State v. Tincher
831 S.E.2d 859
N.C. Ct. App.2019Background
- Joshua Tincher pleaded guilty in 2008 to multiple charges across files 06 CRS 51515, 06 CRS 51521, and 06 CRS 51525; he was serving an active sentence under 06 CRS 51525 when later proceedings occurred.
- In 06 CRS 51515 and 06 CRS 51521 the court imposed 20–24 month sentences, suspended them, and placed Tincher on 36 months’ supervised probation; the 51515 judgment expressly stated probation would begin at expiration of the 51525 active sentence, the 51521 judgment did not state when probation would begin.
- Probation-violation reports were filed on 8 February 2018, and on 16–17 April 2018 the trial court revoked probation in both 51515 and 51521 and entered a 30-day direct criminal contempt sentence for Tincher’s outburst in court.
- Tincher appealed the revocation of probation in 06 CRS 51521 and sought review (via certiorari) of the criminal-contempt order entered in 18 CRS 77.
- The Court of Appeals considered whether the trial court had subject-matter jurisdiction to revoke probation in 51521 (given the timing/commencement ambiguity) and whether the summary imposition of direct criminal contempt complied with statutory procedural requirements.
Issues
| Issue | State's Argument | Tincher's Argument | Held |
|---|---|---|---|
| Whether the trial court had subject-matter jurisdiction to revoke probation in 06 CRS 51521 | The plea agreement and other parts of the record show the court intended probation to begin at the expiration of the active sentence; any omission on the judgment form was a clerical error | Probation in 51521 ran from the day imposed and—because the judgment did not specify it should run consecutively—ran concurrently with the active 51525 sentence and thus expired before the violation report was filed | Vacated revocation in 06 CRS 51521: probation ran concurrently and had expired before the report; court lacked jurisdiction to revoke |
| Whether the court properly imposed summary direct criminal contempt without formal findings and opportunity to be heard | The trial court’s order described the conduct and imposed punishment | Tincher argued the court failed to provide statutorily required summary notice, opportunity to respond, and explicit findings supporting summary contempt beyond a reasonable doubt | Reversed contempt order and judgment: record shows no summary notice/opportunity to respond and the form omitted the required finding that Tincher was given chance to be heard |
Key Cases Cited
- State v. Canady, 153 N.C. App. 455, 570 S.E.2d 262 (court explained probation runs concurrently by default absent an express directive)
- State v. Cousar, 190 N.C. App. 750, 660 S.E.2d 902 (applied Canady: suspended sentences run concurrently with active sentences if the judgment does not specify otherwise)
- State v. Harwood, 243 N.C. App. 425, 777 S.E.2d 116 (refused to rewrite a judgment to correct a substantive error where doing so would retroactively extend probation and affect substantive rights)
- State v. Verbal, 41 N.C. App. 306, 254 S.E.2d 794 (held that summary contempt requires findings showing the contemnor had an opportunity to be heard; lack of that finding invalidates the contempt sanction)