Opinion
No. COA14–616.
03-03-2015
STATE of North Carolina v. Alisa Janise GAITHER, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Donna B. Wojcik, for the State. Ben G. Irons, II, for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Donna B. Wojcik, for the State.
Ben G. Irons, II, for defendant-appellant.
HUNTER, JR. ROBERT N., Judge.
Alisa Janise Gaither (“Defendant”) appeals from a judgment entered upon revocation of probation. We affirm.
On 28 November 2012, Defendant pled guilty to two counts of Sale/Deliver a Schedule I Controlled Substance. The trial court sentenced Defendant to seventeen to thirty months of imprisonment, suspended the sentence, and placed Defendant on probation for thirty-six months. On 26 September 2013, a probation officer filed a violation report alleging Defendant: (1) absconded from probation by leaving her residence on 21 September 2013 without notifying her probation officer and eluding supervision by making her whereabouts unknown; (2) failed to report for an office appointment; (3) failed to pay monies; and (4) failed to report to the Treatment Accountability for Safer Communities (“TASC”) program. On 7 October 2013, Defendant was served with an Order for Arrest for violating her probation. The Order for Arrest indicated that the probation officer had provided the court with a copy of a written statement alleging the specific probation violations and that the written statement was attached to the Order of Arrest.
Judge Sumner held a probation revocation hearing on 2 December 2013. Defendant, through counsel, admitted violating her probation. The probation officer testified that Defendant left her place of residence without notifying her probation officer or obtaining permission; that Defendant was currently eluding supervision by making her whereabouts unknown; and that Defendant failed to report for a scheduled office appointment on 9 September 2013.
Defendant informed the court that she did not report to her probation officer because she had “gotten ill” and has been evicted from her residence. The trial court found that Defendant was in willful violation of her probation, revoked her probation, and activated her sentence. Defendant did not give oral notice of appeal at the revocation hearing; however, she wrote a letter to the trial court, filed two days after the revocation hearing, in which she expressed her desire to appeal. The trial court signed appellate entries.
We first address the sufficiency of Defendant's pro senotice of appeal. Pursuant to Rule 4 of the North Carolina Rules of Appellate Procedure, notice of appeal in a criminal case “shall designate ... the court to which appeal is taken[.]” N.C. R.App. P. 4(b). After entry of judgment, the defendant must also serve copies upon the State within fourteen days. Id.
Defendant acknowledges that she neglected to identify the court to which she appealed or to provide proof of service of the notice of appeal on the State. Defendant, therefore, has filed a petition for writ of certiorari seeking appellate review in the event her notice of appeal is deemed insufficient. In light of Rule 4 above, we dismiss Defendant's appeal because she failed to file proper notice of appeal. However, in our discretion, we grant Defendant's petition for the purpose of reviewing the judgment below. N.C. R.App. P. 21(a) (“The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]”).
I. Notice
Defendant first contends the trial court did not have jurisdiction to revoke her probation because the State did not give her written notice of the specific violations pursuant to N.C. Gen.Stat. § 15A–1345(e) (2013). We disagree.
Under the Justice Reinvestment Act, only when a probationer “[c]ommit[s][a] criminal offense” or “abscond[s] by willfully avoiding supervision” is the probationer subject to revocation, unless the probationer has been subject to two prior periods of “Confinement in Response to Violation” pursuant to N.C. Gen.Stat. § 1344(d2). N.C. Gen.Stat. § 15A–1344(a) (2013) (quoting N.C. Gen.Stat. §§ 15A–1343(b)(1), (b)(3) ). The State is required to give the defendant notice “of the [probation] hearing and its purpose, including a statement of the violations alleged.” N.C. Gen.Stat. § 15A–1345(e)(2013). Because of the changes brought about by the Justice Reinvestment Act, we have required that defendants be given notice of the particular revocation-eligible violation alleged by the State. See State v. Tindall,–––N.C.App. ––––, ––––, 742 S.E.2d 272, 275 (2013) (holding that the defendant received insufficient notice because “defendant did not have notice that her probation could potentially be revoked when she appeared at the hearing”). “The 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).
Defendant was served with the Order of Arrest on 7 October 2013. The “Offense” section of Defendant's Order of Arrest states “FELONY PROBATION VIOLATION” and six sections down states “PROBATION ABSCONDER[.]” More importantly, the Order of Arrest has box number seven checked, which indicates that the court found “the probation officer has provided the court with a written statement, signed by the probation officer, alleging that the defendant has violated specified conditions of the defendant's probation and a copy of the written statement is attached.” The written statement lists four probation violations. Paragraph one of the written statement alleges that Defendant violated the regular condition of probation “[n]ot to abscond” by leaving her place of residence on 21 September 2013 without notifying her probation officer. The Order of Arrest with the attached written statement is sufficient written notice of the alleged revocation-eligible violation, as it “allow[ed] the defendant to prepare a defense and [ ] protect[ed] the defendant from a second probation hearing for the same act.” Hubbard, 198 N.C.App. at 158, 678 S.E.2d at 393. Thus, although Defendant was not served with the probation violation report, she was properly notified of the revocation-eligible violation when she was served with the Order of Arrest. Accordingly, the trial court had jurisdiction to revoke Defendant's probation.
II. Revoking Probation
Defendant also contends that the trial court erred in revoking her probation because there was no competent evidence supporting the trial court's finding that Defendant willfully violated her probation. We disagree.
At a probation violation hearing, the evidence need only “reasonably satisfy the [trial court] in the exercise of [its] sound discretion that the defendant has willfully violated a valid condition of probation or that the defendant has violated without lawful excuse a valid condition upon which the sentence was suspended.” State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967). When the trial court's findings that a defendant violated his probation are supported by competent evidence, we review the court's decision to revoke the defendant's probation for an abuse of discretion. State v. Young,190 N.C.App. 458, 459, 660 S.E.2d 574, 576 (2008).
The verified violation report and the probation officer's testimony in this case provided competent evidence from which the trial court could find that Defendant willfully left her residence of record on 21 September 2013 and subsequently failed to make her whereabouts known to her probation officer. In addition, Defendant testified that “I just didn't report because I had been through eviction and things like that.” Based on this evidence, we hold that there was sufficient evidence to show Defendant willfully violated a condition of her probation. Therefore, the trial court did not abuse its discretion in finding Defendant had willfully violated the condition of her probation not to abscond. Accordingly, we affirm the judgment revoking Defendant's probation and activating her sentence.
Affirmed.
Chief Judge McGEE and Judge STEPHENS concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from judgment entered 2 December 2013 by Judge Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 9 February 2015.