Opinion
No. COA16-499
11-15-2016
STATE OF NORTH CAROLINA v. DANNY WAYNE POWELL, Defendant.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Staci T. Meyer, for the State. Appellate Defender G. Glenn Gerding, by Assistant Appellate Defender Jillian C. Katz, for the Defendant
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Catawba County, No. 12CRS52078, 15CRS001455 Appeal by Defendant from judgment entered 14 December 2015 by Judge Richard D. Boner in Catawba County Superior Court. Heard in the Court of Appeals 20 September 2016. Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Staci T. Meyer, for the State. Appellate Defender G. Glenn Gerding, by Assistant Appellate Defender Jillian C. Katz, for the Defendant DILLON, Judge.
Danny Wayne Powell ("Defendant") appeals from the trial court's judgment revoking his probation and activating his suspended sentence. For the following reasons, we affirm in part and reverse in part.
I. Background
In 2013, Defendant was sentenced to a term of imprisonment for felony breaking and entering. This sentence, however, was suspended for thirty months of supervised probation.
In March 2015, Defendant's probation officer filed a violation report, alleging that she found a loaded shotgun in Defendant's home during an authorized search. After a hearing on the matter, the trial court entered an order extending Defendant's probation, finding that Defendant had violated a condition of probation by possessing a firearm.
In August 2015, Defendant's probation officer filed two violation reports. One report alleged that Defendant had committed a criminal offense by possessing a firearm as a felon, referencing the incident in the March 2015 violation report. The second report alleged that Defendant had absconded. At a hearing on the matter, the State solely presented evidence concerning the allegations in the first report, namely, that Defendant had committed a criminal offense by possessing a firearm as a felon. The State did not present any evidence concerning the second report, which alleged that Defendant had absconded. At the conclusion of the hearing, the trial court entered an order revoking Defendant's probation and activating his suspended sentence.
II. Analysis
Defendant's sole argument on appeal is that the trial court erred by revoking his probation for committing a new criminal offense. Before addressing Defendant's main argument, we note that Defendant concedes that the trial court made a clerical error in its revocation order as the specified basis for revocation is the violation report "dated 08/19/2015." However, the "08/19/2015" violation report alleged that Defendant had absconded. The violation report alleging that Defendant possessed a firearm as a felon is dated "08/10/2015." In his brief, Defendant concedes that the trial court intended to reference the "08/10/2015" violation report, which alleged Defendant's possession of a firearm as a felon. Accordingly, we hold that the trial court made a clerical error in identifying the "08/19/2015" violation report as the basis for revocation.
We now address Defendant's main argument on appeal. In short, Defendant contends that the trial court was not permitted to revoke his probation based on the discovery of a loaded firearm in his home in March 2015, as the trial court had previously relied upon this conduct to extend his probation. We disagree.
Defendant's argument is in essence a double jeopardy argument. Our Supreme Court has held that the constitutional prohibition against double jeopardy does not apply to a probation revocation proceeding. State v. Sparks, 362 N.C. 181, 186, 657 S.E.2d 655, 659 (2008). In Sparks, our Supreme Court held that a probation revocation hearing is not a criminal prosecution and that "probation revocation and its corresponding consequences, such as activation of a suspended sentence, result from a defendant's original conviction and not from the probation revocation hearing or the conduct which violates conditions of probation." Id. at 189, 657 S.E.2d at 660-61. See also State v. Hewitt, 270 N.C. 348, 352, 154 S.E.2d 476, 479 (1967) ("Although revocation [of] probation results in the deprivation of a probationer's liberty, the sentence he may be required to serve is the punishment for the crime of which he had previously been found guilty.").
However, Defendant attempts to sidestep this issue by instead relying on the doctrine of collateral estoppel. Specifically, Defendant contends that the State was "estopped" from relying on the March 2015 firearm possession as this conduct had already been litigated and relied upon by the trial court, which extended his probation on this basis. This argument has no merit.
The doctrine of collateral estoppel precludes re-litigation of a fact, question or right in limited situations: "[W]hen a fact has been agreed upon or decided in a court of record, neither of the parties shall be allowed to call it in question, and have it tried over again at any time thereafter, so long as the judgment or decree stands unreversed." State v. Summers, 351 N.C. 620, 623, 528 S.E.2d 17, 20 (2000) (alteration in original) (emphasis added) (internal quotation marks omitted). See also Masters v. Dunstan, 256 N.C. 520, 523-24, 124 S.E.2d 574, 576 (1962) (restating same general principle).
We note that the doctrine of collateral estoppel has applied in certain criminal cases. See Summers, 351 N.C. at 626, 528 S.E.2d at 22. However, the doctrine has no applicability in the present case. In Summers, our Supreme Court applied the doctrine to reverse a defendant's DWI conviction. Id. In that case, the defendant's DWI conviction was based in part on evidence that he had refused to submit to a breathalyzer test. Id. at 621, 528 S.E.2d at 19. The Supreme Court held that the doctrine of collateral estoppel prevented the State from presenting evidence of the defendant's refusal to take the breathalyzer test since another court in a prior, license revocation proceeding concluded that the defendant had not willfully refused to submit to the test. Id. at 626, 528 S.E.2d at 22.
The present case is easily distinguishable from Summers. Here, at the revocation hearing, the State was not calling into question the finding from the prior probation extension hearing: namely, that Defendant was in possession of a firearm during his probation officer's March 2015 search of his residence. Indeed, the State's position at the revocation hearing - that Defendant was in possession of a firearm - was consistent with the finding established at this prior hearing. Again, Defendant's argument is essentially a double jeopardy argument. Had the trial court at the earlier hearing determined that Defendant was not in possession of a firearm, it is possible, although we express no opinion on the matter, that the State would be estopped from re-litigating that issue in the revocation hearing.
IV. Conclusion
Despite the fact that the court in a prior hearing had extended Defendant's probation period due to the same conduct, neither the doctrine of collateral estoppel nor double jeopardy barred the trial court from relying on the discovery of a firearm in Defendant's home to revoke Defendant's probation. Accordingly, the trial court's order revoking Defendant's probation is affirmed. We remand, however, to permit the trial court to correct the clerical error in the judgment, which, as noted, erroneously grounded Defendant's revocation on the "08/19/2015" violation report's allegations of absconding. See State v. Jones, 225 N.C. App. 181, 188, 736 S.E.2d 634, 639 (2013) (remanding matter to the trial court after holding that the trial court's revocation on the basis of prior confinements was a clerical error).
AFFIRMED IN PART, REMANDED IN PART.
Judge STEPHENS concurs.
Judge BRYANT concurs in the result only.
Report per Rule 30(e).