Opinion
No. COA16-222
06-21-2016
STATE OF NORTH CAROLINA v. SHANNON NICOLE CHAVIS
Attorney General Roy Cooper, by Assistant Attorney General W. Thomas Royer, for the State. Morgan & Carter PLLC, by Michelle F. Lynch, for 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Robeson County, No. 10 CRS 050116 Appeal by Defendant from judgment entered 8 September 2015 by Judge Tanya T. Wallace in Superior Court, Robeson County. Heard in the Court of Appeals 6 June 2016. Attorney General Roy Cooper, by Assistant Attorney General W. Thomas Royer, for the State. Morgan & Carter PLLC, by Michelle F. Lynch, for Defendant. McGEE, Chief Judge.
Shannon Nicole Chavis ("Defendant") appeals from judgment and commitment upon revocation of probation. Recognizing a possible defect in her notice of appeal, Defendant simultaneously petitions for a writ of certiorari to review that same judgment. We hold that Defendant's notice of appeal does not comply with the North Carolina Rules of Appellate Procedure. In our discretion, we allow Defendant's petition for a writ of certiorari, reverse the order revoking Defendant's probation, and remand for further proceedings.
I. Background
Defendant pleaded guilty to assault inflicting serious bodily injury and aggravated affray on 5 November 2013 in connection with an incident that occurred several years earlier, on 28 December 2009. Pursuant to the terms of a plea agreement, Defendant was sentenced to between twenty-one and twenty-six months' imprisonment, which was suspended and Defendant was placed on thirty-six months' supervised probation. A probation violation report was filed 29 October 2014, and an addendum to that violation report was filed 16 December 2014 (together, "the reports"). The reports alleged Defendant had violated nine conditions of her probation, including an allegation that Defendant "failed to make herself available for her scheduled office contacts; therefore absconding her supervision." The reports noted Defendant had no previous periods of confinement in response to violations.
In exchange, the State agreed to dismiss charges of communicating threats and assault by pointing a gun, stemming from events that occurred 17 November 2010.
The reports did not allege Defendant willfully violated her probation by committing a new criminal offense.
A probation revocation hearing was held 8 September 2015. No evidence was presented at the hearing. Defendant admitted to seven of the nine probation violations, including absconding. The trial court found "beyond a reasonable doubt that [Defendant] failed in each of the [nine] ways listed and . . . failed to report such that she completely ignored her probation." The trial court found one of the probation violations to be absconding, and thereafter entered a written judgment revoking Defendant's probation using a preprinted form ("Form AOC-CR-607"). The appropriate box was checked on Form AOC-CR-607 indicating Defendant gave notice of appeal from the trial court's judgment.
II. Appellate Jurisdiction and Writ of Certiorari
As an initial matter, we address this Court's jurisdiction to consider the merits of Defendant's appeal. The North Carolina Rules of Appellate Procedure provide that a defendant may appeal from a judgment in a criminal case by: "(1) giving oral notice of appeal at trial, or (2) filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties[.]" N.C.R. App. P. 4(a)(1)-(2). "A failure on the part of the appealing party to comply with [N.C.R. App. P.] 4 deprives this Court of jurisdiction to consider his or her appeal[.]" State v. Hughes, 210 N.C. App. 482, 484, 707 S.E.2d 777, 778 (2011). As Defendant notes in her brief, the verbatim transcript of the revocation hearing does not contain an oral notice of appeal from the trial court's judgment, nor does the record contain a written notice of appeal.
Defendant argues the entries on Form AOC-CR-607 indicating Defendant gave notice of appeal are alone sufficient to comply with the requirements of N.C.R. App. P. 4. This argument, however, is directly contrary to this Court's precedent. See id. at 485, 707 S.E.2d 777, 779 (holding that "the fact that the record contains appellate entries does not, without more, suffice to show that Defendant properly appealed from the trial court's judgment to this Court"); see also In re Me.B., M.J., Mo.B, 181 N.C. App. 597, 600, 640 S.E.2d 407, 409 (2007) ("Although the record includes appellate entries . . . which indicate through boilerplate that defendant gave notice of appeal, mere appellate entries are insufficient to preserve the right to appeal" (citation omitted)). Consistent with Hughes and In re Me.B., M.J., Mo.B, the mere fact that the trial court's judgment contained appellate entries does not, without more, suffice to show that Defendant properly appealed from the trial court's judgment. "Thus, since the record simply does not establish that Defendant ever gave notice of appeal from the trial court's judgment as required by N.C.R. App. P. 4, we lack jurisdiction to consider Defendant's appeal[.]" Hughes, 210 N.C. App. at 485, 707 S.E.2d at 779.
In recognition of her possible failure to properly appeal to this Court, Defendant filed a petition for a writ of certiorari along with her brief. "While this Court cannot hear [D]efendant's direct appeal, it does have the discretion to consider the matter by granting a petition for writ of certiorari." State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320, appeal dismissed, 360 N.C. 73, 622 S.E.2d 626 (2005). A 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[.]" N.C.R. App. P. 21(a)(1). In previous cases, this Court has allowed a petition for writ of certiorari where, as in this case, the State conceded error on the merits of a defendant's appeal. See, e.g., State v. Barnett, ___ N.C. App. ___, ___, 784 S.E.2d 188, 197 (2016). In light of the State's concession of error in this case, and in the interest of justice, we elect to exercise our discretion pursuant to Rule 21(a)(1) and allow Defendant's petition for writ of certiorari to review the merits of Defendant's appeal.
III. Analysis
On appeal, Defendant contends the trial court erred by: (1) revoking Defendant's probation for "absconding supervision" in violation of N.C. Gen. Stat. § 15A-1343(b)(3a); and (2) revoking Defendant's probation for committing a new criminal offense in violation of N.C. Gen. Stat. § 15A-1343(b)(1). We address both arguments simultaneously. A hearing to revoke a defendant's probationary sentence is normally reviewed for an abuse of discretion. See State v. Young, 190 N.C. App. 458, 459, 660 S.E.2d 574, 576 (2008) (citation and quotation marks omitted). "Nonetheless, when a trial court's determination relies on statutory interpretation, our review is de novo because those matters of statutory interpretation necessarily present questions of law." Moore v. Proper, 366 N.C. 25, 30, 726 S.E.2d 812, 817 (2012) (citation omitted). When a trial court "acts contrary to a statutory mandate and a defendant is prejudiced thereby, the right to appeal the court's action is preserved, notwithstanding defendant's failure to object at trial." State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985).
In 2011, our General Assembly enacted the Justice Reinvestment Act ("JRA") that
modified our probation statutes in two important ways. First, the JRA made the following a regular condition of probation: "Not to abscond, by willfully avoiding supervision or by willfully making the defendant's whereabouts unknown to the supervising probation officer." See N.C. Gen. Stat. § 15A-1343(b)(3a) (2011). Second, the JRA revised N.C. Gen. Stat. § 15A-1344 to provide that a trial court may only revoke probation if the defendant commits a criminal offense or "absconds" as defined by the revised Section 15A-1343(b)(3a). See N.C. Gen. Stat. § 15A-1344(a) (2011).State v. Hunnicutt, 226 N.C. App. 348, 355, 740 S.E.2d 906, 910-11 (2013). The JRA initially made both the new absconding provision found in N.C.G.S. § 15A-1343(b)(3a) and the revisions to N.C.G.S. § 15A-1344 effective for all probation violations occurring on or after 1 December 2011. See 2011 N.C. Sess. Laws ch. 192, § 4.(d). Prior to the JRA taking effect, however, our General Assembly amended the new absconding provision to make it applicable only to offenses — rather than probation violations — committed on or after 1 December 2011. See 2011 N.C. Sess. Laws ch. 412, § 2.5; see also Hunnicutt, 226 N.C. App. at 354-55, 740 S.E.2d 906 at 911.
In the present case, the trial court found Defendant had committed the nine probation violations listed in the reports. The trial court checked the appropriate box on Form AOC-CR-607 indicating the court revoked Defendant's probation "for the willful violation of the condition[] that . . . she not commit any criminal offense, G.S. 15A-1343(b)(1), or abscond from supervision, G.S. 15A-1343(b)(3a)[.]" (Emphasis added). The reports alleged that Defendant twice violated the condition of her probation that she not "use, possess or control any illegal drug or controlled substance[.]" That is the exact wording of N.C. Gen. Stat. § 15A-1343(b)(15) and, therefore, amounts to findings by the trial court that Defendant violated that statute, not N.C.G.S. § 15A-1343(b)(1). None of the nine violations in the reports alleged Defendant violated N.C.G.S. § 15A-1343(b)(1); thus, the trial court did not make a finding that Defendant had committed a new criminal offense in violation of N.C.G.S. § 15A-1343(b)(1). Rather, the trial court necessarily revoked Defendant's probation and activated her suspended sentence based upon a finding that she had absconded supervision in violation of N.C.G.S. § 15A-1343(b)(3a).
We express no opinion on whether the actions described in the reports did, in fact, amount to absconding supervision pursuant to N.C. Gen. Stat. § 15A-1343(b)(3a).
The effective date of N.C.G.S. § 15A-1343(b)(3a) is outcome determinative in this case. Our General Assembly made the absconding provision found in N.C.G.S. § 15A-1343(b)(3a) applicable only to offenses committed on or after 1 December 2011. 2011 N.C. Sess. Laws ch. 412, § 2.5; Hunnicutt, 226 N.C. App. at 354-55, 740 S.E.2d 906 at 911. Because Defendant committed the offenses for which she was placed on supervised probation on 28 December 2009, the absconding provision does not apply to Defendant. Id. Therefore, the trial court erred by revoking Defendant's probation for violation of N.C.G.S. §15A-1343(b)(3a).
IV. Conclusion
For the reasons stated, the trial court erred by revoking Defendant's probation based upon a finding she had absconded supervision in violation of N.C.G.S. § 15A-1343(b)(3a). The judgment and commitment upon revocation of probation are reversed. This case is remanded to the trial court for an appropriate judgment, consistent with the provisions of N.C.G.S. § 15A-1344, based upon the other probation violations contained in the reports.
REVERSED AND REMANDED.
Judges HUNTER, JR. and DILLON concur.
Report per Rule 30(e).