Opinion
No. COA 14–941.
04-07-2015
STATE of North Carolina v. Anthony Jerod RAVENELL.
Attorney General Roy Cooper, by Assistant Attorney General Peggy S. Vincent, for the State. Gilda C. Rodriguez, for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Peggy S. Vincent, for the State.
Gilda C. Rodriguez, for defendant-appellant.
CALABRIA, Judge.
Anthony Jerod Ravenell (“defendant”) appeals an order revoking his probation for a 7 November 2013 probation violation. The trial court activated defendant's suspended sentence for common law robbery, aiding and abetting common law robbery, breaking and entering, and felony larceny. We vacate and remand.
On 19 July 2011, defendant pled guilty to common law robbery, aiding and abetting common law robbery, breaking and entering, and felony larceny. The trial court sentenced defendant to sentences of a minimum of 41 and maximum of 52 months in the custody of the North Carolina Division of Adult Correction, suspended the sentences, and placed defendant on supervised probation for 36 months. Defendant's supervised probation included the regular conditions of probation as established by N.C. Gen.Stat. § 15A–1343(b), which required him, inter alia,to avoid commission of a criminal offense in any jurisdiction and that he was not to use, possess, or control any illegal drug or controlled substances unless it had been prescribed by a licensed physician. As a special condition of probation, defendant was to serve an active term of 90 days in the custody of the Sheriff of Iredell County.
On 6 November 2013, Probation Officer Michelle Hamby (“Officer Hamby”) went to defendant's residence because defendant reported a possible domestic dispute with his girlfriend. When Officer Hamby arrived, defendant consented to a search of his Statesville residence by Officer Hamby, the Statesville Police Department, and the Iredell County Sheriff's Department. During that search, officers found 39.5 grams of marijuana, two plastic bags with the corners ripped off, a set of digital scales, and a can of air freshener normally used to cover up the smell of marijuana. Officer Hamby arrested defendant for felony probation violations in all of defendant's cases. In addition, she provided the Iredell County Superior Court with probation violation reports stating that defendant willfully violated the condition of his probation to “not use, possess or control any illegal drug or controlled substance....”
At the probation revocation hearing, the trial court was reasonably satisfied that defendant “committed the criminal offenses of possession with intent to sell and deliver marijuana, possession of drug paraphernalia, and maintain[ing] a dwelling for controlled substances on or about November 6, 2013.” Based on that finding of fact, the trial court was reasonably satisfied that defendant willfully, and without just cause and excuse, violated the terms of his probation. The trial court revoked defendant's probation and activated defendant's suspended sentences. Defendant appeals.
On appeal, defendant raises two issues. First, he contends that there was insufficient evidence to establish that he had constructive possession of the marijuana found at the residence he shared with other adults. Second, he argues the trial court lacked the jurisdiction to revoke his probation based on a violation not alleged in the probation violation report. As to the second issue, we agree.
“[T]his 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.” Obo v. Steven B., 201 N.C.App. 532, 537, 687 S.E.2d 496, 500 (2009) (citation omitted). A trial court's power to review a probationer's compliance with his probation's terms is limited by statute. State v. Hicks, 148 N.C.App. 203, 204, 557 S.E.2d 594, 595 (2001). Accordingly, if a court acts outside the limited power conferred by the statute detailing probation review, the court exceeds its statutorily granted jurisdiction. State v. Gorman, 221 N.C.App. 330, 333, 727 S.E.2d 731, 733 (2012).
Pursuant to N.C. Gen.Stat. § 15A–1344(a), as revised by the Justice Reinvestment Act of 2011 (“JRA”), a trial court may revoke probation when the defendant commits a criminal offense or absconds. State v. Jones,–––N.C.App. ––––, ––––, 736 S.E.2d 634, 637 (2013). Before these revisions to probation were enacted, a trial court could revoke a defendant's probation for any violation of the conditions of probation, including the requirement to not use, possess, or control illegal drugs. State v. Crowder, 208 N.C.App. 723, 726, 704 S.E.2d 13, 15 (2010) ; N.C. Gen.Stat. § 15A–1343(b)(15) (2011). Since the enactment of the JRA, a trial court may only impose a ninety-day period of confinement, but may not revoke the defendant's probation, for the defendant's violation of any other condition of probation. Jones,–––N.C.App. at ––––, 736 S.E.2d at 637. This section of the JRA, effective on 1 December 2011, explicitly applies to probation violations occurring on or after that date. Justice Reinvestment Act of 2011, 2011 N.C. Sess. Laws 192 (codified as N.C. Gen.Stat. § 15A–1344(g) (2012) ).
According to State v. Tindall,––– N.C.App. ––––, ––––, 742 S.E.2d 272, 274 (2013), the revoking court must give notice at least twenty-four hours before holding a probation violation hearing. The required notice must include details of the hearing's purpose and specifically state the probation violations supporting revocation. Id.Without such notice, unless the defendant waived notice, the trial court lacks jurisdiction to consider the violations and revoke defendant's probation. State v. Kornegay,–––N.C.App. ––––, ––––, 745 S.E.2d 880, 882 (2013).
In State v. Tindall,this Court considered whether the trial court properly revoked the defendant's probation for illicit drug use. ––– N.C.App. at ––––, 742 S.E.2d at 273–74. According to the probation officer's violation reports, the defendant violated her probation by using illegal drugs. The trial court revoked the defendant's probation for a subsequent criminal offense rather than the defendant's illegal drug use. Id.at ––––, 742 S.E.2d at 274. This Court reversed and remanded the revocation because the defendant did not have notice that her probation could potentially be revoked for the subsequent criminal offense when she appeared at the hearing. Id.at ––––, 742 S.E.2d at 275 ; but see State v. Lee,––– N.C.App. ––––, ––––, 753 S.E.2d 721, 723–24 (2014) (upholding a probation revocation where the State alleged the revocation eligible violation of committing a new criminal offense).
State v. Kornegayprovided another opportunity to consider a discrepancy between probation violations alleged and the trial court's rationale for revoking the defendant's probation. ––– N.C.App. ––––, 745 S.E.2d 880 (2013). After a search of defendant's home, the probation violation report alleged the defendant violated the conditions of his probation by possessing a firearm and illegal drugs. Id.at ––––, 745 S.E.2d at 881. Even though the defendant's subsequent offense was not alleged in the probation violation report, the trial court found defendant had committed a subsequent criminal offense and revoked defendant's probation. Id.at ––––, 745 S.E.2d at 881. Bound by Tindall,this Court vacated the probation revocation because the trial court lacked jurisdiction to act. Id.at ––––, 745 S.E.2d at 883. “To establish jurisdiction over specific allegations in a probation revocation hearing, the defendant either must waive notice or be given proper notice of the revocation hearing, including the specific grounds on which his probation might be revoked.” Id.at ––––, 745 S.E.2d at 883.
In the instant case, according to the probation violation report, defendant had notice that, on 6 November 2013, he had violated the condition of his probation prohibiting the use, possession, or control of any illegal drugs or a controlled substance by possessing marijuana. However, the trial court revoked defendant's probation for committing subsequent criminal offenses of possession with intent to sell and deliver marijuana, possession of drug paraphernalia, and maintaining a dwelling for controlled substances. Defendant lacked the proper notice that he faced the possibility of having his probation revoked for possession with intent to sell and deliver marijuana, possession of drug paraphernalia, and maintaining a dwelling for controlled substances. Since he did not waive his right to notice of the specific grounds on which probation could be revoked, the failure to give proper notice deprived the trial court of jurisdiction. As the trial court did not have jurisdiction in Tindalland Kornegayand the State is unable to distinguish those cases from the instant case, we vacate the order revoking defendant's probation and remand. Since we vacate and remand to the trial court, we need not reach defendant's other arguments.
VACATED AND REMANDED.
Judges McCULLOUGH and DIETZ concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from an order revoking defendant's probation entered 9 April 2014 by Judge Julia Gullett in Iredell County Superior Court. Heard in the Court of Appeals 3 March 2015.