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.
I’m sorry, but it is simply absurd to conclude that leaving the jurisdiction of the court, changing your address without notifying your probation officer and missing scheduled appointments isn’t willfully avoiding supervision. If you are leaving NC and missing your appointments, then how can you be supervised? This state is doing everything they can to restrict revocations so that the numbers will justify JRA with a reduced prison population.
Probation officers and prosecutors are too quick to call a probationer’s miscues “absconding,” even when it is not a close call. Recently I represented a probationer against an accusation of absconding when there were no missed office visits (the probation officer refused to schedule any visits); the probationer had maintained the same residence for the entire time he was on probation, sleeping there every night excluding when he was in jail; the probationer had called his probation officer & left messages for her but she never returned his calls to the number he left for her; the probationer wrote the probation officer a letter giving her his correct address (the same address as was on his criminal court papers) and phone number, yet the probation officer never came to his address. The probation officer somehow had the wrong phone number and address in her file with no explanation of where it came from (the intake papers had the correct number and address) & she had called the wrong number and left notes at the wrong address, never bothering to check the court file, her voicemails, or the letter the probationer wrote to her. The arrest warrant for the probation violation had the correct address & the probationer was arrested at his home.
So basically your client did all the things that the appellant in Williams didn’t. Still doesn’t make this case right.
So if I get sentenced to probation, as long as I advise my PO I’m going to Disney World for a week, I’m ok even if I’m not supposed to leave the state? As long as I call him a few times during the week or something…?
Well, remember that going to Florida would likely be a technical violation (failing to remain within the jurisdiction). So, perhaps you can’t be revoked as an absconder, but you could still get a 90-day CRV. Let me know if you need resort or dining recommendations. Chef Mickeys is overrated, but you have to go to ‘Ohana!
Hm. Gotcha. Well, that makes sense. So, essentially it was mainly a paperwork error on why this was overturned, not a factual finding that he was not in violation – the paperwork alleged a violation on grounds that were wrong, but he was still in violation for leaving the state. That’s a different aspect of law enforcement than I work, so was unsure.
I’ll try to check out Ohana sometime!
No, I think it was more than a paperwork error. The court of appeals said the facts of this case did not support the trial court’s conclusion that the defendant absconded. Only absconding and new crimes may result in revocation. Other violations (like failing to remain in the jurisdiction) are technical violations, and the most the court may do in response to them is a 90-day CRV. In this case the officer alleged both technical violations and absconding. I think the technical violations will likely hold up once the check-boxes are corrected. But the absconding violation was not even remanded to the trial court. Only the violations in sections 2-7 of the violation report (everything aside from the absconding) were remanded.
Probation in NC has basically been relegated to being a ride at Disney World. It is a world of make-believe…try, try and try again.
Finally some clarification from the COA! Can’t tell you how glad I am to see this one. Good to see that missed office appointments and issues with address stability are not the measure of absconding. It seems that the COA is looking more to “intent to abscond” on the part of the offender.
Lets look at this by examining the words “willfully avoiding supervision” as it is the first prong of the absconding definition set out in statute. Black’s Law Dictionary defines willful as “Voluntary and intentional, but not necessarily malicious.” An example of willful would be that this offender missed scheduled office appointments, he left the state of NC without written permission of his probation officer and he failed to notify his officer of his change of address. These actions are in and of themselves a willful act. A regular condition of probation is that the offender remain within the jurisdiction of the court unless granted written permission to leave by the Court or the probation officer. Unless he sought and was given permission to leave the state, his act of going to New Jersey was a willful act. Now lets look at avoiding and supervision. Avoiding is a simple word, commonly defined as to keep away from or to prevent from happening. Supervision is the act or function of supervising. An example of avoiding supervision is leaving the jurisdiction of the court, missing office appointments and not making his whereabouts known to his officer. A probation officer can’t supervise an offender if the person is out of state without the permission of his officer. The offender can’t be supervised if they fail to report to office appointments or fail to provide a home address so that their officer can make home contacts. There is no evidence in this article that the offender would call to alert the officer of his intention or need to reschedule the appointments. The actions of this offender clearly prove that he willfully avoided supervision.
It seems that an officer would be correct in leaving out the technical violation paragraphs and simply entering the actions that constituted the absconding allegation.
Be very careful saying that the court can only give a 90 day crv.. the court can also modify their probation in the intermediate range and give a split sentence effectively giving more time than the 90 day crv… for example a positive drug screen the defendant got an 8 mth split on a probation violation..
How do you go about declaring a person an absconder when you go out to the person house and see them at the residence and give them appointment after appointment yet they refuse to report for supervision?
The General Assembly amended the statute so a probationer cannot be revoked for leaving the jurisdiction without permission (absent additional circumstances). Obviously, leaving the jurisdiction without permission is a willful act. However, if the trial court can revoke a probationer for leaving the jurisdiction without permission simply because the probation officer calls it absconding, then the intent of the General Assembly is completely ignored. You cannot interpret a statute in that manner unless to do otherwise would be unconstitutional. The same applies to changing address without notice, or making yourself unavailable to probation officer. You can certainly disagree with the General Assembly’s policy, which is clearly to reduce prison population by restricting discretion in revoking probation, but that is what they have decided. It is true that the actions of this probationer could fit within the vague and open-ended definition given for “absconding.” However, you cannot interpret one part of a statute in isolation, you must give all parts of the statute meaning if at all possible. Interpreting absconding to mean violation of the non-revoke provisions without more would defeat the purpose of the amendments. However, N.C.G.S.A. § 15A-1344(d2) does permit three months confinement for violation of any condition. If the probationer has received two periods of CRV, for any violation, he/she cannot receive a third, but may have probation revoked entirely. So it is not as if there are no consequences. Apparently the General Assembly wanted to mandate a more gradual approach to revoking for what it considered lesser violations.
A person abscounded while under supervision in Buncombe County. He is in jail in another county. Will he be tried in Bucombe or the county he is incarcerated in?
I would like to note that if the circumstance listed above in State v. Williams changed to include that he raped and murdered a woman while in the state of New Jersey and then returned to the state of North Carolina for his appointment, when he was ultimately charged with the new crime, the probation officer would be held responsible for that action and face disciplinary action up to and including dismissal from their employment. Mind you, the supervising officer would be facing dismissal on actions based solely on what that offender did while he was “avoiding supervision”, “leaving the state without permission” and “absconding”. I am not saying that the G.S. is not open to interpretation but if we are changing the pure and simple definition of absconding in this age of noncompliance then we also need to reevaluate who gets the blame for all of the horrid crimes that happen to people at the hands of offenders being supervised when the officer’s hands are obviously tied. If the offenders recognize that they can continue with criminal behavior and be minimally reprimanded for such, as criminals, they will CONTINUE WITH THE CRIMINAL BEHAVIOR. What do they have to lose? 8-19 months? Then released back out onto the same type of supervision they were revoked on in the first place under the title of “post-release”? A small drop in the bucket. However, an officer losing their sole income and employment due to a criminal acting like a criminal is insane and most definitely needs to be reevaluated. Maybe if the blame was placed more on the offender’s willful actions instead of the officer that has minimal control over said offender, those officers would not be so quick to try to revoke offenders off of technicalities. Just something to think about…