Summary
In Karmo, an unpublished case but directly on point here, the State filed a supplement to the record along with its brief containing documents tending to show that the defendant had received various criminal convictions stemming from incidents which took place while the defendant was on probation.
Summary of this case from State v. PeeleOpinion
No. COA12–1209.
2013-08-6
STATE of North Carolina v. Christian KARMO.
Attorney General Roy Cooper, by Assistant Attorney General Michael Bulleri, for the State. Richard Croutharmel for Defendant.
Appeal by defendant from judgment entered 28 June 2012 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 27 March 2013. Attorney General Roy Cooper, by Assistant Attorney General Michael Bulleri, for the State. Richard Croutharmel for Defendant.
ERVIN, Judge.
Defendant Christian Karmo appeals from a judgment revoking his probation and activating his suspended sentence of five to six months imprisonment on the grounds that he had violated the terms and conditions of his probation. On appeal, Defendant argues that the trial court lacked jurisdiction to hear the case because his probationary period had expired before the filing of the violation notice. After careful consideration of Defendant's challenge to the trial court's judgment in light of the record and the applicable law, we conclude that the State failed to elicit sufficient evidence tending to show that the trial court had jurisdiction to revoke Defendant's probation and activate his suspended sentence.
I. Factual Background
On 21 July 2008, the Mecklenburg County grand jury returned a bill of indictment charging Defendant with felonious possession of cocaine. On 9 December 2008, Defendant entered a plea of guilty as charged subject to a plea agreement pursuant to which the State agreed that Defendant would be sentenced to a term of five to six months imprisonment, that Defendant's active sentence would be suspended, and that Defendant would be placed on supervised probation for 30 months, with the first six months of this period to involve intensive supervision. After accepting Defendant's plea, Judge Jesse B. Caldwell, III, entered a judgment sentencing Defendant to an active term of five to six months imprisonment, suspended Defendant's active sentence, and placed Defendant on supervised probation for a period of 30 months, including six months of intensive supervision, subject to the usual terms and conditions of probation, including requirements that he report to his probation officer as instructed, make certain monetary payments, “[c]ommit no criminal offense in any jurisdiction,” and remain gainfully employed, and certain special terms and conditions.
At some point not disclosed by the record, Defendant was also charged with misdemeanor possession of marijuana, a charge which was dismissed as part of Defendant's plea agreement.
On 26 March 2012, Probation Officer Sandy Coney filed a violation report alleging that Defendant had violated the terms and conditions of probation by: (1) failing to report to his probation officer as required on three different occasions; (2) failing to make required monetary payments; (3) failing to pay his supervision fee; (4) committing the offenses of possessing drug paraphernalia, operating a motor vehicle without a license, and speeding; and (5) committing the offense of possessing stolen goods. The violation notice came on for hearing before the trial court at the 26 June 2012 criminal session of the Mecklenburg County Superior Court.
At the revocation hearing, the State introduced the violation notice and elicited evidence from Officer Coney in support of its contention that Defendant had violated certain terms and conditions of his probation. Among other things, the record reflects that the violation notice does not list the occurrence dates for any of the offenses which Defendant allegedly committed while on probation, and that Officer Coney had learned that Defendant had been convicted of other crimes while he was on probation when he received notice that Defendant had been put on probation in a different case. However, nothing in the record reflects the dates upon which Defendant committed or was convicted of the offenses specified in the violation notice. Defendant took the stand in his own defense and denied that he had willfully failed to report as ordered or that he had willfully failed to comply with the monetary obligations imposed upon him in Judge Caldwell's probationary judgment.
At the conclusion of the revocation hearing, the trial court stated that “[t]he one thing that I see that is not disputed is [that Defendant] was convicted of seven counts of possession of stolen goods.” After considering the evidence contained in the record, the trial court entered a judgment finding that Defendant had willfully violated the terms and conditions of his probation as alleged in the violation report, that his probation was subject to revocation on the grounds that he had committed a criminal offense while on probation or had absconded from supervision, and that his probation should be revoked and his suspended sentence should be activated. Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis
On appeal, Defendant contends that the trial court erred by revoking his probation and activating his suspended sentence on the grounds that it lacked jurisdiction to do so. According to Defendant, the trial court lacked jurisdiction to revoke his probation and activate his suspended sentence because the evidence presented at the revocation hearing did not tend to show that his probationary period had not expired prior to the date on which the State filed its violation notice. Defendant's contention has merit.
A. Standard of Review
A resolution of the issue of the extent to which a defendant has willfully violated a valid condition of probation is committed to the sound discretion of the trial court. State v. Belcher, 173 N.C.App. 620, 624, 619 S.E.2d 567, 570 (2005). However, this Court reviews challenges to a trial court's jurisdiction to hear and decide a particular probation revocation proceeding using a de novo standard of review. State v. Satanek, 190 N.C.App. 653, 656, 660 S.E.2d 623, 625 (2008) (holding that “an appellate court necessarily conducts a statutory analysis when analyzing whether a trial court has subject matter jurisdiction in a probation revocation hearing, and thus conducts a de novo review”). Moreover, given that “the issue of a court's jurisdiction over a matter may be raised at any time, even for the first time on appeal or by a court sua sponte,” State v. Webber, 190 N.C.App. 649, 650, 660 S.E.2d 621, 622 (2008), the fact that Defendant did not advance this argument before the trial court does not affect the extent to which we are required to evaluate its validity.
B. Sufficiency of the Evidence
As a general proposition, a trial court may revoke a defendant's probation and activate his or her suspended sentence at “any time prior to the expiration or termination of the probation period” assuming that the State notifies the Clerk of Superior Court prior to the expiration of the probation period that it intends to convene a hearing for the purpose of considering whether the defendant violated the terms and conditions of his probation during the probation period. N.C. Gen.Stat. § 15A–1344(d). A trial court does, however, have authority to revoke a defendant's probation even after the expiration of the probationary period in the event that:
(1) Before the expiration of the period of probation the State has filed a written violation report with the clerk indicating its intent to conduct a hearing on one or more violations of one or more conditions of probation.
(2) The court finds that the probationer did violate one or more conditions of probation prior to the expiration of the period of probation.
(3) The court finds for good cause shown and stated that the probation should be extended, modified, or revoked.
N.C. Gen.Stat. § 15A–1344 (f)(1)-(3). Thus, the relevant statutory provisions provide that the State must file a violation notice before the end of the probationary period alleging violations of the terms and conditions of probation committed during the probationary period in order for the trial court to have the jurisdiction to revoke a defendant's probation and activate his or her probationary sentence.
Judge Caldwell's judgment suspending Defendant's sentence and placing him on supervised probation was entered on 9 December 2008. As a result, Defendant's probation expired on 9 June 2011. In view of the fact that Officer Coney did not file the violation notice alleging that Defendant's probation was subject to revocation until 26 March 2012, it is clear that the State did not initiate the proceedings needed to obtain the revocation of Defendant's probation and the activation of his suspended sentence within the time limitations specified in N.C. Gen.Stat. § 15A–1344(f)(1) unless Defendant's probationary period was, somehow, extended past 9 June 2011.
In its brief, the State argues that Defendant's probationary period was extended until on or after the date upon which Officer Coney filed the State's violation notice because he committed a criminal offense while on probation. Assuming, without in any way deciding, that the State's contention to the effect that the commission of a new criminal offense while a defendant is on probation extends the existing probationary period is correct, we conclude that the record does not contain sufficient evidence to support a determination that Defendant's probationary period was subject to extension or actually extended on the basis contended for by the State. See State v. Moore, 148 N.C.App. 568, 571, 559 S.E.2d 565, 567 (2002) (holding that “the State failed to satisfy the plain language of N.C. [Gen.Stat.] § 15A–1344(f) and that the trial court was without jurisdiction to conduct a hearing”).
The record does not reflect, and the State has not contended, that Defendant's probationary period was extended past 9 June 2011 on any basis other than the commission of additional criminal offenses.
In its brief, the State contends that N.C. Gen.Stat. § 15A–1344(g) (repealed 2011), which provides that “the probation period shall be tolled until all pending criminal charges are resolved” in the event that “there are pending criminal charges against the probationer in any jurisdiction,” authorized the tolling of Defendant's probationary period. N.C. Gen.Stat. § 15A–1344(g) did not, however, become effective until 1 December 2009, approximately one year after the entry of Judge Caldwell's judgment, and only applied to “offenses committed on or after that date.” 2009 N.C. Sess. Laws c. 372, s. 20. Assuming that the reference to “offenses committed on or after that date” refers to the offense leading to the entry of the judgment placing the defendant on probation rather than any subsequent offenses which lead to the revocation of the defendant's probation, N.C. Gen.Stat. § 15A–1344(g) would not have applied to Defendant's case. In addition, the State contends that, even if the running of Defendant's probationary period was not tolled by virtue of N.C. Gen.Stat. § 15A–1344(g), the same result should be reached based upon the application of former N.C. Gen.Stat. § 15A–1344(d), which contained a similar tolling provision. The fundamental problem with this aspect of the State's argument is that the General Assembly repealed the tolling language in N.C. Gen.Stat. § 15A–1344(d) for “hearings held on or after December 1, 2009.” 2009 N.C. Sess. Laws c. 372, s. 20. We need not, however, definitively resolve the issue of whether the statutory provisions upon which the State relies have any application to this case given that we have decided to vacate the trial court's judgment on other grounds.
Although the record clearly establishes that Defendant was convicted of various criminal offenses after the date upon which he was placed on probation, the record does not contain any evidence tending to show that Defendant committed these criminal offenses during his probationary period. In other words, nothing in the record developed before the trial court tends to show that Defendant committed any criminal offenses during, as compared to before or after, his initial probationary period. As a result, we have no choice but to conclude that the State failed to demonstrate that the trial court had jurisdiction to consider the revocation of Defendant's probation and the activation of Defendant's suspended sentence.
In an attempt to persuade us to reach a different conclusion, the State filed a supplement to the record with its brief containing documents tending to show that Defendant received criminal convictions stemming from incidents which occurred while he was still on probation. For example, documents contained in the supplemental materials submitted for our consideration establish that certain of the possession of stolen goods charges which were lodged against Defendant stemmed from incidents occurring on 19 May 2011 and that the no operator's license and speeding charges lodged against Defendant stemmed from incidents which occurred on 17 March and 4 May 2011 respectively. We are not, however, entitled to consider this information in evaluating the validity of Defendant's challenge to the trial court's judgment in view of the fact that none of this information was presented to the trial court at Defendant's revocation hearing. See Twaddell v. Anderson, 136 N .C.App. 56, 68, 523 S.E.2d 710, 719 (1999) (holding that “[t]his Court can only consider the pleadings and filings before the trial court”), disc. review denied, 351 N.C. 480, 543 S.E.2d 510 (2000); Markham v. Nationwide Mut. Fire Ins. Co., 125 N.C.App. 443, 456, 481 S.E.2d 349, 357 (stating that “this Court can only judicially know that which is of record”), disc. review denied, 346 N.C. 281, 487 S.E.2d 551 (1997). Although the State appears to argue that these materials were before the trial court on the grounds that the hearing which led to the entry of the trial court's judgment involved three different violation notices, we do not find this argument to be persuasive given that the record before us contains no indication that the documents contained in the supplement to the record submitted for our consideration by the State were admitted into evidence at Defendant's revocation hearing. Thus, we lack authority to consider the information contained in the supplemental materials presented for our consideration by the State and decline to do so.
In addition, the State also argues, in reliance upon this Court's decision in State v. Patterson, 190 N.C.App. 193, 660 S.E.2d 155 (2008), that the testimony of Officer Coney and other information contained in the record developed before the trial court sufficed to prove that Defendant committed the criminal offenses for which he was ultimately convicted before the expiration of his probationary period. Admittedly, Officer Coney testified that he had received information to the effect that Defendant had been convicted of various criminal offenses and that he had verified this information by consulting the Administrative Office of the Courts' website. Officer Coney did not, however, identify the date upon which the incidents which eventually led to these convictions occurred. Instead, the date-related information provided in Officer Coney's testimony involves references to “convictions” rather than to the offense dates associated with those convictions. Similarly, the fact that Defendant entered a plea of guilty to the offense of possession of stolen property on 24 January 2012 and the fact that the other violation notices introduced into evidence at Defendant's revocation hearing contain file numbers beginning with references to 2011 does not establish the date upon which Defendant committed the offenses for which he had been placed on probation in the other cases in which the State was seeking to revoke his probation and activate his suspended sentence. As a result, given that we upheld the trial court's judgment in Patterson on the grounds that the running of the defendant's probationary period was tolled by the operation of former N.C. Gen.Stat. § 15A–1344(d) based upon the existence of record evidence tending to show that the defendant had pending criminal charges at the time that the State filed its violation notice and that the violation notice was filed prior to the expiration of the defendant's probationary period, Patterson, 190 N.C.App. at 197–98, 660 S.E.2d at 157–58, we conclude that the State's reliance upon Patterson is misplaced. Thus, none of the justifications which the State has offered in support of its contention that the violation notice which led to the entry of the trial court's order was filed prior to the expiration of Defendant's probationary period have merit. As a result, we have no choice except to conclude that the State failed to prove that Defendant committed any criminal offense during his probationary period, thereby depriving the trial court of jurisdiction to revoke Defendant's probation and activate his suspended sentence. E.g. State v. Petersilie, 334 N.C. 169, 175, 432 S.E.2d 832, 835 (1993) (stating that, “[l]ike the majority of states, North Carolina requires the State to prove jurisdiction beyond a reasonable doubt in a criminal case”); Moore, 148 N.C.App. at 571, 559 S.E.2d at 566–67 (holding that the “burden of perfecting the trial court's jurisdiction for a probation revocation hearing after defendant's period of probation has expired lies squarely with the State”).
III. Conclusion
Thus, for the reasons set forth above, we conclude that the trial court erroneously revoked Defendant's probation given the State's failure to establish that the trial court had jurisdiction over this probation revocation proceeding. As a result, the trial court's order should be, and hereby is, vacated.
VACATED. Judges CALABRIA and DILLON concur.
Report per Rule 30(e).