State v. Morgan

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1227
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
STATE OF NORTH CAROLINA
v. Union County
Nos. 09 CRS 55490-94, 55496-98,
LISA STARNES MORGAN 55500-01
Appeal by Defendant from judgments entered 14 June 2013 by
Judge Christopher W. Bragg in Superior Court, Union County.
Heard in the Court of Appeals 29 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Karissa J. Davan, for the State.
Mary McCullers Reece for Defendant-Appellant.
McGEE, Judge.
Lisa Starnes Morgan (“Defendant”) appeals from judgments
entered upon revocation of her probation. Defendant pleaded
guilty to ten counts of obtaining a controlled substance by
fraud on 17 February 2011. Defendant received suspended
sentences of five to six months each, all of which were to run
consecutively, and was placed on supervised probation for
thirty-six months.
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Defendant’s probation officer filed violation reports in
each of the ten cases on 31 January 2013. The reports alleged
that Defendant violated her probation by: (1) being in arrears
of the monetary conditions of her probation; and (2) committing
multiple new criminal offenses.
A probation revocation hearing was held on 14 June 2013 and
Defendant admitted to being in willful violation of her
probation. The trial court revoked Defendant’s probation and
activated her suspended sentences.
Defendant timely filed written notice of appeal; however,
the notice of appeal was not served upon the State and failed to
properly identify the court to which the appeal was being taken.
Defendant filed a petition for writ of certiorari on 6 November
2013 seeking review of the judgments entered, because her notice
of appeal did not comply with Rule 4 of the North Carolina Rules
of Appellate Procedure. In our discretion, we grant Defendant’s
petition for writ of certiorari and review her arguments.
Defendant argues the trial court abused its discretion by
revoking her probation because the trial court was under the
misapprehension of law that “each violation is, in and of
itself, a sufficient basis upon which [a] court should revoke
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probation and activate the suspended sentence.” We are not
persuaded.
As an initial matter, we note that Defendant committed some
of her alleged probation violations prior to the 1 December 2011
effective date of the Justice Reinvestment Act (“JRA”), and some
were committed after the effective date of the JRA. See State
v. Hunnicutt, __ N.C. App. ___, ___, 740 S.E.2d 906, 911 (2013)
(citing 2011 N.C. Sess. Laws 192, sec. 4.(d); 2011 N.C. Sess.
Laws 412, sec. 2.5). Under the JRA, only certain violations of
probation are sufficient to revoke a defendant’s probation,
including when a defendant commits a new offense. N.C. Gen.
Stat. § 15A–1344(a) (2013). This provision differs from the
prior law in this state under which “[a]ny violation of a valid
condition of probation [wa]s sufficient to revoke [a]
defendant’s probation.” State v. Tozzi, 84 N.C. App. 517, 521,
353 S.E.2d 250, 253 (1987). Because some of Defendant’s alleged
violations occurred prior to the effective date of the JRA and
some occurred after the effective date, we must apply both the
JRA and prior law.
The trial court found Defendant had violated her probation
as alleged in the probation violation reports. Defendant argues
the trial court erroneously applied the pre-JRA doctrine that
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any violation of probation is sufficient to justify revocation.
Id. at 521, 353 S.E.2d at 253. However, Defendant’s conviction
of a new criminal offense was a substantial factor in the trial
court’s decision to revoke her probation as shown by the trial
court admonishing Defendant:
THE COURT: Ms. Morgan, you were put on
probation for ten counts, okay, of basically
obtaining property -- obtaining controlled
substance by fraud. And then in January of
this year, you get another conviction for
attempting to obtain controlled substance by
fraud, which is basically the same thing
that you're on probation for. All right. I
can’t ignore that. You’re on probation, and
you do the same thing again while you’re on
probation.
Under both the JRA and prior law, committing a criminal offense
while on probation is a ground upon which a defendant’s
probation can be revoked. Consequently, it is immaterial
whether we analyze Defendant’s violations of her probation under
the JRA or prior law. There is no indication that the trial
court acted under a misapprehension of law. Accordingly, we
conclude the trial court did not abuse its discretion by
revoking Defendant’s probation.
Affirmed.
Judges ELMORE and DAVIS concur.
Report per Rule 30(e).