State v. McCullough

• Court: Court of Appeals of North Carolina
• Decided: December 17, 2024
• Docket: 24-361
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA 24-361

Filed 17 December 2024

Cabarrus County, No. 20 CRS 51005

STATE OF NORTH CAROLINA

v.

FERNANDO RODRIQUEZ MCCULLOUGH

Appeal by Defendant from an order entered 16 November 2023 by Judge Lori

I. Hamilton in Cabarrus County Superior Court. Heard in the Court of Appeals 8

October 2024.

Attorney General Joshua H. Stein, by Assistant Attorney General Jessica Helms, for the State.

Jason Christopher Yoder for Defendant-appellant.

WOOD, Judge.

Fernando Rodriquez McCullough (“Defendant”) appeals from a final judgment

following the revocation of his probation.

I. Factual and Procedural Background

On 18 May 2022, Defendant pleaded guilty to assault by strangulation, assault

on a female, and injury to real property. He was sentenced to 11 to 23 months of

imprisonment, suspended for 18 months of supervised probation, and was ordered to

pay court appointed attorney fees plus a $75.00 attorney appointment fee. STATE V. MCCULLOUGH

Opinion of the Court

On 7 May 2023, Defendant was charged for the criminal offenses of DWI and

diving while license revoked for an impaired revocation in Cabarrus County. On 17

May 2023, Defendant’s probation officer filed a violation report in Cabarrus County

Superior Court alleging Defendant had violated the conditions of his probation by

failing to pay court and supervision fees as ordered by the court and for committing

the new criminal offenses of DWI and diving while license revoked for an impaired

revocation.

Defendant’s probation expired on 14 November 2023, and his violation hearing

was held on 16 November 2023. The trial court found good cause to retain jurisdiction

because the hearing was conducted during the same session of court in which

Defendant’s probation expired. Defendant admitted the violations related to owing

money but denied committing a new criminal offense.

At the hearing, Defendant’s probation officer testified she filed a violation

report alleging new criminal offenses after a magistrate issued a warrant charging

Defendant with five offenses: driving while impaired, driving while license revoked

for an impaired revocation, no liability insurance, “giving, lending, or borrowing a

license plate” and “expired/no inspection.” The State introduced the warrant into

evidence as State’s Exhibit 1. The State also introduced an officer’s affidavit, consent

form, and intoxilyzer result form from the 7 May 2023 arrest. Defense counsel

objected to the probation officer testifying to the content of those items rather than

the arresting officer. The trial court noted Defendant had the right to confront

-2- STATE V. MCCULLOUGH

witnesses at the hearing but overruled the objection concluding that the officer’s

testimony would be extraneous under this Court’s decision in Singletary. State v.

Singletary, 290 N.C. App. 540, 893 S.E.2d 215 (2023). The probation officer also

testified that Defendant had called her to report his arrest for the new offenses.

The trial court found the evidence sufficient to support revocation of

Defendant’s probation for committing a new criminal offense based on the officer’s

affidavit, the consent form, the test results, and the Defendant’s admission to his

probation officer. After revoking Defendant’s probation, the trial court ordered the

clerk to enter a civil judgment for $325.00 in attorney fees, as well as another $75.00

attorney appointment fee.

II. Analysis

Defendant argues the trial court erred in finding Defendant had committed a

new criminal offense based on the magistrate’s warrant and violated Defendant’s due

process and statutory right to confrontation by failing to make a finding of good cause

for denying his right to confront and cross-examine the arresting officer.

Additionally, Defendant argues the trial court erred in ordering Defendant to pay a

second $75.00 appointment of counsel fee and erred in finding that “[e]ach violation

is, in and of itself a sufficient basis upon which this Court should revoke probation

and activate the suspended sentence.”

A. Jurisdiction

On 16 November 2023, after the trial court revoked Defendant’s probation,

-3- STATE V. MCCULLOUGH

Defendant gave oral notice of appeal in open court. Because it is a final judgment

from the superior court, jurisdiction lies in this Court, pursuant to N.C. Gen. Stat. §

7A-27(b) (2023).

The North Carolina Rules of Appellate Procedure permit appeals from a

criminal action to be made in two ways: entering oral notice at trial or filing written

notice with the clerk of superior court within fourteen days. N.C. R. App. P. 4 (a).

This Court has held attorney fees are civil penalties subject to the rules of civil

procedure governing appeals. State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695,

697 (2008). Therefore, defendants are required to follow the civil rules of procedure

when appealing attorney fees. A party must file and serve written notice of appeal

with the clerk of superior court within thirty days after entry of judgment. N.C. R.

App. P. 3 (a),(c)(1). Defendant gave oral notice of appeal after entry of the judgment

but failed to enter written notice of appeal within the time proscribed.

On 25 June 2024, Defendant filed a Petition for Writ of Certiorari pursuant to

N.C. Gen. Stat. § 7A-32(c), Rule 21 of the North Carolina Rules of Appellate

Procedure, and State v. Ledbetter, 371 N.C. 192, 194, 814 S.E.2d 39, 41 (2018)

requesting this Court cure the defective notice of appeal. Under Appellate Rule

21(a)(1), this Court may issue a writ of certiorari to permit review “when the right to

prosecute an appeal has been lost by the failure to take timely action[.]” N.C. R. App.

P. 21(a)(1)(2023). Our Supreme Court has stated the writ of certiorari should issue

upon “a reasonable show of merits and that the ends of justice will be thereby

-4- STATE V. MCCULLOUGH

promoted.” King v. Taylor, 188 N.C. 450, 451, 124 S.E. 751, 751 (1924).

The State concedes the trial court erred by duplicating the attorney

appointment fee. Under N.C. Gen. Stat. § 7A-455, a trial court may impose attorney’s

fees against a convicted, indigent defendant for the cost incurred by a defendant’s

appointed counsel. State v. Webb, 358 N.C. 92, 100, 591 S.E.2d 505, 512 (2004). The

statute permits a $75.00 fee for the appointment of a court-appointed attorney in

every criminal case. The fee applies once, “regardless of the number of cases which

the attorney was assigned. An additional appointment fee shall not be assessed if

the charges for which an attorney was appointed were reassigned to a different

attorney.” N.C. Gen. Stat. § 7A-455.1(e) (2023).

As this issue clearly has merit, we grant certiorari to reach the merits of

Defendant’s appeal.

B. Standard of Review

A trial court’s decision to revoke probation is reviewed for “manifest abuse of

discretion.” Singletary at 545, 893 S.E.2d at 220.

A hearing to revoke a defendant’s probationary sentence only requires that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation or that the defendant has violated without lawful excuse a valid condition upon which the sentence was suspended. The judge’s finding of such a violation, if supported by competent evidence, will not be overturned absent a showing of manifest abuse of discretion.

State v. Young, 190 N.C. App. 458, 459, 660 S.E.2d 574, 576 (2008) (citation

-5- STATE V. MCCULLOUGH

and quotation marks omitted). “Abuse of discretion results where the court’s ruling

is manifestly unsupported by reason or is so arbitrary that it could not have been the

result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527

(1988).

When the trial court’s revocation of probation relies on statutory

interpretation, it is a question of law and is reviewed de novo. State v. Krider, 258

N.C. App. 111, 113, 810 S.E.2d 828, 829 (2018), aff'd but criticized, 371 N.C. 466, 818

S.E.2d 102 (2018). Claims alleging violations of statutory guidelines and

constitutional rights are also reviewed de novo. State v. Graham, 200 N.C. App. 204,

214, 683 S.E.2d 437, 444 (2009). “Under a de novo review, the court considers the

matter anew and freely substitutes its own judgment for that of the lower tribunal.”

State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (citation omitted).

C. New Criminal Offense

The trial court may revoke probation when a defendant commits a criminal

offense while on probation. N.C. Gen Stat. §§ 15A-1343(b)(1) (2022), 15A-1344(a)

(2022). That a defendant is charged with a criminal offense is “insufficient to support

a finding that he committed them.” Singletary at 546, 893 S.E.2d at 220 (quoting

State v. Hancock, 248 N.C. App. 744, 749, 789 S.E.2d 522, 526 (2016)). To revoke

probation for committing a criminal offense, there must be “some form of evidence

that a crime was committed.” State v. Graham, 282 N.C. App. 158, 160, 869 S.E.2d

776, 778 (2022). However, “the alleged violation of a valid condition of probation need

-6- STATE V. MCCULLOUGH

not be proven beyond a reasonable doubt.” Id at 159, 869 S.E.2d at 778. The trial

court only need find that a defendant “willfully violated a valid condition of probation”

to revoke probation. Singletary at 545,893 S.E.2d at 220 (quoting State v. Young, 190

N.C. App. 458, 459, 660 S.E.2d 574, 576 (2008)). The evidence must “reasonably

satisfy the judge in the exercise of his sound discretion that the defendant has

willfully violated a valid condition of probation . . . .” Id. The evidence is sufficient

when “the trial court can independently find that the defendant committed a new

offense.” Id. at 546, 893 S.E.2d at 221 (quoting Hancock, 248 N.C. App. at 749, 789

S.E.2d at 526).

At the hearing, the trial court cited Singletary to support its decision. In

Singletary, the trial court relied upon the violation report, arrest warrants, the

defendant’s admission to her probation officer of the crimes, and images of the

defendant committing the alleged crimes to make an independent determination that

it was “more probable than not Defendant committed the new criminal offense.” Id.

at 547, 893 S.E.2d at 221.

Defendant contends the trial court erred in its comparison to Singletary as

there was no independent evidence to establish that he committed a new crime. We

disagree.

The trial court was presented with the driving while impaired arrest warrant

containing Defendant’s photograph, the charging officer’s affidavit, the intoxilyzer

report showing a blood alcohol level of 0.12, and the probation officer’s testimony

-7- STATE V. MCCULLOUGH

regarding the telephone conversation she had with Defendant shortly after the

incident. Although the arrest warrant is not sufficient to allow the trial court to

independently determine Defendant probably committed a new offense, the charging

officer’s affidavit and the intoxilyzer report were sufficient to allow the trial court to

independently determine Defendant probably had committed the offenses of driving

while impaired. Thus, the evidence allowed the trial court to independently

determine that it was “more probable than not Defendant committed the new

criminal offense” and thereby violated the terms of his probation. Id.

D. Due Process and Right to Confrontation

A probation revocation hearing is not a criminal proceeding and therefore the

“Sixth Amendment right to confrontation in a probation revocation hearing does not

exist.” Singletary at 548, 893 S.E.2d at 222 (quoting State v. Hemingway, 278 N.C.

App. 538, 548, 863 S.E.2d 279, 286 (2021)). N.C. Gen Stat. § 15A-1345(e) “controls

the probationer’s right to confrontation” during a hearing. Id. Therefore, no

constitutional argument exists; there is only a statutory argument for Defendant’s

violation of due process. Id.

Under N.C. Gen Stat. § 15A-1345(e), during a revocation hearing, the

probationer “may confront and cross-examine adverse witnesses unless the court

finds good cause for not allowing confrontation.” N.C. Gen Stat. § 15A-1345(e) (2022).

The court may use its discretion to determine if good cause exists for denying

confrontation. Singletary, 290 N.C. App. at 548, 893 S.E.2d at 222 (citing State v.

-8- STATE V. MCCULLOUGH

Jones, 269 N.C. App. 440, 444, 838 S.E.2d at 686, 689 (2020)). Accordingly, the issue

is whether the trial court made a prejudicial error by not making a finding of good

cause for denying Defendant the ability to confront the arresting officer.

While enumerating its findings in open court, the trial court cited Singletary

explaining “failure to require an adverse witness to testify is not error if the adverse

witness’ testimony would have been merely extraneous evidence in light of other

competent evidence presented . . . .” Singletary at 548, 893 S.E.2d at 222.

In Singletary, this Court found that when the trial court had arrest warrants,

video footage, and the parole officer’s testimony about the defendant’s admissions,

there was sufficient evidence to support the trial court’s finding that the defendant

had committed new crimes without any testimony from the witness at issue. Id. at

549, 893 S.E.2d at 223.

As in Singletary, here, the trial court received into evidence documents filed

with the court, specifically the arrest warrant containing Defendant’s picture and the

intoxilyzer results indicating a breath alcohol level above the legal limit. In addition,

Defendant’s probation officer testified that Defendant contacted her about his arrest

and admitted he had been driving. Even without the arresting officer’s affidavit or

testimony, the trial court had sufficient evidence to independently determine a new

offense of driving while impaired had been committed. Because the arresting officer’s

testimony would have been merely extraneous when sufficient evidence had been

admitted, the trial court did not err by omitting a finding of good cause for denying

-9- STATE V. MCCULLOUGH

the confrontation of the arresting officer.

E. Clerical Errors.

Defendant’s probation officer filed a violation report alleging Defendant was in

violation of his probation for failing to pay court and supervision fees and committing

new criminal offenses. When completing the Judgment and Commitment Upon

Revocation of Probation form, the trial court checked both box four, indicating “each

violation is, in and of itself, a sufficient basis upon which this Court should revoke

probation and activate the suspended sentence,” as well as box five (a) which

acknowledged Defendant’s probation could only be revoked “for the willful violation

of the condition(s) that he/she not commit any criminal offense . . . .” Probation can

only be revoked if the probationer:

(1) commits a new criminal offense 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 violations] under N.C. Gen. Stat. § 15A-1344(d2).

N.C. Gen. Stat. § 15A–1344(a)(2023); State v. Krider, 258 N.C. App.111, 113, affirmed

in part, 371 N.C. 466 (2018). Thus, Defendant’s failure to pay the fees alleged in the

violation report is not a sufficient basis for revoking probation and the trial court’s

selection of box four indicating that each violation was a sufficient basis upon which

the court could revoke probation was error.

Thorough review of the trial court’s findings made in open court clearly

- 10 - STATE V. MCCULLOUGH

indicate Defendant’s probation was revoked on the basis of new criminal conduct.

The trial court stated,

The State has presented sufficient evidence to indicate that the defendant has committed new criminal conduct while he was on probation. That is [a] revocable offense. The recommendation from the probation officer is that his probation be revoked. I am going to accept the recommendation. I'm going to revoke his probation . . . .

Notwithstanding the trial court’s statements, the trial court checked the wrong box.

“When the trial court incorrectly checks a box on a judgment form that contradicts

its findings and the mistake is supported by the evidence in the record, we may

remand for correction of this clerical error in the judgment.” State v. Newsome, 264

N.C. App. 659, 665, 828 S.E.2d 495, 500 (2019). Accordingly, we remand to the trial

court for correction of the clerical error.

F. Appointment Fee for Court-Appointed Attorney

Defendant next argues the trial court incorrectly assessed two appointment

fees for his court-appointed attorney, and the State concedes the error. Pursuant to

N.C. Gen. Stat. § 7A-455.1, a trial court may impose attorney’s fees against a

convicted, indigent defendant for the cost incurred by a defendant’s appointed

counsel. Webb at 100, 591 S.E.2d at 512. The statute allows for a $75.00 appointment

fee for court-appointed attorney fees in every criminal case provided the fee shall be

applied “only once, regardless of the number of cases to which the attorney was

assigned. An additional appointment fee shall not be assessed if the charges for

- 11 - STATE V. MCCULLOUGH

which an attorney was appointed were reassigned to a different attorney.” N.C. Gen.

Stat. § 7A-455.1(e) (2023). The plain reading of this statute shows the attorney

appointment fee should only be charged once for each case and our Supreme Court

has stated that “[c]osts are imposed only at sentencing . . . . ” State v. Webb at 101,

591 S.E.2d at 513. However, here it was charged both during sentencing after

Defendant pleaded guilty and at the probation revocation hearing.

Further, the attorney appointment fee statute specifically states it can only be

assessed if the “person is convicted.” N.C. Gen. Stat. § 7A-455.1(a) (2023). Here,

Defendant had already been assessed a $75.00 fee during sentencing when he pleaded

guilty in this case. Probation violation proceedings occur in the same case for which

a defendant is placed on probation following a conviction but are not in themselves

new convictions. Our Supreme Court has clarified, “[w]hen a defendant's probation

is revoked, the sentence the defendant may be required to serve is the punishment

for the crime of which he had previously been found guilty.” State v. Murchison, 367

N.C. 461, 463, 758 S.E.2d 356, 358 (2014) (cleaned up) (emphasis added).

Therefore, the second $75.00 appointment fee charged after Defendant’s

probation revocation must be removed from the calculation of civil penalties charged

to Defendant. We vacate the duplicate attorney fee and remand to correct the

judgment amount.

III. Conclusion

For the foregoing reasons, the trial court did not err in its determination

- 12 - STATE V. MCCULLOUGH

Defendant had committed a new criminal offense warranting, in its discretion,

revocation of Defendant’s probation, nor did the trial court err in denying Defendant’s

confrontation of the arresting officer. However, the trial court erred when it charged

Defendant the $75.00 attorney appointment fee twice. We vacate the duplicate

attorney appointment fee and remand to the trial court for recalculation of the

judgment.

AFFIRMED IN PART, VACATED IN PART AND REMANDED.

Judges ARROWOOD and GRIFFIN concur.

- 13 -