State v. Melton
State v. Melton
Opinion
*134 Kella Melton ("defendant") appeals from judgments revoking her probation and activating her suspended sentences. On appeal, defendant argues that the trial court abused its discretion in revoking her probation. For the reasons stated herein, we reverse the trial court's judgments.
I. Background
On 14 July 2015 in Rutherford County Superior Court, defendant was given a suspended sentence based on a conviction for possession of methamphetamine and simple possession of a Class IV controlled substance in case number 14 CR 53301. This sentence was modified to an active sentence on 18 December 2015.
*135 On 31 May 2016 in Rutherford County Superior Court, defendant pleaded no contest to identity theft, four counts of obtaining property by false pretenses, and three counts of uttering a forged endorsement in case numbers 15 CRS 52149, 52446-48, and 16 CRS 344. The trial court sentenced defendant to consecutive sentences of 13 to 25 months, 7 to 18 months, and 7 to 18 months, but suspended the sentences and placed defendant on 30 months of supervised probation.
On 4 November 2016, defendant's probation officer, Officer Tiffany Nelson, swore out probation violation reports, relating to defendant's probation for 14 CR 53301, 15 CRS 52149, 52446-48, and 16 CRS 344, alleging that, on or about 2 November 2016, defendant willfully violated her probation by absconding in violation of N.C. Gen. Stat. § 15A-1343(b)(3a) (2017), failing to report to *680 her supervising officer as directed in violation of § 15A-1343(b)(3), and being in arrears towards her court indebtedness in violation of § 15A-1343(b)(9). As a result of the violation reports, defendant was arrested on 9 December 2016. Defendant did not meet with Officer Nelson again until 17 January 2017.
The matter came on for hearing on 8 February 2017. At the hearing, Officer Nelson testified that defendant failed to report for scheduled meetings with her on 2 August 2016, 4 October 2016, 12 October 2016, 28 October 2016, and 2 November 2016. Prior to defendant's failure to attend the 28 October and 2 November 2016 meetings, defendant met with Officer Nelson on 26 October 2016. 1 Officer Nelson testified that, when defendant failed to appear for the 2 November 2016 meeting, she attempted to contact defendant numerous times by phone and by visiting defendant's address. Defendant's phone was disconnected, and she was not present at the address. Officer Nelson also called and left messages with defendant's parents, asking for defendant to call her. On cross-examination, however, she was unable to identify with any specificity when she made the contacts, and she testified she did not have written record of these contacts with her at the hearing. At the close of the State's evidence, defendant moved to dismiss for insufficient evidence of absconding. The motion was denied. Defendant offered evidence through defendant's testimony.
At the close of all evidence, the trial court found that defendant violated her probation by absconding, failing to report to her scheduled *136 appointments with her probation officer, and failing to adequately pay the funds due on her probation. The trial court also found that each violation in and of itself was a sufficient basis upon which to revoke probation. Defendant's probation was revoked, and the trial court activated her sentences in 14 CR 53301, 15 CRS 52149, 52446-48, and 16 CRS 344.
On 10 February 2017, defendant gave notice of appeal. Subsequently, on 2 March 2017, the trial court issued an order stating that probation was revoked in error with regard to case number 14 CR 53301 because the sentence in that case had previously been modified to an active sentence on 18 December 2015. Therefore, only the probation revocations involving 15 CRS 52149, 52446-48, and 16 CRS 344 are at issue in this appeal.
II. Discussion
Defendant argues that the trial court abused its discretion by revoking her probation because there was insufficient evidence to support a finding that she absconded under N.C. Gen. Stat. § 15A-1343(b)(3a) as alleged by the violation reports. We agree.
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.
State v. Young
,
We review a trial court's decision to revoke a defendant's probation for abuse of discretion.
State v. Miller
,
A trial court may only revoke a defendant's probation in circumstances where the *681 defendant: (1) commits a new criminal offense, in *137 violation of N.C. Gen. Stat. § 15A-1343(b)(1), (2) absconds by willfully avoiding supervision or by willfully making her whereabouts unknown to the supervising probation officer, in violation of § 15A-1343(b)(3a), or (3) violates any condition of probation after previously serving two periods of confinement in response to violations, pursuant to § 15A-1344(d2). N.C. Gen. Stat. § 15A-1344(a) (2017).
We first consider defendant's argument that the trial court erred by making an oral finding that defendant absconded from 2 November 2016 until she was arrested on 9 December 2016, instead of limiting its consideration of the evidence to the dates alleged in the violation reports. Specifically, defendant claims that considering evidence up until her arrest was in error because the violation reports only specifically allege that defendant absconded from "on or about" 2 November 2016 to the date the reports were filed, 4 November 2016. We agree.
In order to provide a defendant with notice of the allegations against him, as required by N.C. Gen. Stat. § 15A-1345(e), probation violation reports must contain a statement of the specific violations alleged.
See
State v. Moore
, --- N.C. ----, ----,
Therefore, we review for whether there was sufficient evidence to support a finding that defendant absconded in violation of N.C. Gen. Stat. § 15A-1343(b)(3a) based on the dates alleged in the violation reports-on or about 2 November to 4 November 2016. For the reasons that follow, the evidence was insufficient to support such a finding.
Prior to our Legislature's enactment of the Justice Reinvestment Act of 2011 ("JRA"), the term "abscond" was not defined by statute.
State v. Williams
,
*138
[his] whereabouts unknown to [his] supervising probation officer[.]" N.C. Gen. Stat. § 15A-1343(b)(3a). This change was in line with the JRA's purpose to be "part of a national criminal justice reform effort" which, among other changes, "made it more difficult to revoke offenders' probation and send them to prison."
State v. Johnson
, --- N.C. App. ----, ----,
Here, the State presented evidence of the alleged violations through Officer Nelson's testimony. Officer Nelson testified that defendant absconded a week after the 26 October 2016 meeting because she failed to attend the 28 October and 2 November meetings, and did not contact Officer Nelson thereafter, even though the officer attempted to call and visit defendant multiple times over the course of two days, and called and left messages with defendant's parents for defendant to call her. However, on cross-examination, Officer Nelson could not support her testimony with records:
Q: You made how many phone calls trying to find her?
[Officer Nelson]: Numerous.
Q: One, two, three, four?
[Officer Nelson]: More than four.
*682 Q: You went back to the residence, correct?
[Officer Nelson]: Yes.
Q: What times and dates?
*139 [Officer Nelson]: I don't have that information with me.
....
Q: What numbers did you call?
[Officer Nelson]: Her primary number is her cell phone, and her secondary number is for her mother's home phone.
....
Q: .... Do you recall the number of times and dates that you made calls to those numbers?
[Officer Nelson]: I don't have that information with me at this time.
After the State offered its evidence, defendant testified that she did not willfully abscond because at the time of the alleged violation: her cell phone was missing, she was not at home when the officer visited, Officer Nelson left no messages at the home, her parents told her that Officer Nelson had not come by or called her, and she "had just [seen] [Officer Nelson] at the end of October[,]" so it did not otherwise occur to her to contact Officer Nelson.
The case the State relies on to support its argument that the trial court did not err in its determination that defendant absconded,
State v. Trent
, --- N.C. App. ----,
Here, unlike in Trent , where the defendant admitted he knew his probation officer attempted to contact him, the State failed to present competent evidence that defendant's failure to contact Officer Nelson from 2 November to 4 November 2016 was willful. Although Officer Nelson testified that she attempted to call and visit defendant, and left messages with defendant's parents for defendant to contact her, there was no showing that a message was given to defendant or, more generally, that defendant knew Officer Nelson was attempting to contact her. Thus, although there was competent evidence that Officer Nelson attempted to contact defendant, there was insufficient evidence that defendant willfully refused to make herself available for supervision from 2 November to 4 November 2016 (the only time period we can consider under the violation report and the court's written finding).
We note that, as explained in
Trent
and emphasized by the State on appeal, defendant had a duty to keep her probation officer apprised of her whereabouts.
Trent
, --- N.C. App. at ----,
We are not unsympathetic to the probation officer's situation. It is clear that defendant is far from a model probationer and should be held accountable for her failures to comply. However, under the JRA, our Legislature has expressed a clear intent that activation of probationary sentences should only be used as a last resort and after the use of the other tools available such as two "quick dips" pursuant to N.C. Gen. Stat. § 15A-1344(d2).
See
Moore
, --- N.C. at ----,
There was insufficient competent evidence to establish defendant's willful violation of N.C. Gen. Stat. § 15A-1343(b)(3a). Therefore, the trial court abused its discretion by revoking defendant's probation based on § 15A-1343(b)(3a). The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Judges CALABRIA and ZACHARY concur.
Although defendant testified she met with Officer Nelson on 28 October 2016 at the hearing, the trial court found as fact, and defendant did not challenge on appeal, that defendant and Officer Nelson did not meet on 28 October 2016. However, on appeal, defendant claims for the first time that the scheduled 28 October 2016 appointment actually occurred on 26 October 2016.
Reference
- Full Case Name
- STATE of North Carolina v. Kella MELTON
- Cited By
- 15 cases
- Status
- Published
- Syllabus
- probation revocation absconding