State v. Wynn

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-337

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

STATE OF NORTH CAROLINA

v. Hertford County

No. 10 CRS 51612

QUAYSHAUN WYNN,

Defendant.

Appeal by defendant from judgment entered 10 December 2012

by Judge Cy A. Grant in Hertford County Superior Court. Heard

in the Court of Appeals 9 September 2013.

Attorney General Roy Cooper, by Assistant Attorney General

Carolyn McLain and Assistant Attorney General Kimberly N.

Callahan, for the State.

Yoder Law PLLC, by Jason Christopher Yoder, for defendant-

appellant.

GEER, Judge.

Defendant Quayshaun Wynn appeals from the trial court's

judgment revoking his probation and activating his suspended

sentence for conspiracy to commit robbery with a dangerous

weapon. On appeal, defendant primarily argues that the trial

court revoked his probation based upon an absconding condition

provided for in the Justice Reinvestment Act ("JRA") that,

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because of the effective date of the applicable JRA provision,

did not apply to defendant's probation.

We hold that even though the absconding provision of the

JRA did not apply to defendant's probation, the trial court

properly revoked defendant's probation based on his violation of

the probationary conditions that defendant not (1) change

residences without prior approval or (2) leave the jurisdiction

of the trial court without permission. Consequently, we affirm

the trial court's judgment, but remand for correction of a

clerical error.

Facts

On 8 February 2011, defendant pled guilty to conspiracy to

commit robbery with a dangerous weapon in Hertford County, North

Carolina. The trial court sentenced defendant to a presumptive-

range term of 20 to 33 months imprisonment, but suspended the

sentence and ordered defendant to serve six months active

imprisonment followed by 24 months of supervised probation. The

court ordered as a condition of probation that defendant report

as directed to the "Day Reporting Center" for 24 months.

On 7 March 2012, defendant's probation officer, Todd

Sellers, filed a verified probation violation report in Hertford

County alleging that defendant willfully violated the conditions

of his probation by (1) being $400.00 in arrears in payments on

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his case and (2) failing to report as directed to the Day

Reporting Center since October 2011. In addition, the report

alleged that defendant also committed the following probation

violations:

3. Condition of Probation ". . . obtain

prior approval from the officer for,

and notify the officer of, any change

in address . . ." in that

ON OR ABOUT 11/15/2011 OFFENDER LEFT

HIS PLACE OF RESIDENCE AT 104 WATFORD

PARK LN. AND FAILED TO MAKE IS [sic]

WHEREABOUTS KNOWN.

4. Condition of Probation "Remain within

the jurisdiction of the Court unless

granted written permission to leave by

the Court or the probation officer" in

that

OFFENDER ABSCONDED SUPERVISION AND HAS

FAILED TO REPORT OR GIVE A VALID

ADDRESS TO HIS PROBATION OFFICER SINCE

11/15/12.

At a 10 December 2012 hearing on the probation violation

report, defendant admitted the existence of the first two

violations alleged in the report but denied the existence of the

third and fourth violations. The probation officer who filed

the report, Mr. Sellers, did not testify at the hearing because

he had moved out of Hertford County. It appears, however, from

the transcript, that defendant's supervision was transferred to

Bertie County at some point.

In place of Mr. Sellers, the State presented the testimony

of Dessie Outlaw, a probation officer in Hertford County to whom

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defendant was assigned following his arrest in Plymouth, North

Carolina on a warrant for absconding from his probation. Ms.

Outlaw testified that when defendant was discovered in Plymouth,

he was supposed to be living at 104 Watford Park Lane in

Colerain, North Carolina, but he was not living at that address.

Ms. Outlaw testified that other than this basic information, she

only knew the information on the violation report since

defendant had not been assigned to her prior to being arrested

in Plymouth.

Defendant testified at the hearing that in April 2011, Mr.

Sellers gave defendant permission to move to Nags Head.

Defendant admitted that his last contact with Mr. Sellers was in

April 2011, although defendant claimed he tried to contact Mr.

Sellers at other times. According to defendant, Mr. Sellers

said he would transfer defendant's file to the appropriate

probation office in Nags Head, but he never did. Consequently,

defendant returned to Bertie County at some point in 2011 to

find out what was happening with his probation.

When defendant returned to Bertie County, he lived with his

mother at an address that defendant never provided to the

probation office. Defendant claimed that he went to the Bertie

County probation office to find Mr. Sellers, but Mr. Sellers was

never in the office.

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Defendant further testified that he most recently tried to

report to a probation officer in November 2012. Defendant

admitted he was arrested on 24 November 2012 at a traffic

checkpoint in Plymouth for absconding from probation. Defendant

had been in jail since his arrest.

At the conclusion of the hearing, the trial court ordered

defendant's probation revoked "for absconding." The same day,

10 December 2012, the trial court entered a judgment revoking

defendant's probation and activating defendant's sentence, with

credit for the active imprisonment defendant already served

under the prior split sentence. In its judgment, using the form

AOC-CR-607, Rev. 12/12, entitled "JUDGMENT AND COMMITMENT UPON

REVOCATION OF PROBATION -- FELONY (STRUCTURED SENTENCING) (For

Revocation Hearings On Or After Dec. 1, 2011)," the court found

that defendant violated his probation based on all four

violations alleged in the probation violation report. We have

granted defendant's petition for writ of certiorari seeking

review of the trial court's judgment revoking defendant's

probation.

I

Defendant first contends that the trial court erred in

revoking his probation for "absconding" because the absconding

condition of probation only came into existence with the

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enactment of the JRA, and the JRA is inapplicable to defendant's

probation. Defendant further claims he was not given notice

that the new absconding provision applied to his probation.

This Court has previously recognized that

for 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) [(2011)]; (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 [confinement in response to

violations ("CRV")] under N.C. Gen. Stat. §

15A–1344(d2) [(2011)]. See N.C. Gen. Stat.

§ 15A–1344(a). For all other probation

violations, the JRA authorizes courts to

alter the terms of probation pursuant to

N.C. Gen. Stat. § 15A–1344(a) or impose a

CRV in accordance with N.C. Gen. Stat. §

15A–1344(d2), but not to revoke probation.

Id.

State v. Nolen, ___ N.C. App. ___, ___, 743 S.E.2d 729, 730

(2013).

Further, "the JRA made the following a regular condition of

probation: 'Not to abscond, by willfully avoiding supervision or

by willfully making the defendant's whereabouts unknown to the

supervising probation officer.'" State v. Hunnicutt, ___ N.C.

App. ___, ___, 740 S.E.2d 906, 910 (2013) (quoting N.C. Gen.

Stat. § 15A–1343(b)(3a)). Following amendments to the JRA, "the

new absconding condition [is] applicable only to offenses

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committed on or after 1 December 2011, while the limited

revoking authority [is] effective for probation violations

occurring on or after 1 December 2011." Id. at ___, 740 S.E.2d

at 911.

Defendant correctly asserts that the new absconding

condition provided for in the JRA does not apply to his

probation, since his probation was based upon an offense

committed on 28 September 2010. We, however, disagree with

defendant's contention that since he was not subject to the new

absconding condition, the trial court's revocation of his

probation "for absconding" was necessarily invalid.

In Hunnicutt, as here, the defendant argued that the trial

court erred in activating his sentence on the grounds that he

"'absconded by willfully avoiding supervision'" since "no such

condition was ever imposed upon him, . . . he had no notice of

such a condition, and . . . the trial court had no authority to

impose any condition prohibiting 'absconding by willfully

avoiding supervision.'" Id. at ___, 740 S.E.2d at 910. The

violation report at issue in Hunnicutt alleged:

"Of the conditions of probation imposed in

[the] judgment, the defendant has willfully

violated:

1. Condition of Probation 'Report as

directed by the Court or the probation

officer to the officer at reasonable times

and places . . .' in that THE DEFENDANT

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FAILED TO REPORT TO HIS SUPERVISING OFFICER

AS DIRECTED ON 11/10/2011 AND 11/21/2011.

2. Condition of Probation 'Remain within the

jurisdiction of the Court unless granted

written permission to leave by the Court or

the probation officer' in that DESPITE

NUMEROUS ATTEMPTS BY THE SUPERVISING

OFFICER, THE DEFENDANT REFUSES TO REPORT AS

DIRECTED AND DOES NOT RESPOND TO CONTACT

NOTICES LEFT BY THE SUPERVISING OFFICER.

THE DEFENDANT HAS RENDERED HIMSELF

UNAVAILABLE FOR SUPERVISION."

Id. at ___, 740 S.E.2d at 911.

At the conclusion of the revocation hearing, the trial

court in Hunnicutt found that the defendant's probation officer

called the defendant on a certain date, and the defendant hung

up on her; that on a different date, the defendant reported to

the probation office on a day he was supposed to report, but at

an improper time; and that on the latter day, the defendant left

the office on his own despite being told to wait by the

probation officer until the officer finished a meeting. Id. at

___, 740 S.E.2d at 912.

On appeal, this Court held that neither the JRA's limited

revoking authority nor the new absconding condition applied to

the defendant because "both the offenses and the probation

violations at issue occurred prior to 1 December 2011." Id. at

___, 740 S.E.2d at 911. The Court then turned to the

defendant's contention that the trial court necessarily relied

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upon the new absconding condition in revoking his probation

given the trial court's statements at the hearing that the

defendant "'did abscond'" and that "'[i]t's not that he made his

whereabouts unknown, it's that he absconded by willfully

avoiding supervision.'" Id. at ___, 740 S.E.2d at 911. The

defendant further noted that the trial court checked the box on

the Administrative Office of the Courts form judgment that

stated the defendant had "'abscond[ed] from supervision'

pursuant to 'G. S. 15A–1343(b)(3a).'" Id. at ___, 740 S.E.2d at

911.

This Court rejected the argument that the trial court's

references to absconding and the AOC form showed the trial court

improperly relied upon the new, inapplicable absconding

condition of the JRA when revoking the defendant's probation,

explaining:

Although N.C. Gen. Stat. § 15A–

1343(b)(3a) introduced the term "abscond"

into our probation statutes for the first

time, the term "abscond" has frequently been

used when referring to violations of the

longstanding statutory probation conditions

to "remain within the jurisdiction of the

court" or to "report as directed to the

officer." See, e.g., State v. Brown, ___

N.C. App. ___, 731 S.E.2d 530 (2012); State

v. High, 183 N.C. App. 443, 645 S.E.2d 394

(2007); State v. Coffey, 74 N.C. App. 137,

327 S.E.2d 606 (1985). Both are regular

conditions of probation under N.C. Gen.

Stat. § 15A–1343 and, therefore, "are in

every circumstance valid conditions of

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probation." N.C. Gen. Stat. § 15A–1342(g)

(2011).

Id. at ___, 740 S.E.2d at 911. The Court observed that the

defendant "had notice of his obligation to 'remain within the

jurisdiction of the court' and to 'report as directed to the

[probation] officer'" based on the language providing for those

conditions in the defendant's original judgment suspending

sentence. Id. at ___, 740 S.E.2d at 911.

This Court in Hunnicutt then held that "[d]espite its

colloquial and perhaps imprecise usage of the term 'abscond,' it

is clear from the record that the trial court activated

Defendant's sentence on the basis of [the probation officer's]

testimony explaining the circumstances surrounding the

violations listed in the reports." Id. at ___, 740 S.E.2d at

912. Accordingly, the Court rejected the defendant's argument

"that the trial court retroactively engrafted the condition

created by the JRA onto his existing probation conditions." Id.

at ___, 740 S.E.2d at 912.

Here, the third alleged violation in the report was that

defendant failed to "'obtain prior approval from the officer

for, and notify the officer of, any change in address'" when he

left his residence of record on 15 November 2011 and failed to

make his whereabouts known to his probation officer after that

date. Since the alleged violation occurred prior to 1 December

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2011, the JRA's limited revoking authority did not apply to that

violation.

Defendant does not dispute that his original judgment

suspending sentence provided as a condition of probation that he

"obtain prior approval from the officer for, and notify the

officer of, any change in address." We believe that the

reasoning of Hunnicutt applies to this violation, and that the

trial court's statement that defendant's probation was revoked

for "absconding" was a reference to the third alleged violation

in the report. See High, 183 N.C. App. at 445, 645 S.E.2d at

395 (referring to probation violation report allegation that

"'[o]n or about 6–13–03 the defendant left his residence . . .

in Knightdale and has failed to make himself available for

supervision or notify his probation officer of his whereabouts'"

as allegation that defendant "violated his probation by

absconding").

Turning to the fourth alleged violation, the 7 March 2012

report alleged that defendant failed to "'[r]emain within the

jurisdiction of the Court unless granted written permission to

leave by the Court or the probation officer'" since defendant

"ABSCONDED" supervision and had failed to give his probation

officer a valid address "SINCE 11/15/12." In other words, the

report, which was filed in March 2012, alleged that defendant

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had violated his probation eight months in the future in

November 2012. Although defendant argues that the report should

be read as referring to a 2012 violation, obviously, the

reference to 2012 is a typographical error. Comparing the

allegations in the third alleged violation and in the fourth

violation, it appears that the probation officer intended the

fourth violation to have the same date as the third violation,

15 November 2011.

Indeed, defendant himself testified that he failed to

contact any probation officer after April 2011 and moved back to

Bertie County, to an address not known to his probation officer,

at some point in 2011. Defendant's testimony thus also

indicates that the trial court and the parties all understood

the fourth alleged violation to refer to a violation in November

2011 and not November 2012. Under these circumstances, we

conclude that the fourth alleged violation, actually referring

to a violation on 15 November 2011, was also not subject to the

JRA's limited revoking authority.

Defendant nonetheless cites State v. Jarman, 140 N.C. App.

198, 535 S.E.2d 875 (2000), in support of his argument that we

should interpret the probation violation report, and the

proceedings based upon it, as providing for an alleged violation

in November 2012 that was subject to the court's limited

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revoking authority. In Jarman, this Court explained that

"[w]here there has been uncertainty in whether an error was

'clerical,' the appellate courts have opted to 'err on the side

of caution and resolve [the discrepancy] in the defendant's

favor.'" Id. at 203, 535 S.E.2d at 879 (first alteration added)

(quoting State v. Morston, 336 N.C. 381, 410, 445 S.E.2d 1, 17

(1994)).

Jarman, however, provides no authority for defendant's

argument that this court is bound to interpret the alleged

fourth violation of the report, as incorporated by reference

into the trial court's judgment revoking probation, without

taking into account the date listed for the factually similar

third alleged violation, the filing date of the report, and

defendant's own testimony at trial. We do not believe, given

the entire record, that there is any uncertainty regarding

whether there was a typographical error as to the date of the

fourth violation alleged in the report.

Given the fourth violation occurred in November 2011, under

Hunnicutt, we believe the trial court's reference in the hearing

to "absconding" expressed the court's intent to revoke based on

the fourth, as well as the third, violation. As with the third

violation, defendant does not dispute that his original judgment

suspending sentence required defendant to "[r]emain within the

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jurisdiction of the Court unless granted written permission to

leave by the Court or the probation officer."

In sum, we hold that the trial court's reference to

"absconding" does not show that the court improperly revoked

defendant's probation based on the JRA's new absconding

provision. Further, defendant had notice of the conditions for

which his probation was revoked.

However, the court's judgment revoking probation

incorporates the four paragraphs of the violation report by

reference, including the error regarding the date of the fourth

violation. Accordingly, we must remand the judgment to the

trial court to correct the clerical error in the date of the

violation, found by the court, based upon the fourth paragraph

in the report. See State v. Smith, 188 N.C. App. 842, 845, 656

S.E.2d 695, 696 (2008) ("When, on appeal, a clerical error is

discovered in the trial court's judgment or order, it is

appropriate to remand the case to the trial court for correction

because of the importance that the record 'speak the truth.'"

(quoting State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d

781, 784 (1999))).

II

Defendant next contends that the trial court abused its

discretion in revoking his probation. When the trial court's

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findings that a defendant violated his probation are supported

by competent evidence, we review the court's decision to revoke

the defendant's probation for an abuse of discretion. State v.

Young, 190 N.C. App. 458, 459, 660 S.E.2d 574, 576 (2008).

The verified violation report in this case provided

competent evidence from which the trial court could find that

defendant left his residence of record on 15 November 2011 and

subsequently failed to make his whereabouts known to his

probation officer. See State v. Gamble, 50 N.C. App. 658, 661,

274 S.E.2d 874, 876 (1981) ("Defendant's allegation that the

State presented no evidence is erroneous, because introduction

of the sworn probation violation report constituted competent

evidence sufficient to support the order revoking his

probation.").

In addition, defendant testified that he last successfully

contacted Mr. Sellers in April 2011 and that he moved from Nags

Head to Bertie County later that year. Defendant admitted that

he never provided his new Bertie County address to his probation

officer. Thus, the report and defendant's testimony constituted

competent evidence that defendant violated his probation by

moving from Nags Head to Bertie County without prior approval

and failing to keep his probation officer aware of his

whereabouts.

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Moreover, with respect to the court's decision to revoke

defendant's probation, defendant admitted to violating his

probation by being in arrears with respect to court indebtedness

in the amount of $400.00 and by failing to attend the Day

Reporting Center as directed since October 2011. Following the

presentation of evidence, the trial court further questioned

defendant about why he left Nags Head and returned to Bertie

County in 2011, and the court indicated that it did not believe

defendant's story that defendant returned in order to check on

his probation and, yet, never turned himself in for absconding.

Indeed, as the trial court noted, defendant admitted that he

never actually made contact with his probation officer after

April 2011, and defendant was out of touch with the probation

office until he was arrested for absconding from probation in

November 2012 at a traffic checkpoint in Plymouth.

Defendant nonetheless cites State v. Boone, ___ N.C. App.

___, 741 S.E.2d 371 (2013), in support of his argument that the

court abused its discretion in revoking his probation. There,

the defendant's probation officer "filed a violation report

alleging that defendant had willfully violated his probation by

failing to complete any of his community service, being $700 in

arrears of his original balance, and being $150 in arrears of

his supervision fee." Id. at ___, 741 S.E.2d at 371-72. On

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appeal, the defendant argued "there was no evidence presented

that he violated the terms of his probation because the State

failed to present evidence of a payment plan and schedule for

community service . . . ." Id. at ___, 741 S.E.2d at 372.

This Court agreed and reversed the judgment revoking the

defendant's probation since the judgment suspending sentence

left the schedule for payment of fees and community service to

be set by the probation officer, the officer never testified to

any schedule for the fees or community service, and, at the time

of the violation report, six months remained on the defendant's

probation. Id. at ___, 741 S.E.2d at 372.

Defendant argues here, similarly, that "the State never

established a schedule for reporting or any evidence that he

failed to report to his probation officer" and "never cited a

single instance that [defendant] was asked to report or was

asked to provide a valid address to his probation officer."

However, in this case, defendant's original judgment suspending

sentence required defendant to "obtain prior approval" for any

change in address and "[r]emain within the jurisdiction of the

Court unless granted written permission to leave." Thus, unlike

the original judgment in Boone, the judgment here specifically

provides that defendant must obtain prior approval when changing

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his address or leaving the jurisdiction; no further "schedule"

was necessary.

Defendant also argues that because of the clerical error in

the fourth alleged violation in the report, the verified report

could not constitute competent evidence supporting the court's

revocation of his probation and must be treated as an unverified

report. However, defendant does not cite any authority, and we

have found none, supporting defendant's contention.

Although defendant further challenges the testimony of Ms.

Outlaw as based upon hearsay and as insufficient to support the

court's findings, his hearsay argument was not made below and is

therefore not preserved for appeal. See N.C.R. App. P.

10(a)(1). In any event, the other competent evidence -- the

verified report and defendant's own testimony -- supported the

court's findings and judgment. The trial court did not,

therefore, abuse its discretion in revoking defendant's

probation.

Affirmed in part; remanded in part.

Chief Judge MARTIN and Judge STROUD concur.

Report per Rule 30(e).