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State v. Moore

Supreme Court of North Carolina

December 8, 2017


          Heard in the Supreme Court on 11 October 2017.

         Appeal pursuant to N.C. G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, __ N.C.App. __, 795 S.E.2d 598 (2016), finding no error after appeal from judgments entered on 15 January 2016 by Judge R. Allen Baddour in Superior Court, Orange County.

          Joshua H. Stein, Attorney General, by Jessica V. Sutton and Teresa M. Postell, Assistant Attorneys General, for the State.

          Allegra Collins for defendant-appellant.

          MARTIN, Chief Justice.

         Defendant was convicted of committing four crimes over a two-month period. He received two suspended sentences and was placed on probation. His probation was revoked after he was charged with committing additional crimes. We now consider whether defendant received adequate notice of his probation revocation hearing pursuant to N.C. G.S. § 15A-1345(e). We modify and affirm the decision of the Court of Appeals and uphold the revocation of defendant's probation.

         In August 2012, defendant was arrested for and charged with breaking and entering and larceny after breaking and entering. Defendant was released on bond and then, in September 2012, was arrested for and charged with committing those same offenses again. Defendant pleaded guilty to the August crimes and entered an Alford plea for the September crimes. Defendant received a suspended sentence of eight to nineteen months and supervised probation for twenty-four months for the August crimes. He received a suspended sentence of six to seventeen months and supervised probation for twenty-four months for the September crimes. The punishments for these crimes were to run consecutively. The judgments in both instances listed many of the "regular conditions of probation" under N.C. G.S. § 15A-1343(b). The listed conditions included that "defendant shall . . . [c]ommit no criminal offense in any jurisdiction, " consistent with the language of N.C. G.S. § 15A-1343(b)(1).

         Defendant's probation for the September crimes was modified and extended a number of times due to violations of probation conditions. On 3 June 2015, the State filed two probation violation reports relating to defendant's probation for the August and September 2012 crimes, respectively. The reports alleged violations of monetary conditions of probation. Each report also alleged an "Other Violation" that listed various pending criminal charges. Specifically, under "Other Violation" the reports each stated the same thing:

The defendant has the following pending charges in Orange County. 15CR 051315 No Operators License 6/8/15, 15CR 51309 Flee/Elude Arrest w/MV 6/8/15. 13CR 709525 No Operators License 6/15/15, 14CR 052225 Possess Drug Paraphernalia 6/16/15, 14CR 052224 Resisting Public Officer 6/16/15, 14CR706236 No Motorcycle Endorsement 6/29/15, 14CR 706235 Cover Reg Sticker/Plate 6/29/15, and 14CR 706234 Reg Card Address Change Violation.

(Original in all uppercase.)

         In January 2016, after many months of continuances, the trial court held a hearing on these violation reports.[1] Defendant's probation officer testified about the new offenses alleged in the reports, and two police officers testified about defendant's fleeing to elude arrest two different times. The trial court found that defendant had violated the condition of probation to commit no criminal offense, and specifically found that defendant had "committed the charges of" fleeing to elude arrest and of not having an operator's license. The trial court accordingly revoked defendant's probation and activated the suspended sentences for defendant's August and September 2012 crimes, to be served consecutively.

         Defendant appealed to the Court of Appeals, claiming that the probation violation reports did not give him adequate notice because they did not specifically state the condition of probation that he allegedly violated. In a divided opinion, the Court of Appeals affirmed the trial court's judgments. State v. Moore, __ N.C. App.__, __, 795 S.E.2d 598, 600 (2016). The Court of Appeals concluded that the notice was adequate-that there was "no ambiguity"-because the allegations in the violation reports could point only to the revocation-eligible violation of the condition to commit no new criminal offense. Id. at__, 795 S.E.2d at 600. Defendant appealed to this Court based on the dissenting opinion in the Court of Appeals.

         Before revoking a defendant's probation, a trial court must conduct a hearing to determine whether the defendant's probation should be revoked, unless the defendant waives the hearing. N.C. G.S. § 15A-1345(e) (2015). "The State must give the probationer notice of the hearing and its purpose, including a statement of the violations alleged." Id. Probation can be revoked only if a defendant (1) commits a criminal offense in any jurisdiction in violation of N.C. G.S. § 15A-1343(b)(1); (2) absconds from supervision in violation of N.C. G.S. § 15A-1343(b)(3a); or (3) has already served two periods of confinement for violating other conditions of probation according to N.C. G.S. § 15A-1344(d2). Id. § 15A-1344(a) (2015). Only the first of these statutorily-enumerated instances-the commission of a criminal offense-is at issue here.

         Defendant argues that, because the probation violation reports did not specifically list the "commit no criminal offense" condition as the condition violated, the reports did not provide the notice that subsection 15A-1345(e) requires. We must address whether these reports complied with the statute's notice requirement. To do that, we need to examine what exactly that statutory provision means. This is a matter of first impression for this Court.

         "In resolving issues of statutory construction, this Court must first ascertain legislative intent to assure that both the purpose and the intent of the legislation are carried out. In undertaking this task, we look first to the language of the statute itself." Poole v. Miller, 342 N.C. 349, 351, 464 S.E.2d 409, 410 (1995) (citation omitted). "[O]rdinarily words of a statute will be given their natural, approved, and recognized meaning." Victory Cab Co. v. City of Charlotte, 234 N.C. 572, 576, 68 S.E.2d 433, 436 (1951).

         Subsection 15A-1345(e) provides that "[t]he State must give the probationer notice of the hearing and its purpose, including a statement of the violations alleged." Neither the term "violation" nor the term "violations, " as used in the statutory framework of which subsection 15A-1345(e) is a part, are defined by statute. Black's Law Dictionary defines "violation" as "1. An infraction or breach of the law; a transgression. . . . 2. The act of breaking or dishonoring the law; the contravention of a right or duty." Violation, Black's Law Dictionary (10th ed. 2014). Similarly, Merriam-Webster's Collegiate Dictionary defines "violation" as "the act of violating" and indicates in its definition of "violate" that "violating" means "break[ing]" or "disregard[ing]." Merriam-Webster's Collegiate Dictionary 1396 (11th ed. 2007). These definitions show that a violation is an action that violates some rule or law; a violation is not the underlying rule or law that was violated. In section 15A-1345, and hence in subsection 15A-1345(e), the words "violation" and "violations" refer to violations of conditions of probation. See, e.g., N.C. G.S. § 15A-1345(a) (2015) (discussing when "[a] probationer is subject to arrest for violation of conditions of probation"). It follows that the phrase "a statement of the violations alleged" refers to a statement of what a probationer did to violate his conditions of probation. It does not require a statement of the underlying conditions that were violated.

         "[I]n effectuating legislative intent, it is our duty to give effect to the words actually used in a statute and not to delete words used or to insert words not used." Lunsford v. Mills, 367 N.C. 618, 623, 766 S.E.2d 297, 301 (2014). Defendant would have us insert a requirement into the statute that simply is not there: one that requires the State to provide notice of the specific condition of probation that defendant allegedly violated. This approach would effectively add words to the statute so that the statute would read "a statement of the violations alleged and the conditions of probation allegedly violated." But the statute as it actually reads, without the italicized words, requires only a statement of the actions that violated the conditions, not of the conditions that those actions violated.

         Our straightforward interpretation is further supported by looking at the use of the word "violation" in N.C. G.S. § 15A-1344(a). This provision appears in the statute that directly precedes the statute in which subsection 15A-1345(e) appears and is part of the same statutory framework regarding probation. Subsection 15A-1344(a) pertains to the authority of trial courts to modify or revoke probation. In discussing when a court can revoke probation, the provision states that "[t]he court may only revoke probation for a violation of a condition of probation under" certain specified provisions. N.C. G.S. § 15A-1344(a) (emphasis added). So the word "violation" cannot be synonymous with the phrase "condition of probation, " because subsection 15A-1344(a) uses "condition of probation" to modify "violation." And that makes sense, because the phrase "condition of probation" is describing what was violated rather than the action that constituted the violation.

         This interpretation is also consistent with the notice provision's purpose. Just as with the notice provided by criminal indictments, see, e.g., State v. Russell, 282 N.C. 240, 243-44, 192 S.E.2d 294, 296 (1972), "[t]he purpose of the notice mandated by [ N.C. G.S. § 15A-1345(e)] is to allow the defendant to prepare a defense and to protect the defendant from a second probation violation hearing for the same act, " State v. Hubbard, 198 N.C.App. 154, 158, 678 S.E.2d 390, 393 (2009) (citing Russell, 282 N.C. at 243-44, 192 S.E.2d at 296). A statement of a defendant's alleged actions that constitute the alleged violation will give that defendant the chance to prepare a defense because he will know what he is accused of doing. He will also be able to determine the possible effects on his probation that those allegations could have, and he will be able to gather any evidence available to rebut the allegations. Our interpretation is therefore consistent with both the language of the statute and its purpose.

         The Court of Appeals in this case based its holding on, and the parties primarily argue over, a line of cases with which we disagree. Before the Justice Reinvestment Act (JRA) was enacted in 2011, the Court of Appeals correctly interpreted subsection 15A-1345(e) in State v. Hubbard, 198 N.C.App. 154, 678 S.E.2d 390 (2009). In Hubbard, the Court of Appeals held that the State had complied with the notice requirement because, "while the condition of probation which Defendant allegedly violated might have been ambiguously stated in the [violation] report, the report also set forth the specific facts that the State contended constituted the violation." Id. at 158, 678 S.E.2d at 394. "Defendant received notice of the specific behavior Defendant was alleged and found to have committed in violation of Defendant's probation." Id. at 159, 678 S.E.2d at 394. In other words, notice of the factual allegations-the specific behavior-that constituted the violation was enough.

         After the JRA was passed, however, the Court of Appeals began imposing an additional notice requirement that is not found in the text of subsection 15A-1345(e). Starting with State v. Tindall, 227 N.C.App. 183');">227 N.C.App. 183, 742 S.E.2d 272 (2013), the Court of Appeals began requiring that, when the State seeks to revoke a defendant's probation at a revocation hearing, the notice of the hearing provided by the State must indicate the revocation-eligible condition of probation that the defendant has allegedly violated. See id. at 187, 742 S.E.2d at 275. The Court of Appeals noted in Tindall that the JRA changed the law by making only some of the conditions of probation revocation-eligible instead of all of them. Id. at 185, 742 S.E.2d at 274; see also Justice Reinvestment Act of 2011, ch. 192, sec. 4(b), 2011 N.C. Sess. Laws 758, 767-68 (amending N.C. G.S. § 15A-1344(a)). The Court of Appeals then concluded that Hubbard did not apply because it was decided before the JRA changed the law. Tindall, 227 N.C.App. at 187, 742 S.E.2d at 275. The Court of Appeals reasoned that, after the JRA, a probationer needs to "receive[ ] notice that the alleged violation was the type of violation that could potentially result in a revocation of her probation." Id. at 187, 742 S.E.2d at 275.

         In State v. Kornegay, 228 N.C.App. 320');">228 N.C.App. 320, 745 S.E.2d 880 (2013), the Court of Appeals recognized that it was bound by Tindall and applied that decision. See id. at 323, 745 S.E.2d at 883. The Court of Appeals stated that, in order "[t]o establish jurisdiction over specific allegations in a probation revocation hearing, the defendant either must waive notice or be given proper notice of the revocation hearing, including the specific grounds on which his probation might be revoked." Id. at 324, 745 S.E.2d at 883 (emphasis added). The Court of Appeals later applied the Tindall and Kornegay line of cases in State v. Lee, 232 N.C.App. 256, 753 S.E.2d 721 (2014).

         But the JRA did not change the notice requirements for probation revocation hearings. So, to the extent that Tindall, Kornegay, and Lee created a new notice requirement not found in ...

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