to think not, because I’m not persuaded that additional non-revocable violations accumulate to a tipping point of revocability. But there are no published cases on point. The argument surfaced in a recent unpublished case, State v. Brown, 2014 WL 1047374 (N.C. Ct. App. Mar. 18, 2014). The defendant-probationer in Brown had two Class 3 misdemeanor convictions, prompting the State to argue that “a court could revoke . . . for commission of two or more Class 3 misdemeanors or for commission of a Class 3 misdemeanor and other probation violations that would not alone be sufficient for revocation.” The court of appeals did not need to reach the issue, however, because the defendant also admitted to committing a Class 1 misdemeanor while on probation.
Third, the rule is likely to come into play more often now that more crimes are Class 3 misdemeanors. As part of a plan to reduce the state’s bill for appointed lawyers, the legislature last year reduced the offense class for many common offenses to Class 3. (Jeff listed most of them in this prior post.) Those changes were made effective for offenses committed on or after December 1, 2013. It seems to me that convictions for offenses committed before that date are revocation-eligible, even though they wouldn’t be if committed today. Cf. G.S. 15A-1340.14(c) (which includes a provision updating the offense class of a prior offense to the classification assigned as of the date of the offense now being sentenced).
Finally, with revocation off the table, there is the question of what probation response options are permissible for a Class 3 misdemeanor conviction. The statutory limit refers only to revocation, meaning other non-revocation options like a split sentence, contempt, or electronic house arrest are still permissible. Another impermissible option, though, is confinement in response to violation (CRV). Despite being ineligible for revocation, the new conviction is, after all, a violation of the “commit no criminal offense” probation condition. And the CRV statute says that CRV is permissible when the defendant has violated a condition of probation other than committing a new criminal offense or absconding. G.S. 15A-1344(d2).
A probationer is entitled to a hearing on an alleged probation violation, unless the hearing is waived. G.S. 15A-1345(e). What does it mean to waive a probation violation hearing? As a result of legislation passed in 2013, the answer to that question matters more than it used to for probation violations in district court.
Ordinarily, when a person’s probation is revoked or a split sentence is imposed in district court, the probationer may appeal to superior court for a de novo violation hearing. G.S. 15A-1347. (Other modifications of probation, including imposition of confinement in response to violation, are not appealable, as discussed here.) Under new G.S. 15A-1347(b), “if a defendant waives a revocation hearing, the finding of a violation of probation, activation of sentence, or imposition of special probation may not be appealed to the superior court.” The new law appears to apply to probation violations occurring on or after December 1, 2013—language I generally interpret to refer to the date of the alleged offending behavior, not the date of the hearing. S.L. 2013-385.
The problem is that a waiver of a probation violation hearing is not as clear of a thing—not as identifiable of a moment—as a guilty plea to a new criminal charge. Aside from the mention of a hearing waiver in G.S. 15A-1345(e), the statutes don’t really say anything about it. What little case law we have has stressed that a probation violation hearing is not a formal trial, and that “[u]nlike when a defendant pleads guilty, there is no requirement that the trial court personally examine a defendant regarding his admission that he violated his probation.” State v. Sellars, 185 N.C. App. 726, 728–29 (2007).
Given that relative informality, it may not always be clear when a violation hearing has been waived. If a probationer explicitly waives his or her right to a hearing and consents to a modification imposed out of court, then the hearing probably has been waived. But what about the probationer who admits to a violation, but still wishes to be heard on its circumstances, or on how the court will respond to it? Is the admission tantamount to a waiver, or is the argument regarding the proper sanction (house arrest in lieu of revocation, for instance) still a hearing of sorts?
I don’t see a clear answer in our statutes or case law. Given the uncertainty, some practitioners have taken the position that they will not admit to any violation in district court. They fear that the admission will be deemed a hearing wavier, and in turn a waiver of the right to appeal. Others have been careful to accompany any admission with some indication that the hearing was not waived. That requires a small modification to the relevant AOC forms (for example, AOC-CR-607), which generally place waiver and admission together on the same line, with a single check-box.
Or is it addendums? Take your pick. Regardless, today’s post covers some of the issues that arise when a probation officer files an addendum to a probation violation report.
I’ll start with this important point: there is no such thing as an addendum as a matter of statute. An addendum is, rather, a creation of probation policy (§E.0205(a)(11)), which describes it as the process for amending a violation or alleging additional violations after some have already been alleged, but before there has been a hearing on them.
My general view is that an addendum is just a new violation. Nothing in the law exempts an addendum violation report from all of the ordinary requirements of notice and timeliness applicable to regular violation reports. For example, the timely filing of one violation does not provide a foot in the door allowing future violations to be alleged after probation expires. There is no addendum exception to the rule in G.S. 15A-1344(f) that violations must be filed (and file stamped) before expiration in order for the court to act on them. Probation policy notes this rule, stating flatly that “[i]f the offender’s period of probation has expired, new violations cannot be alleged.” §E.0504(b)(2). The probationer must also receive notice of the new violations at least 24 hours before any hearing at which the violations are to be considered. G.S. 15A-1345(e).
A question that arises from time to time is whether a probationer may be arrested for a violation filed as an addendum to an existing violation. My general answer is yes—just like a person may be arrested for any probation violation. But I understand that things can be a little more complicated than that, both legally and as a practical matter with NCAWARE. There are some recurrent scenarios.
One scenario involves a probationer who has already been arrested and released on bail pending a hearing on some initial violation when he or she is alleged, via an addendum, to have committed additional violations. May an order for arrest (OFA) issue on the new violations? Yes. And my understanding is that there is no technical barrier to doing so in NCAWARE.
A more complicated scenario is when new violations are alleged against a defendant who has yet to be arrested on the OFA associated with the first batch of violations. The classic case is probably a probationer whose first violation is missing an office visit or a curfew check. If the officer can’t find the person to serve an OFA related to the first violation, an addendum violation might be filed alleging that the person is an absconder. May an order for arrest issue for the new violation?
There is no clear legal prohibition on a second or subsequent OFA, and NCAWARE will apparently allow multiple unserved OFAs to be pending in the same case. There’s a background question about whether the second OFA is truly necessary when the first one is still pending, but it may be useful as a way to make sure the offender, once arrested, receives notice of all pending violations.
In general, a court only has jurisdiction to act on a probation case until the period of probation expires. There is a limited exception to that rule in G.S. 15A-1344(f). Under that law, the court may act on the case after it expires if the State filed a violation report with the clerk before expiration. The law is essential when a hearing cannot be held before a supervision period ends because, for example, the alleged violation happened near the end of the supervision period or the probationer absconded.
I refer to this grant of additional jurisdiction as “holding the case open” for hearing. Some people say the filing of the violation report “tolls” the period of probation, but that can be misleading. Tolling has a special meaning in the probation context, referring to the now-repealed provision (first codified in G.S. 15A-1344(d) and later in G.S. 15A-1344(g)) that kept a person on probation during the pendency of a new criminal charge. Unlike tolling, the filing of a violation report does not actually keep a person on probation, it just preserves the court’s authority to respond to a violation alleged during the term of supervision.
Timelines become important when it comes to holding a case open for hearing. The probation officer must be careful to file a violation report before the case expires to satisfy G.S. 15A-1344(f). The standard way to establish that the report was timely filed is to show that the report was file stamped by the clerk before expiration. Under a series of cases decided over the past decade or so, the black-letter rule is clear: in the absence of a file-stamped motion or any other evidence of the motion’s timely filling, the trial court is without subject matter jurisdiction to act after the case expires. State v. Moore, 148 N.C. App. 568, 570 (2002).
A recent case from the court of appeals serves as a good reminder of the file stamp issue. In State v. High, the defendant was sentenced in 2008 to two 6–8 month felony sentences, suspended and set to run consecutively in the event of revocation. His original 24-month term of probation was set to expire on July 20, 2010. Several months before that date his probation officer prepared violation reports alleging multiple violations of probation. The reports were signed and dated March 1, 2010 by both the probation officer and the deputy clerk of superior court, and the defendant acknowledged receipt of them by his signature on March 18, 2010. Neither report bore a time stamp indicating a date of filing. [Cue ominous music.]
The hearing on the violation did not take place until September 20, 2010—two months after the original expiration date. At the eventual hearing, the court extended the probation period by 24 months. After additional violations in 2011 and 2012, the court revoked the defendant’s probation in August 2012.
On appeal, the defendant argued that the court erred by revoking probation in 2012 because, with no file stamps on the 2010 violation reports, there was no subject matter jurisdiction for the September 2010 order extending probation. The State replied that the holding of State v. Moore allows for jurisdiction to be preserved under G.S. 15A-1344(f) by a “file-stamped motion or any other evidence of the motion’s timely filing” (emphasis added), and the dated signature of the clerk of superior court should be considered as “any other evidence” in this case.
The court of appeals agreed with the defendant, concluding that the clerk’s signature was not sufficient to prove beyond a reasonable doubt that the violation reports were timely filed. With no jurisdiction to extend in 2010, everything that followed was improper, leading the court of appeals to vacate the defendant’s activated felony sentences.
The High case confirms something we already knew: file stamps are important. And if the clerk’s signature isn’t sufficient “other evidence” of filing, I’m not sure what is. So, probation officers and prosecutors: get those violation reports stamped! Defense lawyers: check to see if those reports are stamped, and argue a lack of jurisdiction if they aren’t! Everyone: make sure the file stamp machine is working properly! See State v. Askew, __ N.C. App. __, 727 S.E.2d 905, 907 n.1 (“The file stamp states that the violation report was filed on 31 June 2011, which is not a day . . . .”).