Opinion
No. COA14–843.
03-03-2015
STATE of North Carolina v. Jatwaun Donkes DAVIS, Defendant.
Roy Cooper, Attorney General, by Lareena J. Phillips, Assistant Attorney General, for the State. Peter Wood for defendant-appellant.
Roy Cooper, Attorney General, by Lareena J. Phillips, Assistant Attorney General, for the State.
Peter Wood for defendant-appellant.
DAVIS, Judge.
Jatwaun Donkes Davis (“Defendant”) appeals from the trial court's judgments revoking his probation and activating his suspended sentences in file numbers 10 CRS 50828–30. On appeal, he argues that the trial court erred in revoking his probation because he was not given sufficient notice of a violation committed by him that could result in such a revocation. After careful review, we affirm.
Factual Background
On 28 March 2011, Defendant pled guilty to three counts of felony breaking and entering and one count of felony larceny. The trial court sentenced him to three consecutive sentences of 8–10 months imprisonment, suspended the sentences, and placed Defendant on supervised probation for a period of 60 months.
On 29 December 2011, Defendant was charged with felony breaking and entering in Vance County, North Carolina. On 8 January 2013, Defendant's probation officer filed three probation violation reports alleging that Defendant had willfully violated various conditions of his probation. The report relevant to the present appeal stated, in pertinent part, as follows:
Of the conditions of probation imposed in that judgment, the defendant has willfully violated:
....
3. Condition of Probation “Commit no criminal offense in any jurisdiction” in that THE PROBATIONER HAS A PENDING FELONY B & E CHARGE IN VANCE COUNTY.
A hearing on the alleged probation violations was held in Warren County Superior Court on 11 March 2014. At the conclusion of the hearing, the trial court revoked Defendant's probation and activated his suspended sentences. Defendant appealed to this Court.
Analysis
Defendant's sole argument on appeal is that the trial court erroneously revoked his probation and activated his suspended sentences. Specifically, he asserts that the probation violation report at issue did not provide sufficient details of the violation upon which the trial court relied in revoking his probation and activating his sentences. For this reason, Defendant argues, he lacked adequate notice that his probation was subject to revocation at the hearing. We disagree.
While Defendant does not characterize his argument as a challenge to the trial court's jurisdiction, our caselaw has treated this issue as jurisdictional in nature.
[The d]efendant has not raised the issue of jurisdiction in this case. Nevertheless, subject matter jurisdiction may not be waived, and this Court has not only the power, but the duty to address the trial court's subject matter jurisdiction on its own motion or ex mero motu.
A court's jurisdiction to review a probationer's compliance with the terms of his probation is limited by statute. Where jurisdiction is statutory and the Legislature requires the Court to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the Court to certain limitations, an act of the Court beyond these limits is in excess of its jurisdiction. If the court was without authority, its judgment is void and of no effect.
Recently, this Court held that where a probationer does not receive notice that the State intends to prove that she violated a condition of probation that could result in the revocation of probation, the trial court does not have jurisdiction to find a violation of that condition.
State v. Kornegay,––– N.C.App. ––––, ––––, 745 S.E.2d 880, 881–82 (2013) (internal citations and quotation marks omitted); see also State v. Tindall,––– N.C.App. ––––, ––––, 742 S.E.2d 272, 274 (2013) (holding that trial court lacked jurisdiction to revoke defendant's probation where she was not put on notice that alleged violation could result in revocation of her probation).
“Under the Justice Reinvestment Act, only when a probationer commits a criminal offense or absconds by willfully avoiding supervision is his probation subject to revocation, unless he has been subject to two prior periods of Confinement in Response to Violation. SeeN.C. Gen.Stat. § 15A–1344(a) (‘The court may only revoke probation for a violation of a condition of probation under G.S. 15A–1343(b)(1) or G.S. § 15A–1343(b)(3a), except as provided in G.S. 15A–1344(d2).’).” Kornegay,–––– N.C.App. at ––––, 745 S.E.2d at 882 (citation, internal quotation marks, brackets, and emphasis omitted).
Pursuant to the statutory scheme applicable to the revocation of probation, “[t]he State must give the probationer notice of the [revocation] hearing and its purpose, including a statement of the violations alleged. The notice, unless waived by the probationer, must be given at least 24 hours before the hearing.” N.C. Gen.Stat. § 15A–1345(e) (2013). As this Court has recognized, “[t]he purpose of the notice mandated by this section is to allow the defendant to prepare a defense and to protect the defendant from a second probation violation hearing for the same act.” State v. Hubbard, 198 N.C.App. 154, 158, 678 S.E.2d 390, 393 (2009).
In the present case, Defendant claims that the probation violation report was impermissibly vague such that he was unable to adequately defend himself at the violation hearing. In support of this argument, Defendant cites to Tindalland Kornegayfor the proposition that probation violation reports must be sufficiently detailed in order to properly place a defendant on notice that his probation is subject to revocation. However, Defendant's reliance on these cases is misplaced.
In Tindall,the defendant was a patient receiving treatment at a substance abuse facility as a requirement of a plea agreement in to which she had entered. While still undergoing treatment, the defendant admitted to her probation officer that she had used cocaine while at the facility. Tindall,–––– N.C.App. at ––––, 742 S.E.2d at 273. Her probation officer filed probation violation reports alleging that she had broken two conditions of her probation: “[1] to ‘[n]ot use, possess or control any illegal drug’ and [2] to ‘participate in further evaluation, counseling, treatment or education programs recommended ... and comply with all further therapeutic requirements....' “ Id.at ––––, 742 S.E .2d at 275. At the revocation hearing, the defendant's probation officer testified that defendant had been arrested as a result of her using cocaine at the facility. However, the probation officer conceded at the hearing that he “did not allege in the violation report that [the defendant] violated her probation by committing a criminal offense.” Id.at ––––, 742 S.E.2d at 275. The trial court nevertheless ordered that the defendant's probation be revoked. Id.at ––––, 742 S.E.2d at 274.
On appeal, we held that the trial court lacked jurisdiction to revoke her probation, stating that
[b]ased upon the [probation officer's] report and testimony, the trial court determined that defendant had committed a criminal offense and revoked her probation. However, defendant did not have notice that her probation could potentially be revoked when she appeared at the hearing. Defendant should have either received notice that the alleged violation was the type of violation that could potentially result in a revocation of her probation or had the opportunity to waive notice prior to having her probation revoked. Since the violation reports did not allege that defendant had committed a criminal act, absconded, or had two prior Confinements in Response to Violations, she had no notice and did not waive the notice. Therefore, the trial court improperly revoked her probation.
Id.at ––––, 742 S.E.2d at 275.
Similarly, in Kornegay,a probation violation report was filed alleging that the defendant had violated three conditions of his probation: “(1) that he ‘not be in possession of any drug paraphernalia’ (original in all caps), (2) that he ‘[p]ossess no firearm ... or other deadly weapon,’ and (3) that he ‘[n]ot use, possess or control any illegal drug or controlled substance....’ “ Kornegay,–––– N.C.App. at ––––, 745 S.E.2d at 881. At the revocation hearing, the trial court revoked his probation and activated his sentence. Id.at –––, 745 S.E.2d at 881. On appeal, we held that the State had failed to allege that the defendant had
“[c]ommit [ted][a] criminal offense” in its violation reports.... [The d]efendant did not receive proper notice that his probation might be terminated for violating § 1343(b)(1). Yet, the trial court revoked defendant's probation because he “committed a subsequent criminal offense.” As in Tindall,we conclude that the trial court lacked jurisdiction to revoke defendant's probation.
Id.at ––––, 745 S.E.2d at 883.
We find the present case to be materially distinguishable from both Tindalland Kornegay.Here, Defendant was provided with sufficient notice that his probation could be revoked by means of a probation violation report clearly indicating that: (1) Defendant had willfully violated the condition of his probation that he commit no criminal offense; (2) the specific criminal offense at issue was felony breaking and entering; and (3) the offense was committed in Vance County. Therefore, unlike in Tindalland Kornegay,Defendant was provided with adequate notice of the State's contention that he had committed a new criminal offense that was grounds for revocation of his probation.
The record reflects that on 7 October 2013, which was approximately five months prior to his probation revocation hearing, Defendant pled guilty to the Vance County felony breaking and entering offense.
--------
We believe that our decision in State v. Lee,––– N.C.App. ––––, 753 S.E.2d 721 (2014) —which distinguishes both Tindalland Kornegay—is more consistent with the present case. In Lee,the defendant was placed on supervised probation for 24 months for larceny of a motor vehicle. Id.at ––––, 753 S.E.2d at 722. During the course of his probation, his probation officer filed a probation violation report that
specifically alleged that defendant violated the condition of probation that he commit no criminal offense in that he had several new pending charges which were specifically identified, including that “on 12/18/12 the defendant was charged with possession of firearm by felon in 12CR057780 and possess marijuana up to 1/2 oz in 12 CR 057779 in Johnston County.” The violation report went on to state that “[i]f the defendant is convicted of any of the charges it will be a violation of his current probation.”
Id.at ––––, 753 S.E.2d at 723.
In concluding that the defendant had received sufficient notice of his probation violations, we held that
[u]nlike [in] Tindalland Kornegay,the violation report here put defendant on notice that the State was alleging a revocation-eligible violation, namely that he committed a new criminal offense. The probation officer specifically alleged in the violation report that defendant had violated the condition that he not commit any criminal offense. The violation report identified the criminal offense on which the trial court relied to revoke defendant's probation—possession of a firearm by a felon—and the specific county and case file number of that alleged offense. Given such notice, defendant was aware that the State was alleging a revocation-eligible violation and he was aware of the exact violation upon which the State relied.... Therefore, we conclude that the trial court had jurisdiction to revoke defendant's probation for violation of the “commit no criminal offense” condition.
Id.at ––––, 753 S.E.2d at 723–24.
While—unlike in Lee—the date and case file number for Defendant's offense were not expressly contained in the violation report, we are nevertheless satisfied that sufficient notice was provided to Defendant of the violation committed by him and of the fact that the violation subjected him to the potential revocation of his probation. Therefore, we hold that the trial court did not err in revoking Defendant's probation and activating his sentences.
Conclusion
For the reasons stated above, the order of the trial court is affirmed.
AFFIRMED.
Judges ELMORE and TYSON concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from judgments entered 11 March 2014 by Judge W. Russell Duke, Jr. in Warren County Superior Court. Heard in the Court of Appeals 21 January 2015.