State v. Davis

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1108
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Scotland County
No. 11 CRS 50535
ROMAN CHANDLER DAVIS
Appeal by defendant from judgment entered 3 June 2013 by
Judge Richard Brown in Scotland County Superior Court. Heard in
the Court of Appeals 31 March 2014.
Roy Cooper, Attorney General, by Kathryn Jones Cooper,
Special Deputy Attorney General, for the State.
W. Michael Spivey for defendant-appellant.
DAVIS, Judge.
Roman Chandler Davis (“Defendant”) appeals from judgment
entered upon revocation of his probation. On appeal, he argues
that the trial court lacked the statutory authority to revoke
his probation under the absconding provision of N.C. Gen. Stat.
§ 15A-1343(b)(3a) because that provision was not applicable to
him in light of the date of his offense. After careful review,
we reverse the judgment and remand for further proceedings.
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Factual Background
On 21 August 2012, Defendant pled guilty to assault
inflicting serious bodily injury — an offense that occurred on 5
March 2011. The trial court sentenced Defendant to a term of 19
to 23 months imprisonment. The trial court suspended the
sentence and placed Defendant on supervised probation for 24
months.
On 15 November 2012, Defendant’s probation officer filed a
violation report alleging that Defendant had violated the
conditions of probation in that (1) he failed to make scheduled
office visits on 5 September 2012 and 7 November 2012; (2) he
was no longer staying at his last known address and was
therefore an absconder; and (3) he failed to provide a DNA
sample for testing.
The matter came on for hearing on 3 June 2013. The trial
court revoked Defendant’s probation and activated his sentence
of 19 to 23 months imprisonment. The trial court found that
Defendant’s probation was subject to revocation “for the willful
violation of the condition(s) that he/she not commit any
criminal offense, G.S. 15A-1342(b)(1), or abscond from
supervision, G.S. 15A-1343(b)(3a).” Defendant gave notice of
appeal in open court.
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Analysis
Citing State v. Nolen, ___ N.C. App. ___, 743 S.E.2d 729(2013), Defendant argues the trial court erred by revoking his
probation and activating his suspended sentence. The State
concedes that it is unable to distinguish the facts in the
present case from the facts in Nolen. We agree.
In Nolen, the defendant argued that the trial court lacked
statutory authority to revoke her probation based upon the
violations alleged by her probation officer. The defendant
contended that her violations occurred after the effective date
of the Justice Reinvestment Act (“JRA”), which limited the trial
court’s authority to revoke probation for violations occurring
on or after 1 December 2011. Nolen, ___ N.C. App. at ___, 743
S.E.2d at 730.
[F]or probation violations occurring on or
after 1 December 2011, the JRA limited trial
courts’ authority to revoke probation to
those circumstances in which the
probationer: (1) commits a new crime in
violation of N.C. Gen. Stat. § 15A-
1343(b)(1); (2) absconds supervision in
violation of N.C. Gen. Stat. § 15A-
1343(b)(3a); or (3) violates any condition
of probation after serving two prior periods
of CRV [confinement in response to
violation] under N.C. Gen. Stat. § 15A-
1344(d2).
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Id. at ___, 743 S.E.2d at 730 (citing N.C. Gen. Stat. § 15A-
1344(a)).
The defendant further contended that the trial court erred
in finding her in violation of the new absconding condition set
forth in N.C. Gen. Stat. § 15A-1343(b)(3a) because that
condition was not in existence at the time she committed her
offenses. Id. at ___, 743 S.E.2d at 730. Under the JRA, “the
new absconding condition [is] applicable only to offenses
committed on or after 1 December 2011[.]” State v. Hunnicutt,
___ N.C. App. ___, ___, 740 S.E.2d 906, 911 (2013) (emphasis
omitted). This Court reversed and remanded the case for further
proceedings, holding:
The record establishes that Defendant
violated only the condition of probation
under N.C. Gen. Stat. § 15A-1343(b)(2) and
the monetary conditions under N.C. Gen.
Stat. § 15A-1343(b). She did not commit a
new crime and was not subject to the new
absconding condition codified by the JRA in
N.C. Gen. Stat. § 15A-1343(b)(3a). In
addition, the violation reports show that
Defendant had served no prior CRVs under
N.C. Gen. Stat. § 15A-1344(d2). Therefore,
in light of the changes wrought by the JRA,
her probation could not be revoked.
Nolen, ___ N.C. App. at ___, 743 S.E.2d at 731.
In the present case, it was not alleged that Defendant
committed a new criminal offense. Also, there is no evidence
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that Defendant served any CRVs. Moreover, although it was
alleged and found that Defendant absconded, the absconding
condition was not applicable to him because his underlying
offense of assault inflicting serious bodily injury was
committed before 1 December 2011. As noted above, the new
absconding condition only applies to offenses committed on or
after 1 December 2011, and Defendant’s offense was committed on
5 March 2011. Accordingly, we conclude that the trial court
lacked the authority to revoke Defendant’s probation.
Conclusion
For the reasons set out above, the trial court erred in
revoking Defendant’s probation. We therefore reverse the
judgment and remand for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).