State v. Gorman

727 S.E.2d 731, 221 N.C. App. 330, 2012 WL 2305636, 2012 N.C. App. LEXIS 766
CourtCourt of Appeals of North Carolina
DecidedJune 19, 2012
DocketNo. COA11-840
StatusPublished
Cited by15 cases

This text of 727 S.E.2d 731 (State v. Gorman) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gorman, 727 S.E.2d 731, 221 N.C. App. 330, 2012 WL 2305636, 2012 N.C. App. LEXIS 766 (N.C. Ct. App. 2012).

Opinions

BRYANT, Judge.

Where the record is insufficient to determine when defendant’s probation commenced and whether defendant’s probation period was tolled during the resolution of unrelated charges against defendant in another jurisdiction but where defendant’s reported probation violation may have occurred after the original period of probation expired, we reverse the orders activating defendant’s sentences and remand the matter for further consideration.

On 3 June 2005, in Onslow County Superior Court, defendant Richard Gorman pled guilty to two counts of felony worthless check and five counts of obtaining property by false pretenses. The trial court entered judgment that same day. Consolidating the two counts of felony worthless check, the trial court sentenced defendant to a term of 6 to 8 months. On the charges of obtaining property by false pretenses, the trial court entered three judgments; each judgment sentenced defendant to a term of 8 to 10 months. All sentences were to be served consecutively; however, the trial court suspended all sentences and placed defendant on supervised probation. Finding that “a longer period of probation is necessary than that which was specified in N.C. Gen. Stat. § 15A-1343.2(d)[,]” the trial court imposed supervised probation for a period of sixty months.

The record indicates that subsequent to the trial court’s entry of judgments imposing probation, defendant was extradited to New Jersey for offenses which took place prior to his 3 June 2005 plea agreement. The record also indicates that from 2005 to 2010 defendant served a five year active sentence in a New Jersey correctional facility.

[332]*332On 28 July 2008, the Onslow County Superior Court reviewed the 2005 judgments and commitments. The Superior Court entered four orders modifying the terms of defendant’s probation, extending the probation period by thirty-six months from 2 June 2010 to 1 June 2013.

Upon his release from the New Jersey correctional facility, defendant returned to Onslow County. Defendant then moved to Davidson County after making appropriate arrangements with the Davidson County probation office.

On 6 December 2010, defendant’s probation officer filed a violation report in Davidson County Superior Court stating that defendant had failed to be at his designated residence since 27 November 2010; that defendant had left his approved residence and failed to make his whereabouts known; and that defendant had failed to report, failed to return phone calls, and failed to be at his residence during curfew hours. On 9 December 2010, two orders for arrest were issued for defendant for felony probation violations. Defendant turned himself in to law enforcement in Pennsylvania and was extradited back to North Carolina.

Following a probation violation hearing held on 8 February 2011, the trial court found that defendant had willfully violated his probation and entered judgment and commitment orders upon revocation of probation activating defendant’s suspended sentences. In accordance with the judgments entered on 3 June 2005 in Onslow County Superior Court, the Davidson County Superior Court activated one sentence of 6 to 8 months and three sentences of 8 to 10 months, all to be served consecutively. Defendant appeals.

On appeal, defendant questions whether the Davidson County Superior Court had jurisdiction to revoke his probation. Defendant contends that (A) the 28 July 2008 Onslow County Superior Court orders extending his probation were invalid as no reasonable notice of the proceedings to review the terms of his probation was provided, (B) the 28 July 2008 orders were invalid because they exceeded the court’s statutory authority by imposing a probation period longer than five years, and, (C) because the original sixty-month probation period expired prior to the reported conduct that resulted in a revocation of defendant’s probation, the Davidson County Superior Court lacked jurisdiction to revoke his probation and activate his sentence. We agree in part and remand in part for further consideration.

[333]*333 Grounds for Appeal

“When a superior court judge, as a result of a finding of a violation of probation, activates a sentence or imposes special probation, either in the first instance or upon a de novo hearing after appeal from a district court, the defendant may appeal under G.S. 7A-27.” N.C. Gen. Stat. § 15A-1347 (2011).

Standard of Review

“[T]he issue of a court’s jurisdiction over a matter may be raised at any time, even for the first time on appeal or by a court sua sponte.” State v. Webber, 190 N.C. App. 649, 650, 660 S.E.2d 621, 622 (2008) (citation omitted). “It is well settled that a court’s jurisdiction to review a probationer’s compliance with the terms of his probation is limited by statute.” State v. Reinhardt, 183 N.C. App. 291, 292, 644 S.E.2d 26, 27 (2007) (citation omitted). “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.” Allred v. Tucci, 85 N.C. App. 138, 143, 354 S.E.2d 291, 295 (1987) (citation omitted). “If the court was without authority, its judgment... is void and of no effect.” Id. (citations omitted).

“[A]n 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.” State v. Satanek, 190 N.C. App. 653, 656, 660 S.E.2d 623, 625 (2008) (citing State v. Bryant, 361 N.C. 100, 637 S.E.2d 532 (2006)).

A

Defendant first contends that the orders entered 28 July 2008 in Onslow County Superior Court were invalid because the court failed to adhere to applicable notice requirements under N.C. Gen. Stat. § 15A-1342(d).

While defendant presents strong arguments on the issues of whether his 3 June 2005 probation orders were properly reviewed in Onslow County Superior Court on 28 July 2008 pursuant to N.C.G.S. § 15A-1342(d) and whether reasonable notice of the review proceeding was provided to him as mandated by the statute, because we find the issue addressed in subsection B dispositive, we do not further address arguments defendant presented in subsection A.

[334]*334 B

Assuming without deciding that reasonable notice of the 2008 probation review hearing was provided, defendant contends that the orders entered 28 July 2008, extending his probation beyond the original sixty-month period, were entered without statutory authority. We agree.

Under General Statutes, section 15A-1343.2(d), the length of the original period of probation for felons sentenced under Article 81B— Structured Sentencing of Persons Convicted of Crimes — to intermediate punishment is “not less than 18 nor more than 36 months.” N.C. Gen. Stat. § 15A-1343.2(d)(4) (2011).

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Cite This Page — Counsel Stack

Bluebook (online)
727 S.E.2d 731, 221 N.C. App. 330, 2012 WL 2305636, 2012 N.C. App. LEXIS 766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gorman-ncctapp-2012.