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State v. Tincher

Court of Appeals of North Carolina

July 16, 2019

STATE OF NORTH CAROLINA
v.
JOSHUA ELIJAH TINCHER

          Heard in the Court of Appeals 24 April 2019.

          Appeal by Defendant from Judgments entered 16 April 2018 and 17 April 2018 by Judge Julia Lynn Gullett in Randolph County Nos. 06 CRS 51515, 51521; 18 CRS 77 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General David L. Gore, III, for the State.

          Michael E. Casterline for defendant-appellant.

          HAMPSON, JUDGE.

         Factual and Procedural Background

         Joshua Elijah Tincher (Defendant) appeals from Judgments revoking his probation. In addition, we grant Defendant's Petition for Writ of Certiorari to review the trial court's Order and Judgment holding him in Criminal Contempt. The Record before us shows the following:

         On 26 June 2006, Defendant was charged via two indictments. Under each indictment, in cases 06 CRS 51515 and 06 CRS 51521, Defendant was charged with Common Law Robbery and the Statutory Aggravating Factor of committing the offense while on pretrial release on another charge, 06 CRS 51525. On 26 February 2008, Defendant pleaded guilty to these and other charges. At the time the Judgments in question were entered, Defendant was serving an active sentence pursuant to the 06 CRS 51525 Judgment.

         In both the 06 CRS 51515 Judgment and the 06 CRS 51521 Judgment, the trial court sentenced Defendant to a minimum of 20 months and a maximum of 24 months' imprisonment and then suspended those sentences in favor of 36 months of supervised probation. In the event that Defendant violated his probation upon the expiration of the active sentence in the 06 CRS 51525 Judgment, the trial court indicated that prison sentences in both the 06 CRS 51515 Judgment and 06 CRS 51521 Judgment were to run consecutively with one another. Additionally, in the 06 CRS 51515 Judgment, the trial court indicated on the Judgment that the 36-month probationary period would begin at the expiration of the active sentence in the 06 CRS 51525 Judgment. However, in the 06 CRS 51521 Judgment, the trial court did not indicate when the 36-month probationary period would begin.

         On 8 February 2018, Defendant's Probation Officer, Catherine N. Russell (Officer Russell), filed two Probation-Violation Reports alleging multiple probation violations. As a result, on 16 April 2018, the trial court ultimately entered two Judgments revoking Defendant's probation in 06 CRS 51515 and 06 CRS 51521. In addition, as a result of Defendant's alleged conduct in open court following the probation-revocation proceeding, the trial court entered a Criminal-Contempt Order against Defendant, holding Defendant in Criminal Contempt and ordering him to serve 30 additional days in the custody of the North Carolina Department of Adult Correction. The trial court then entered a Criminal-Contempt Judgment requiring that the Criminal-Contempt sentence run consecutively with Defendant's other sentences upon his revoked probation.

         Issues

         The dispositive issues in this case are: (I) Whether the trial court lacked subject-matter jurisdiction to revoke Defendant's probation in 06 CRS 51521; and (II) Whether the trial court erred in summarily imposing Direct Criminal Contempt.

         Analysis

         I. Subject-Matter Jurisdiction

         Defendant contends the trial court lacked subject-matter jurisdiction to revoke his probation in the 06 CRS 51521 Judgment because the Probation-Violation Report was filed outside of the probationary period set out in that case. We agree.

         A. Standard of Review

         "[T]he issue of a court's jurisdiction over a matter may be raised at any time, even for the first time on appeal or by a court sua sponte." State v. Webber, 190 N.C.App. 649, 650, 660 S.E.2d 621, 622 (2008) (citation omitted). "It is well settled that a court's jurisdiction to review a probationer's compliance with the terms of his probation is limited by statute." State v. Reinhardt, 183 N.C.App. 291, 292, 644 S.E.2d 26, 27 (2007) (alteration, citation, and quotation marks omitted). "[A]n appellate court necessarily conducts a statutory analysis when analyzing whether a trial court has subject matter jurisdiction in a probation revocation hearing, and thus conducts a de novo review." State v. Satanek, 190 N.C.App. 653, 656, 660 S.E.2d 623, 625 (2008) (citation omitted). "Under a de novo review, the court considers the ...


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