State v. Patin ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-926
Filed: 21 April 2015
Wayne County, Nos. 12 CRS 5176, 50514
STATE OF NORTH CAROLINA
v.
RAYANNA L. PATIN
Appeal by defendant from judgments entered 7 April 2014 by Judge Arnold O.
Jones, II, in Wayne County Superior Court. Heard in the Court of Appeals 7 January
2015.
Attorney General Roy Cooper, by Assistant Attorney General Torrey D. Dixon,
for the State.
Winifred H. Dillon for defendant-appellant.
DIETZ, Judge.
Defendant Rayanna Patin appeals the trial court’s revocation of her probation
and activation of her sentences in two separate drug offense cases. After repeatedly
violating the conditions of her probation and serving 90-day periods of incarceration,
Patin tested positive for marijuana, violating a condition of her probation. The State
sought to revoke her probation based on the failed drug test and her failure to pay
her court debt.
STATE V. PATIN
Opinion of the Court
The trial court revoked Patin’s probation in both cases, finding that she
violated both conditions alleged by the State (the failed drug test and the failure to
pay court debt). The court did not check the box on the judgment form indicating that
each violation, standing alone, was sufficient in the trial court’s discretion to revoke
Patin’s probation.
Patin argues that the trial court erred because there was insufficient evidence
to show that she failed to pay her court debt. We agree with respect to one of her two
cases, where the probation violation report abruptly ends mid-sentence without
including any details of the amount Patin owes in court debt. We also hold that the
trial court erred in its calculation of jail fees in that case (an error the State concedes
on appeal). We therefore vacate and remand that case for further proceedings
consistent with this opinion. We affirm the revocation of Patin’s probation in the
second of her two criminal cases.
Facts and Procedural History
On 29 February 2012, Rayanna Patin pleaded guilty to possession of
pseudoephedrine with the intent to manufacture methamphetamine in Wayne
County Case No. 12 CRS 50514. The trial court sentenced her to 13-25 months
imprisonment, suspended her sentence, ordered her to serve 120 days in jail, and
placed her on 36 months supervised probation. As conditions of her probation, the
court ordered Patin to “[n]ot use, possess, or control any illegal drug or controlled
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Opinion of the Court
substance,” to submit to a substance abuse assessment, to not possess any drug
paraphernalia, and to pay the necessary jail fees.
Seven months later, on 18 September 2012, Patin again pleaded guilty to
possession of pseudoephedrine with the intent to manufacture methamphetamine in
Lenoir County Case No. 11 CRS 50728, which became Wayne County Case No. 12
CRS 5176. The trial court sentenced Patin to 15-18 months imprisonment, suspended
her sentence, ordered her to serve 120 days in jail, and placed her on supervised
probation for 36 months. The court also gave her credit for 206 days of pretrial
confinement.
On 17 October 2012, Patin’s probation officer filed two probation violation
reports (one for each case) alleging that Patin violated her probation by residing with
a person also on probation for the possession or distribution of a methamphetamine
precursor. Patin admitted to violating the terms of her probation and the court
ordered her to serve 90 days confinement with 19 days of credit. The court modified
her probation, ordering her to six months of house arrest with electronic monitoring,
to submit to drug screens, and to not test positive for drugs.
On 7 June 2013, Patin’s probation officer filed two probation violation reports
alleging that Patin violated her probation by being in arrears on her court debt in
both cases. Two days later, her probation officer filed additional violation reports
alleging that Patin moved once in April, twice in May, and again in June without
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STATE V. PATIN
Opinion of the Court
notifying her probation officer. On 1 July 2013, the trial court found Patin violated
the terms of her probation and ordered her to serve 90 days confinement with 21 days
of credit.
Patin’s probation officer filed two more violation reports on 1 April 2014
alleging that Patin violated the terms of her probation by testing positive for
marijuana and being in arrears on her court debt. The trial court held a hearing on
7 April 2014 and Patin waived her right to counsel. At the hearing, Patin admitted
to testing positive for marijuana stating that she relapsed after suffering a
miscarriage. The trial court found that Patin violated the terms of her probation as
set out in the violation reports and revoked her probation. The court activated her
sentences in each case and ordered them to run consecutively. The court also ordered
the arrearages in each case be entered as civil judgments. Patin timely appealed.
Analysis
I. Jail Fees
Patin first argues that the amount of jail fees the court ordered her to pay as
part of the judgment in Case No. 12 CRS 5176 exceeded the amount she was obligated
to pay under N.C. Gen. Stat. § 7A-313. The State concedes that the trial court erred
in its calculation of jail fees and we agree.
After a conviction, a defendant may be assessed costs by the court, including
jail fees. N.C. Gen. Stat. § 7A-304(c) (2013). Under N.C. Gen. Stat. § 7A-313 (2013),
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Opinion of the Court
a person who is “lawfully confined in jail awaiting trial” is liable for costs “for each 24
hours’ confinement, or fraction thereof.” Prior to August 2011, the jail fee was set at
$5.00 per day. N.C. Gen. Stat. § 7A-313 (2011). In 2011, the General Assembly
amended the statute to raise the fee from $5.00 per day to $10.00 per day to be
effective 1 August 2011. 2011 N.C. Sess. Laws 145 § 31.26(e).
Here, Patin pleaded guilty to possession of pseudoephedrine with the intent to
manufacture methamphetamine and the court assessed her costs at $2,424.50, which
included $2,060 in jail fees. The court gave her credit for 206 days of pretrial
confinement. Thus, the court assessed Patin a jail fee of $10.00 per day for the entire
206 days.
Patin was arrested on 18 March 2011 and confined in the Lenoir County Jail.
On 12 August 2011, she posted bail and the court released her on bond. From 18
March 2011 to 31 July 2011, 136 days of the 206 day credit, Patin was subject to the
earlier version of N.C. Gen. Stat § 7A-313 effective prior to 1 August 2011 and the
court should have assessed Patin a jail fee of $5.00 per day during this time. Because
the court assessed a $10.00 per day fee for the entire 206 day credit, Patin’s jail fee
exceeded the amount authorized by statute. Therefore, we vacate this portion of the
trial court’s order and remand to the trial court for the proper jail fee assessment.
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STATE V. PATIN
Opinion of the Court
II. Jurisdiction to Revoke Probation
Patin next argues that the trial court lacked jurisdiction to enter a judgment
revoking her probation in Case No. 12 CRS 5176 because the violation report in that
case did not provide sufficient notice of the alleged violation. We disagree.
Before a court can revoke a defendant’s probation, it must hold a hearing. N.C.
Gen. Stat. § 15A-1345(e) (2013). “The State must give the probationer notice of the
hearing and its purpose, including a statement of the violations alleged.” Id. The
purpose of this notice “is to allow the defendant to prepare a defense and to protect
the defendant from a second probation violation hearing for the same act. State v.
Hubbard, 198 N.C. App. 154, 158, 678 S.E.2d 390, 393 (2009).
Here, the allegations of the probation violation report stated that Patin
willfully violated:
1. Condition of Probation “Not use, possess or control
any illegal drug or controlled substance unless it has been
prescribed for the defendant by a licensed physician and is
in the original container with the prescription number
affixed on it . . .” in that
THE DEFENDANT TESTED POSITIVE [FOR]
MARIJUANA ON 03/26/2014. JUDGE ARNOLD JONES
ORDERED ON 11/05/2012, IF THE DEFENDANT TEST
POSITIVE FOR ANY ILLEGAL DRUGS SHE IS TO BE
ARRESTED UNDER A $30,000.00 BOND.
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
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STATE V. PATIN
Opinion of the Court
Paragraph 2 in this probation revocation report abruptly ends after the words
“in that.” Thus, the allegation is certainly incomplete in the sense that it is not a
complete sentence. But our case law does not require the revocation notice to be
completely grammatical; it need only contain sufficient information to permit Patin
to prepare a defense for her hearing. See Hubbard, 198 N.C. App. at 158, 678 S.E.2d
at 393. Here, the report alleged that Patin violated her probation by failing to pay
the “‘Total Amount Due’ as directed by the Court or probation officer.” This statement
is sufficient to permit Patin to prepare a defense to the allegation and to prevent
Patin from being subjected to a second violation hearing for the same alleged act.
III. Revocation of Patin’s Probation
Finally, Patin argues that the trial court erred in revoking her probation
because the State presented no evidence that she actually was “in arrears on her
court indebtedness.” With respect to the violation report in Case No. 12 CRS 5176,
described above, we are constrained to agree. We therefore vacate and remand
Patin’s probation revocation in that case. However, we affirm the probation
revocation in Case No. 12 CRS 50514.
Under the Justice Reinvestment Act, a court ordinarily may revoke a
defendant’s probation only if she commits a new crime or absconds. N.C. Gen. Stat.
§ 15A-1344(a) (2013). If a defendant violates a condition of probation other than a
new crime or absconding, “the court may impose a period of confinement of 90
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Opinion of the Court
consecutive days.” N.C. Gen. Stat. § 15A-1344(d2). But after imposition of two
separate 90-day periods of confinement under § 15A-1344(d2), the court may revoke
a defendant’s probation for violating any condition of probation. See id.
Here, it is undisputed that the trial court previously had imposed two separate
90-day periods of confinement for prior probation violations. Thus, if the trial court
found that Patin again had violated any condition of probation, the court had the
authority to revoke her probation and require that she serve her sentence.
Notably, Patin conceded that she violated a condition of her probation in both
of her cases. As a condition of both terms of probation, Patin was required to be drug
tested and to not test positive for illegal drugs. At the revocation hearing, Patin
testified that she tested positive for marijuana, explaining that she “had a
miscarriage and . . . relapsed . . . it’s the first drug test I failed.”
This violation, standing alone, is sufficient to permit the trial court, in its
discretion, to revoke Patin’s probation. See N.C. Gen. Stat. § 15A-1344(d2); State v.
Kornegay, ___ N.C. App. ___, ___, 745 S.E.2d 880, 882 (2013). But the trial court also
found in both cases that Patin violated a second, separate condition of probation
requiring her to pay her court fees. In addition, the trial court did not check a box on
the judgment form stating that “[e]ach violation is, in and of itself, a sufficient basis
upon which this Court should revoke probation and activate the suspended sentence,”
nor did the court state at the hearing that it believed each violation, standing alone,
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STATE V. PATIN
Opinion of the Court
supported revocation. As a result, this Court cannot determine whether the trial
court, in its discretion, would have revoked Patin’s probation based solely on the
positive drug test, without also finding that Patin had failed to pay her court fees.
Accordingly, we can uphold the revocation in each of Patin’s two revocation cases only
if we determine that both grounds for revocation are supported by the record.
With respect to Case No. 12 CRS 50514, we hold that the trial court’s probation
revocation is supported by competent evidence. A probation violation “need not be
proven beyond a reasonable doubt.” N.C. Gen. Stat. § 15A-1345(e); State v. Tennant,
141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000). All that is required is “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.” State v. Young, 190 N.C. App. 458, 459, 660 S.E.2d
574, 576 (2008). “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.”
Id.
In Case No. 12 CRS 50514, the State submitted a verified probation violation
report in which the probation officer swore under oath that “the defendant is $825.00
in arrears on her court indebtedness.” Our Supreme Court has held that a verified
report of a state probation officer stating the alleged violations in detail is competent
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Opinion of the Court
evidence to support revocation. State v. Duncan, 270 N.C. 241, 246, 154 S.E.2d 53,
58 (1967). Thus, the verified violation report in Case No. 12 CRS 50514 was
competent evidence supporting the trial court’s finding that Patin violated the
condition of her probation requiring her to pay her court debt.
In Case No. 12 CRS 5176, by contrast, the probation violation report did not
include any information concerning the actual amount of court debt that Patin owed.
To be sure, the violation report indicated that Patin violated a condition of her
probation by failing to pay the amount due. But after the words “in that,” which
signaled that the report will provide further details of the violation, the allegations
abruptly end. There is no other evidence in the record establishing the actual amount
of court debt that Patin was required to pay. We are therefore constrained to hold
that this probation violation is not supported by competent evidence.
As noted above, on remand the trial court may enter judgment revoking Patin’s
probation based solely on the finding that Patin tested positive for marijuana—a fact
that Patin conceded at the revocation hearing. We vacate and remand only because
we cannot determine whether the trial court, in its discretion, would have revoked
Patin’s probation solely on that ground, without the accompanying finding that Patin
failed to pay her court debt.
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STATE V. PATIN
Opinion of the Court
Conclusion
We affirm the trial court’s judgment in Case No. 12 CRS 50514 but vacate and
remand the judgment in Case No. 12 CRS 5176 for further proceedings consistent
with this opinion.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
Judges STEELMAN and INMAN concur.
Report per Rule 30(e).
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