State v. Brown

• Court: Court of Appeals of North Carolina
• Decided: March 18, 2014
• Docket: 13-562
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-562 NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

STATE OF NORTH CAROLINA

v. Columbus County No. 07 CRS 53687 TREVOR DEMON BROWN, Defendant.

Appeal by defendant from judgment entered 5 December 2012

by Judge D. Jack Hooks, Jr. in Columbus County Superior Court.

Heard in the Court of Appeals 7 November 2013.

Attorney General Roy Cooper, by Assistant Attorney General Gaines M. Weaver and Assistant Attorney General Kimberly N. Callahan, for the State.

New Hanover County Public Defender's Office, by Assistant Public Defender Brendan O'Donnell, for defendant-appellant.

GEER, Judge.

Defendant Trevor Demon Brown appeals from the trial court's

judgment revoking his probation and activating his suspended

sentence of 15 to 18 months imprisonment. On appeal, defendant

primarily argues that the trial court erred in revoking his

probation because the competent evidence showed, at most, that

defendant committed two Class 3 misdemeanors while on probation -2- and, under N.C. Gen. Stat. § 15A-1344(d) (2013), the trial court

had no authority to revoke his probation based solely on two

Class 3 misdemeanor convictions. However, our review of the

transcript reveals that defendant also admitted to committing a

Class 1 misdemeanor offense, as alleged in the verified

probation violation report. Based upon defendant's admission,

we hold that the trial court could properly revoke defendant's

probation. Nonetheless, because the record suggests that the

trial court may have also based its revocation of defendant's

probation on a ground not supported by the evidence, we must

reverse and remand for further proceedings.

Facts

On 9 December 2010, defendant pled guilty in Columbus

County Superior Court to assault inflicting serious bodily

injury. The trial court sentenced defendant to a presumptive-

range term of 15 to 18 months imprisonment, but suspended the

sentence and placed defendant on 36 months supervised probation.

On 1 August 2012, defendant's probation officer, Tarni

Carter, filed a verified probation violation report alleging

that defendant had violated the condition of his probation that

he "'[r]eport as direct [sic] by the Court or the probation

officer to the officer at reasonable times and places.'" The

report alleged that defendant had failed to meet Ms. Carter at -3- defendant's residence on 10 May and 19 May 2012 and had also

failed to meet Ms. Carter on 15 May 2012 and on 17 July 2012.

The report further asserted that defendant had violated the

condition that he pay monies owed to the clerk of superior court

-- defendant was $180.00 in arrears on his payments.

Ms. Carter then filed a second verified probation violation

report, entitled an "Addendum," on 15 November 2012. The 15

November 2012 report alleged that defendant had also violated

the condition of his probation that he commit no criminal

offense. According to the report, defendant had been convicted

in New Hanover County of (1) possession of more than one-half

ounce but less than one and one-half ounces of marijuana (with

an offense date of 9 August 2012) and (2) possession of up to

one-half ounce of marijuana, (with an offense date of 8 August

2012). The report further alleged that defendant had been

charged with driving while license revoked ("DWLR") in Brunswick

County, with an offense date of 21 February 2012, and that "IF

HE IS CONVICTED," the DWLR charge "WILL BE [A] VIOLATION[]."

At a 5 December 2012 hearing on the probation violation

reports, Ms. Carter testified that defendant failed to attend

three scheduled probation appointments at defendant's home and

that defendant was, at that time, $300.00 in arrears in payments

owed to the clerk of superior court. Ms. Carter further -4- testified that defendant "committed the offense of marijuana

[sic] in New Hanover County on 8/8/12 and then he committed the

offense of possession of marijuana up to one half [ounce] in New

Hanover County on 8/9/12." She testified defendant was

"convicted of those two on October 18, 2012." Ms. Carter also

testified that defendant had "a pending charge and if he were

convicted of driving while license revoked in Brunswick County,

that would be a violation."

Defendant testified at the hearing and admitted that he had

missed some scheduled appointments, although he stated it

"didn't happen very many times." Defendant further admitted

that he had pled guilty to the New Hanover County marijuana

convictions alleged in the November 2012 report. Defendant

claimed that the marijuana charges were based upon an incident

in which defendant had marijuana in his pocket and had "a dollar

bill with some marijuana in it."

On 5 December 2012, the trial court entered a judgment

revoking defendant's probation and activating his suspended

sentence. In its order, the court found that defendant had

violated his probation based upon the allegations set out in the

November 2012 report regarding the two New Hanover County

marijuana convictions and the pending charge for DWLR in -5- Brunswick County. Defendant timely filed written notice of

appeal.

Discussion

As an initial matter, we must address this Court's

jurisdiction to hear this appeal. Defendant did not give oral

notice of appeal at the probation revocation hearing, but the

record includes a timely filed pro se Columbus County Clerk of

Superior Court form document that contains defendant's name and

signature and the signature of the deputy clerk of superior

court. The form document states defendant gave "Notice of

Appeal to the Superior Court in the case(s) of 07 CRS 53687."

This document does not comply with Rule 4 because it

erroneously states that the appeal is to "Superior Court," it

does not identify the judgment or order appealed from, and there

is no indication in the record that the document was served on

the State. See N.C.R. App. P. 4(a)(2) (requiring service of

written notice of appeal "upon all adverse parties within

fourteen days after entry of the judgment or order"); N.C.R.

App. P. 4(b) (providing written notice "shall designate the

judgment or order from which appeal is taken and the court to

which appeal is taken").

"[W]hen a defendant has not properly given notice of

appeal, this Court is without jurisdiction to hear the appeal." -6- State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320

(2005). We, therefore, dismiss defendant's appeal for lack of

jurisdiction. However, defendant has also filed a petition for

writ of certiorari with this Court. Pursuant to Rule 21 of the

Rules of Appellate Procedure, we exercise our discretion to

grant defendant's petition for writ of certiorari and reach the

merits of his appeal.

Defendant first contends that the trial court erred in

revoking his probation because there was no competent evidence

supporting the trial court's finding that defendant violated his

probation by being convicted of the Class 1 misdemeanor offense

of possession of more than one-half ounce but less than one and

one-half ounces of marijuana as alleged in the November 2012

probation violation report. Defendant contends that the

competent evidence showed only that he had been convicted of two

Class 3 misdemeanor offenses of possession of up to one-half

ounce of marijuana and that, under N.C. Gen. Stat. § 15A-

1344(d), the court had no authority to revoke his probation

solely for two convictions of Class 3 misdemeanors.

It is well established that when a trial court's findings

that a defendant violated his probation are supported by

competent evidence, we review the court's decision to revoke the

defendant's probation for an abuse of discretion. State v. -7- Young, 190 N.C. App. 458, 459, 660 S.E.2d 574, 576 (2008).

Here, defendant's probation required that he "[c]ommit no

criminal offense in any jurisdiction." Generally, if the State

proves a violation of a condition of probation, the trial court

has authority to revoke the defendant's probation under N.C.

Gen. Stat. § 15A–1344(a) and § 15A–1343(b)(1) (2013). However,

as defendant points out, N.C. Gen. Stat. § 15A-1344(d) provides

"probation may not be revoked solely for conviction of a Class 3

misdemeanor."

The State argues that under N.C. Gen. Stat. § 15A-1344(d),

a court could revoke defendant's probation for commission of two

or more Class 3 misdemeanors or for commission of a Class 3

misdemeanor and other probation violations that would not alone

be sufficient for revocation. See id. (providing "probation may

not be revoked solely for conviction of a Class 3 misdemeanor"

(emphasis added)). However, since defendant admitted the

convictions alleged in the November 2012 verified probation

violation report, which included a conviction for a Class 1

misdemeanor, we need not address the State's contention.

At the hearing, defendant testified as follows:

Q. As far as the allegations in regards to the new convictions [sic]. Now you -- originally when you were served with this probation violation, there was nothing on it about a conviction; is that correct? -8- A. No, when I was first served with the probation violation, no.

Q. And you were represented by Ms. Miller from New Hanover County, correct?

A. Yes, sir.

Q. You don't deny that you were convicted of these two charges?

A. No.

Q. Was it a trial or did you plead guilty?

A. I guess I pled guilty to it.

Q. What was the plea deal?

A. Repeat the question.

Q. What was the plea deal such that you pled guilty? Did you get probation or did you get time served?

A. It was time served.

. . . .

Q. And obviously those convictions were not a part of your original violation [sic] they did an addendum to your violation report November 15th; is that correct?

A. Right.

(Emphasis added.)

At the hearing, the probation officer referred to the 15

November 2012 report as an addendum to the August 2012 report,

as defendant acknowledged. The 15 November 2012 report alleged

two 18 October 2012 convictions: (1) a conviction for "POSS -9- MARIJUANA >1/2 TO 1 1/2 OZ" with an offense date of 9 August

2012; and (2) a conviction for "POSS MARIJUANA UP [TO] 1/2 OZ"

with an offense date of 8 August 2012. There were no other

allegations of convictions contained in the 15 November 2012

report. Thus, defendant's testimony that he did not deny being

convicted of "these two charges," and that he "pled guilty to

it," clearly references "those convictions" alleged in the

"November 15th" violation report, including the conviction for

possession of more than one-half ounce but less than one and

one-half ounces of marijuana.

Defendant's admission constituted competent evidence that

he committed the offense of possession of more than one-half

ounce but less than one and one-half ounces of marijuana. See

State v. Henderson, 179 N.C. App. 191, 198, 632 S.E.2d 818, 822-

23 (2006) ("In light of defendant's clear admission of

violations of the conditions of his probation and the probation

officer's testimony that he was personally aware of defendant's

arrearage, competent evidence exists in the record to support

revocation of defendant's probation."). Possession of more than

one-half ounce but less than one and one-half ounces of

marijuana is a Class 1 misdemeanor. See N.C. Gen. Stat. § 90-

95(d)(4) (2013). -10- Because the trial court found that defendant violated his

probation based upon the allegations in the November 2012 report

and because those allegations -- admitted by defendant --

established that defendant had committed a Class 1 misdemeanor,

the trial court's findings of fact support the trial court's

revocation of defendant's probation.

Defendant further contends that Ms. Carter's testimony

regarding the convictions and the allegations in the November

2012 verified probation violation report -- the State's other

evidence of the convictions -- constituted hearsay and, thus,

were not competent evidence to support the trial court's finding

that defendant committed a Class 1 misdemeanor. Defendant

further argues that, even if it was not hearsay, Ms. Carter's

testimony at the hearing only showed that defendant had been

convicted of, at most, two Class 3 misdemeanors for possession

of up to one-half ounce of marijuana.

However, given defendant's admission of the Class 1

misdemeanor conviction alleged in the report, the verified

report and Ms. Carter's testimony were merely cumulative and

were not necessary to support the court's finding. State v.

Hewett, 270 N.C. 348, 356, 154 S.E.2d 476, 482 (1967) (holding

that although some of trial court's findings were improperly

based upon hearsay, "there [was] enough competent evidence in -11- the record to support the judge's crucial findings of fact" that

defendant violated his probation as concluded in order).

Compare State v. Pratt, 21 N.C. App. 538, 541, 204 S.E.2d 906,

907 (1974) (holding that probation revocation was improper when

only evidence that defendant violated probation by changing her

residence was hearsay and "defendant and several witnesses

presented by her testified that defendant had not changed her

residence"). Therefore, even assuming, without deciding, that

the challenged evidence was inadmissible, the record contained

sufficient evidence to support the trial court's finding that

defendant was convicted of a Class 1 misdemeanor.

Defendant next argues that the trial court could not

properly revoke his probation based upon the violations alleged

in the 1 August 2012 report: that defendant (1) failed to report

to his probation officer as directed and (2) failed to pay

monies owed to the clerk. Defendant reasons that all of the

alleged violations in this case occurred after 1 December 2011

and, therefore, the trial court could only revoke defendant's

probation under a limited set of circumstances as provided in

the Justice Reinvestment Act. See N.C. Gen. Stat. § 15A-

1344(a); 2011 N.C. Sess. Laws ch. 192, § 4(a)-(c) (effective

December 1, 2011); 2011 N.C. Sess. Laws ch. 412, § 2.5

(effective December 1, 2011). -12- However, in its written order revoking defendant's

probation, the trial court found only that defendant violated

his probation based upon the allegations in the November 2012

report. The order does not mention the allegations in the

August 2012 report as a basis for revoking defendant's

probation.

Defendant points to the fact that, at the hearing, the

court orally found that of "the violations alleged, each

occurred." Nevertheless, the court went on to specifically find

"[t]hat the allegations regarding the violations include

commission of new offenses and convictions of the same while on

probation." After specifically discussing defendant's

violations based on the marijuana convictions, the court stated:

"[T]he Court finds based upon the foregoing that his probation

should be and the same is hereby ordered revoked."

Since the oral order of revocation immediately followed the

court's comments regarding the convictions, it appears from the

transcript that, as provided in the written order, the court was

revoking defendant's probation based upon its findings that

defendant was convicted of the marijuana offenses while on

probation. Defendant concedes that the court could properly

revoke his probation for commission of a criminal offense

(greater than a Class 3 misdemeanor), and we have already upheld -13- the trial court's finding, based upon defendant's admission of

an allegation in the November 2012 report, that defendant

committed a Class 1 misdemeanor.

Consequently, the trial court revoked defendant's probation

consistent with its limited revocation authority under the

Justice Reinvestment Act. To the extent that the court also

orally found defendant to have violated his probation based upon

his failure to report as directed and failure to pay monies

owed, the absence of findings on those matters in the written

order does not impact the validity of the court's judgment,

since revocation was proper based upon the court's findings that

defendant committed the marijuana offenses.

Defendant also argues that the trial court erred in finding

in its written order that defendant "violated" the condition of

his probation that he commit no criminal offense based upon the

allegation in the November 2012 report that defendant "HAS BEEN

CHARGED WITH" DWLR "AND IF HE IS CONVICTED THEN [IT] WILL BE [A]

VIOLATION[]." Defendant contends that the allegations in the

verified report refer only to a pending charge, and that the

only relevant evidence at the hearing, Ms. Carter's testimony,

showed the charge was still pending and provided no independent

evidence that defendant actually committed the offense. -14- "[A] revocation of suspension cannot be bottomed solely

upon a pending criminal charge; a conviction or a plea of guilty

is required." State v. Causby, 269 N.C. 747, 749, 153 S.E.2d

467, 469 (1967) (emphasis added). However, if the court

receives competent evidence of the facts underlying a charged

offense and, based upon that evidence, the court makes

independent findings that the defendant committed the charged

offense, the court may revoke a defendant's probation based upon

those independent findings. State v. Monroe, 83 N.C. App. 143,

145, 349 S.E.2d 315, 317 (1986).

Ms. Carter's testimony at the hearing regarding the DWLR

charge consisted of the following:

Q. What other violations have been filed?

A. The only other part for the addendum is that he has a pending charge and if he were convicted of driving while license revoked in Brunswick County, that would be a violation.

Q. When was the -- that charge?

A. February 21st of this year.

The verified report alleged only that defendant had been

charged with DWLR and, if defendant was convicted, that charge

would constitute a violation. There was no other evidence

regarding the pending DWLR charge presented. Under Causby and

Monroe, we agree with defendant that the trial court was not -15- presented with sufficient evidence to support its finding that

defendant violated his probation based upon the allegations in

the November 2012 report that he had a pending DWLR charge.

The State argues, however, that because the 15 November

2012 violation report did not actually allege that the DWLR

charge was a violation and "the pending charge was never

intended to be part of the basis for Defendant's revocation,"

the fact that the trial judge referenced the paragraph alleging

the pending DWLR charge was "of no moment." We cannot agree.

The judgment revoking defendant's probation specifically

states that "[t]he condition(s) violated and the facts of each

violation are as set forth . . . in Paragraph(s) 1-2 of the

Violation Report or Notice dated 11/07/2012[.]" Consequently,

the judgment provides that paragraph 2 of the 15 November 2012

report is one of the bases for the probation revocation. In

addition, the trial court did not check the box on the form that

specifies that "[e]ach violation is, in and of itself, a

sufficient basis upon which this Court should revoke probation

and activate the suspended sentence."

Therefore, the judgment does not permit us to conclude that

the trial court would still have revoked defendant's probation

in the absence of paragraph 2 of the 15 November 2012 report.

We must, therefore, reverse the judgment revoking defendant's -16- probation and remand for a determination whether the violation

in paragraph 1 of the 15 November 2012 report is a sufficient

basis upon which to revoke defendant's probation.

Reversed and remanded.

Judges STEPHENS and ERVIN concur.

Report per Rule 30(e).