State v. Newsome ( 2019 )


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  •               IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA18-707
    Filed: 26 March 2019
    New Hanover County, No. 15CRS053062
    STATE OF NORTH CAROLINA
    v.
    MATTHEW CHRISTOPHER NEWSOME, Defendant.
    Appeal by defendant from judgment entered 8 February 2018 by Judge Albert
    D. Kirby in New Hanover County Superior Court. Heard in the Court of Appeals 28
    November 2018.
    Attorney General Joshua H. Stein, by Special Deputy Attorney General Daniel
    P. O’Brien and Assistant Attorney General Amy Bircher, for the State.
    Lisa A. Bakale-Wise for defendant-appellant.
    BERGER, Judge.
    Matthew Christopher Newsome (“Defendant”) appeals from a judgment
    revoking his probation and activating his suspended sentence. On appeal he argues
    that the trial court abused its discretion when it revoked his probation. We affirm in
    part and remand in part.
    Factual and Procedural Background
    On April 15, 2015, Defendant was arrested for felony possession of cocaine and
    misdemeanor open container of alcohol. Pursuant to a plea arrangement with the
    STATE V. NEWSOME
    Opinion of the Court
    State on May 21, 2015, Defendant pleaded guilty to possession of cocaine. The State
    agreed not to pursue an habitual felon indictment and dismissed the open container
    charge. Defendant received a ten to twenty-one month suspended sentence and was
    placed on probation for eighteen months.
    Defendant’s probation officers filed multiple violation reports due to
    Defendant’s willful failure to comply with the terms and conditions of his probation.
    On October 28, 2016, Defendant’s probation officer filed a violation report, alleging
    that Defendant had been charged with driving while impaired on June 11, 2015, and
    resisting a public officer and intoxicated and disruptive on October 1, 2016. The
    violation report also alleged that Defendant had failed to pay over $2,000.00 in court-
    ordered fees. In April 2017, Defendant’s probation was modified and extended for an
    additional twelve months only for his failure to comply with the monetary terms of
    his probation.
    On July 7, 2017, Defendant’s probation officer filed a second violation report,
    alleging that Defendant had absconded by willfully avoiding supervision or willfully
    making his whereabouts unknown on July 5. The report also alleged that Defendant
    had refused to make himself available for supervision “after numerous attempts to
    contact the Defendant at the last known address;” had tested positive for PCP on May
    10; had failed to report for office visits as instructed on May 9 and June 6; and had
    failed to pay his monetary obligation. Defendant was arrested after the July 7
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    STATE V. NEWSOME
    Opinion of the Court
    violation report was filed, and he remained in custody until he posted bond on August
    30.
    Defendant had been instructed to make contact with the probation office
    within 72 hours of his release from custody. Defendant had failed to contact his
    probation officer or the probation office after his release from custody. The probation
    officer had attempted to locate Defendant by calling him and visiting his residence.
    After observing Defendant enter his residence in September 2017, the probation
    officer went to Defendant’s door, introduced herself as Defendant’s probation officer,
    and spoke with Defendant’s mother. Defendant’s mother informed the probation
    officer that Defendant was not at home.
    On September 22, 2017, his probation officer filed an Addendum that alleged
    Defendant had absconded when he failed to report to the probation office within 72
    hours of his release from custody on August 30. Defendant testified at his probation
    hearing that he did in fact go to the probation office as instructed and that he was not
    the person the probation officer had seen enter his residence. However, the trial court
    found that Defendant’s testimony was not credible. In fact, the trial court found that
    “there is such a disparity – in the testimony – I mean, it’s almost – almost – you’re
    reciting something that’s complete opposite from what [the probation officer] testified
    to.”
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    STATE V. NEWSOME
    Opinion of the Court
    On February 8, 2018, the trial court found that Defendant had willfully
    violated the terms and conditions of his probation set forth in both the July 7 and
    September 22, 2017 violation reports, and that Defendant’s probation could be
    revoked pursuant to N.C. Gen. Stat. § 15A-1343(b)(3a) for willfully absconding. The
    trial court activated Defendant’s suspended sentence.
    Defendant appeals, but failed to comply with the requirements of Rule 4 of the
    Rules of Appellate Procedure. Defendant filed a petition for writ of certiorari to
    address his defective notice of appeal. In our discretion, we grant certiorari and
    review the merits of his appeal.
    Standard of Review
    On appeal, Defendant argues that the trial court abused its discretion when it
    revoked Defendant’s probation. We disagree.
    “[I]n a probation revocation, the standard is that the evidence be such as to
    reasonably satisfy the [trial court] in the exercise of [its] sound discretion that the
    defendant has willfully violated a valid condition [upon which probation can be
    revoked].” State v. Harris, 
    361 N.C. 400
    , 404, 
    646 S.E.2d 526
    , 529 (2007) (citation
    and quotation marks omitted).        We review a trial court’s decision to revoke a
    defendant’s probation for an abuse of discretion. State v. Miller, 
    205 N.C. App. 291
    ,
    293, 
    695 S.E.2d 149
    , 150 (2010) (citation omitted). Abuse of discretion “occurs when
    a ruling is manifestly unsupported by reason or is so arbitrary that it could not have
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    STATE V. NEWSOME
    Opinion of the Court
    been the result of a reasoned decision.” State v. Maness, 
    363 N.C. 261
    , 279, 
    677 S.E.2d 796
    , 808 (2009) (citation and quotation marks omitted).
    Analysis
    “Probation or suspension of sentence comes as an act of grace to one convicted
    of, or pleading guilty to, a crime.” State v. Murchison, 
    367 N.C. 461
    , 463, 
    758 S.E.2d 356
    , 358 (2014) (citations and quotation marks omitted). “A probation revocation
    proceeding is not a formal criminal prosecution,” and an “alleged violation of a valid
    condition of probation need not be proven beyond a reasonable doubt.” 
    Id. at 464,
    758
    S.E.2d at 358 (citations and quotation marks omitted).
    A trial court “may only revoke probation for [committing a criminal offense] or
    [absconding], except as provided in G.S. 15A-1344(d2).” N.C. Gen. Stat. § 15A-1344(a)
    (2017). A probationer absconds when he willfully avoids supervision or willfully
    makes his whereabouts unknown to his probation officer. N.C. Gen. Stat. § 15A-
    1343(b)(3a) (2017). It is a “defendant’s responsibility to keep his probation officer
    apprised of his whereabouts.” State v. Trent, ___ N.C. App. ___, ___, 
    803 S.E.2d 224
    ,
    232 (2017), review denied, 
    370 N.C. 576
    , 
    809 S.E.2d 599
    (2018).
    Merely failing to report for an office visit,
    does not, without more, violate N.C. Gen. Stat. § 15A-
    1343(b)(3a) when these exact actions violate the explicit
    language of a wholly separate regular condition of
    probation which does not allow for revocation and
    activation of a suspended sentence. . . .
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    STATE V. NEWSOME
    Opinion of the Court
    To hold otherwise would render portions of N.C.
    Gen. Stat. § 15A-1344(a) superfluous. Allowing actions
    which explicitly violate a regular or special condition of
    probation other than those found in N.C. Gen. Stat. § 15A-
    1343(b)(1) or N.C. Gen. Stat. § 15A-1343(b)(3a) to also
    serve, without the State showing more, as a violation of
    N.C. Gen. Stat. § 15A-1343(b)(1) or N.C. Gen. Stat. § 15A-
    1343(b)(3a) would result in revocation of probation without
    following the mechanism the General Assembly expressly
    provided in N.C. Gen. Stat. § 15A-1344(d2).
    State v. Johnson, 
    246 N.C. App. 139
    , 146, 
    783 S.E.2d 21
    , 26 (2016) (emphasis added).
    “[O]nce the State present[s] competent evidence establishing defendant’s failure to
    comply with the terms of his probation, the burden [is] on defendant to demonstrate
    through competent evidence his inability to comply with those terms.” Trent, ___
    N.C. App. at ___, 803 S.E.2d at 231.
    In the present case, the second violation report was filed against Defendant for
    absconding, testing positive for PCP, failing to report for two office visits, and failing
    to comply with certain monetary conditions. The allegation regarding absconding
    specifically states that Defendant willfully violated the
    Regular Condition of Probation General Statue 15A-
    1343(b)(3a) ‘Not to abscond, by willfully avoiding
    supervision or by willfully making the supervisee’s
    whereabouts unknown to the supervising probation
    officer[’] in that, on or about 7/5/2017, and after numerous
    attempts to contact the Defendant at the last known
    address . . . the said Defendant has refused to make
    himself available for supervision as instructed by the
    probation       officer,   thereby   absconding     probation
    supervision.
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    STATE V. NEWSOME
    Opinion of the Court
    Defendant was subsequently served with the violation report and taken into custody.
    Defendant knew or should have known upon being served with the violation report
    that he was considered to be an absconder by his probation officer.
    Upon his release from custody on August 30, 2017, Defendant was then
    instructed to make contact with his probation officer within 72 hours of his release.
    This was more than a regular office visit. It was a special requirement imposed upon
    Defendant because he was considered to be an absconder, and it was his
    “responsibility to keep his probation officer apprised of his whereabouts.” Trent, ___
    N.C. App. at ___, 803 S.E.2d at 232.
    While in custody, the probation officer knew Defendant’s whereabouts and how
    to contact him.   Once Defendant had posted bond, Defendant never made his
    probation officer aware of his whereabouts as instructed.       The requirement for
    Defendant to contact the probation officer within 72 hours of release from custody
    alerted Defendant that his probation officer was attempting to actively monitor him.
    Had Defendant complied, he would have enabled the probation officer to attempt
    appropriate monitoring of Defendant.
    However, because Defendant failed to contact his probation officer or the
    probation office after his release from custody, the probation officer was forced to
    locate Defendant. She then made multiple phone calls to Defendant’s phone number
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    STATE V. NEWSOME
    Opinion of the Court
    that were not returned. When she had finally tracked him down and observed him
    enter his residence, she was informed by Defendant’s mother that he was not there.
    On September 22, 2017, Defendant’s probation officer filed an Addendum to
    the July 7 violation report because Defendant had failed to report to his probation
    officer or the probation office upon his release from custody, failed to contact his
    probation officer or the probation office for nearly one month, and willfully made his
    whereabouts unknown to his probation officer. The probation officer alleged in the
    Addendum that Defendant violated a
    Regular Condition of Probation General Statue 15A-
    1343(b)(3a) “Not to abscond, by willfully avoiding
    supervision or by willfully making the supervisee’s
    whereabouts unknown to the supervising probation officer”
    in that, on or about 08-30-2017, the offender bonded out of
    custody, offender is a returned absconder[.] Offender failed
    to report the probation office within 72 hours of release,
    and has made no contact attempts despite several attempts
    to contact the offender, his whereabouts remain
    unknown[.] The offender is actively avoiding supervision,
    thereby absconding.
    The State presented sufficient evidence that Defendant willfully absconded by
    failing to report within 72 hours of his release from custody and thereafter avoiding
    supervision and making his whereabouts unknown from August 20 through the filing
    of the violation report on September 22.
    The burden was then on Defendant to “demonstrate through competent
    evidence his inability to comply with these terms” of his probation upon release from
    custody. Trent, ___ N.C. App. at ___, 803 S.E.2d at 231. Defendant admitted during
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    STATE V. NEWSOME
    Opinion of the Court
    the hearing that he knew he had to report to the probation office within 72 hours of
    his release, that his mother had informed him that a probation officer had stopped by
    their home, and that his mother had given him a business card with a probation
    officer’s information on it. Moreover, the trial court determined that Defendant was
    not credible. In fact, the trial court went as far as to find that the evidence offered by
    Defendant was completely opposite of the testimony provided by the probation officer.
    Defendant, however, argues that the trial court abused its discretion because
    missing scheduled appointments cannot constitute absconding pursuant to State v.
    Williams, 
    243 N.C. App. 198
    , 
    776 S.E.2d 741
    (2015) and State v. Krider, ___ N.C. App.
    ___, 
    810 S.E.2d 828
    (2018), aff’d in part per curiam, ___ N.C. ___, 
    818 S.E.2d 102
    (2018). Here, however, Defendant did not simply miss an appointment or phone call
    with his probation officer. Defendant had willfully failed to comply with probation
    leading up to the July 7 violation report by making himself unavailable for
    supervision “after numerous attempts to contact Defendant at the last known
    address,” and then again for almost one month following his release from custody on
    August 30.
    In Williams, the allegations in the violation report that the probationer had
    failed to remain within the jurisdiction and had failed to report for regular office visits
    could not be bootstrapped into a finding of absconding. 
    Williams, 243 N.C. App. at 200
    , 776 S.E.2d at 743. In Williams, this Court specifically noted that “the State does
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    STATE V. NEWSOME
    Opinion of the Court
    not argue that Defendant absconded” in its brief and the violation “report did not
    include reference to N.C. Gen. Stat. § 15A-1343(b)(3a).” 
    Id. at 200,
    205, 776 S.E.2d
    at 743
    , 745. Similarly, this Court in Krider stated that evidence of Section 15A-
    1343(b)(2) and (3) violations could not be considered absconding, and, as in Williams,
    the violation report in Krider had not referenced Section 15A-1343(b)(3a). Krider, ___
    N.C. App. at ___, 810 S.E.2d at 831.
    Here, however, the violation report and Addendum specifically alleged that
    Defendant had violated Section 15A-1343(b)(3a) by failing to make himself available
    for supervision and actively avoiding supervision. Defendant had not simply missed
    appointments or phone calls. After he was taken into custody for a violation based
    on absconding, Defendant had knowingly failed to notify his probation officer of his
    release from custody. Thereafter, Defendant actively avoided supervision each day
    after the initial 72-hour time period through and until September 22, 2017. This was
    a willful course of conduct by Defendant that thwarted supervision. Defendant’s
    actions were a persistent avoidance of supervision and a continual effort to make his
    whereabouts unknown.
    Because the trial court had not abused its discretion when it found Defendant
    had absconded, we affirm the revocation of Defendant’s probation and activation of
    the suspended sentence.
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    STATE V. NEWSOME
    Opinion of the Court
    However, we remand this matter for correction of a clerical error in the trial
    court’s judgment. “When, on appeal, a clerical error is discovered in the trial court’s
    judgment or order, it is appropriate to remand the case to the trial court for correction
    because of the importance that the record speak the truth.” State v. Smith, 188 N.C.
    App. 842, 845, 
    656 S.E.2d 695
    , 696 (2008) (citation and quotation marks omitted). As
    stated above, a trial court “may only revoke probation for [committing a criminal
    offense] or [absconding].” N.C. Gen. Stat. § 15A-1344(a). Thus, the judgment form
    must clearly indicate that probation was revoked because Defendant had committed
    a criminal offense or absconded. When the trial court incorrectly checks a box on a
    judgment form that contradicts its findings and the mistake is supported by the
    evidence in the record, we may remand for correction of this clerical error in the
    judgment. See State v. Jones, 
    225 N.C. App. 181
    , 186, 
    736 S.E.2d 634
    , 638 (2013)
    (affirming the trial court’s revocation of defendant’s probation, but remanding for the
    sole purpose of correcting a clerical error on the judgment form).
    Here, the trial court found on Defendant’s judgment form that Defendant had
    violated the conditions of probation as set forth in paragraphs 1 through 5 of the July
    7, 2017 violation report, and paragraph 1 of the September 22, 2017 Addendum. The
    trial court had checked the box indicating that Defendant’s probation could only be
    revoked for committing a criminal offense or absconding.             However, because
    violations 2 through 5 in the July 7, 2017 violation report are neither criminal
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    STATE V. NEWSOME
    Opinion of the Court
    offenses nor do they constitute absconding, the trial court should not have selected
    the box that “[e]ach violation is in and of itself was sufficient basis upon which this
    Court should revoke probation and activate the suspended sentence.” Accordingly,
    we remand to the trial court to correct this clerical error on the judgment.
    Conclusion
    For the reasons stated above, we affirm the trial court’s judgment. However,
    we remand for the limited purpose of correcting the clerical error described above.
    AFFIRMED IN PART; REMANDED IN PART.
    Judge HUNTER, JR. concurs.
    Judge DAVIS concurred in result only in this opinion prior to 25 March 2019.
    - 12 -
    

Document Info

Docket Number: COA18-707

Judges: Berger

Filed Date: 3/26/2019

Precedential Status: Precedential

Modified Date: 12/13/2024