State v. Lytle ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-675
Filed 21 February 2023
Buncombe County, Nos. 17CRS93149-50
STATE OF NORTH CAROLINA
v.
LEWIS RODNEY LYTLE, JR., Defendant.
Appeal by defendant from judgment entered 6 January 2022 by Judge Alan Z.
Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 10
January 2023.
Yoder Law PLLC, by Jason Christopher Yoder, for defendant-appellant.
Attorney General Joshua H. Stein, by Assistant Attorney General Cheryl L.
Kaminski, for the State-appellee.
GORE, Judge.
On 6 August 2018, defendant Lewis Rodney Lytle, Jr., pled guilty to possession
of a firearm by a felon and possession of a stolen firearm. The two charges were
combined into one judgment with defendant receiving a sentence of 17 to 30 months
in prison. This sentence was suspended for 18 months of supervised probation.
Defendant’s probation expired on 6 February 2020.
Defendant presents three issues on appeal: (i) whether the trial court failed to
make a finding of good cause to revoke his probation in violation of N.C. Gen. Stat. §
STATE V. LYTLE
Opinion of the Court
15A-1344(f); (ii) whether his waiver of counsel was knowing and voluntary under N.C.
Gen. Stat. § 15A-1242; and (iii) whether the trial court erred in failing to address all
filed violations of probation individually in its judgment. Upon review, we vacate
without remand.
Defendant filed written notice of appeal from a final judgment revoking
probation entered against him in Buncombe County Superior Court. This Court has
jurisdiction to hear this appeal pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1347.
Defendant contends, and the State concedes, that the trial court failed to find
good cause to revoke probation after the expiration of the probation period as required
by N.C. Gen. Stat. § 15A-1344(f)(3). We agree. This issue is preserved for appellate
review without objection entered upon the ruling because § 15A-1344(f)(3) is a
statutory mandate that requires the trial judge to make a specific finding before
revoking probation after expiration of the probationary period. State v. Morgan, 372
N.C. 609, 617, 831 S.E.2d, 254, 259 (2019); see also State v. Ashe, 314 N.C. 28, 39, 331
S.E.2d 652, 659 (1985) (“[W]hen 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.”).
“Alleged statutory errors are questions of law, and as such, are reviewed de
novo.” State v. Mackey, 209 N.C. App. 116, 120, 708 S.E.2d 719, 721, (internal citation
omitted), rev. denied, 365 N.C. 193, 707 S.E.2d 246 (2011).
The statute provides:
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STATE V. LYTLE
Opinion of the Court
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 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) (2022).
Under subsection (f)(3), the trial court is “required . . . to make an additional
finding of ‘good cause shown and stated’ to justify the revocation of probation even
though the defendant’s probationary term has expired.” Morgan, 372 N.C. at 617,
831 S.E.2d at 259 (emphasis added). “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.” State v. Bryant, 361 N.C. 100, 103, 637 S.E.2d
532, 534 (2006). Our review of the transcript and record does not show that the trial
court made any findings, oral or written, that good cause existed to revoke
defendant’s probation after expiration of his probationary term.
“Ordinarily, when the trial court fails to make a material finding of fact, the
case must be remanded so that proper findings can be made.” State v. Sasek, 271
N.C. App. 568, 575, 844 S.E.2d 328, 334, (citation omitted), rev. denied, 376 N.C. 543,
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STATE V. LYTLE
Opinion of the Court
851 S.E.2d 49 (2020). However, when the trial court fails to make a finding of good
cause under § 15A-1344(f)(3), this Court “may only remand where the record
contain[s] sufficient evidence to permit the necessary finding of ‘reasonable efforts’
by the State to have conducted the probation revocation hearing earlier.” Id.
(alteration in original) (quotation marks and citation omitted).
Defendant argues, and the State concedes, that the appropriate remedy under
these facts is to vacate without remand.
Here, defendant’s probation expired 700 days prior to the revocation hearing.
The record on appeal provides no persuasive evidence that the trial court made
reasonable attempts to hold the probation revocation hearing prior to the expiration
of defendant’s probation. We, therefore, “vacate the trial court’s judgments revoking
[d]efendant’s probation without remand.” Id. at 576, 844 S.E.2d at 335 (citing Bryant,
361 N.C. at 101, 637 S.E.2d at 534). In light of our resolution of this matter above, it
is unnecessary to reach defendant’s remaining arguments.
VACATED.
Judges ARROWOOD and WOOD concur.
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