Willfulness of Probation Violations

It has long been the rule in North Carolina that all that is required for a judge to revoke probation is a finding that the defendant has violated a valid condition of probation willfully or without lawful excuse. State v. Hewett, 270 N.C. 348 (1967). After December 1, 2011, there will, under the Justice Reinvestment Act, be some limits on the judge’s authority to fully activate a suspended sentence, but the threshold question for a finding of violation will remain the same: Did the defendant willfully violate at least one valid condition without lawful excuse?

Probation violation hearings are not formal trials, but there is a well-defined process for determining whether or not a defendant has willfully violated a valid condition of supervision. First, the burden of proof is on the State to establish to the “reasonable satisfaction” of the court that the defendant has violated at least one condition. State v. Tennant, 141 N.C. App. 524 (2000). If the State does that, the burden then shifts to the defendant to show that the failure to comply was not willful. If the defendant does not offer any evidence of his or her inability to comply, the State’s evidence of the failure to comply is a sufficient basis for revocation. State v. Jones, 78 N.C. App. 507 (1985). If a defendant puts on evidence of his or her inability to comply, the defendant is entitled to have that evidence considered and evaluated before the court can revoke probation. State v. Young, 21 N.C. App. 316 (1974). The court must consider the evidence and make findings of fact clearly showing that it did so. See State v. Smith, 43 N.C. App. 727 (1979) (reversing a probation revocation when the trial court failed to consider evidence of the defendant’s inability to pay, including detailed information about his rent, gas bill, and other financial obligations); State v. Sellars, 61 N.C. App. 558 (1983) (reversing a probation revocation when a defendant was unable to comply with the judgment on account of repeated hospitalizations for mental and physical health problems).

Under G.S. 15A-1345(e), when the violation alleged is the nonpayment of a fine or costs, the “issues and procedures” in G.S. 15A-1364 apply. That statute governs the response to nonpayment of a fine or cost and says a defendant gets an opportunity to show that his or her “nonpayment was not attributable to a failure . . . to make a good faith effort to obtain the necessary funds for payment.” If the defendant shows a good faith inability to pay, the court may not revoke probation. Instead, the statute gives the court three options: (1) give the defendant more time to pay; (2) reduce the amount of the money owed; or (3) “revoke” (which in this context appears to mean something more like remit) the money owed in whole or in part. G.S. 15A-1364(d). By its terms the statute only applies to fines and costs, but the same type of framework logically extends to restitution. See State v. Hill, 132 N.C. App. 209 (1999) (reversing a revocation of probation for failure to pay restitution when the trial court failed to review the defendant’s proffered evidence related to his disability, noting that “fairness dictates that in some instances a defendant’s probation should not be revoked because of circumstances beyond his control”). See generally Bearden v. Georgia, 461 U.S. 660, 668–69 (1983) (“[I]f the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available.”).

Two recent cases from the court of appeals apply the rules set out above, reaching different results. The first case, State v. Floyd, __ N.C. App. __ (July 19, 2011), shows how evaluation of a defendant’s financial situation bleeds into the court’s consideration of the defendant’s compliance with substantive conditions of probation. In Floyd, the defendant was found to have violated probation by failing to participate in a court-ordered sexual abuse treatment program. The defendant had attended 27 out of 30 sessions but was then barred from the program because he was behind (by about $2,200) on the requisite program fees. At the violation hearing the defendant presented evidence that he had been laid off from the job he had when he was sentenced and subsequently injured (by electrocution) at another job. He provided an affidavit of his indigency, showing that his sole income was $200 in food stamps each month. Both he and his probation officer testified that he would have completed the treatment program if he could pay for it. The trial court revoked the defendant’s probation. The court of appeals vacated the revocation, holding that the trial court erred by failing to make findings of fact that clearly showed the court considered and evaluated the defendant’s evidence before revoking.

In the second case, State v. Stephenson, __ N.C. App. __ (July 19, 2011), the defendant’s probation was revoked after she was discharged from a program called Potter’s House for testing positive for drugs. The defendant argued on appeal that the trial court failed to make proper findings that the violation was willful and without a valid excuse in light of her drug addiction. The court of appeals disagreed, noting primarily that the defendant had actually waived a violation hearing and admitted to the violation, but also citing a prior unpublished case holding that drug addiction is not a lawful excuse for a probation violation. State v. Green, 171 N.C. App. 366 (2005) (unpublished).

On an unrelated note, yesterday the General Assembly passed a handful of technical corrections related to Justice Reinvestment. They are in House Bill 335, and I have no reason to think they won’t be signed into law (on account of the provisions related to Justice Reinvestment, anyway). If they do, I’ll incorporate them into my forthcoming summary of the law.