State v. McCaster , 257 N.C. App. 824 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-816
Filed: 6 February 2018
Alamance County, No. 14 CRS 55089
STATE OF NORTH CAROLINA
v.
FALECIA ANN RICHMOND MCCASTER
Appeal by defendant from judgment entered 23 May 2017 by Judge G. Wayne
Abernathy in Alamance County Superior Court. Heard in the Court of Appeals 22
January 2018.
Attorney General Joshua H. Stein, by Associate Attorney General Cara Byrne,
for the State.
Yoder Law PLLC, by Jason Christopher Yoder, for defendant-appellant.
TYSON, Judge.
Falecia Ann Richmond McCaster (“Defendant”) appeals the trial court’s order
revoking her probation. The trial court erred in revoking Defendant’s probation
under these facts. We vacate the order and remand.
I. Background
On 2 November 2015, a jury found Defendant guilty of assault on a law
enforcement officer. Defendant was sentenced to five to fifteen months in prison.
Due to her lack of prior record level points and the classification of the offense,
STATE V. MCCASTER
Opinion of the Court
Defendant’s active sentence was suspended, and she was placed on probation for
twelve months. Defendant appealed.
The day after judgment was entered, the trial judge filed an affidavit and
petition for involuntary commitment, due to Defendant’s behavior in court. The trial
court stated that after the judgment was entered, “Defendant refused to complete the
intake process,” begging the court to allow her to serve her time. She became
“hysterical,” alleging “a conspiracy against her by law enforcement, judges, the DA,
and, at time [sic] her attorney.”
On 4 April 2017, this Court issued an opinion finding no error at trial and
denying Defendant’s motion for appropriate relief. State v. McCaster, __N.C. App. __,
797 S.E.2d 711, 2017 WL 1276071 (unpublished). The mandate from that appeal was
issued to the Alamance County Superior Court on 24 April 2017.
The Alamance County District Attorney’s office sent Defendant a letter on 3
May 2017, ordering her to appear in court on 22 May 2017 for imposition of judgment.
Defendant appeared at the hearing, repeatedly refused to accept probation
supervision, and asked for time to get her affairs in order prior to reporting to prison.
The trial court asked her to meet with the probation officer prior to making any
decisions regarding actively serving a prison term.
Later that day, Defendant’s counsel reported to the court that Defendant had
not met with the probation officer, as instructed. Defendant allegedly “cursed the
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Opinion of the Court
courtroom” and threw spices and garlic upon the floor. At around 5:00 that evening,
Defendant was sitting in the courtroom, without her attorney. The trial court
instructed Defendant to report to the probation officer by 9:30 the next morning, and
if she was not there, the court would issue an order for her arrest. Defendant told
the judge a warrant would not be necessary, as she would report to the sheriff.
On 23 May 2017, Defendant timely appeared in court, and the matter was held
over until her attorney arrived. Once her counsel arrived, Defendant again refused
to be placed on probation supervision multiple times. She again alluded to a possible
conspiracy against her, stating “You want me – for Mr. Barber to take my money and
they beat me. I’m a widow.” After Defendant continued to refuse probation, the trial
court revoked her probation.
The trial court’s written order stated: “The Defendant refused to be processed
for probation and stated that she did not want to be on probation in open court,
therefore [sic] was violated and probation revoked.” The order also indicated the
revocation was based upon Defendant’s “willful violation of the condition(s) that [she]
not commit any criminal offense . . . or abscond from supervision.”
On 24 May 2017, the trial court filed a supplement to its previous order, and
made the following findings of fact:
4. The Court reviewed the judgment with the defendant at
10:38 and ordered defendant to report to the probation
office (in the courthouse). The defendant did not report.
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Opinion of the Court
The court advised the defendant if she refused probation,
she would have to serve her active sentence.
5. At 12:04 defendant’s attorney, Jeff Connolly, returned to
the courtroom without the defendant and reported
defendant is refusing to serve probation.
6. Defendant appeared in court on May 23, 2017, about
10:38. The Court advised defendant it was in a jury trial
and to report at 12:15. Defendant’s counsel was present.
The Court reiterated to defendant that if she refused
probation, the active sentence would be imposed.
7. At 12:33 the defendant appeared and affirmed she did
not report to probation and said, “You can put me in jail.”
The Court again asked her if she was certain she did not
want to be on probation and she said “I have refused
probation a hundred times and I am refusing it now.”
8. It being obvious that the defendant was refusing to serve
probation, the active sentence was instituted.
II. Jurisdiction
This Court possesses jurisdiction pursuant to N.C. Gen. Stat. §§ 7A-27(b) and
15A-1444(a) (2017).
III. Issues
Defendant argues the trial court lacked jurisdiction to revoke her probation
and violated her right to due process by revoking her probation without providing
notice of a scheduled hearing or a filed violation report. Defendant also asserts her
right to counsel was violated and that the trial court erred by not holding a
competency hearing prior to her revocation hearing.
IV. Standard of Review
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Opinion of the Court
“A trial court must have subject matter jurisdiction over a case in order to act
in that case.” State v. Satanek, 190 N.C. App. 653, 656, 660 S.E.2d 623, 625 (2008)
(citing State v. Reinhardt, 183 N.C. App. 291, 292, 644 S.E.2d 26, 27 (2007)). “Where
jurisdiction is statutory and the Legislature requires the Court to exercise its
jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects
the Court to certain limitations, an act of the Court beyond these limits is in excess
of its jurisdiction.” State v. Gorman, 221 N.C. App. 330, 333, 727 S.E.2d 731, 733
(2012) (citation and quotation marks omitted).
“Further, an appellate court necessarily conducts a statutory analysis when
analyzing whether a trial court has subject matter jurisdiction in a probation
revocation hearing, and thus conducts a de novo review.” Satanek, 190 N.C. App. at
656, 660 S.E.2d at 625. We review subject matter jurisdiction as a question of law,
de novo. State v. Taylor, 155 N.C. App. 251, 260, 574 S.E.2d 58, 65 (2002).
V. Revocation of Probation
Defendant first argues the trial court lacked jurisdiction to conduct a probation
revocation hearing because it failed to provide Defendant with adequate notice,
including a written statement of the violations alleged. Under these facts, we agree.
A defendant’s consent is not required for the court to suspend an active
sentence and to order a convicted defendant to undergo probation supervision
instead. N.C. Gen. Stat. § 15A-1341(c) (1995), repealed by 1995 N.C. Sess. Laws 429,
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secs. 1, 5 (effective 1 January 1997) (eliminating a defendant’s right to elect to serve
a prison sentence in lieu of submitting to probation). Because Defendant had zero
prior record level points, and was convicted of a Class I felony, the court was only
authorized to sentence her to community punishment, which it correctly did when
her active sentence was suspended and she was placed on probation. N.C. Gen. Stat.
§§ 14-34.7(c)(1), 15A-1340.17(c) (2017).
As is required by statute, prior to revocation of probation, a court must hold a
hearing, unless waived by probationer, and must provide prior “notice of the hearing
and its purpose” at least twenty-four hours in advance, unless waived. N.C. Gen. Stat.
§ 15A-1345(e) (2017). This statutory notice must also include a statement of the
violations alleged. Id. “The purpose of the notice mandated by this section 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) (citation omitted).
The State argues Defendant waived her right to prior statutory notice by
voluntarily appearing before the court and participating in her revocation hearing.
See State v. Gamble, 50 N.C. App. 658, 660, 274 S.E.2d 874, 875 (1981). However,
unlike the probationer in Gamble, Defendant had not been and was not served with
an order for arrest prior to her hearing. See id.-6-
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Defendant re-appeared in court as instructed by the judge the previous day.
While Defendant’s multiple and repeated objections to probation are documented, the
court did not indicate the purpose of the hearing was to revoke Defendant’s probation,
nor provide her with notice of any statement of her alleged violations, or seek her
waiver of same, contrary to the mandate of N.C. Gen. Stat. § 15A-1345(e).
Without prior and proper statutory notice and a statement of violations
provided to Defendant, the trial court lacked jurisdiction to revoke her probation. In
light of our holding, it is not necessary to address Defendant’s other issues on appeal.
V. Conclusion
Absent jurisdiction, a court is without authority to act. Satanek, 190 N.C. App.
at 656, 660 S.E.2d at 625. The State failed to provide prior and proper statutory
notice to Defendant to revoke her probation. Without proper notice, it lacked
jurisdiction to do so and its order must be vacated. “When the record shows a lack of
jurisdiction in the lower court, the appropriate action on the part of the appellate
court is to arrest judgment or vacate any order entered without authority.” State v.
Crawford, 167 N.C. App. 777, 779, 606 S.E.2d 375, 377 (2005) (citation and quotation
marks omitted).
While the trial court had no authority to conduct a revocation hearing under
these facts, it was not without recourse to compel a recalcitrant defendant. A
violation report could have been filed and an arrest warrant could have been issued,
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to provide Defendant with proper notice. See State v. Brown, 222 N.C. App. 738, 739-
40, 731 S.E.2d 530, 531 (2012) (violation report filed for absconding after defendant
failed to report to probation officer after initial sentence).
Alternatively, the trial court could have found Defendant in contempt of court
pursuant to N.C. Gen. Stat. § 5A-11(a)(3) (2017) (“[w]illful disobedience of, resistance
to, or interference with a court’s lawful process, order, directive, or instruction or its
execution) or N.C. Gen. Stat. § 5A-11(a)(9a) (“[w]illful refusal by a defendant to
comply with a condition of probation”).
Regardless of Defendant’s statements and protests, the trial court could have
simply ordered Defendant be accompanied by a law enforcement or probation officer
to register and implement probation supervision.
The trial court erred by revoking Defendant’s probation without proper prior
statutory notice of a hearing and without a violation report filed. Without proper
jurisdiction to hear Defendant’s probation revocation, the trial court’s order is
vacated. See Crawford, 167 N.C. App. at 779, 606 S.E.2d at 377. This cause is
remanded for further proceedings not inconsistent with this opinion. It is so ordered.
VACATED AND REMANDED.
Chief Judge McGEE and Judge DAVIS concur.
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