How specific does a probation violation report need to be about which condition the probationer allegedly violated? Until last week, I would have said “not very.” A new case from the court of appeals has made me change my answer.
The case is State v. Tindall. In it, a woman was ordered to attend a substance abuse program as a condition of probation. Less than a month into the program the defendant was caught partying and doing drugs with other program residents. She admitted to “snorting ten lines of cocaine.” Slip op. at 3. In response, her probation officer filed a violation report alleging two violations: (1) a violation of the “not use, possess or control any illegal drug or controlled substance” condition; and (2) a violation of the “participate in . . . treatment . . . and comply with all further therapeutic requirements” condition. Both violations occurred in February 2012—well after December 1, 2011, and thus subject to the revocation limitations of the Justice Reinvestment Act. Under the JRA, revocation is allowed only for a new criminal offense, absconding, or for a defendant who has already received two periods of confinement in response to violation. The trial court nonetheless revoked the defendant’s probation, recasting one of the alleged technical violations (the drug use) as a new criminal offense (probably possession of a controlled substance) and then using it as a justification for revocation.
The court of appeals reversed, holding that revocation was not allowed because the defendant was not on notice that revocation was a possible outcome of the hearing. The court rejected the State’s contention that the violation report put the defendant on notice of the alleged offending conduct (possessing drugs), even if it didn’t peg the behavior to the precise condition ultimately violated. That argument found support in State v. Hubbard, 198 N.C. 154 (2009), which you can read about here. The court of appeals distinguished Hubbard because it was decided at a time when any single violation was a sufficient grounds for revocation. After Justice Reinvestment, the court said, the defendant may only be revoked if he or she receives (or waives) notice of a revocation-eligible violation.
Suppose the notice had been proper, or that the defendant had waived her right to notice of a “new criminal offense” violation at the hearing. Would it have been okay to reframe a technical violation as a new criminal offense to set the table for revocation? I am asked about that all the time. The most common example I hear about is a positive drug screen being recast as the crime of possession of a controlled substance. A positive drug screen, standing alone, is not sufficient to support a conviction for possession of a controlled substance, State v. Harris, 361 N.C. 400 (2007), but it might suffice to prove a violation of probation premised on the commission of that crime, given the lower standard of proof at a probation violation hearing. More generally, our existing case law suggests that Community Corrections and the State may pursue a “new criminal offense” probation violation based on a pending criminal charge or even uncharged conduct (an issue I discussed at length here). Nevertheless, I wouldn’t be shocked if the appellate courts revised their take on that rule in a post-JRA world—just as they refined the rule on proper notice in Tindall.
But that’s just speculation. For now, the practical bottom line from Tindall is that revocation is improper without notice of a revocation-eligible violation, two prior CRV periods, or a waiver.