A recent case from the court of appeals helps inform our understanding of what it means to abscond from probation under the statutory absconding condition in G.S. 15A-1343(b)(3a).
The case is State v. Williams. Defendant Logan Williams was placed on probation in 2014 for a drug offense committed in 2013. He was subject to all the regular conditions of probation, including the condition that he not abscond.
It didn’t take long for his probation officer to realize that Williams did not have a settled living arrangement here in North Carolina. To the contrary, he was regularly traveling back and forth between North Carolina and New Jersey. Although he generally kept in touch with his probation officer via telephone, he missed some office appointments and was often unavailable for in-person supervision.
Five months into the probation period the officer filed a violation report alleging seven violations, including the following:
- Regular Condition of Probation: “Not to abscond, by willfully avoiding supervision or by willfully making the supervisee’s whereabouts unknown to the supervising probation officer” in that THE DEFENDANT IS NOT REPORTING AS INSTRUCTED OR PROVIDING THE PROBATION OFFICER WITH A VALID ADDRESS AT THIS TIME. THE DEFENDANT IS ALSO LEAVING THE STATE WITHOUT PERMISSION. DUE TO THE DEFENDANT KNOWINGLY AVOIDING THE PROBATION OFFICER AND NOT MAKING HIS TRUE WHEREABOUTS KNOWN THE DEFENDANT HAS ABSCONDED SUPERVISION.
- Report as directed by the Court, Commission or the supervising officer to the officer at reasonable times and places . . .” in that THE DEFENDANT FAILED TO REPORT FOR SCHEDULED OFFICE CONTACTS [four times]. THE DEFENDANT FAILED TO BE HOME FOR A SCHEDULED HOME CONTACT.”
- Condition of Probation “. . . obtain prior approval from the officer of, any change in address . . .” in that ON OR ABOUT APRIL 13, 2014, THE DEFENDANT LEFT HIS RESIDENCE . . . AND HE HAS NOT MADE HIS PROBATION OFFICER AWARE.
- Condition of Probation “Remain within the jurisdiction of the Court unless granted written permission to leave by the Court or the probation officer” in that ON OR ABOUT MAY 28, 2014, THE PROBATION OFFICER WAS MADE AWARE THAT THE DEFENDANT HAD BEEN TRAVELING TO NEW JERSEY.
The trial court found that the defendant had committed all of the alleged violations, including the revocation-eligible absconding violation, and revoked.
Williams appealed, arguing that the State failed to prove that he absconded. The court of appeals agreed.
The court began by noting a couple of technical problems with the revocation order. First, the trial court checked the box indicating that “[e]ach violation is, in and of itself, a sufficient basis upon which this court should revoke probation and activate the suspended sentence.” That could not be true in this case, though, because only one of the seven alleged violations (the absconding) was eligible for revocation.
Second, the trial court checked the box next to Finding 5, but failed to check the box next to 5.a., specifically indicating that the defendant was eligible for revocation because he committed a new crime or absconded.
Both of those technical issues are important, and of course trial courts should do their best to avoid them. However, I read the appellate court’s ultimate holding to go well beyond the technical defects in the revocation order. Significantly, the court concluded that the “evidence and law does not support a conclusion that he absconded.” The allegation that the defendant absconded by
- “[N]ot reporting as instructed”;
- “[Not] providing a valid address”;
- “[L]eaving the state without permission”;
- “[K]nowingly avoiding the probation officer”; and
- “[N]ot making his true whereabouts known,”
was viewed by the court as “simply a re-alleging” of the other technical violations set out above (failing to report, changing addresses without permission, and leaving the jurisdiction), and the most the court can do in response to violations like those is a 90-day CRV. Merely calling the same behavior “absconding” did not suffice to convert technical violations into revocation-eligible violations of G.S. 15A-1343(b)(3a). Ultimately, the court concluded, “the evidence in this case does not support finding a violation of G.S. 15A-1343(b)(3a).” Slip op. at 12.
There are two ways to abscond under the revocation-eligible absconding condition set out in G.S. 15A-1343(b)(3a): (1) to willfully avoid supervision, or (2) to willfully make your whereabouts unknown to the supervising officer. It’s fairly clear, based on the facts set out in Williams, that he did not commit the second variety of absconding. Even when he went to New Jersey he generally stayed in touch with his supervising officer via telephone, and he was forthright about where he was.
As to the first variety, however, that seems like it must have been a closer call. The evidence at the violation hearing showed that the defendant never really lived at his North Carolina address, missed at least four appointments over the course of two weeks, spent about two months going “back and forth” to New Jersey, but eventually showed up for one appointment with his officer. My sense is that many probationers have been deemed absconders for less.
Going forward, probation officers and court officials should be on notice that the factual standard for willful avoidance of supervision may, in light of Williams, be higher than they thought. Probationers and defense counsel, meanwhile, should be prepared to argue that missed appointments and out-of-state travel alone do not qualify a person as an revocation-eligible absconder—at least not when the probationer checks in by phone periodically and eventually shows up for an appointment.
Williams is the first reported case that sheds any light on what the statutory absconding condition actually means. Future cases may flesh out how far away a probationer must go, or how long he or she must be gone, or how incommunicado he or she must be to be considered a true avoider of supervision. In the meantime, I recommend looking at Community Corrections policy to see how absconding is defined there, including the steps a probation officer is supposed to take before alleging an absconding violation. But of course the courts are not bound by those definitions when interpreting the language of the statutory condition. Williams may not tell us exactly what absconding is, but it at least begins to sharpen our understanding of what it isn’t.