State v. Watlington

• Court: Court of Appeals of North Carolina
• Decided: January 21, 2014
• Docket: 13-891
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-891 NORTH CAROLINA COURT OF APPEALS

Filed: 21 January 2014

STATE OF NORTH CAROLINA

v. Alamance County Nos. 11 CRS 50193, 51683 TRAVIS DYSHAUWN WATLINGTON

Appeal by defendant from judgments entered 21 February 2013

by Judge Robert F. Johnson in Alamance County Superior Court.

Heard in the Court of Appeals 30 December 2013.

Attorney General Roy Cooper, by Assistant Attorney General Tiffany Y. Lucas, for the State.

Gerding Blass, PLLC, by Danielle Blass, for defendant- appellant.

HUNTER, JR., Robert N., Judge.

Defendant Travis Dyshauwn Watlington (“Defendant”) appeals

from judgments entered upon revocation of his probation. For

the reasons discussed herein, we reverse the judgments and

remand for further proceedings.

On 21 February 2012, pursuant to a plea agreement,

Defendant pleaded guilty to four counts of common law robbery -2- and two counts of felony larceny. In accordance with the plea

agreement, Defendant was to receive an active sentence for the

common law robbery convictions. With respect to his larceny

convictions, Defendant received two consecutive sentences of

eight to ten months imprisonment, which were suspended and

Defendant was placed on supervised probation for twenty-four

months.

On 13 September 2012, Defendant’s probation officer filed

violation reports alleging Defendant violated the conditions of

his probation in that he failed to pay court costs and probation

supervision fees and that he committed the offense of

misdemeanor possession of drug paraphernalia. Defendant’s

probation officer filed additional reports on 5 October 2012

alleging Defendant tested positive for marijuana. On 27 and 29

November 2012, Defendant’s probation officer filed reports

alleging Defendant failed to appear in superior court for his

probation violation, failed to appear in district court for his

pending charge of misdemeanor possession of drug paraphernalia,

failed to report for his scheduled office visit on 1 November

2012, and that on 31 October 2012 Defendant left his place of

residence and failed to make his whereabouts known to his

probation officer. -3- The matter came on for hearing on 21 February 2013. The

State withdrew the allegation that Defendant violated his

probation by committing the offense of misdemeanor possession of

drug paraphernalia and Defendant admitted the remaining

allegations. The trial court found Defendant violated the

conditions of his probation willfully and without lawful excuse.

The trial court revoked Defendant’s probation and activated his

suspended sentence. Defendant timely filed written notice of

appeal.

Defendant’s sole argument on appeal is that the trial court

erred in revoking his probation because Defendant did not commit

a new criminal offense, did not abscond, and had not previously

received two periods of confinement in response to violation.

We agree that the trial court erred in revoking Defendant’s

probation, and the State concedes that the judgments should be

reversed.

We are unable to distinguish the present case from our

recent decision in State v. Nolen, ___ N.C. App. ___, 743 S.E.2d

729 (2013). In Nolen, the defendant argued 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 -4- 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.

[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.

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, Defendant’s larceny offenses were committed on 8 January 2011 and 2 March 2011. -5- 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, her probation could not be revoked.

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

In the present case, the State withdrew the allegation that

defendant committed a new criminal offense. Also there is no

evidence that Defendant served any CRVs. Moreover, although the

probation officer told the trial court that Defendant absconded

and the trial court found that Defendant had absconded, the

absconding condition was not applicable to Defendant. As noted,

the new absconding condition only applies to offenses committed

on or after 1 December 2011, and Defendant’s underlying offenses

were committed prior to 1 December 2011. Accordingly, we

conclude 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).