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State v. Morgan

Court of Appeals of North Carolina

April 17, 2018

STATE OF NORTH CAROLINA
v.
BILLY DEAN MORGAN

          Heard in the Court of Appeals 2 October 2017.

          Appeal by defendant by petition for writ of certiorari from judgments entered 9 September 2016 by Judge Jeffrey P. Hunt in McDowell County No. 13 CRS 50520 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Brenda Eaddy, for the State.

          The Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for defendant-appellant.

          CALABRIA, JUDGE.

         Billy Dean Morgan ("defendant") appeals by petition for writ of certiorari from judgments (1) revoking his probation and activating his suspended sentences; and (2) imposing costs and attorneys' fees. After careful review, we affirm the revocation of defendant's probation. However, since defendant was not given notice and an opportunity to be heard as to the final amount of attorneys' fees that would be entered against him, we vacate the civil judgment entered pursuant to N.C. Gen. Stat. § 7A-455 (2017) and remand to the trial court.

         I. Background

         On 28 August 2013, defendant pleaded no contest in McDowell County Superior Court to two counts of assault with a deadly weapon inflicting serious injury. The trial court sentenced defendant to two consecutive terms of 29-47 months in the custody of the North Carolina Division of Adult Correction. Pursuant to the terms of defendant's plea agreement, the trial court suspended his active sentences and placed him on 36 months of supervised probation.

         On 12 May 2016, defendant's supervising officer ("Officer Poteat") filed reports alleging that defendant had willfully violated his probation by (1) failing to report as directed; (2) failing to pay his court and (3) supervision fees; and (4) committing a new criminal offense by incurring misdemeanor charges on 17 February 2016 for violating a domestic violence protective order ("DVPO"). An arrest warrant for a felony probation violation was issued that day. On 23 May 2016, Officer Poteat filed additional violation reports alleging that defendant had willfully absconded supervision. On 17 June 2016, defendant was arrested for violating his probation.

         After defendant's probation expired on 28 August 2016, the trial court held a probation violation hearing on 9 September 2016. At the beginning of the hearing, defendant admitted the allegations in the State's violation reports. When Officer Poteat subsequently testified for the State, he explained that defendant was admitted to Grace Hospital's mental health ward on 29 March 2016. After defendant failed to make himself available for supervision following his release from the hospital on 19 April 2016, Officer Poteat filed violation reports for absconding. In addition, Officer Poteat testified that defendant had been convicted of the DVPO violation "just two weeks ago."[1] Defendant's appointed attorney contended that his recent noncompliance with probation was related to his mental health concerns.

         After hearing from both parties, the trial court revoked defendant's probation "for absconding and for the conviction" and activated his suspended sentences. Before concluding the hearing, the trial court stated that a civil judgment would be entered for defendant's costs and fees.

         II. Petition for Writ of Certiorari

         On 16 September 2016, defendant filed a handwritten, pro se "Inmate Grievance/Request Form" with the McDowell County Jail stating, inter alia, that "[t]he Clerk of Supperior [sic] Court said this Notice of appeal must come to her. I wrote my appeal on Sep 10-16 why was this appeal gave back to me on 9-13-16." The record contains no other purported notice of appeal, and defendant's Inmate Grievance/Request Form is ineffective to serve that purpose. Defendant fails to "designate the judgment or order from which appeal is taken and the court to which appeal is taken[, ]" and there is no evidence that the document was served upon the State. N.C. R. App. P. 3 (d)-(e); N.C. R. App. P. 4(b)-(c).

         Despite his defective notice of appeal, on 30 May 2017, defendant filed a petition for writ of certiorari with this Court requesting review of the criminal and civil judgments entered by the trial court. Since it is evident from the Inmate Grievance/Request Form that defendant intended to appeal, in our discretion, we grant defendant's petition for writ of certiorari and proceed to the merits of his appeal. See N.C. R. App. P. 21(a)(1) (providing that "[t]he writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action").

         III. Probation Revocation

         "[O]ther than as provided in N.C. Gen. Stat. § 15A-1344(f), a trial court lacks jurisdiction to revoke a defendant's probation after the expiration of the probationary term." State v. Moore, 240 N.C.App. 461, 463, 771 S.E.2d 766, 767 (2015) (citing State v. Camp, 299 N.C. 524');">299 N.C. 524, 527, 263 S.E.2d 592, 594 (1980)). N.C. Gen. Stat. § 15A-1344(f) provides, in pertinent part:

The court may extend, modify, or revoke probation after the expiration of the period of probation if all of the following apply:
(1) Before the expiration of the period of probation the State has filed a written violation report with the clerk indicating its intent to conduct a hearing on one or more violations of one or more conditions of probation.
(2) The court finds that the probationer did violate one or more conditions of probation prior to the expiration of the period of probation.
(3) The court finds for good cause shown and stated that the probation should be extended, modified, or revoked.

N.C. Gen. Stat. § 15A-1344(f)(1)-(3).

         Following the enactment of the Justice Reinvestment Act of 2011 ("JRA"), trial courts may only revoke probation when a defendant (1) commits a new criminal offense in violation of N.C. Gen. Stat. § 15A-1343(b)(1); (2) willfully absconds supervision in violation of N.C. Gen. Stat. § 15A-1343(b)(3a); or (3) violates any condition of probation after serving two periods of confinement in response to violations under N.C. Gen. Stat. § 15A-1344(d2). N.C. Gen. Stat. § 15A-1344(a).

A hearing to revoke a defendant's probationary sentence only requires 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 or that the defendant has violated without lawful excuse a valid condition upon which the sentence was suspended. The judge's finding of such a violation, if supported by competent evidence, will not be overturned absent a showing of manifest abuse of discretion.

State v. Young, 190 N.C.App. 458, 459, 660 S.E.2d 574, 576 (2008) (citations and quotation marks omitted).

         On appeal, defendant first argues that the trial court erroneously revoked his probation after his 36-month probationary period expired on 28 August 2016, because the court failed to make any findings of "good cause" under N.C. Gen. Stat. § 15A-1344(f)(3). We disagree.

         Defendant's argument is nearly identical to the one this Court rejected in State v. Regan, ___ N.C. App. ___, 800 S.E.2d 436 (2017). Relying on State v. Love, 156 N.C.App. 309, 576 S.E.2d 709 (2003), the Regan defendant challenged the trial court's failure to make written or oral findings of good cause under N.C. Gen. Stat. § 15A-1344(f) before revoking her probation. Regan, ___ N.C. App. at ___, 800 S.E.2d at 440. However, we determined that Love was inapposite, because it involved a different statute that requires the trial court to make "specific findings that longer or shorter periods of probation are necessary" before sentencing an offender to a period of probation beyond those expressly authorized by the statute. Id. (quoting N.C. Gen. Stat. § 15A-1343.2(d) (2003)). We observed that unlike the statute at issue in Love, N.C. Gen. Stat. § 15A-1344(f) "does not require that the trial court make any specific findings." Id. (emphasis added). Rather, the statute merely authorizes the trial court to "extend, modify, or revoke" probation after the defendant's probationary term has expired if the court finds "good cause shown and stated" for doing so. Id. (quoting N.C. Gen. Stat. § 15A-1344(f)(3)).

         In Regan, we reasoned that "[t]he trial court complied with N.C. Gen. Stat. § 15A-1344(f)(3) by finding good cause to revoke" the defendant's probation because:

Remaining in North Carolina was a condition of Defendant's probation. Defendant testified that she left the jurisdiction in 2011. Reporting for office meetings with her probation officer as directed was also a condition of Defendant's probation. The State presented competent evidence, the sworn affidavit of Officer Wiley, that Defendant failed to report as directed on 5 April 2011. Defendant testified that she did not return to North Carolina because "after talking to Ms. Woods, I mean, frankly, it scared the hell out of me, so I didn't come back."

Id. In open court, the trial court announced that it found the defendant "in willful violation of the terms and conditions of her probation." Id. The court's judgments included written findings that "[e]ach violation is, in and of itself, a sufficient basis upon which this Court should revoke probation and activate the suspended sentence." Id. Accordingly, we concluded that "[b]oth the transcript of the probation violation hearing and the judgments entered reflect[ed] that the trial court considered the evidence and found good cause to revoke . . . probation." Id. at, 800 S.E.2d at 440-41.

         On appeal, defendant acknowledges Regan's holding but nevertheless asserts that "the only reasonable and proper interpretation" of N.C. Gen. Stat. § 15A- 1344(f)(3) "requires a trial court to make a specific finding of 'good cause shown and stated' in order to revoke probation . . . ." Yet, as defendant recognizes, we are bound by this Court's prior published opinions. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.").

         Alternatively, defendant argues that the trial court failed to comply with N.C. Gen. Stat. § 15A-1344(f)(3)-"even under the looser interpretation" set forth in Regan-because the judgments do not include findings that "[e]ach violation is, in and of itself, a sufficient basis upon which this Court should revoke probation and activate the suspended sentence." We disagree.

         The Regan defendant was placed on probation prior to the enactment of the JRA, when "trial courts had authority to revoke probation for a violation of any probation condition." State v. Moore, ___ N.C. ___, ___, 807 S.E.2d 550, 554 (2017). "After the JRA, by contrast, only violations of any of the three conditions specified in N.C. G.S. § 15A-1344(a) are revocation-eligible." Id. Accordingly, the finding in Regan would have been erroneous in the instant case, given that only two of defendant's violations could have supported revocation. Instead, the trial court's judgments include the more appropriate finding that "[t]he Court may revoke defendant's probation . . . for the ...


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