State v. Patin

• Court: Court of Appeals of North Carolina
• Decided: April 21, 2015
• Docket: 14-926
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA14-926

Filed: 21 April 2015

Wayne County, Nos. 12 CRS 5176, 50514

STATE OF NORTH CAROLINA

v.

RAYANNA L. PATIN

Appeal by defendant from judgments entered 7 April 2014 by Judge Arnold O.

Jones, II, in Wayne County Superior Court. Heard in the Court of Appeals 7 January

2015.

Attorney General Roy Cooper, by Assistant Attorney General Torrey D. Dixon, for the State.

Winifred H. Dillon for defendant-appellant.

DIETZ, Judge.

Defendant Rayanna Patin appeals the trial court’s revocation of her probation

and activation of her sentences in two separate drug offense cases. After repeatedly

violating the conditions of her probation and serving 90-day periods of incarceration,

Patin tested positive for marijuana, violating a condition of her probation. The State

sought to revoke her probation based on the failed drug test and her failure to pay

her court debt. STATE V. PATIN

Opinion of the Court

The trial court revoked Patin’s probation in both cases, finding that she

violated both conditions alleged by the State (the failed drug test and the failure to

pay court debt). The court did not check the box on the judgment form indicating that

each violation, standing alone, was sufficient in the trial court’s discretion to revoke

Patin’s probation.

Patin argues that the trial court erred because there was insufficient evidence

to show that she failed to pay her court debt. We agree with respect to one of her two

cases, where the probation violation report abruptly ends mid-sentence without

including any details of the amount Patin owes in court debt. We also hold that the

trial court erred in its calculation of jail fees in that case (an error the State concedes

on appeal). We therefore vacate and remand that case for further proceedings

consistent with this opinion. We affirm the revocation of Patin’s probation in the

second of her two criminal cases.

Facts and Procedural History

On 29 February 2012, Rayanna Patin pleaded guilty to possession of

pseudoephedrine with the intent to manufacture methamphetamine in Wayne

County Case No. 12 CRS 50514. The trial court sentenced her to 13-25 months

imprisonment, suspended her sentence, ordered her to serve 120 days in jail, and

placed her on 36 months supervised probation. As conditions of her probation, the

court ordered Patin to “[n]ot use, possess, or control any illegal drug or controlled

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substance,” to submit to a substance abuse assessment, to not possess any drug

paraphernalia, and to pay the necessary jail fees.

Seven months later, on 18 September 2012, Patin again pleaded guilty to

possession of pseudoephedrine with the intent to manufacture methamphetamine in

Lenoir County Case No. 11 CRS 50728, which became Wayne County Case No. 12

CRS 5176. The trial court sentenced Patin to 15-18 months imprisonment, suspended

her sentence, ordered her to serve 120 days in jail, and placed her on supervised

probation for 36 months. The court also gave her credit for 206 days of pretrial

confinement.

On 17 October 2012, Patin’s probation officer filed two probation violation

reports (one for each case) alleging that Patin violated her probation by residing with

a person also on probation for the possession or distribution of a methamphetamine

precursor. Patin admitted to violating the terms of her probation and the court

ordered her to serve 90 days confinement with 19 days of credit. The court modified

her probation, ordering her to six months of house arrest with electronic monitoring,

to submit to drug screens, and to not test positive for drugs.

On 7 June 2013, Patin’s probation officer filed two probation violation reports

alleging that Patin violated her probation by being in arrears on her court debt in

both cases. Two days later, her probation officer filed additional violation reports

alleging that Patin moved once in April, twice in May, and again in June without

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notifying her probation officer. On 1 July 2013, the trial court found Patin violated

the terms of her probation and ordered her to serve 90 days confinement with 21 days

of credit.

Patin’s probation officer filed two more violation reports on 1 April 2014

alleging that Patin violated the terms of her probation by testing positive for

marijuana and being in arrears on her court debt. The trial court held a hearing on

7 April 2014 and Patin waived her right to counsel. At the hearing, Patin admitted

to testing positive for marijuana stating that she relapsed after suffering a

miscarriage. The trial court found that Patin violated the terms of her probation as

set out in the violation reports and revoked her probation. The court activated her

sentences in each case and ordered them to run consecutively. The court also ordered

the arrearages in each case be entered as civil judgments. Patin timely appealed.

Analysis

I. Jail Fees

Patin first argues that the amount of jail fees the court ordered her to pay as

part of the judgment in Case No. 12 CRS 5176 exceeded the amount she was obligated

to pay under N.C. Gen. Stat. § 7A-313. The State concedes that the trial court erred

in its calculation of jail fees and we agree.

After a conviction, a defendant may be assessed costs by the court, including

jail fees. N.C. Gen. Stat. § 7A-304(c) (2013). Under N.C. Gen. Stat. § 7A-313 (2013),

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a person who is “lawfully confined in jail awaiting trial” is liable for costs “for each 24

hours’ confinement, or fraction thereof.” Prior to August 2011, the jail fee was set at

$5.00 per day. N.C. Gen. Stat. § 7A-313 (2011). In 2011, the General Assembly

amended the statute to raise the fee from $5.00 per day to $10.00 per day to be

effective 1 August 2011. 2011 N.C. Sess. Laws 145 § 31.26(e).

Here, Patin pleaded guilty to possession of pseudoephedrine with the intent to

manufacture methamphetamine and the court assessed her costs at $2,424.50, which

included $2,060 in jail fees. The court gave her credit for 206 days of pretrial

confinement. Thus, the court assessed Patin a jail fee of $10.00 per day for the entire

206 days.

Patin was arrested on 18 March 2011 and confined in the Lenoir County Jail.

On 12 August 2011, she posted bail and the court released her on bond. From 18

March 2011 to 31 July 2011, 136 days of the 206 day credit, Patin was subject to the

earlier version of N.C. Gen. Stat § 7A-313 effective prior to 1 August 2011 and the

court should have assessed Patin a jail fee of $5.00 per day during this time. Because

the court assessed a $10.00 per day fee for the entire 206 day credit, Patin’s jail fee

exceeded the amount authorized by statute. Therefore, we vacate this portion of the

trial court’s order and remand to the trial court for the proper jail fee assessment.

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II. Jurisdiction to Revoke Probation

Patin next argues that the trial court lacked jurisdiction to enter a judgment

revoking her probation in Case No. 12 CRS 5176 because the violation report in that

case did not provide sufficient notice of the alleged violation. We disagree.

Before a court can revoke a defendant’s probation, it must hold a hearing. N.C.

Gen. Stat. § 15A-1345(e) (2013). “The State must give the probationer notice of the

hearing and its purpose, including a statement of the violations alleged.” Id. The

purpose of this notice “is to allow the defendant to prepare a defense and to protect

the defendant from a second probation violation hearing for the same act. State v.

Hubbard, 198 N.C. App. 154, 158, 678 S.E.2d 390, 393 (2009).

Here, the allegations of the probation violation report stated that Patin

willfully violated:

1. Condition of Probation “Not use, possess or control any illegal drug or controlled substance unless it has been prescribed for the defendant by a licensed physician and is in the original container with the prescription number affixed on it . . .” in that THE DEFENDANT TESTED POSITIVE [FOR] MARIJUANA ON 03/26/2014. JUDGE ARNOLD JONES ORDERED ON 11/05/2012, IF THE DEFENDANT TEST POSITIVE FOR ANY ILLEGAL DRUGS SHE IS TO BE ARRESTED UNDER A $30,000.00 BOND.

2. Condition of Probation “The defendant shall pay to the Clerk of Superior Court the “Total Amount Due” as directed by the Court or probation officer” in that

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Paragraph 2 in this probation revocation report abruptly ends after the words

“in that.” Thus, the allegation is certainly incomplete in the sense that it is not a

complete sentence. But our case law does not require the revocation notice to be

completely grammatical; it need only contain sufficient information to permit Patin

to prepare a defense for her hearing. See Hubbard, 198 N.C. App. at 158, 678 S.E.2d

at 393. Here, the report alleged that Patin violated her probation by failing to pay

the “‘Total Amount Due’ as directed by the Court or probation officer.” This statement

is sufficient to permit Patin to prepare a defense to the allegation and to prevent

Patin from being subjected to a second violation hearing for the same alleged act.

III. Revocation of Patin’s Probation

Finally, Patin argues that the trial court erred in revoking her probation

because the State presented no evidence that she actually was “in arrears on her

court indebtedness.” With respect to the violation report in Case No. 12 CRS 5176,

described above, we are constrained to agree. We therefore vacate and remand

Patin’s probation revocation in that case. However, we affirm the probation

revocation in Case No. 12 CRS 50514.

Under the Justice Reinvestment Act, a court ordinarily may revoke a

defendant’s probation only if she commits a new crime or absconds. N.C. Gen. Stat.

§ 15A-1344(a) (2013). If a defendant violates a condition of probation other than a

new crime or absconding, “the court may impose a period of confinement of 90

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consecutive days.” N.C. Gen. Stat. § 15A-1344(d2). But after imposition of two

separate 90-day periods of confinement under § 15A-1344(d2), the court may revoke

a defendant’s probation for violating any condition of probation. See id.

Here, it is undisputed that the trial court previously had imposed two separate

90-day periods of confinement for prior probation violations. Thus, if the trial court

found that Patin again had violated any condition of probation, the court had the

authority to revoke her probation and require that she serve her sentence.

Notably, Patin conceded that she violated a condition of her probation in both

of her cases. As a condition of both terms of probation, Patin was required to be drug

tested and to not test positive for illegal drugs. At the revocation hearing, Patin

testified that she tested positive for marijuana, explaining that she “had a

miscarriage and . . . relapsed . . . it’s the first drug test I failed.”

This violation, standing alone, is sufficient to permit the trial court, in its

discretion, to revoke Patin’s probation. See N.C. Gen. Stat. § 15A-1344(d2); State v.

Kornegay, ___ N.C. App. ___, ___, 745 S.E.2d 880, 882 (2013). But the trial court also

found in both cases that Patin violated a second, separate condition of probation

requiring her to pay her court fees. In addition, the trial court did not check a box on

the judgment form stating that “[e]ach violation is, in and of itself, a sufficient basis

upon which this Court should revoke probation and activate the suspended sentence,”

nor did the court state at the hearing that it believed each violation, standing alone,

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supported revocation. As a result, this Court cannot determine whether the trial

court, in its discretion, would have revoked Patin’s probation based solely on the

positive drug test, without also finding that Patin had failed to pay her court fees.

Accordingly, we can uphold the revocation in each of Patin’s two revocation cases only

if we determine that both grounds for revocation are supported by the record.

With respect to Case No. 12 CRS 50514, we hold that the trial court’s probation

revocation is supported by competent evidence. A probation violation “need not be

proven beyond a reasonable doubt.” N.C. Gen. Stat. § 15A-1345(e); State v. Tennant,

141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000). All that is required is “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.” State v. Young, 190 N.C. App. 458, 459, 660 S.E.2d

574, 576 (2008). “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.”

Id.

In Case No. 12 CRS 50514, the State submitted a verified probation violation

report in which the probation officer swore under oath that “the defendant is $825.00

in arrears on her court indebtedness.” Our Supreme Court has held that a verified

report of a state probation officer stating the alleged violations in detail is competent

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evidence to support revocation. State v. Duncan, 270 N.C. 241, 246, 154 S.E.2d 53,

58 (1967). Thus, the verified violation report in Case No. 12 CRS 50514 was

competent evidence supporting the trial court’s finding that Patin violated the

condition of her probation requiring her to pay her court debt.

In Case No. 12 CRS 5176, by contrast, the probation violation report did not

include any information concerning the actual amount of court debt that Patin owed.

To be sure, the violation report indicated that Patin violated a condition of her

probation by failing to pay the amount due. But after the words “in that,” which

signaled that the report will provide further details of the violation, the allegations

abruptly end. There is no other evidence in the record establishing the actual amount

of court debt that Patin was required to pay. We are therefore constrained to hold

that this probation violation is not supported by competent evidence.

As noted above, on remand the trial court may enter judgment revoking Patin’s

probation based solely on the finding that Patin tested positive for marijuana—a fact

that Patin conceded at the revocation hearing. We vacate and remand only because

we cannot determine whether the trial court, in its discretion, would have revoked

Patin’s probation solely on that ground, without the accompanying finding that Patin

failed to pay her court debt.

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Conclusion

We affirm the trial court’s judgment in Case No. 12 CRS 50514 but vacate and

remand the judgment in Case No. 12 CRS 5176 for further proceedings consistent

with this opinion.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

Judges STEELMAN and INMAN concur.

Report per Rule 30(e).

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