State v. HancockÂ
248 N.C. App. 744
| N.C. Ct. App. | 2016|
Check Treatment IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1311
Filed: 2 August 2016
Union County, No. 11 CRS 50808
STATE OF NORTH CAROLINA
v.
BRIAN HANCOCK, Defendant.
Appeal by defendant from judgment entered 7 August 2015 by Judge W. David
Lee in Union County Superior Court. Heard in the Court of Appeals 11 May 2016.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly S.
Murrell, for the State.
Joseph P. Lattimore for defendant-appellant.
ELMORE, Judge.
Brian Hancock (defendant) appeals from the judgment and commitment
entered upon revocation of his probation. Because the evidence and the trial court’s
findings support revocation based on defendant’s violation of the regular condition of
probation in N.C. Gen. Stat. § 15A-1343(b)(1), we affirm.
I. Background
On 12 September 2012, defendant pleaded guilty to possession with intent to
sell or deliver (PWISD) cocaine, an offense he committed on 18 January 2011, prior
to the 1 December 2011 effective date of the Justice Reinvestment Act of 2011 (JRA).
STATE V. HANCOCK
Opinion of the Court
See N.C. Sess. Laws 2011-192, §§ 1, 4 (June 23, 2011); see also N.C. Sess. Laws 2011-
412, § 2.5 (Oct. 15, 2011) (amending effective date in N.C. Sess. Laws 2011-192, §
4(d)). The trial court suspended defendant’s sentence of fifteen to eighteen months’
imprisonment and placed defendant on supervised probation for sixty months.
On 8 February 2013, a probation officer filed a violation report, alleging that
defendant had willfully violated the conditions of his probation as follows:
1. Condition of Probation “Not use, possess or control any
illegal drug or controlled substance . . .” in that
ON 02/07/2013, DURING A WARRANTLESS SEARCH OF
[DEFENDANT’S] RESIDENCE, THREE ROCKS OF
COCAINE, A SMALL AMOUNT OF MARIJUANA AND
DRUG PARAPHERNALIA WERE FOUND.
A subsequent violation report, filed 27 March 2013,1 charged defendant with
eleven willful violations, including the following:
10. Condition of Probation “Commit no criminal offense in
any jurisdiction” in that
THE DEFENDANT WAS CHARGED ON 02/07/2013 IN
UNION COUNTY ON CASE 13CR 050542 FOR THE
MISDEMEANOR POSSESSION OF DRUG
PARAPHERNALIA AND OF POSSESSION OF
MARIJUANA OF UP TO 1/2 OZ. . . .
11. Condition of Probation “Commit no criminal offense in
1It appears that a third violation report was filed 27 May 2015, alleging that defendant had “failed to
notify probation officer of his location, therefore making himself unavailable and has absconded.” The
record on appeal does not contain this document. Defendant represents to this Court that the 27 May
2015 violation “report could not be located in the trial court’s file” and notes that the trial court “did
not find a violation based on that allegation.” The hearing transcript reflects that the trial court
expressly declined to find the violation alleged in the 27 May 2015 report.
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STATE V. HANCOCK
Opinion of the Court
any jurisdiction” in that
ON 02/07/2013 IN UNION COUNTY THE DEFENDANT
WAS CHARGED ON 13CR 050542 WITH PWISD
COCAINE. . . .
The trial court held a violation hearing on 7 August 2015. The probation officer
who filed the 8 February 2013 and 27 March 2013 violation reports retired prior to
the hearing and did not attend. Defendant’s then-current probation officer read each
report’s allegations into the record. The officer further testified that defendant had
failed to report to him or contact the probation office at any time since defendant had
been assigned to the officer’s caseload. Counsel for defendant cross-examined the
officer but offered no evidence. After hearing from the parties, the trial court revoked
defendant’s probation and activated his suspended sentence. Defendant appeals.
II. Analysis
On appeal, defendant claims the trial court abused its discretion by revoking
his probation without a legal basis. The State concedes the error and asks this Court
to remand to the trial court for entry of an appropriate sanction short of revocation
pursuant to our holding in State v. Nolen, 228 N.C. App. 203, 206,743 S.E.2d 729
, 731 (2013). “This Court, however, is not bound by the State’s concession. The general rule is that stipulations as to the law are of no validity.” State v. Phifer,297 N.C. 216
, 226,254 S.E.2d 586
, 591 (1979) (citations omitted). Rather, it is the role of the
reviewing court to determine whether “a particular legal conclusion follows from a
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STATE V. HANCOCK
Opinion of the Court
given state of facts[.]” Id. (citations omitted). Therefore, notwithstanding the State’s
concession, we must review the record to determine whether the parties correctly
ascribe error to the trial court.
The following principles govern our review of a judgment revoking probation:
[A] proceeding to revoke probation is not a criminal
prosecution and is often regarded as informal or summary.
Thus, the alleged violation of a valid condition of probation
need not be proven beyond a reasonable doubt. Instead, all
that is required in a hearing of this character is 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.
Accordingly, the decision of the trial court is reviewed for
abuse of discretion.
State v. Murchison, 367 N.C. 461, 464,758 S.E.2d 356
, 358 (2014) (citations, quotation marks, and alterations omitted). A trial court abuses its discretion if its decision is “manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Maness,363 N.C. 261
, 279,677 S.E.2d 796
, 808 (2009). Moreover, erroneous findings may be disregarded as harmless if the trial court’s decision to revoke probation is supported by at least one properly-found violation. See State v. Belcher,173 N.C. App. 620
, 625,619 S.E.2d 567
, 570 (2005).
As the parties observe, this case is governed by the JRA, to wit:
[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
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STATE V. HANCOCK
Opinion of the Court
N.C. Gen. Stat. § 15A-1343(b)(3a); or (3) violates any
condition of probation after serving two prior periods of
[confinement in response to violation (CRV)] under N.C.
Gen. Stat. § 15A-1344(d2).
Nolen, 228 N.C. App. at 205, 743 S.E.2d at 730 (citing N.C. Gen. Stat. § 15A-1344(a)).
Here, because defendant committed his underlying offense prior to 1 December
2011, he was not subject to the JRA’s “absconding” condition of probation enacted in
N.C. Gen. Stat. § 15A-1343(b)(3a). Id. at 206, 743 S.E.2d at 731; see also State v. Hunnicutt,226 N.C. App. 348
, 354–55,740 S.E.2d 906
, 911 (2013) (noting that the
JRA initially made this provision “effective for probation violations occurring on or
after 1 December 2011[,]” but the “effective date clause was later amended, however,
to make the new absconding condition applicable only to offenses committed on or
after 1 December 2011”) (emphasis added). The record on appeal further shows that
defendant has served no prior CRVs under N.C. Gen. Stat. § 15A-1344(d2).
Therefore, the trial court was authorized to revoke defendant’s probation only upon
a finding that he committed a new criminal offense in violation of N.C. Gen. Stat. §
15A-1343(b)(1).
In announcing its ruling in open court, the trial court stated that “the
revocation is based on absconding,” and it explicitly found certain violations alleged
in the report filed 27 March 2013 as follows:
I am reasonably satisfied in my discretion that this
probationer has willfully and without lawful excuse
violated the terms and conditions of his probationary
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STATE V. HANCOCK
Opinion of the Court
sentence by testing positive for cocaine and marijuana, by
failing to complete any of his community service, by failing
to report to his probation officers as directed. That as of
March 11, 2013, the defendant had willfully avoided
supervision and was therefore an absconder; that again as
of March 26th, 2013, the defendant had willfully avoided
supervision as of that date and was an absconder. That he
has failed to obtain his substance abuse assessment, that
he has otherwise failed to report as directed. . . .
These findings correspond to paragraphs one, two, three, eight, and nine in the 27
March 2013 report.
In its written judgment, however, the trial court found additional violations
not included in its oral findings. Specifically, the court found that defendant willfully
violated his probation as alleged in the report filed 8 February 2013 and as alleged in
paragraphs ten and eleven of the report filed 27 March 2013.2 The written judgment
includes an additional finding that each violation found by the court was, “in and of
itself, a sufficient basis upon which [the court] should revoke probation and activate
the suspended sentence.” Moreover, it includes a finding that the court was
authorized to “revoke defendant’s probation . . . for the willful violation of the
condition(s) that he[ ] not commit any criminal offense, G.S. 15A-1343(b)(1), or
abscond from supervision, G.S. 15A-1343(b)(3a), as set out above.”
As previously stated, because defendant was a pre-JRA probationer he was not
subject to the “absconding” condition in N.C. Gen. Stat. § 15A-1343(b)(3a). Insofar as
2The court also found that defendant committed the violations alleged in paragraphs one through five
and seven through eleven of the 27 March 2013 report.
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STATE V. HANCOCK
Opinion of the Court
the trial court purported to revoke defendant’s probation on this basis, its ruling was
in error. However, “a trial court’s ruling must be upheld if it is correct upon any
theory of law[,] and thus it should not be set aside merely because the court gives a
wrong or insufficient reason for [it].” Opsahl v. Pinehurst Inc., 81 N.C. App. 56, 63,344 S.E.2d 68
, 73 (1986) (citation and internal quotation marks omitted).
Here, the court made findings in its written judgment that support its decision
to revoke defendant’s probation. In this circumstance, the written judgment is
controlling. See State v. Kerrin, 209 N.C. App. 72, 75,703 S.E.2d 816
, 818 (2011) (concluding that “the trial court was not required to announce all of the findings and details of its judgment in open court”); State v. Williamson,61 N.C. App. 531
, 533– 34,301 S.E.2d 423
, 425 (1983) (“The minimum requirements of due process in a final
probation revocation hearing” require “a written judgment by the judge which shall
contain (a) findings of fact as to the evidence relied on, [and] (b) reasons for revoking
probation.”).
Of the several violations found by the trial court, defendant was subject to
revocation only for committing a new crime in violation of N.C. Gen. Stat. § 15A-
1343(b)(1). The court found that defendant violated N.C. Gen. Stat. § 15A-1343(b)(1)
as alleged in paragraphs ten and eleven of the 27 March 2013 report. Defendant
contests this finding, arguing that the State failed to present any evidence that he
committed the criminal offenses alleged in paragraphs ten and eleven. Yet, the 27
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STATE V. HANCOCK
Opinion of the Court
March 2013 violation report alleged the following probation violations:
10. Condition of Probation “Commit no criminal offense in
any jurisdiction” in that
THE DEFENDANT WAS CHARGED ON 02/07/2013 IN
UNION COUNTY ON CASE 13CR 050542 FOR THE
MISDEMEANOR POSSESSION OF DRUG
PARAPHERNALIA AND OF POSSESSION OF
MARIJUANA OF UP TO 1/2 OZ. . . .
11. Condition of Probation “Commit no criminal offense in
any jurisdiction” in that
ON 02/07/2013 IN UNION COUNTY THE DEFENDANT
WAS CHARGED ON 13CR 050542 WITH PWISD
COCAINE. . . .
See N.C. Gen. Stat. § 15A-1343(b)(1) (2015); see also N.C. Gen. Stat. §§ 90-95(a)(1),
(3), (b)(1), (d)(4), 90-113.22 (2015).
As defendant observes, the mere fact that he was charged with certain criminal
offenses is insufficient to support a finding that he committed them. State v. Lee, 232
N.C. App. 256, 260,753 S.E.2d 721
, 723 (2014). However, a defendant need not be
convicted of a criminal offense in order for the trial court to find that a defendant
violated N.C. Gen. Stat. § 15A-1343(b)(1) by committing a criminal offense. We have
previously stated,
Under the Justice Reinvestment Act, a defendant’s
probation is subject to revocation if he violates the normal
condition of probation that he “[c]ommit no criminal offense
in any jurisdiction.” N.C. Gen. Stat. § 15A-1343(b)(1)
(2011). A conviction by jury trial or guilty plea is one way
for the State to prove that a defendant committed a new
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STATE V. HANCOCK
Opinion of the Court
criminal offense. The State may also introduce evidence
from which the trial court can independently find that the
defendant committed a new offense.
Lee, 232 N.C. App. at 259, 753 S.E.2d at 723 (internal citations omitted). Moreover, by alleging a violation of the condition requiring him to “[c]ommit no criminal offense in any jurisdiction[,]” paragraphs ten and eleven of the 27 March 2013 report “put defendant on notice that the State was alleging a revocation-eligible violation[.]”Id. at 260,
753 S.E.2d at 723.
We conclude that the trial court made an independent determination that
defendant committed the three offenses he was charged with on 7 February 2013 in
13 CR 050542, as alleged in paragraphs ten and eleven of the 27 March 2013 violation
report. The court made this determination by finding that defendant committed the
violation alleged in the 8 February 2013 report. The 8 February 2013 report alleged
that defendant willfully violated the condition of probation in N.C. Gen. Stat. § 15A-
1343(b)(15) based on the following facts:
ON 02/07/2013, DURING A WARRANTLESS SEARCH OF
[DEFENDANT’S] RESIDENCE, THREE ROCKS OF
COCAINE, A SMALL AMOUNT OF MARIJUANA AND
DRUG PARAPHERNALIA WERE FOUND.
The sworn violation report constitutes competent evidence sufficient to support the
trial court’s finding that defendant committed this violation. See State v. High, 183
N.C. App. 443, 449,645 S.E.2d 394
, 397–98 (2007)).
Given the informal nature of a probation revocation proceeding, Murchison,
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STATE V. HANCOCK
Opinion of the Court
367 N.C. at 464, 758 S.E.2d at 358, the trial court was entitled to infer that the
discovery of the “three rocks of cocaine, a small amount of marijuana and drug
paraphernalia” during the warrantless search of defendant’s residence on 7 February
2013 gave rise to the criminal charges “for the misdemeanor possession of drug
paraphernalia and of [sic] possession of marijuana up to 1/2 oz”3 and “PWISD cocaine”
filed against defendant the same day. (All caps omitted.)
III. Conclusion
Accordingly, the trial court’s finding that defendant committed the violation
alleged in the 8 February 2013 report supports its finding that he committed three of
the criminal offenses alleged in paragraphs ten and eleven of the 27 March 2013
report. As defendant does not contest the finding that he willfully violated his
probation as alleged in the 8 February 2013 report, he cannot show that the trial
court’s decision to revoke his probation was legally erroneous, unsupported by the
evidence, or manifestly unreasonable.
AFFIRMED.
Judges McCULLOUGH and INMAN concur.
3 Because possession of one-half ounce or less of marijuana is a Class 3 misdemeanor, see N.C. Gen.
Stat. § 90-95(a)(3), (d)(4) (2015), defendant’s probation could not be revoked “solely” for committing
this offense. N.C. Gen. Stat. § 15A-1344(d) (2015).
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