State v. Avant ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA14-436
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Alamance County
No. 11 CRS 54334
LARRY STEVENSON AVANT
Appeal by defendant from judgment entered 12 December 2013
by Judge William R. Pittman in Alamance County Superior Court.
Heard in the Court of Appeals 25 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Ann Stone, for the State.
Mark Hayes, for defendant-appellant.
CALABRIA, Judge.
Larry Stevenson Avant (“defendant”) appeals from a judgment
entered upon the revocation of his probation that activated his
suspended sentence. We vacate the judgment and remand.
On 3 April 2012, the trial court sentenced defendant to a
minimum of 11 months and a maximum of 14 months in the custody
of the Division of Adult Correction for selling marijuana. The
offense occurred on 7 March 2011. Defendant’s sentence was
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suspended and he was placed on supervised probation for 36
months.
On 17 October 2013, defendant’s probation officer, Michael
T. Haworth (“Haworth”) filed a violation report in defendant’s
case. Haworth alleged, inter alia, that defendant had tested
positive for marijuana; had failed to obtain prior approval or
to notify him regarding a change in address; that defendant had
absconded supervision by making his whereabouts unknown; and
that defendant had failed to be at home or answer the door when
Haworth attempted to conduct a home visit.
At a hearing on 9 December 2013, defendant denied the
willfulness of the alleged violations. After hearing testimony
from both Haworth and defendant, the trial court found that
defendant had wilfully violated several conditions of his
probation. Specifically, the trial court found that defendant
tested positive for marijuana, failed to notify Haworth of an
address change, absconded supervision by failing to inform
Haworth of his whereabouts, failed to be at home or answer the
door when Haworth attempted to conduct a home visit, and failed
to pay the Clerk of Superior Court the total amount due on his
court costs. The trial court revoked defendant’s probation
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and activated his 11 to 14 month suspended sentence. Defendant
appeals.
Defendant argues that the trial court erred by revoking his
probation and activating his sentence based upon a finding that
he absconded from supervision when the offense for which he was
sentenced occurred prior to 1 December 2011, and none of the
other violations permitting the revocation of his probation and
activation of the sentence applied. We agree.
The Justice Reinvestment Act of 2011 limits the trial
court’s discretion to revoke a defendant’s probation. “The
court may only revoke probation for a violation of a condition
of probation under G.S. 15A-1343(b)(1) or G.S. 15A-1343(b)(3a)
except as provided in G.S. 15A-1344(d2).” N.C. Gen. Stat. §
15A-1344(a) (2013). “When a defendant under supervision for a
felony conviction has violated a condition of probation other
than G.S. 15A-1343(b)(1) or G.S. 15A-1343(b)(3a), the court may
impose a period of confinement of 90 consecutive days. The
court may not revoke probation unless the defendant has
previously received a total of two periods of confinement[.]”
N.C. Gen. Stat. § 15A-1344(d2) (2013).
In State v. Nolen, ___ N.C. App. ___, 743 S.E.2d 729, 731
(2013), this Court held that the trial court lacked authority
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under the Justice Reinvestment Act of 2011 to revoke the
defendant’s probation and activate a sentence for absconding
from supervision when the offense for which the defendant was
sentenced occurred prior to 1 December 2011, the violation
occurred after that date, the defendant had not committed a new
crime in violation of N.C. Gen. Stat. § 15A-1343(b)(1), and the
defendant had not served two periods of confinement in response
to the violation pursuant to N.C. Gen. Stat. § 15A-1344(d2).
In the instant case, defendant’s offense occurred on 7
March 2011, a date prior to 1 December 2011. The State concedes
that the facts in the instant case are indistinguishable from
Nolen, because defendant’s probation violation occurred after 1
December 2011, defendant did not commit a new crime, nor had he
served two periods of confinement in response to a violation
pursuant to N.C. Gen. Stat. § 15A-1344(d2). Therefore, the
judgment must be vacated, and the matter should be remanded for
further proceedings.
We accordingly vacate the judgment and remand for further
proceedings and entry of an appropriate judgment or order
consistent with the provisions of N.C. Gen. Stat. § 15A-1344.
Vacated and remanded.
Judges GEER and McCULLOUGH concur.
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Report per Rule 30(e).