State v. Lassiter

Full title: STATE OF NORTH CAROLINA v. KENTRICK LASSITER, Defendant.

Court: COURT OF APPEALS OF NORTH CAROLINA

Date published: Apr 19, 2016

No. COA15-1075 (N.C. Ct. App. Apr. 19, 2016)

Opinion

No. COA15-1075

04-19-2016

STATE OF NORTH CAROLINA v. KENTRICK LASSITER, Defendant.

Attorney General Roy Cooper, by Associate Attorney General Cara Byrne, for the State. Mary McCullers Reece for defendant-appellant.

GEER, Judge.

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Wayne County, Nos. 11 CRS 52802-04 Appeal by defendant from judgments entered 7 May 2015 by Judge Arnold O. Jones, II in Wayne County Superior Court. Heard in the Court of Appeals 11 April 2016. Attorney General Roy Cooper, by Associate Attorney General Cara Byrne, for the State. Mary McCullers Reece for defendant-appellant. GEER, Judge.

Defendant Kentrick Lassiter appeals from judgments entered upon revocation of his probation. Because the trial court lacked statutory authority to revoke defendant's probation, we reverse and remand for further proceedings.

Facts

Defendant was charged with three counts of attempted larceny of a motor vehicle committed on 24 and 29 January 2011 and 18 February 2011. He pled guilty to all three offenses on 18 February 2013. The trial court sentenced him to a prison term of six to eight months for each count, suspended the sentences, and placed him on supervised probation for 36 months.

On 7 August 2013, a probation violation report was filed alleging defendant was in arrears of his court debt. The court found defendant willfully violated the conditions of his probation, ordered him to serve a 90-day period of confinement in response to violation ("CRV") in accordance with N.C. Gen. Stat. § 15A-1344(d2) (2011), and modified the monetary conditions of his probation.

Three additional probation violation reports were filed on 29 September 2014, one for each count of attempted larceny of a motor vehicle. The first report alleged defendant willfully violated the following conditions of probation:

1. "Report as directed by the Court, Commission or the supervising officer to the officer at reasonable times and places . . ." in that
[DEFENDANT] FAILED TO REPORT FOR OFFICE VISIT ON 04/08/14, 05/06/14, AND 09/09/14.

2. Condition of Probation "The defendant shall pay to the Clerk of Superior Court the "Total Amount Due" as directed by the Court or probation officer" in that
[DEFENDANT] HAS A BALANCE OF $10,170.50 AND IS $3880.00 IN ARREARS. NO MONIES HAVE BEEN COLLECTED IN THIS MATTER.

3. Condition of Probation "The defendant shall pay to the Clerk of Superior Court the monthly supervision fee as set by law" in that
SUBJECT IS $760.00 IN ARREARS.

4. Condition of Probation "Remain within the jurisdiction of the Court unless granted written permission to leave by the Court or the probation officer" in that
[DEFENDANT] HAS DELIBERATELY AVOIDED SUPERVISION AND HAS FAILED TO MAKE HIS WHEREABOUTS KNOWN TO HIS OFFICER, RENDERING HIMSELF AN ABSCONDER.

The remaining two reports alleged defendant willfully violated the following conditions of probation:

1. "Report as directed by the Court, Commission or the supervising officer to the officer at reasonable times and places . . ." in that
SUBJECT FAILED TO REPORT FOR OFFICE VISITS ON 04/08/14, 05/06/14, AND 09/09/14.

2. Condition of Probation "Remain within the jurisdiction of the Court unless granted written permission to leave by the Court or the probation officer" in that
[DEFENDANT] HAS DELIBERATELY AVOIDED SUPERVISION AND HAS FAILED TO MAKE HIS WHEREABOUTS KNOWN TO HIS OFFICER, RENDERING HIMSELF AN ABSCONDER.

Defendant admitted to being in arrears, but denied the remaining allegations. The trial court found defendant violated all four alleged conditions, revoked his probation, and ordered his sentences to run consecutively. Defendant timely appealed to this Court.

Discussion

Defendant contends the trial court erred by revoking his probation in violation of N.C. Gen. Stat. §§ 15A-1343 and 1344 (2011) when it should have followed N.C. Gen. Stat. § 1344 (2010 Interim Supp.). Defendant argues that because the underlying offenses were committed prior to 1 December 2011, he was not subject to the regular condition of absconding as enacted in the Justice Reinvestment Act of 2011 ("JRA"). We agree.

The JRA modified North Carolina's probation statutes in two significant ways:

First, for probation violations occurring on or after 1 December 2011, the JRA limited trial courts' authority to revoke probation to those circumstances in which the probationer: (1) commits a new crime in violation of N.C. Gen. Stat. § 15A-1343(b)(1); (2) absconds supervision in violation of N.C. Gen. Stat. § 15A-1343(b)(3a); or (3) violates any condition of probation after serving two prior periods of CRV under N.C. Gen. Stat. § 15A-1344(d2). See N.C. Gen. Stat. § 15A-1344(a). For all other probation violations, the JRA authorizes courts to alter the terms of probation pursuant to N.C. Gen. Stat. § 15A-1344(a) or impose a CRV in accordance with N.C. Gen. Stat. § 15A-1344(d2), but not to revoke probation.

State v. Nolen, 228 N.C. App. 203, 205, 743 S.E.2d 729, 730 (2013). Second, "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.' " State v. Hunnicutt, 226 N.C. App. 348, 354, 740 S.E.2d 906, 910 (2013) (quoting N.C. Gen. Stat. § 15A-1343(b)(3a) (2011)).

The JRA initially made both provisions effective for probation violations occurring on or after 1 December 2011.

See 2011 N.C. Sess. Laws 192, sec. 4.(d). The effective date clause was later amended, however, to make the new absconding condition applicable only to offenses committed on or after 1 December 2011, while the limited revoking authority remained effective for probation violations occurring on or after 1 December 2011. See 2011 N.C. Sess. Laws 412, sec. 2.5.

Id. at 354-55, 740 S.E.2d at 911 (emphasis added).

In the present case, the judgments include the finding that "[t]he Court may revoke defendant's probation . . . for the willful violation of the condition(s) that he/she not commit any criminal offense, G.S. 15A-1343(b)(1), or abscond from supervision, G.S. 15A-1343(b)(3a)[.]" The State did not present any evidence at the hearing that defendant committed a new crime. Moreover, defendant committed the underlying offenses in January and February 2011, prior to the effective date of the new absconding condition established in N.C. Gen. Stat. § 15A-1343(b)(3a). Therefore, defendant was not subject to the absconding condition, and the trial court was without statutory authority to revoke defendant's probation on this basis.

The judgments entered upon revocation of probation are hereby reversed. We remand to the trial court for entry of appropriate judgments for defendant's probation violations consistent with the provisions of N.C. Gen. Stat. § 15A-1344 (2010 Interim Supp.).

REVERSED AND REMANDED.

Judges McCULLOUGH and ZACHARY concur.

Report per Rule 30(e).