State v. Sturdivant

• Court: Court of Appeals of North Carolina
• Decided: May 5, 2015
• Docket: 14-1053
• Status: Unpublished

Opinion

AN UNPUBLISHED OPINION OF THE NORTH CAROLINA COURT OF APPEALS DOES NOT CONSTITUTE CONTROLLING LEGAL AUTHORITY. CITATION IS D ISFAVORED, BUT MAY BE PERMITTED IN ACCO RDANCE WITH TH E PROVISIONS OF RULE 30(E)(3) OF THE NORTH CAROLINA RULES OF APPELLATE P R O C E D U R E .

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA14-1053

Filed: 5 May 2015

Cabarrus County, No. 53689

STATE OF NORTH CAROLINA

v.

DONOVAN ADRIAN-LE STURDIVANT

Appeal by defendant from judgments entered 25 April 2014 by Judge

Christopher W. Bragg in Cabarrus County Superior Court. Heard in the Court of

Appeals 17 March 2015.

Attorney General Roy Cooper, by Assistant Attorney General Brenda Eaddy, for the State.

Kathy LaMotte, for defendant-appellant.

CALABRIA, Judge. STATE V. STURDIVANT

Opinion of the Court

Donovan Adrian-Le Sturdivant (“defendant”) appeals from judgments entered

upon revocation of his probation for absconding from supervision and activating his

suspended sentences. We affirm.

On 24 July 2013, defendant pled guilty pursuant to Alford to two counts of

failure to notify the Cabarrus County Sheriff of a change of address as a sex offender.

The trial court sentenced defendant to two consecutive terms of a minimum of 21 to

a maximum of 35 months in the custody of the North Carolina Division of Adult

Correction. The trial court then suspended defendant’s sentences and placed him on

supervised probation for 30 months. Defendant was also required to comply with

conditions of probation. One of the conditions required that defendant “[n]ot abscond,

by willfully avoiding supervision or by willfully making the defendant’s whereabouts

unknown to the supervising probation officer.”

On 24 January 2014, defendant’s probation officer, Jennifer Walker (“Walker”)

filed violation reports in both of defendant’s cases. Walker alleged that defendant

violated his probation by absconding. Walker specifically alleged, inter alia, that

defendant absconded from probation by failing to make his whereabouts known to

her and by providing a false address.

At the 25 April 2014 probation revocation hearing, defendant denied willfully

violating the terms of his probation. Walker testified for the State that defendant

called her and told her he had posted a bond, and that she tried to schedule an

2 STATE V. STURDIVANT

appointment with him. However, defendant never contacted her again or gave her

an accurate address. The trial court found defendant had willfully violated the terms

of his probation by absconding, revoked defendant’s probation, and activated his

suspended sentences. Defendant appeals.

On appeal, defendant argues that the trial court abused its discretion by

revoking his probation. Specifically, defendant contends that his actions merely

amounted to noncompliance with his probation terms, which does not provide for

immediate revocation. We disagree.

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. Jones, __ N.C. App. __, __, 736 S.E.2d 634, 636 (2013) (citation omitted).

Under the Justice Reinvestment Act (“JRA”), a trial court may only revoke

probation where the defendant commits a new crime in violation of N.C. Gen. Stat. §

15A-1343(b)(1); absconds supervision in violation of N.C. Gen. Stat. § 15A-

1343(b)(3a); or violates any condition of probation after serving two prior periods of

confinement resulting from violations under N.C. Gen. Stat. § 15A-1344(d2). N.C.

Gen. Stat. § 15A-1344(a) (2013). Absconding is defined as “willfully avoiding

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supervision or by willfully making the defendant’s whereabouts unknown to the

supervising probation officer, if the defendant is placed on supervised probation.”

N.C. Gen. Stat. § 15A-1343(b)(3a) (2013). The absconding provision of the JRA is

applicable only to probation violations committed on or after 1 December 2011. 2011

N.C. Sess. Laws 192, sec. 4.

As an initial matter, the underlying offenses for which defendant was placed

on probation occurred in May 2012. (R p 13, 17) Defendant’s alleged violations

occurred in January 2014. Therefore, the provisions of the JRA apply to defendant’s

alleged violations.

Defendant argues that the evidence presented at the probation revocation

hearing was insufficient to support the trial court’s finding that he absconded because

Walker did not take affirmative investigative steps to locate him. To support his

argument, defendant relies on the Community Corrections policy, which outlines

investigative steps for officers to follow prior to declaring an offender an absconder.

However, defendant correctly concedes that “the law does not require that Walker

complete such an investigation before bringing an absconding allegation.” The trial

court informed defendant’s attorney that it is not bound by Community Corrections

policy. Therefore, the issue is whether defendant’s conduct is the type of conduct that

constitutes absconding as defined by N.C. Gen. Stat. § 15A-1343(b)(3a).

4 STATE V. STURDIVANT

At the hearing, Walker testified that defendant posted bond on other matters

on 31 December 2013 and failed to contact her within 72 hours of his release; that

defendant eventually phoned her on 10 January 2014 and informed her that he was

living with his grandfather in Kannapolis; that she tried to schedule an in-person

appointment during the phone call, but defendant said he would call her back after

checking with his sister for a ride; that she did not hear from defendant; and that a

probation officer went to the grandfather’s residence on 21 January 2014 and was

told by defendant’s grandfather that defendant did not live there. Walker also

testified that defendant never gave her an accurate address. On cross-examination,

Walker acknowledged that an officer visited the grandfather’s residence only one

time. She testified, however, that there was no need to return since defendant’s

grandfather informed the officer that defendant did not live there. Walker also

testified that it was defendant’s responsibility to provide her with an accurate

address, and that this was not the first time that defendant had given her a false

address. A prior address given by defendant turned out to be “an abandoned house.”

Officer Walker’s testimony is competent evidence that supports the trial court’s

finding that defendant willfully avoided supervision and willfully made his

whereabouts unknown by failing to contact his probation officer and by giving her a

false address. Although it would have been a better practice for Walker to have

conducted an investigation, the evidence presented is sufficient to show that

5 STATE V. STURDIVANT

defendant provided a false address to Officer Walker, and willfully made his

whereabouts unknown to her. Since the trial court’s finding was supported by

competent evidence, the trial court did not abuse its discretion in revoking

defendant’s probation and activating his sentences. We affirm.

AFFIRMED.

Judges McCULLOUGH and DIETZ concur.

Report per Rule 30(e).