State v. Jackson

• Court: Court of Appeals of North Carolina
• Decided: January 21, 2014
• Docket: 13-825
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-825 NORTH CAROLINA COURT OF APPEALS

Filed: 21 January 2014

STATE OF NORTH CAROLINA

v. Pitt County Nos. 09 CRS 059887, 059891 MINDY LEIGH-ANNA JACKSON

Appeal by defendant from judgments entered 10 December 2012

by Judge W. Russell Duke, Jr. in Pitt County Superior Court.

Heard in the Court of Appeals 30 December 2013.

Attorney General Roy Cooper, by Assistant Attorney General Micheal E. Butler, for the State.

Mary McCullers Reece for defendant-appellant.

HUNTER, JR., Robert N., Judge.

Defendant Mindy Leigh-Anna Jackson (“Defendant”) appeals

from judgments entered upon revocation of her probation. We

reverse the judgments and remand for further proceedings.

On 9 March 2011, Defendant pleaded guilty to two counts of

felony breaking or entering of a motor vehicle and two counts of

misdemeanor larceny. The trial court sentenced Defendant to six

to eight months imprisonment for each felony breaking or -2- entering conviction and to forty-five days in jail for each

misdemeanor larceny conviction. The sentences were suspended

and Defendant was placed on forty-eight months of supervised

probation.

On 22 October 2012, Defendant’s probation officer filed

violation reports as to both of the breaking or entering

convictions and one of the larceny convictions. The reports

alleged that Defendant: (1) “FAILED TO REPORT ON ASSIGNED DAY

THE LAST FIVE OFFICE APPOINTMENTS[;]” (2) “HAS NOT BEEN SEEN AT

A VALID ADDRESS SINCE 7/11/12 . . . . OFFENDER HAS ABSCONDED

AND IS ACTIVELY AVOIDING SUPERVISION[;]” and (3) “HAS FAILED TO

BE AT ASSIGNED RESIDENCE WHEN TOLD ON 8/08 AT 1540, 9/05 AT

1915, 9/23 AT 1522, & 9/26 AT 1421.” One of the violation

reports also alleged that Defendant “IS IN ARREARS $7,497.82.”

On 30 November 2012, the probation officer filed a violation

report as to the other larceny conviction. The allegations were

the same as in the prior reports, except there was no allegation

regarding Defendant being in arrears.

The matter came on for hearing on 10 December 2012.

Defendant admitted she was in arrears, but denied the other

allegations. After hearing testimony from Defendant’s probation

officer and Defendant, the trial court found that Defendant -3- failed to report for her last five office visits, she was behind

on her court indebtedness, she had absconded, she had not made

herself available for supervision, and she had failed to be at

her residence at set times. The trial court found the

violations were willful and revoked Defendant’s probation. The

trial court activated Defendant’s suspended sentence and

sentenced her to twelve to sixteen months imprisonment.

Defendant filed timely notice of appeal.

Citing State v. Nolen, ___ N.C. App. ___, 743 S.E.2d 729

(2013), Defendant argues the trial court erred by revoking her

probation and activating her suspended sentences. We agree that

the trial court lacked statutory authority to revoke Defendant’s

probation and the State concedes that the judgments should be

reversed.

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. Id. at ___, 743

S.E.2d at 730. 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.

Id. -4- [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).

Id. (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 it was not in existence at the

time she committed her offenses.1 Id. 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,

1 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). Here, each of Defendant’s underlying offenses were committed in April 2009. -5- her probation could not be revoked.

Id. at ___, 743 S.E.2d at 731.

We are unable to distinguish the present case from Nolen.

Here, Defendant did not commit any new crimes, she did not serve

any CRVs, and her underlying offenses were committed prior to

the new absconding condition’s effective date. Accordingly, the

trial court erred in revoking Defendant’s probation. Therefore,

we reverse the judgments and remand for further proceedings

consistent with this opinion.

Reversed and remanded.

Chief Judge MARTIN and Judge DILLON concur.

Report per Rule 30(e).