in the Court of Appeals 28 November 2018.
by defendant from judgment entered 8 February 2018 by Judge
Albert D. Kirby in New Hanover County Superior Court No.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Daniel P. O'Brien and Assistant Attorney General
Amy Bircher, for the State.
A. Bakale-Wise for defendant-appellant.
Christopher Newsome ("Defendant") appeals from a
judgment revoking his probation and activating his suspended
sentence. On appeal he argues that the trial court abused its
discretion when it revoked his probation. We affirm in part
and remand in part.
and Procedural Background
April 15, 2015, Defendant was arrested for felony possession
of cocaine and misdemeanor open container of alcohol.
Pursuant to a plea arrangement with the State on May 21,
2015, Defendant pleaded guilty to possession of cocaine. The
State agreed not to pursue an habitual felon indictment and
dismissed the open container charge. Defendant received a ten
to twenty-one month suspended sentence and was placed on
probation for eighteen months.
probation officers filed multiple violation reports due to
Defendant's willful failure to comply with the terms and
conditions of his probation. On October 28, 2016,
Defendant's probation officer filed a violation report,
alleging that Defendant had been charged with driving while
impaired on June 11, 2015, and resisting a public officer and
intoxicated and disruptive on October 1, 2016. The violation
report also alleged that Defendant had failed to pay over $2,
000.00 in court-ordered fees. In April 2017, Defendant's
probation was modified and extended for an additional twelve
months only for his failure to comply with the monetary terms
of his probation.
7, 2017, Defendant's probation officer filed a second
violation report, alleging that Defendant had absconded by
willfully avoiding supervision or willfully making his
whereabouts unknown on July 5. The report also alleged that
Defendant had refused to make himself available for
supervision "after numerous attempts to contact the
Defendant at the last known address;" had tested
positive for PCP on May 10; had failed to report for office
visits as instructed on May 9 and June 6; and had failed to
pay his monetary obligation. Defendant was arrested after the
July 7 violation report was filed, and he remained in custody
until he posted bond on August 30.
had been instructed to make contact with the probation office
within 72 hours of his release from custody. Defendant had
failed to contact his probation officer or the probation
office after his release from custody. The probation officer
had attempted to locate Defendant by calling him and visiting
his residence. After observing Defendant enter his residence
in September 2017, the probation officer went to
Defendant's door, introduced herself as Defendant's
probation officer, and spoke with Defendant's mother.
Defendant's mother informed the probation officer that
Defendant was not at home.
September 22, 2017, his probation officer filed an Addendum
that alleged Defendant had absconded when he failed to report
to the probation office within 72 hours of his release from
custody on August 30. Defendant testified at his probation
hearing that he did in fact go to the probation office as
instructed and that he was not the person the probation
officer had seen enter his residence. However, the trial
court found that Defendant's testimony was not credible.
In fact, the trial court found that "there is such a
disparity - in the testimony - I mean, it's almost -
almost - you're reciting something that's complete
opposite from what [the probation officer] testified
February 8, 2018, the trial court found that Defendant had
willfully violated the terms and conditions of his probation
set forth in both the July 7 and September 22, 2017 violation
reports, and that Defendant's probation could be revoked
pursuant to N.C. Gen. Stat. § 15A-1343(b)(3a) for
willfully absconding. The trial court activated
Defendant's suspended sentence.
appeals, but failed to comply with the requirements of Rule 4
of the Rules of Appellate Procedure. Defendant filed a
petition for writ of certiorari to address his defective
notice of appeal. In our ...