State v. Morgan , 259 N.C. App. 179 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-428
Filed: 17 April 2018
McDowell County, No. 13 CRS 50520
STATE OF NORTH CAROLINA
v.
BILLY DEAN MORGAN
Appeal by defendant by petition for writ of certiorari from judgments entered
9 September 2016 by Judge Jeffrey P. Hunt in McDowell County Superior Court.
Heard in the Court of Appeals 2 October 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Brenda
Eaddy, for the State.
The Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for defendant-
appellant.
CALABRIA, Judge.
Billy Dean Morgan (“defendant”) appeals by petition for writ of certiorari
from judgments (1) revoking his probation and activating his suspended sentences;
and (2) imposing costs and attorneys’ fees. After careful review, we affirm the
revocation of defendant’s probation. However, since defendant was not given notice
and an opportunity to be heard as to the final amount of attorneys’ fees that would
be entered against him, we vacate the civil judgment entered pursuant to N.C. Gen.
Stat. § 7A-455 (2017) and remand to the trial court.
STATE V. MORGAN
Opinion of the Court
I. Background
On 28 August 2013, defendant pleaded no contest in McDowell County
Superior Court to two counts of assault with a deadly weapon inflicting serious
injury. The trial court sentenced defendant to two consecutive terms of 29-47
months in the custody of the North Carolina Division of Adult Correction. Pursuant
to the terms of defendant’s plea agreement, the trial court suspended his active
sentences and placed him on 36 months of supervised probation.
On 12 May 2016, defendant’s supervising officer (“Officer Poteat”) filed
reports alleging that defendant had willfully violated his probation by (1) failing to
report as directed; (2) failing to pay his court and (3) supervision fees; and (4)
committing a new criminal offense by incurring misdemeanor charges on 17
February 2016 for violating a domestic violence protective order (“DVPO”). An
arrest warrant for a felony probation violation was issued that day. On 23 May
2016, Officer Poteat filed additional violation reports alleging that defendant had
willfully absconded supervision. On 17 June 2016, defendant was arrested for
violating his probation.
After defendant’s probation expired on 28 August 2016, the trial court held a
probation violation hearing on 9 September 2016. At the beginning of the hearing,
defendant admitted the allegations in the State’s violation reports. When Officer
Poteat subsequently testified for the State, he explained that defendant was
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Opinion of the Court
admitted to Grace Hospital’s mental health ward on 29 March 2016. After
defendant failed to make himself available for supervision following his release from
the hospital on 19 April 2016, Officer Poteat filed violation reports for absconding.
In addition, Officer Poteat testified that defendant had been convicted of the DVPO
violation “just two weeks ago.”1 Defendant’s appointed attorney contended that his
recent noncompliance with probation was related to his mental health concerns.
After hearing from both parties, the trial court revoked defendant’s probation
“for absconding and for the conviction” and activated his suspended sentences.
Before concluding the hearing, the trial court stated that a civil judgment would be
entered for defendant’s costs and fees.
II. Petition for Writ of Certiorari
On 16 September 2016, defendant filed a handwritten, pro se “Inmate
Grievance/Request Form” with the McDowell County Jail stating, inter alia, that
“[t]he Clerk of Supperior [sic] Court said this Notice of appeal must come to her. I
wrote my appeal on Sep 10-16 why was this appeal gave back to me on 9-13-16.”
The record contains no other purported notice of appeal, and defendant’s Inmate
Grievance/Request Form is ineffective to serve that purpose. Defendant fails to
“designate the judgment or order from which appeal is taken and the court to which
1 Defendant’s attorney confirmed that he had entered an Alford plea to the DVPO violation
and was sentenced to time served.
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Opinion of the Court
appeal is taken[,]” and there is no evidence that the document was served upon the
State. N.C.R. App. P. 3 (d)-(e); N.C.R. App. P. 4(b)-(c).
Despite his defective notice of appeal, on 30 May 2017, defendant filed a
petition for writ of certiorari with this Court requesting review of the criminal and
civil judgments entered by the trial court. Since it is evident from the Inmate
Grievance/Request Form that defendant intended to appeal, in our discretion, we
grant defendant’s petition for writ of certiorari and proceed to the merits of his
appeal. See N.C.R. App. P. 21(a)(1) (providing that “[t]he 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”).
III. Probation Revocation
“[O]ther than as provided in N.C. Gen. Stat. § 15A-1344(f), a trial court lacks
jurisdiction to revoke a defendant’s probation after the expiration of the
probationary term.” State v. Moore, 240 N.C. App. 461, 463, 771 S.E.2d 766, 767
(2015) (citing State v. Camp, 299 N.C. 524, 527, 263 S.E.2d 592, 594 (1980)). N.C.
Gen. Stat. § 15A-1344(f) provides, in pertinent part:
The court may extend, modify, or revoke probation after
the expiration of the period of probation if all of the
following apply:
(1) Before the expiration of the period of probation
the State has filed a written violation report
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Opinion of the Court
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).
Following the enactment of the Justice Reinvestment Act of 2011 (“JRA”),
trial courts may only revoke probation when a defendant (1) commits a new criminal
offense in violation of N.C. Gen. Stat. § 15A-1343(b)(1); (2) willfully absconds
supervision in violation of N.C. Gen. Stat. § 15A-1343(b)(3a); or (3) violates any
condition of probation after serving two periods of confinement in response to
violations under N.C. Gen. Stat. § 15A-1344(d2). N.C. Gen. Stat. § 15A-1344(a).
A hearing to revoke a defendant’s probationary sentence
only requires that the evidence be such as to reasonably
satisfy the judge in the exercise of his sound discretion
that the defendant has willfully violated a valid condition
of probation or that the defendant has violated without
lawful excuse a valid condition upon which the sentence
was suspended. The judge’s finding of such a violation, if
supported by competent evidence, will not be overturned
absent a showing of manifest abuse of discretion.
State v. Young, 190 N.C. App. 458, 459, 660 S.E.2d 574, 576 (2008) (citations and
quotation marks omitted).
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Opinion of the Court
On appeal, defendant first argues that the trial court erroneously revoked his
probation after his 36-month probationary period expired on 28 August 2016,
because the court failed to make any findings of “good cause” under N.C. Gen. Stat.
§ 15A-1344(f)(3). We disagree.
Defendant’s argument is nearly identical to the one this Court rejected in
State v. Regan, __ N.C. App. __, 800 S.E.2d 436 (2017). Relying on State v. Love,
156 N.C. App. 309, 576 S.E.2d 709 (2003), the Regan defendant challenged the trial
court’s failure to make written or oral findings of good cause under N.C. Gen. Stat.
§ 15A-1344(f) before revoking her probation. Regan, __ N.C. App. at __, 800 S.E.2d
at 440. However, we determined that Love was inapposite, because it involved a
different statute that requires the trial court to make “specific findings that longer
or shorter periods of probation are necessary” before sentencing an offender to a
period of probation beyond those expressly authorized by the statute. Id. (quoting
N.C. Gen. Stat. § 15A-1343.2(d) (2003)). We observed that unlike the statute at
issue in Love, N.C. Gen. Stat. § 15A-1344(f) “does not require that the trial court
make any specific findings.” Id. (emphasis added). Rather, the statute merely
authorizes the trial court to “extend, modify, or revoke” probation after the
defendant’s probationary term has expired if the court finds “good cause shown and
stated” for doing so. Id. (quoting N.C. Gen. Stat. § 15A-1344(f)(3)).
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Opinion of the Court
In Regan, we reasoned that “[t]he trial court complied with N.C. Gen. Stat. §
15A-1344(f)(3) by finding good cause to revoke” the defendant’s probation because:
Remaining in North Carolina was a condition of
Defendant’s probation. Defendant testified that she left
the jurisdiction in 2011. Reporting for office meetings
with her probation officer as directed was also a condition
of Defendant’s probation. The State presented competent
evidence, the sworn affidavit of Officer Wiley, that
Defendant failed to report as directed on 5 April 2011.
Defendant testified that she did not return to North
Carolina because “after talking to Ms. Woods, I mean,
frankly, it scared the hell out of me, so I didn't come
back.”
Id. In open court, the trial court announced that it found the defendant “in willful
violation of the terms and conditions of her probation.” Id. The court’s judgments
included written findings that “[e]ach violation is, in and of itself, a sufficient basis
upon which this Court should revoke probation and activate the suspended
sentence.” Id. Accordingly, we concluded that “[b]oth the transcript of the probation
violation hearing and the judgments entered reflect[ed] that the trial court
considered the evidence and found good cause to revoke . . . probation.” Id. at __,
800 S.E.2d at 440-41.
On appeal, defendant acknowledges Regan’s holding but nevertheless asserts
that “the only reasonable and proper interpretation” of N.C. Gen. Stat. § 15A-
1344(f)(3) “requires a trial court to make a specific finding of ‘good cause shown and
stated’ in order to revoke probation . . . .” Yet, as defendant recognizes, we are bound
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Opinion of the Court
by this Court’s prior published opinions. In re Appeal from Civil Penalty, 324 N.C.
373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has
decided the same issue, albeit in a different case, a subsequent panel of the same
court is bound by that precedent, unless it has been overturned by a higher court.”).
Alternatively, defendant argues that the trial court failed to comply with N.C.
Gen. Stat. § 15A-1344(f)(3)—“even under the looser interpretation” set forth in
Regan—because the judgments do not include findings that “[e]ach violation is, in
and of itself, a sufficient basis upon which this Court should revoke probation and
activate the suspended sentence.” We disagree.
The Regan defendant was placed on probation prior to the enactment of the
JRA, when “trial courts had authority to revoke probation for a violation of any
probation condition.” State v. Moore, __ N.C. __, __, 807 S.E.2d 550, 554 (2017).
“After the JRA, by contrast, only violations of any of the three conditions specified
in N.C.G.S. § 15A-1344(a) are revocation-eligible.” Id. Accordingly, the finding in
Regan would have been erroneous in the instant case, given that only two of
defendant’s violations could have supported revocation. Instead, the trial court’s
judgments include the more appropriate finding that “[t]he Court may revoke
defendant’s probation . . . for the willful violation of the condition(s) that he[ ] not
commit any criminal offense, G.S. 15A-1343(b)(1), or abscond from supervision, G.S.
15A-1343(b)(3a) . . . .”
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Opinion of the Court
Since defendant had not previously served any periods of confinement
pursuant to N.C. Gen. Stat. § 15A-1344(d2), the trial court could only revoke his
probation if he committed a new criminal offense or willfully absconded. N.C. Gen.
Stat. § 15A-1344(a). The State alleged and the trial court found violations of both
of these conditions. Although defendant challenges both violations on appeal, his
arguments are meritless. As previously explained, either violation would support
revocation, and at the hearing, defendant admitted all of the State’s allegations.
After hearing from Officer Poteat and defendant’s attorney, the trial court
announced its decision to “revoke his probation for absconding and for the
conviction.” Consequently, “[b]oth the transcript of the probation violation hearing
and the judgments entered reflect that the trial court considered the evidence and
found good cause to revoke” defendant’s probation. Regan, __ N.C. App. at __, 800
S.E.2d at 440-41. Therefore, the trial court did not abuse its discretion by revoking
defendant’s probation.
IV. Costs and Attorneys’ Fees
Defendant next argues that the trial court erred by entering a civil judgment
for costs and attorneys’ fees without providing him with notice and an opportunity
to be heard as to the final amount of the attorneys’ fees that may be imposed against
him. We agree.
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STATE V. MORGAN
Opinion of the Court
At sentencing, the trial court may enter a civil judgment against an indigent
defendant for fees incurred by the defendant’s court-appointed attorney. N.C. Gen.
Stat. § 7A-455; State v. Jacobs, 172 N.C. App. 220, 235, 616 S.E.2d 306, 316 (2005).
“[C]ounsel’s fees are calculated using rules adopted by the Office of Indigent Defense
Services, but trial courts awarding counsel fees must take into account factors such
as ‘the nature of the case, the time, effort, and responsibility involved, and the fee
usually charged in similar cases.’ ” State v. Friend, __ N.C. App. __, __, 809 S.E.2d
902, 906 (2018) (quoting N.C. Gen. Stat. § 7A-455(b)).
Before entering judgment pursuant to N.C. Gen. Stat. § 7A-455, the trial
court must give the defendant “notice and an opportunity to be heard regarding the
total amount of hours and fees claimed by the court-appointed attorney.” Jacobs,
172 N.C. App. at 236, 616 S.E.2d at 317. This exchange in open court not only
allows the trial court to inform the defendant, on the record, of the purpose and
extent of the civil judgment that will be entered against him, but also provides the
defendant with his sole opportunity to comment on the court’s award of attorneys’
fees. See id.Unlike other stages of a criminal proceeding, when the trial court considers
entering a money judgment pursuant to N.C. Gen. Stat. § 7A-455, “the interests of
the defendant and trial counsel are not necessarily aligned.” Friend, __ N.C. App.
at __, 809 S.E.2d at 907. “For example, a defendant may believe that the amount
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Opinion of the Court
of fees requested is unreasonable given the time, effort, or responsibility involved
in defending the case. Counsel, unsurprisingly, might feel otherwise.” Id.
Therefore, to avoid injustice,
trial courts should ask defendants—personally, not
through counsel—whether they wish to be heard on the
issue. Absent a colloquy directly with the defendant on
this issue, the requirements of notice and opportunity to
be heard will be satisfied only if there is other evidence in
the record demonstrating that the defendant received
notice, was aware of the opportunity to be heard on the
issue, and chose not to be heard.
Id.
At the hearing in the instant case, the trial court discussed attorneys’ fees
with defendant’s appointed attorney immediately after revoking his probation:
THE COURT: . . . I will make all [defendant’s] fees a civil
judgment. Are you appointed?
[DEFENSE COUNSEL]: I am appointed, Your Honor.
THE COURT: Including your attorney’s fees.
[DEFENSE COUNSEL]: I have seven hours.
THE COURT: Good luck.
Although this discussion occurred in open court in defendant’s presence, the trial
court did not ask defendant personally, rather than through counsel, “whether [he]
wish[ed] to be heard on the issue.” Id. And while this exchange reveals that the
appointed attorney claimed seven hours of work related to defendant’s
representation, the record contains no evidence that defendant was notified of and
given an opportunity to be heard regarding the total amount of fees that would be
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Opinion of the Court
entered against him. Cf. Jacobs, 172 N.C. App. at 235-36, 616 S.E.2d at 316-17(vacating the judgment because although the trial court notified the defendant that
he would be awarding attorneys’ fees at the State-determined “rate of $65 an
hour[,]” the defendant’s appointed attorney “had not yet calculated his hours of
work related to defendant’s representation”).
Accordingly, we vacate the civil judgment imposing costs and attorneys’ fees
and remand to the trial court. “On remand, the State may apply for a judgment in
accordance with N.C. Gen. Stat. § 7A-455, provided that defendant is given notice
and an opportunity to be heard regarding the total amount of hours and fees claimed
by the court-appointed attorney.” Id. at 236, 616 S.E.2d at 317; see also Friend, __
N.C. App. at __, 809 S.E.2d at 907 (emphasizing that Friend did “not announce a
new rule of constitutional law” but merely “provide[d] further guidance on what
trial courts should do to ensure that this Court can engage in meaningful appellate
review when defendants raise this issue”).
V. Conclusion
We affirm the trial court’s judgments revoking defendant’s probation and
activating his suspended sentences, since “[b]oth the transcript . . . and the
judgments entered reflect that the trial court considered the evidence and found
good cause to revoke” his probation based on violations of N.C. Gen. Stat. §§ 15A-
1343(b)(1) and 15A-1343(b)(3a). Regan, __ N.C. App. at __, 800 S.E.2d at 440-41.
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Opinion of the Court
However, although the trial court asked the appointed attorney how many hours he
claimed related to defendant’s representation, defendant was not informed of the
total amount of attorneys’ fees that would be imposed, nor given an opportunity to
personally address the court. Therefore, defendant was not given the requisite
notice and opportunity to be heard on the issue. Friend, __ N.C. App. at __, 809
S.E.2d at 907. Accordingly, we vacate and remand the civil money judgment
entered pursuant to N.C. Gen. Stat. § 7A-455.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
Judge DILLON concurs.
Chief Judge McGEE dissents by separate opinion.
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No. COA17-428 – State v. Morgan
McGEE, Chief Judge, dissenting.
There are three requirements that must be met before the trial court can
enter an order revoking a defendant’s probation after the term of the probationary
period has ended:
The court may . . . revoke probation after the expiration
of the period of probation if all of the following apply:
(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 . . . revoked.
N.C. Gen. Stat. § 15A-1344(f) (2017). These requirements are conditions precedent
that must be met in order for the trial court to have jurisdiction to revoke a
defendant’s probation after the probationary period has ended. State v. Krider,
COA17-272, 2018 WL 943444, at *2 (N.C. Ct. App. Feb. 20, 2018); State v. Bryant,
361 N.C. 100, 103–04, 637 S.E.2d 532, 535 (2006). It is the State’s burden to
establish the jurisdiction of the trial court in a probation revocation hearing. State
v. Peele, __ N.C. App. __, __, 783 S.E.2d 28, 32-33 (2016).
In the present case, the first two conditions were clearly met. However,
Defendant argues the trial court failed to “state,” or make any finding of fact, that
STATE V. MORGAN
McGEE, C.J., dissenting
“good cause” was shown for revoking Defendant’s probation after Defendant’s
probationary term had already expired.
Defendant, the State, and this Court all recognize the relevance of this
Court’s opinion in State v. Regan, __ N.C. App. __, 800 S.E.2d 436 (2017), on the
facts before us. The majority opinion correctly cites In re Civil Penalty for the
proposition that “[w]here a panel of the Court of Appeals has decided the same issue,
albeit in a different case, a subsequent panel of the same court is bound by that
precedent, unless it has been overturned by a higher court.” In re Civil Penalty, 324
N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (citations omitted). Stated differently, a
regular panel of this Court is without the authority to overrule a prior opinion of
this Court. Id. That this Court is without the authority to overrule a decision of
our Supreme Court is self-evident. Therefore, when this Court is confronted by two
conflicting opinions of regular panels of this Court, we have determined that we are
bound by the decision reached by the panel that had the authority to make the
relevant holding – i.e. the holding made by the earlier panel – and that we are not
bound by the holding made in violation of In re Civil Penalty – i.e. the conflicting
holding made by the later panel. Boyd v. Robeson Cty., 169 N.C. App. 460, 470, 621
S.E.2d 1, 7 (2005). It is axiomatic that any holding of this Court that directly
conflicts with a valid holding of our Supreme Court –regardless of when the
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STATE V. MORGAN
McGEE, C.J., dissenting
Supreme Court holding was made – must be disregarded in favor of our Supreme
Court’s precedent.
I. The Requirement for Findings of Fact
In order to reach its holding in Regan, this Court contrasted the language
used in N.C. Gen. Stat. § 15A-1343.2(d) (2017) — that in order to sentence a
defendant to a probationary term outside the statutorily defined limits, the trial
court must make “specific findings” that such a deviation is necessary — with the
language in N.C.G.S. § 15A-1344(f)(3) (2017) that prohibits revocation of a
defendant’s probation after the probationary term has ended unless “[t]he [trial]
court finds for good cause shown and stated that the probation should be . . .
revoked.” Id.
In Regan, the Court held that the language of N.C.G.S. § 15A-1344(f)(3),
unlike that in N.C.G.S. § 15A-1343.2(d), did not require any actual findings of fact,
written or oral. Regan, __ N.C. App. at __, 800 S.E.2d at 440–41. Therefore, the
Regan holding allows revocation pursuant to N.C.G.S. § 15A-1344(f) so long as a
violation report was timely filed and the trial court makes a valid determination
that the defendant violated a condition of probation for which revocation is an
appropriate sanction:
The trial court complied with N.C. Gen. Stat. § 15A-
1344(f)(3) by finding good cause to revoke Defendant’s
probation. Remaining in North Carolina was a condition
of Defendant’s probation. Defendant testified that she
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McGEE, C.J., dissenting
left the jurisdiction in 2011. Reporting for office meetings
with her probation officer as directed was also a condition
of Defendant’s probation. The State presented competent
evidence, the sworn affidavit of Officer Wiley, that
Defendant failed to report as directed on 5 April 2011.
Defendant testified that she did not return to North
Carolina because “after talking to Ms. Woods, I mean,
frankly, it scared the hell out of me, so I didn’t come
back.” From the bench, the trial court announced, “I find
the Defendant’s in willful violation of the terms and
conditions of her probation.”
Each of the judgments . . . incorporates a corresponding
violation report . . . and indicates the specific paragraphs
of the violation report which the trial court found as the
basis for the finding that Defendant willfully violated the
terms of her probation. Each judgment also includes a
box checked by the trial court indicating that “[e]ach
violation is, in and of itself, a sufficient basis upon which
this Court should revoke probation and activate the
suspended sentence.” Both the transcript of the
probation violation hearing and the judgments entered
reflect that the trial court considered the evidence and
found good cause to revoke Defendant’s probation.
Regan, __ N.C. App. at __, 800 S.E.2d at 440–41 (emphasis added).2
However, I find the Regan interpretation of the relevant language in N.C.G.S.
§ 15A-1344(f)(3) to be in direct conflict with our Supreme Court’s interpretation of
relevantly identical language in an earlier version of N.C.G.S. § 15A-1344(f). In
2008, the General Assembly made the following changes to N.C.G.S. § 15A-1344(f):3
(f) Extension, Modification, or Revocation after Period of
2 As noted in the majority opinion, the probation violations in Regan were committed prior
to enactment of the Justice Reinvestment Act.
3 The stricken through portions were deleted and the underlined portions were added by this
amendment.
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McGEE, C.J., dissenting
Probation. – The court may extend, modify, or revoke
probation after the expiration of the period of probation
if: if all of the following apply:
(1) Before the expiration of the period of probation
the State has filed a written motion violation report with
the clerk indicating its intent to conduct a revocation
hearing; and hearing on one or more violations of one or
more conditions of probation.
(2) The court finds that the State has made
reasonable effort to notify the probationer and to conduct
the hearing earlier.[4] probationer did violate one or more
conditions of probation prior to the expiration period of
probation.
(3) The court finds for good cause shown and stated
that the probation should be extended, modified, or
revoked.
Act of July 8, 2008, sec. 4, 2008 N.C. Sess. Laws 129.
In Bryant, our Supreme Court undertook the following analysis of the prior
version of N.C.G.S. § 15A-1344(f):
Initially, we address the State’s argument that no finding
was required to be made by the trial court in this case.
The General Assembly, in enacting the controlling
statute, N.C.G.S. § 15A–1344(f), provided:
“The court may revoke probation after the
expiration of the period of probation if: (1) Before
the expiration of the period of probation the State has
filed a written motion with the clerk indicating its
intent to conduct a revocation hearing; and (2) The
4 Although the notice language was removed from N.C.G.S. § 15A-1344(f), Chapter 15A still
requires that a defendant be given proper notice before a revocation hearing is held, see, e.g., N.C.
Gen. Stat. §§ 15A-1345(d) and (e) (2017).
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STATE V. MORGAN
McGEE, C.J., dissenting
court finds that the State has made reasonable
effort to notify the probationer and to conduct the hearing
earlier.”
N.C.G.S. § 15A–1344(f) (2005) (emphasis added). In
analyzing this statute, we use accepted principles of
statutory construction by applying the plain and definite
meaning of the words therein, as the language of the
statute is clear and unambiguous. The statute
unambiguously requires the trial court to make a judicial
finding that the State has made a reasonable effort to
conduct the probation revocation hearing during the
period of probation set out in the judgment and
commitment.
The plain language of this statute leaves no room for
judicial construction. In the absence of statutorily
mandated factual findings, the trial court’s jurisdiction to
revoke probation after expiration of the probationary
period is not preserved. The State’s argument asks us to
substitute the unsworn remarks of defendant’s counsel
for a judicial finding of fact. This we will not do, as the
statute requires the trial court to make findings of fact.
Even in light of the somewhat informal setting of a
probation revocation hearing, to accept defense counsel’s
remarks as a finding of fact violates the plain and definite
meaning of the statute.[5]
The State argues that the unsworn remarks of
defendant’s counsel, along with the scheduled hearing
date noticed on defendant’s probation violation report,
satisfy the statutory requirement. In doing so, the State
contends the parenthetical statement made by the Court
of Appeals in State v. Hall only requires evidence in the
record, not an actual finding of fact. 160 N.C. App. 593,
593–94, 586 S.E.2d 561, 561 (2003) (parenthetically
5 “Black’s Law Dictionary defines a finding of fact as ‘a determination by a judge, jury, or
administrative agency of a fact supported by the evidence in the record, [usually] presented at the
trial or hearing.’ Black’s Law Dictionary 664 (8th ed. 2004).” This footnote is footnote “2” in the
original.
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McGEE, C.J., dissenting
stating “nor is there evidence in the record to support
such findings”). Although this argument is creative, it is
contrary to the explicit statutory requirement that “the
court find . . . the State has made reasonable effort to
notify the probationer and to conduct the hearing
earlier.” N.C.G.S. § 15A–1344(f). The statute makes no
exception to this finding of fact requirement based upon
the strength of the evidence in the record.
Bryant, 361 N.C. at 102–03, 637 S.E.2d at 534–35 (citations omitted) (some
emphases added); see also State v. Burns, 171 N.C. App. 759, 763, 615 S.E.2d 347,
350 (2005).
Prior to Regan, this Court discussed the requirements of the current version
of N.C.G.S. § 15A–1344(f) as follows:
Pursuant to N.C.G.S. § 15A–1344(f), a trial court may
extend, modify, or revoke a defendant’s probation after
the expiration of the probationary term only if several
conditions are met, including findings by the trial court
that prior to the expiration of the probation period a
probation violation had occurred and a written probation
violation report had been filed. Also, the trial court must
find good cause for the extension, modification, or
revocation. N.C.G.S. § 15A–1344(f).
State v. Moore, 240 N.C. App. 461, 463, 771 S.E.2d 766, 767 (2015) (second emphasis
added); see also State v. Sanders, 240 N.C. App. 260, 263, 770 S.E.2d 749, 751 (2015).
Our Supreme Court held in Bryant that the language “the court finds” was an
unambiguously stated requirement that a specific “finding of fact” be made by the
trial court, not simply a requirement that evidence before the trial court could
support an unstated or implied “finding.” Bryant, 361 N.C. at 103, 637 S.E.2d at
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McGEE, C.J., dissenting
535; see also State v. Daniels, 185 N.C. App. 535, 536–37, 649 S.E.2d 400, 401 (2007)
(citation omitted) (“In State v. Bryant, the Supreme Court held that N.C.G.S. § 15A–
1344(f) ‘. . . unambiguously requires the trial court to make a judicial finding that
the State has made a reasonable effort to conduct the probation revocation hearing
during the period of probation set out in the judgment and commitment’”). I also
note that this Court, in an unpublished opinion filed prior to Regan, recognized a
finding of fact requirement for N.C.G.S. § 15A–1344(f)(3). State v. Bailey, 241 N.C.
App. 173, 772 S.E.2d 875 (2015) (unpublished) (emphasis in original) (suggesting
that N.C.G.S. § 15A–1344(f)(3) requires a finding of fact because it “allows the court
to alter probation after the expiration of the probation period only if the court ‘finds
for good cause shown and stated that the probation should be extended, modified or
revoked’”). N.C. Gen. Stat. § 15A-1345(e) (2017) also supports the position that
actual findings of fact are necessary in order to support the statutory requirements
for revocation: “Before revoking . . . probation, the [trial] court must . . . hold a
hearing to determine whether to revoke . . . probation and must make findings to
support the decision and a summary record of the proceedings.” Id. (emphasis
added).
Our Supreme Court has also indicated that the language “the court finds good
cause” mandates that the trial court actually make the relevant findings of fact.
State v. Coltrane, 307 N.C. 511, 515–16, 299 S.E.2d 199, 202 (1983) (emphasis
8
STATE V. MORGAN
McGEE, C.J., dissenting
added) (Reversing order revoking probation because “[u]nder N.C.G.S. 15A-1345(e),
a defendant is entitled to ‘present relevant information, and may confront and cross-
examine adverse witnesses unless the [trial] court finds good cause for not allowing
confrontation.’ Defendant was allowed to confront neither [of the witnesses]. No
findings were made that there was good cause for not allowing confrontation.”).
The current version of N.C.G.S. § 15A–1344(f) requires that three things
occur before the trial court may revoke a defendant’s probation after expiration of
the period of probation: (1) that a violation report is filed prior to expiration of the
period of probation; (2) that the trial court “finds that the probationer did violate
one or more conditions of probation prior to the expiration of the period of
probation[;]” and (3) that the trial court “finds for good cause shown and stated that
the probation should be . . . revoked.” Id. (emphasis added). The Court in Bryant
clearly rejected any argument that we can presume a “finding” based upon the
strength of the evidence in the record – the trial court must make the required
finding of fact or it does not have the authority to revoke a defendant’s probation
pursuant to N.C.G.S. § 15A–1344(f). “The statute makes no exception to this finding
of fact requirement based upon the strength of the evidence in the record.” Bryant,
361 N.C. at 103, 637 S.E.2d at 535; see also id. at 103–04, 637 S.E.2d at 535 (“Like
[State v.] Camp, [299 N.C. 524, 263 S.E.2d 592 (1980),] the trial court in the instant
case was without jurisdiction to revoke defendant’s probation and to activate
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STATE V. MORGAN
McGEE, C.J., dissenting
defendant’s sentence because it failed to make findings sufficient to satisfy the
requirements of the statute.”).
I believe we are bound by our Supreme Court’s holdings construing language
in criminal statutes that requires the trial court to “find” or “find good cause” to
mean the trial court is required to make findings of fact demonstrating it has made
an independent determination, based on the evidence, that good cause existed for
the mandated conclusion. Therefore, in the present case I would hold that the trial
court was required to make a finding of fact that the State demonstrated “for good
cause shown and stated that [Defendant’s] probation should be . . . revoked.”
N.C.G.S. § 15A–1344(f)(3). Absent this finding, there is no record proof the trial
court had jurisdiction to revoke Defendant’s probation after the expiration of
Defendant’s period of probation. Bryant, 361 N.C. at 103–04, 637 S.E.2d at 535.
II. What Findings are Required Pursuant to N.C.G.S. § 15A–1344(f)(3)
Section (2) in the prior version of N.C.G.S. § 15A–1344(f), discussed in Bryant
and other opinions cited above, was replaced in part by N.C.G.S. § 15A–1344(f)(3).
Whereas the prior version required the State to present sufficient evidence
indicating that it had given the defendant proper notice and had made a reasonable
effort to conduct the revocation hearing earlier,6 the current version of the statute
6 The natural inference is that the State is expected to conduct the hearing before the end
of the period of probation if possible, and as soon after expiration of the period of probation as is
reasonable when it is not practicable to conduct the hearing before expiration of the defendant’s
period of probation.
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McGEE, C.J., dissenting
does not require a specific showing by the State, or a related finding by the trial
court, that the State could not have reasonably conducted the hearing at an earlier
date. Instead, the current version of N.C.G.S. § 15A–1344(f) requires the State to
prove (1) that it filed a violation report prior to the expiration of the period of
probation; (2) that Defendant did, in fact, violate a condition of probation prior to
the expiration of his period of probation; and (3) that there was “good cause” for the
trial court to revoke Defendant’s probation at that time – i.e., it is inferred that good
cause existed to revoke Defendant’s probation even though the period of probation
had already ended. It is my belief that the General Assembly, through its 2008
amendment of N.C.G.S. § 15A–1344(f), intended to provide the trial court more
discretion in making the determination of whether the State acted reasonably in
holding a revocation hearing after the expiration of the period of probation. I do not
believe the General Assembly intended to do away entirely with the State’s burden
to demonstrate that revocation of a defendant’s probation after expiration of the
period of probation was reasonable in light of the relevant facts of any particular
case.
Therefore, I believe the General Assembly intended the relevant language
“[t]he court finds for good cause shown and stated that the probation should be
. . . revoked[,]” N.C.G.S. § 15A–1344(f)(3), to require the State to satisfy the trial
court that there was “good cause” for the trial court to revoke the defendant’s
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STATE V. MORGAN
McGEE, C.J., dissenting
probation even though the period of probation had already ended – and that the trial
court make the appropriate associated findings of fact. If the timing of the
revocation hearing is not included in the N.C.G.S. § 15A–1344(f)(3) analysis, at least
two consequences arise that I do not believe were intended by the General
Assembly. First, N.C.G.S. § 15A–1344(f)(3), in its entirety, becomes superfluous, in
violation of the established rules of statutory construction.
“[W]e are guided by the principle of statutory
construction that a statute should not be interpreted in a
manner which would render any of its words superfluous.
We construe each word of a statute to have meaning,
where reasonable and consistent with the entire statute,
because it is always presumed that the legislature acted
with care and deliberation.”
State v. Haddock, 191 N.C. App. 474, 482, 664 S.E.2d 339, 345 (2008) (quoting State
v. Coffey, 336 N.C. 412, 417–18, 444 S.E.2d 431, 434 (1994)). In addition, “‘[i]n
construing ambiguous criminal statutes, we apply the rule of lenity, which requires
us to strictly construe the statute’” in favor of the defendant. Haddock, 191 N.C.
App. at 482, 664 S.E.2d at 345–46 (quoting State v. Hinton, 361 N.C. 207, 211, 639
S.E.2d 437, 440 (2007)). As I read Regan, that opinion appears to require only that
there exist evidence to support N.C.G.S. §§ 15A–1344(f)(1) and (2). Regan appears
to hold that, if the trial court finds that “the probationer did violate one or more
conditions of probation prior to the expiration of the period of probation[,]” N.C.G.S.
§ 15A–1344(f)(2), then the “good cause shown” requirement of N.C.G.S. § 15A–
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STATE V. MORGAN
McGEE, C.J., dissenting
1344(f)(3) is automatically satisfied. If satisfaction of the requirements of N.C.G.S.
§ 15A–1344(f)(2) serve to also satisfy the requirements of N.C.G.S. § 15A–1344(f)(3),
N.C.G.S. § 15A–1344(f)(3) has been rendered superfluous.
Second, the Regan interpretation would also seem to violate the rule of lenity,
as it disposes of any burden of the State to demonstrate it acted reasonably in
seeking to revoke the defendant’s probation after expiration of the period of
probation. If N.C.G.S. § 15A–1344(f) has been stripped of any requirement that the
State demonstrate good cause for the trial court to revoke a defendant’s probation,
taking into consideration that the period of probation had already expired, the
intended protections in N.C.G.S. § 15A–1344(f) have been almost completely
stripped away. The Official Commentary to N.C.G.S. § 15A–1344 states:
Subsection (f) provides that probation can be revoked and
the probationer made to serve a period of active
imprisonment even after the period of probation has
expired if a violation occurred during the period and if the
court was unable to bring the probationer before it in order
to revoke at that time.
Id. (emphasis added).7 As I understand the holding in Regan, so long as a violation
report is filed before the expiration of a defendant’s period of probation, the State
could bring the defendant before the trial court for a revocation hearing at any time
7The language of this comment suggests that it has not been changed since the amendment
of N.C.G.S. § 15A–1344(f), but I believe the rationale is still valid and that the addition of N.C.G.S.
§ 15A–1344(f)(3) was intended to convey the same intent – that the trial court’s finding of “good
cause shown and stated” incorporated the reasonableness of the State’s actions together with the
amount of time that has passed since the expiration of the period of probation.
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STATE V. MORGAN
McGEE, C.J., dissenting
– five, ten, fifteen years or more after the defendant’s probationary term ended. The
State would have no burden to demonstrate that it had acted reasonably in allowing
years to pass before initiating the revocation hearing. Whether the long delay was
due to the defendant’s actions, or was solely the fault of the State, would be
irrelevant in the trial court’s analysis. A finding by the trial court that the
defendant violated a term of his probation warranting revocation would be all that
was required to activate the underlying sentence. The “good cause shown and
stated” requirement of N.C.G.S. § 15A–1344(f)(3) would require nothing more than
the finding required by N.C.G.S. § 15A-1344(f)(2). This interpretation of N.C.G.S.
§ 15A–1344(f) results in the elimination of any meaningful difference between the
requirements for revocation at a hearing conducted during the defendant’s period
of probation and revocation after the expiration of the defendant’s period of
probation – so long as a violation report is filed prior to the end of defendant’s period
of probation, the arrest and hearing pursuant to N.C.G.S. § 15A-1345 may occur at
any time without any additional burden on the State. If this were the intent of the
General Assembly when it amended N.C.G.S. § 15A–1344(f) in 2008, it could have
greatly simplified the statute by eliminating N.C.G.S. § 15A–1344(f) entirely, and
simply have stated that the only conditions precedent to holding a probation
revocation hearing are the filing of a violation report prior to the expiration of the
period of probation and timely notice to the defendant of the hearing. The fact that
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STATE V. MORGAN
McGEE, C.J., dissenting
the General Assembly did not repeal N.C.G.S. § 15A–1344(f) in its entirety suggests
its intent was not to eliminate the additional requirement that the trial court find
as fact that activation of a defendant’s sentence after the expiration of the period of
probation was appropriate based on the particular fact before it.
Although I disagree with the interpretation of N.C.G.S. § 15A–1344(f)(3) set
forth in Regan, with respect to both the findings of fact requirement and what must
be shown in order to for the State to prove “good cause shown,” I believe this Court
only has the authority to disregard the holding in Regan concerning the necessity
of findings of fact in support of the “good cause shown and stated” requirement of
N.C.G.S. § 15A–1344(f)(3). Because I find no contrary precedent from our Supreme
Court, nor any contrary precedent from this Court pre-dating Regan, I believe we
are bound by the holding in that opinion regarding what is required to satisfy the
“good cause shown” requirement in N.C.G.S. § 15A–1344(f)(3). Specifically, that a
proper finding of fact that Defendant violated a condition of his probation for which
revocation was an appropriate sanction is all that is needed to satisfy the “good
cause shown” requirement. Regan, __ N.C. App. at __, 800 S.E.2d at 440–41. I
address this issue because I believe it merits consideration by our Supreme Court.
I would vacate and remand with direction to the trial court to either make
appropriate findings of fact as required by N.C.G.S. § 15A–1344(f)(3), or enter an
15
STATE V. MORGAN
McGEE, C.J., dissenting
order denying revocation based upon the State’s failure to prove all the
jurisdictional requirements of N.C.G.S. § 15A–1344(f).
16