State v. Regan , 253 N.C. App. 351 ( 2017 )


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  •               IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA16-682
    Filed: 2 May 2017
    Harnett County, No. 11 CRS 906, 09 CR 54650
    STATE OF NORTH CAROLINA
    v.
    WANDA LEE REGAN, Defendant.
    Appeal by Defendant from judgment entered 27 January 2016 by Judge C.
    Winston Gilchrist in Harnett County Superior Court. Heard in the Court of Appeals
    11 January 2017.
    Attorney General Joshua H. Stein, by Assistant Attorney General Allison A.
    Angell, for the State.
    Joseph P. Lattimore for Defendant-Appellant.
    INMAN, Judge.
    A trial court located in a county where a defendant resides and violates the
    terms of her probation is vested with jurisdiction to revoke the defendant’s probation.
    Wanda Lee Regan (“Defendant”) appeals judgments revoking her probation in
    two criminal matters. On appeal, Defendant argues that the trial court in Harnett
    County lacked subject matter jurisdiction to commence a probation revocation
    hearing because the probation originated in Sampson County. Defendant also argues
    STATE V. REGAN
    Opinion of the Court
    that the trial court erred in failing to make statutorily required findings of good cause
    to revoke her probation. After careful review, we affirm.
    Factual & Procedural History
    The evidence presented before the trial court tends to show the following:
    On 16 March 2010 in Harnett County District Court, Defendant pled guilty in
    case number 09 CRS 054650, the case originating in Harnett County, to forging an
    instrument on 2 June 2009. The trial court accepted Defendant’s plea and sentenced
    her to a minimum four months and a maximum six months imprisonment. The trial
    court suspended the sentence and placed Defendant on supervised probation for 24
    months. Defendant’s probation was supervised in the Harnett County Probation
    Office. In the Spring of 2011, Defendant’s probation was supervised by Harnett
    County Probation Officer Sabrina Wiley.
    On 3 May 2010 in Sampson County Superior Court, Defendant pled guilty in
    case number 09 CRS 052339, the case originating in Sampson County, to attempted
    first degree burglary on 25 July 2009. The trial court accepted Defendant’s plea and
    sentenced her to a minimum 23 months and a maximum 37 months imprisonment.
    The trial court suspended the sentence and placed Defendant on supervised probation
    for 24 months.     Defendant’s probation was supervised in the Harnett County
    Probation Office, but the record on appeal does not reflect that Defendant’s probation
    case was transferred from Sampson to Harnett County.
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    STATE V. REGAN
    Opinion of the Court
    On 30 March 2011, Defendant spoke with Officer Wiley by phone and advised
    her that she had left North Carolina. Defendant refused to disclose her location.
    On 5 April 2011, Defendant failed to attend a scheduled meeting with Officer
    Wiley. Subsequently, on 14 April 2011, a warrant was issued in Harnett County for
    Defendant’s arrest. On that same date, Harnett County Probation Officer Norma
    Wood—who was working as a surveillance officer tasked with locating people who
    had fled the jurisdiction—was assigned to locate and arrest Defendant.
    Officer Wood traveled to Defendant’s last known address, a mobile home park
    in Angier, in Harnett County, where Defendant had lived with her aunt. Wood also
    visited Defendant’s mother’s home in Harnett County and called Defendant’s
    daughter, who resided in Garner, North Carolina. Defendant’s family members told
    Officer Wood that Defendant had left North Carolina, but did not disclose where
    Defendant was located.
    On 25 April 2011, Officer Wiley filed a Probation Report in Harnett County
    Superior Court in case number 09 CRS 054650, the case originating in Harnett
    County. The Probation Report alleged that Defendant failed to report for a scheduled
    appointment on 5 April 2011, was in arrears with regard to monetary obligations,
    and left the jurisdiction without permission.
    On that same date, Wiley filed a second Probation Report in Harnett County
    Superior Court in case number 11 CRS 00906. This case number corresponded with
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    STATE V. REGAN
    Opinion of the Court
    09 CRS 052339, the case originating in Sampson County. The second Probation
    Report also alleged that Defendant failed to report for a scheduled appointment on 5
    April 2011, was in arrears with regard to monetary obligations, and left the
    jurisdiction without permission.
    Defendant avoided probation supervision for more than four years after
    notifying Officer Wiley that she had left North Carolina. She surrendered to law
    enforcement authorities in Texas in late 2015 and was extradited to North Carolina.
    More than a month prior to her arrest in Texas, Defendant contacted Officer Wood
    by telephone and said she wanted to surrender, but Defendant would not disclose her
    location.
    The probation violation cases came on for hearing 27 January 2016 in Harnett
    County Superior Court, Judge C. Winston Gilchrist presiding. The State offered the
    testimony of one witness, Officer Wood, who by that time had been assigned to
    supervise Defendant’s probation after Officer Wiley had been reassigned to another
    county. Defendant also testified at the hearing.
    Defendant admitted that she left North Carolina in 2011 and went to Texas.
    She also admitted to speaking with Officer Wood by telephone. At the conclusion of
    the probation violation hearing, the trial court found Defendant in willful violation of
    the terms and conditions of her probation, revoked her probation in both cases, and
    activated her suspended sentences.
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    STATE V. REGAN
    Opinion of the Court
    Defendant filed a timely notice of appeal. Defendant also filed a petition for
    writ of certiorari in the alternative, should this Court find her written notice of appeal
    defective.
    Appellate Jurisdiction
    As an initial matter, we must address this Court’s jurisdiction.            On 10
    February 2016, Defendant filed a notice of appeal to this Court. The notice of appeal
    referred to an inaccurate judgment date, in violation of Rule 4 of the North Carolina
    Rules of Appellate Procedure. See N.C.R. App. P. 4(a) (2014) (“The notice of appeal
    required to be filed and served by subdivision (a)(2) of this rule shall specify the party
    or parties taking the appeal; shall designate the judgment or order from which appeal
    is taken and the court to which appeal is taken; and shall be signed by counsel of
    record for the party or parties taking the appeal, or by any such party not represented
    by counsel of record.”). Defendant filed a petition for writ of certiorari seeking this
    Court’s review notwithstanding her defective notice of appeal. “While this Court
    cannot hear [D]efendant’s direct appeal, it does have the discretion to consider the
    matter by granting a petition for writ of certiorari.” State v. McCoy, 
    171 N.C. App. 636
    , 638, 
    615 S.E.2d 319
    , 320 (2005). As such, we allow Defendant’s petition for writ
    of certiorari and address her appeal on the merits.
    Analysis
    I. Trial Court Jurisdiction
    -5-
    STATE V. REGAN
    Opinion of the Court
    Defendant contends that the State failed to present sufficient evidence that the
    Harnett County Superior Court had subject matter jurisdiction to revoke probation
    in file number 11 CRS 00906, the case which originated in Sampson County. We
    disagree.
    A party may raise the issue of subject matter jurisdiction at any time. State v.
    Satanek, 
    190 N.C. App. 653
    , 656, 
    660 S.E.2d 623
    , 625 (2008) (citation omitted).
    “Whether a trial court has subject-matter jurisdiction is a question of law, reviewed
    de novo on appeal.” McKoy v. McKoy, 
    202 N.C. App. 509
    , 511, 
    689 S.E.2d 590
    , 592
    (2010) (citation omitted).
    Section 15A-1344(a) of the North Carolina General Statutes—entitled
    “Authority to Alter or Revoke”—provides in pertinent part:
    Except as provided in subsection (a1) or (b), probation may
    be reduced, terminated, continued, extended, modified, or
    revoked by any judge entitled to sit in the court which
    imposed probation and who is resident or presiding in the
    district court district as defined in G.S. 7A-133 or superior
    court district or set of districts as defined in G.S. 7A-41.1,
    as the case may be, where the sentence of probation was
    imposed, where the probationer violates probation, or where
    the probationer resides.
    N.C. Gen. Stat. § 15A-1344 (2015) (emphasis added).
    Defendant argues that the State did not meet its burden of showing that 1) the
    Sampson County probation was transferred to Harnett County Superior Court and
    the Harnett County Superior Court thereafter issued its own probation order
    -6-
    STATE V. REGAN
    Opinion of the Court
    authorizing supervision of Defendant; 2) Defendant violated her probation in Harnett
    County; or 3) Defendant resided in Harnett County at the time of the violations.
    Defendant’s argument is refuted by evidence that at the time she violated her
    probation by failing to pay supervision fees and by leaving the state, her residence
    was in Harnett County. Defendant’s argument also is refuted by evidence that she
    violated her probation by failing to report for an appointment with her probation
    officer in Harnett County, thus vesting Harnett County Superior Court with
    jurisdiction to revoke Defendant’s probation.
    “It is presumed, when the Court is not required to find facts and make
    conclusions of law and does not do so, that the court on proper evidence found facts
    to support its judgment.” Sherwood v. Sherwood, 
    29 N.C. App. 112
    , 113-14, 
    223 S.E.2d 509
    , 510-11 (1976) (citations omitted). Here, it was reasonable for the trial
    court to find that Defendant resided in Harnett County. Defendant’s last address
    known to the Harnett County Probation Office, which was supervising her probation,
    was in Harnett County. Defendant testified that Officer Wood had visited the mobile
    home in Angier where Defendant lived with her aunt to make sure that Defendant
    was at home during the curfew hours required by the terms of her probation.
    Defendant also testified that “I always have a home with my mother, yes.”
    Defendant’s mother lived in Harnett County at the time Defendant violated her
    probation.
    -7-
    STATE V. REGAN
    Opinion of the Court
    Moreover, the trial court also could have found as a fact, based on a reasonable
    inference from the evidence, that Defendant violated the terms of her probation in
    Harnett County when she failed to meet with Officer Wiley on 5 April 2011.
    Probation officers routinely schedule appointments with probationers at county
    probation offices, so that officers can meet with multiple probationers in a single day
    and complete office work while waiting for probationers to report for their
    appointments. By failing to appear for her appointment with Officer Wiley of the
    Harnett County Probation Office, Defendant committed a probation violation in
    Harnett County.
    In order to avoid disputes, uncertainty, and costly litigation, the better practice
    for probation officers is to specify on probation violation reports any address relevant
    to alleged probation violations, such as the last known address of a probationer who
    has left the jurisdiction without permission or the address of the probation office
    where a defendant failed to attend a scheduled meeting. Additionally, in a probation
    violation hearing, the better practice for the State is to introduce direct evidence of
    any address relevant to an alleged probation violation. In this case, the indirect
    evidence—sufficient to allow the reasonable inference that Defendant resided in
    Harnett County when she fled the jurisdiction and violated her probation in Harnett
    County by failing to meet with her probation officer there—supports the trial court’s
    presumed findings necessary to support its judgment.
    -8-
    STATE V. REGAN
    Opinion of the Court
    Defendant also argues that the trial court had no jurisdiction to revoke her
    probation in the case originating in Sampson County because there is no record
    showing that her probation case was transferred from Sampson County to Harnett
    County. However, Defendant cites no controlling statute or precedent, nor are we
    aware of any requiring transfer of a probation case to the county where probation is
    ultimately revoked so long as the probationer resided in that county or violated
    probation in that county.
    Because the evidence supported the trial court’s presumed findings that
    Defendant resided in Harnett County and violated the terms of her probation in
    Harnett County, we hold that the Harnett County Superior Court had subject matter
    jurisdiction to revoke Defendant’s probation in 11 CRS 00906, the case originating in
    Sampson County.
    II. Requisite Findings
    Defendant contends that the trial court erred in revoking her probation after
    its expiration because it did not make adequate findings of fact. This argument is
    without merit.
    Section 15A-1344(f) of the North Carolina General Statutes—entitled
    “Extension, Modification, or Revocation after Period of Probation”—provides the four
    criteria that must be met for the trial court to extend, modify, or revoke probation
    after the probation term has expired:
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    STATE V. REGAN
    Opinion of the Court
    (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.
    (4) If the court opts to extend the period of probation, the
    court may extend the period of probation up to the
    maximum allowed under G.S. 15A-1342(a).
    N.C. Gen. Stat. § 15A-1344(f). Defendant contends the trial court erred in failing to
    make any written or oral findings of good cause to revoke her probation.           This
    argument is misplaced.
    Defendant relies on State v. Love, 
    156 N.C. App. 309
    , 
    576 S.E.2d 709
     (2003) for
    the contention that the trial court’s failure to make the requisite findings of fact was
    error that renders the judgments void. However, Love involved a different statute,
    N.C. Gen. Stat. § 15A-1343.2(d) (2003), which requires the trial court to make
    “specific findings that longer or shorter periods of probation are necessary” to deviate
    from probation terms provided by that statute. N.C. Gen. Stat. § 15A-1343.2(d)
    (emphasis added). The statute at issue in this case does not require that the trial
    court make any specific findings. It simply provides that the trial court can alter
    probation after expiration of the period of probation has expired if “the [trial] court
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    STATE V. REGAN
    Opinion of 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)(3).
    A criminal defendant is subject to revocation of her probation for any violation
    committed prior to 1 December 2011:
    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).
    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 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
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    STATE V. REGAN
    Opinion of the Court
    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—09 CR 54650, the case originating in Harnett County,
    and 11 CRS 00906, the case originating in Sampson County—incorporates a
    corresponding violation report (both dated 25 April 2011) 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.
    Conclusion
    Because the trial court had jurisdiction and found good cause to revoke
    Defendant’s probation, we affirm the orders revoking Defendant’s probation.
    AFFIRMED.
    Judges CALABRIA and MCCULLOUGH concur.
    Judge Douglas McCullough concurred in this opinion prior to 24 April 2017.
    - 12 -
    

Document Info

Docket Number: COA16-682

Citation Numbers: 800 S.E.2d 436, 253 N.C. App. 351, 2017 N.C. App. LEXIS 320, 2017 WL 1632609

Judges: Inman

Filed Date: 5/2/2017

Precedential Status: Precedential

Modified Date: 10/19/2024