State v. PoseyÂ
2017 N.C. App. LEXIS 667
| N.C. Ct. App. | 2017Background
- Defendant Montanelle Posey was placed on 36 months supervised probation for crimes committed before April 2011.
- While on probation in 2012, the trial court found Posey violated a mandatory curfew twice and concluded these were willful violations amounting to absconding supervision.
- The trial court revoked probation and activated Posey's suspended sentence; Posey appealed but filed a defective notice of appeal and sought certiorari, which was granted.
- The State conceded the trial court lacked jurisdiction under the Justice Reinvestment Act (JRA) to revoke probation based on absconding because the underlying offenses were committed before December 1, 2011.
- The State argued the appeal was moot because Posey had already served the activated sentence; the majority agreed and dismissed the appeal.
- The dissent argued the revocation was legally erroneous, not moot, and should be vacated because the revocation (even if effectuated) may cause collateral consequences (an aggravated sentencing factor) in any future conviction.
Issues
| Issue | State's Argument | Posey's Argument | Held |
|---|---|---|---|
| Whether the appeal is moot after Posey served the activated sentence | Appeal is moot because judgment was fully effectuated; no practical relief remains | Revocation may cause future collateral consequences (aggravating sentencing factor), so appeal has continuing legal significance | Majority: Dismissed as moot; no collateral consequences because Posey did not challenge the willfulness finding that triggers the aggravator |
| Whether the trial court had authority under the JRA to revoke for absconding | Conceded court lacked JRA-based jurisdiction because underlying offenses predated 12/1/2011 | Trial court’s revocation on absconding was erroneous and should be vacated | Majority: Jurisdictional error conceded but mootness bars relief; Dissent: revocation should be vacated to avoid collateral consequences |
| Whether a revocation judgment that has been served can still produce collateral legal consequences | If only revocation (without willfulness finding) remains, no collateral effect | Revocation necessarily rests on a willfulness finding and thus can be used as an aggravating factor under §15A-1340.16(d)(12a) | Majority: Only willfulness can trigger the aggravator and Posey did not challenge willfulness; therefore no collateral consequence from the revocation error. Dissent: revocation was based solely on absconding (which was unavailable) and will remain on record creating future risk |
| Appropriate remedy when revocation rests on an unavailable statutory ground but sentence already served | Mootness prevents vacatur if no collateral harm shown | Vacatur/remand to enter proper judgment consistent with §15A-1344 to avoid future harm | Majority: Dismissed appeal; no relief. Dissent: Would vacate revocation judgment to prevent aggravated sentencing risk |
Key Cases Cited
- In re A.K., 360 N.C. 449 (mootness requires assessing collateral legal consequences)
- State v. Black, 197 N.C. App. 373 (collateral consequences keep an appeal alive despite effectuated judgment)
- In re Swindell, 326 N.C. 473 (release from custody can render an appeal moot absent collateral consequences)
- State v. Hunnicutt, 226 N.C. App. 348 (explaining JRA changes and limited applicability of absconding revocation)
- State v. Nolen, 228 N.C. App. 203 (remedy when revocation is based on an improper JRA ground is reversal and remand for appropriate judgment)
- In re Hatley, 291 N.C. 693 (standard for when collateral legal consequences preserve appellate review)