in the Court of Appeals 2 October 2017.
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.
Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for
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.
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.
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.
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." Defendant's
appointed attorney contended that his recent noncompliance
with probation was related to his mental health concerns.
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
Petition for Writ of Certiorari
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).
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
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
(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).
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).
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.
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)).
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
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.
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
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
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 ...