State v. Sitosky

NO. COA14-639
NORTH CAROLINA COURT OF APPEALS
Filed: 31 December 2014
STATE OF NORTH CAROLINA
v. New Hanover County
Nos. 07 CRS 60072-74
CRYSTAL SITOSKY 10 CRS 53201-03
Appeal by defendant from judgments entered 5 March 2014 by
Judge W. Allen Cobb, Jr. in New Hanover County Superior Court.
Heard in the Court of Appeals 21 October 2014.
Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant
Attorney General, for the State.
Staples S. Hughes, Appellate Defender, by Jason Christopher
Yoder, for defendant-appellant.
DAVIS, Judge.
Crystal Sitosky (“Defendant”) appeals from the trial
court’s judgments revoking her probation and activating her
suspended sentences in file numbers 07 CRS 60072-74 and 10 CRS
53201-03. On appeal, she argues that the trial court (1) lacked
jurisdiction to revoke her probation in file numbers 07 CRS
60072-74; and (2) erred in revoking her probation in file
numbers 10 CRS 53201-03. After careful review, we vacate the
trial court’s judgments and remand for further proceedings.
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Factual Background
On 10 July 2008, Defendant pled guilty to three counts of
obtaining a controlled substance by fraud or forgery. The trial
court sentenced Defendant to three consecutive sentences of 5 to
6 months imprisonment, suspended the sentences, and placed
Defendant on supervised probation for a period of 36 months. On
22 September 2011, Defendant pled guilty to one count of
attempted trafficking in heroin and three counts of obtaining a
controlled substance by fraud or forgery. The trial court
sentenced Defendant to three consecutive sentences of 6 to 8
months imprisonment for the obtaining a controlled substance by
fraud or forgery offenses and 90 to 117 months imprisonment
following the expiration of the above sentences for the
attempted trafficking in heroin offense. The trial court then
suspended these sentences and placed Defendant on supervised
probation for 36 months.
Defendant’s probation officer filed violation reports on 3
May 2013, 18 June 2013, 26 November 2013, and 10 January 2014,
alleging that Defendant had violated various conditions of her
probation. The 3 May 2013 violation reports alleged that
Defendant had been charged with driving while license revoked,
simple possession of a Schedule II controlled substance, simple
possession of a Schedule IV controlled substance, and
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maintaining a vehicle or dwelling place for the purpose of
keeping or selling a controlled substance. The 18 June 2013
violation reports alleged that Defendant had violated a
condition of her probation by testing positive for opiates on 7
June 2013. The 26 November 2013 violation reports alleged that
Defendant had violated a condition of her probation by testing
positive for opiates on 21 November 2013. Finally, the 10
January 2014 violation reports alleged that Defendant had been
charged with multiple counts of (1) driving with expired
registration and expired inspection; (2) driving while license
revoked; (3) misdemeanor larceny; and (4) obtaining property by
false pretenses.
A hearing on the alleged probation violations was held in
New Hanover County Superior Court on 5 March 2014. At the
hearing, Defendant admitted to three of the alleged probation
violations: (1) testing positive for opiates on 7 June 2013; (2)
testing positive for opiates on 21 November 2013; and (3) being
charged with and convicted on 27 February 2014 of one count of
driving while license revoked. Defendant did not admit to any
of the other violations alleged in the violation reports, and
the State presented no evidence regarding these remaining
alleged violations. The trial court revoked Defendant’s
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probation and activated her suspended sentences. Defendant
appealed to this Court.
Analysis
I. Appellate Jurisdiction
Defendant has filed a petition for writ of certiorari
requesting appellate review in the event that her notice of
appeal is deemed insufficient to confer jurisdiction upon this
Court. The record shows that Defendant filed a handwritten
letter indicating her intent to appeal but failed to serve a
copy of the letter on the State as required by Rule 4(a) of the
North Carolina Rules of Appellate Procedure. Defendant’s trial
counsel also filed a notice of appeal on Defendant’s behalf,
which was served on the State. This notice of appeal, however,
failed to designate the court to which the appeal was being
taken and listed the incorrect date for the judgments being
appealed. We do not believe that either of these errors are
fatal to Defendant’s appeal.
We have previously held that a defendant’s failure to
designate this Court in a notice of appeal does not warrant
dismissal of the appeal where this Court is the only court
possessing jurisdiction to hear the matter and the State has not
suggested that it was misled by the defendant’s flawed notice of
appeal. State v. Ragland, ___ N.C. App. ___, ___, 739 S.E.2d
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616, 620 (“Here, defendant’s intent to appeal is plain, and
since this Court is the only court with jurisdiction to hear
defendant’s appeal, it can be fairly inferred defendant intended
to appeal to this Court. The State does not suggest that it was
in any way misled by the notice of appeal. Accordingly,
defendant’s . . . mistake in failing to name this Court in his
notice of appeal do[es] not warrant dismissal.”), disc. review
denied, 367 N.C. 220, 747 S.E.2d 548 (2013).
We have also deemed a defendant’s notice of appeal
sufficient to confer jurisdiction upon this Court when, despite
an error in designating the judgment, the notice of appeal as a
whole indicates the defendant’s intent to appeal from a specific
judgment. See State v. Rouse, ___ N.C. App. ___, ___ , 757
S.E.2d 690, 692 (2014) (“A mistake in designating the judgment
should not result in loss of the appeal as long as the intent to
appeal from a specific judgment can be fairly inferred from the
notice and the appellee is not misled by the mistake.”
(citation, quotation marks, brackets, ellipses, and emphasis
omitted)).
Here, because (1) Defendant’s notice of appeal lists the
file numbers of the judgments she seeks to appeal; (2) this
Court is the only court with jurisdiction to hear Defendant’s
appeal; and (3) the State has not suggested that it was misled
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by either of the errors in her notice of appeal, we conclude
that a dismissal of Defendant’s appeal is not warranted. We
therefore dismiss Defendant’s petition for writ of certiorari
and proceed to address the merits of the appeal.
II. Revocation of Probation
A. File Numbers 07 CRS 60072-74
Defendant first alleges that the trial court lacked
jurisdiction to revoke her probation and activate her suspended
sentences in file numbers 07 CRS 60072-74. We agree.
In file numbers 07 CRS 60072-74, Defendant was placed on 36
months of supervised probation on 10 July 2008 for offenses she
committed in June and July of 2007. The State contends that
Defendant remained on probation for these offenses at the time
of the 5 March 2014 revocation hearing because her probationary
period was tolled each time she acquired new criminal charges
until those new charges were resolved.
It is true that the tolling provision of N.C. Gen. Stat. §
15A-1344(d) — which provided that “[t]he probation period shall
be tolled if the probationer shall have pending against him
criminal charges in any court of competent jurisdiction, which,
upon conviction, could result in revocation proceedings against
him for violation of the terms of this probation” — previously
applied to Defendant’s probation in file numbers 07 CRS 60072-
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74. However, in 2009, the General Assembly repealed this
provision for “hearings held on or after December 1, 2009.”
2009 N.C. Sess. Laws 667, 679, ch. 372, § 20. While an amended
tolling provision was then added to subsection (g)1 of N.C. Gen.
Stat. § 15A-1344, the State concedes, as it must, that the
amended provision does not apply to Defendant because N.C. Gen.
Stat. § 15A-1344(g) took effect on “1 December 2009 and applies
to offenses committed on or after that date.” See id. at 675,
679, ch. 372, §§ 11(b), 20. Consequently, because Defendant’s
underlying offenses were committed in June and July of 2007,
N.C. Gen. Stat. § 15A-1344(g) is clearly inapplicable to her.
The State does assert, however, that Defendant’s
probationary period in file numbers 07 CRS 60072-74 was covered
by the tolling provision of N.C. Gen. Stat. § 15A-1344(d)
despite the fact that the effective date for the repeal of that
provision was for hearings held on or after 1 December 2009 and
Defendant’s revocation hearing was held on 5 March 2014 —
approximately four and a half years after this effective date.
In making this argument, the State essentially relies not on the
text of the session law repealing the tolling provision of N.C.
Gen. Stat. § 15A-1344(d) but rather upon its belief that the
1
While not relevant to our decision in this case, we note that
N.C. Gen. Stat. § 15A-1344(g) was later repealed by the General
Assembly in 2011. See 2011 N.C. Sess. Laws 84, 87, ch. 62, § 3.
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General Assembly “did not intend to eliminate the tolling
provision for defendants who committed offenses before 1
December 2009.” However, it is well established that in
determining the intent of the General Assembly, we must first
examine the plain language of the statutory provisions at issue.
See State v. Largent, 197 N.C. App. 614, 617, 677 S.E.2d 514,
517 (2009) (“The primary indicator of legislative intent is
statutory language . . . .”). “When interpreting a statute, we
ascertain the intent of the legislature, first by applying the
statute’s language and, if necessary, considering its
legislative history and the circumstances of its enactment.”
Lanvale Props., LLC v. Cty. of Cabarrus, 366 N.C. 142, 164, 731
S.E.2d 800, 815 (2012) (citation and quotation marks omitted).
If the language is clear, we must give the provision its plain
meaning. See State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274,
277 (2005) (“If the statutory language is clear and unambiguous,
the court eschews statutory construction in favor of giving the
words their plain and definite meaning.”).
Here, the session law at issue — Chapter 372 of the 2009
North Carolina Session Laws — plainly states that Section 11(a),
the section of the session law that repeals the tolling
provision in N.C. Gen. Stat. § 15A-1344(d), “applies to hearings
held on or after December 1, 2009.” 2009 N.C. Sess. Laws 667,
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679, ch. 372, § 20 (emphasis added). It then goes on to state
that “[t]he remainder of this act [which included the newly
enacted subpart (g) of N.C. Gen. Stat. § 15A-1344] becomes
effective December 1, 2009, and applies to offenses committed on
or after that date.” Id. (emphasis added). As such, the
General Assembly specifically articulated a clear effective date
for the section of the session law removing the tolling
provision from N.C. Gen. Stat. § 15A-1344(d), and we are
obligated to give effect to this unambiguously stated effective
date. See Wiggs v. Edgecombe Cty., 361 N.C. 318, 322, 643
S.E.2d 904, 907 (2007) (“[W]hen the language of a statute is
clear and unambiguous, it must be given effect . . . .”
(citation and quotation marks omitted)).
In urging us to reach a contrary result, the State is, in
essence, asking this Court to rewrite the effective date set out
in the session law in order to accomplish what it contends must
have been the desire of the General Assembly in enacting these
statutory amendments. This we are not at liberty to do. See
id. (explaining that our appellate courts have “no power to
amend an Act of the General Assembly” and “will not engage in
judicial construction merely to assume a legislative role and
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rectify what [a party] argue[s] is an absurd result” (citation
and quotation marks omitted)).2
Indeed, we note that on at least one other occasion this
Court has identified a gap in coverage arising out of the
designated effective dates of statutory provisions affecting
probation. In State v. Nolen, ___ N.C. App. ___, ___, 743
S.E.2d 729 (2013), we explained that the recent enactment of the
Justice Reinvestment Act (“the Act”) had significantly reduced
the trial court’s authority to revoke probation for probation
violations by limiting revocation-eligible violations to three
types of conduct, one of which was absconding supervision in
violation of N.C. Gen. Stat. § 15A-1343(b)(3a), a newly added
statutory condition of probation. Id. at ___, 743 S.E.2d at
730. According to the effective dates of the Act, the recently
limited revocation authority of trial courts took effect on 1
December 2011 and applied to all probation violations occurring
on or after that date, but the provision of the Act actually
establishing absconding as a statutory probation violation
2
While we recognize that in construing and interpreting
statutes, our courts endeavor to “adopt an interpretation which
will avoid . . . bizarre consequences,” State v. Jones, 359 N.C.
832, 837, 616 S.E.2d 496, 499 (2005), we do so only where the
statute at issue is susceptible to more than one permissible
interpretation. Here, however, this session law lends itself to
only one rational interpretation as it clearly articulates a
specific effective date and, as such, leaves no room for
judicial construction.
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applied only to probationers who had committed the underlying
offenses resulting in their probation on or after 1 December
2011. See id. at ___, 743 S.E.2d at 731.
As a result, we held that a gap was created by the Act such
that a subset of the persons on probation in North Carolina —
including the defendant in Nolen — was subject to the Act’s new
limitations on the power of trial courts to revoke probation
(based on the date of their alleged probation violations) yet
could not have their probation revoked for absconding because
they were not subject to the prohibition against absconding as a
condition of their probation (based on their offense date). Id.
at ___, 743 S.E.2d at 731.
Likewise, in the present case, based on the plain language
of Chapter 372 of the 2009 North Carolina Session Laws, we
conclude that Defendant, who committed her offenses in file
numbers 07 CRS 60072-74 prior to 1 December 2009 but had her
revocation hearing after 1 December 2009, was not covered by
either statutory provision — § 15A-1344(d) or § 15A-1344(g) —
authorizing the tolling of probation periods for pending
criminal charges. As a result, we have no choice but to
conclude that the trial court lacked jurisdiction to revoke her
probation and activate her suspended sentences in file numbers
07 CRS 60072-74.
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B. File Numbers 10 CRS 53201-03
Defendant next argues that the trial court erred in
revoking her probation in file numbers 10 CRS 53201-03 because
it based the revocation, in part, on probation violations that
were neither admitted by Defendant nor proven by the State at
the probation hearing. We agree.
In file numbers 10 CRS 53201-03, Defendant was placed on 36
months of supervised probation on 22 September 2011 for offenses
she committed in February and March of 2010. At the 5 March
2014 revocation hearing, Defendant admitted to three violations
of the conditions of her probation: (1) testing positive for
opiates on 7 June 2013 as alleged in paragraph 1 of the
violation reports filed on 18 June 2013; (2) testing positive
for opiates on 21 November 2013 as alleged in paragraph 1 of the
violation reports filed on 26 November 2013; and (3) committing
the crime of driving while license revoked in file number 13 CRS
7669 as alleged in paragraph 1 of the violation reports filed on
10 January 2014.
Our review of the transcript of the revocation hearing
reveals that Defendant did not admit to — and no evidence was
offered by the State regarding — the remaining alleged probation
violations. Nevertheless, the trial court’s judgments revoking
Defendant’s probation incorrectly state that she admitted to all
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of the violations alleged in paragraphs 1 and 2 of the 13 May
2013 violation reports, paragraph 1 of the 18 June 2013
violation reports, paragraph 1 of the 26 November 2013 violation
reports, and paragraphs 1 and 2 of the 10 January 2014 violation
reports.
We recognize that Defendant’s admission to driving while
license revoked, standing alone, could have served as a
sufficient basis for the trial court to revoke her probation in
file numbers 10 CRS 53201-03. Although driving while license
revoked is currently a Class 3 misdemeanor, it was classified as
a Class 1 misdemeanor at the time she committed this offense on
6 August 2013. See N.C. Gen. Stat. § 20-28 (2011); 2013 Sess.
Laws 995, 1305, ch. 360, § 18B.14(f) (amending N.C. Gen. Stat. §
20-28(a), effective 1 December 2013, to classify driving while
license revoked as Class 3 misdemeanor instead of Class 1
misdemeanor “unless the person’s license was originally revoked
for an impaired driving offense, in which case the person is
guilty of a Class 1 misdemeanor”).
Thus, the trial court could have properly revoked
Defendant’s probation in file numbers 10 CRS 53201-03 on the
basis that she committed a new crime3 in violation of the
3
While testing positive for illegal drugs is a violation of a
condition of probation, we have held that a positive drug test
does not constitute sufficient evidence, standing alone, to
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conditions of her probation. See N.C. Gen. Stat. § 15A-
1344(a),(d) (authorizing trial court to revoke probation if
probationer commits new crime in any jurisdiction so long as
probation is not revoked “solely for conviction of a Class 3
misdemeanor”).
However, the judgments in this case do not provide us with
a basis to determine whether the trial court would have decided
to revoke Defendant’s probation on the basis of her admission to
committing the new crime of driving while license revoked in the
absence of the other alleged violations that it mistakenly found
that Defendant had admitted. We note that the trial court did
not mark the box on the judgment forms specifying that each
violation “in and of itself” would be a sufficient basis for
revocation. Thus, we must remand for further proceedings so
that the trial court can determine whether the revocation of
Defendant’s probation is appropriate in file numbers 10 CRS
53201-03.
Conclusion
For the reasons stated above, we vacate the trial court’s
judgments revoking Defendant’s probation in file numbers 07 CRS
support a possessory offense. State v. Harris, 178 N.C. App.
723, 632 S.E.2d 534 (2006), aff’d, 361 N.C. 400, 646 S.E.2d 526
(2007). Thus, driving while license revoked would constitute
the commission of a “new crime” while on probation but testing
positive for narcotics, without more, would not.
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60072-74 and 10 CRS 53201-03 and remand for further proceedings
consistent with this opinion in file numbers 10 CRS 53201-03.
VACATED AND REMANDED.
Judges HUNTER, Robert C., and DILLON concur.