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State v. Morgan

Supreme Court of North Carolina

August 16, 2019

STATE OF NORTH CAROLINA
v.
BILLY DEAN MORGAN

          Heard in the Supreme Court on 8 April 2019.

         Appeal pursuant to N.C. G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 814 S.E.2d 843 ( N.C. Ct. App. 2018), affirming in part and vacating and remanding in part judgments entered on 9 September 2016 by Judge Jeffrey P. Hunt in Superior Court, McDowell County.

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

          Glenn Gerding, Appellate Defender, by Sterling Rozear, Assistant Appellate Defender, for defendant-appellant.

          DAVIS, JUSTICE.

         The issue before us in this case is whether a trial court is permitted to revoke a defendant's probation after his probationary period has expired without making a finding of fact that good cause exists to do so under the circumstances. Because we conclude that such a finding is statutorily required, we reverse the decision of the Court of Appeals and remand this matter for further proceedings.

         Factual and Procedural Background

         On 20 May 2013, defendant Billy Dean Morgan was indicted by a McDowell County Grand Jury on two counts of assault with a deadly weapon inflicting serious injury. A hearing was held in Superior Court, McDowell County on 28 August 2013 before the Honorable J. Thomas Davis at which defendant pled no contest to those charges. The court sentenced him to consecutive terms of twenty-nine to forty-seven months of imprisonment, suspended the sentences, and placed him on supervised probation for thirty-six months.

         Defendant's probation officer, Christopher Poteat, filed violation reports on 12 May 2016 alleging that defendant had willfully violated the terms of his probation by (1) failing to report to Officer Poteat; (2) failing to pay money owed to the clerk of superior court; (3) failing to pay probation supervision fees; and (4) committing a new criminal offense. A warrant for defendant's arrest for felony probation violations was issued on that same date. On 23 May 2016, Officer Poteat filed an additional violation report in which he asserted that defendant had absconded his probation. Defendant was subsequently arrested for violating terms of his probation.

         Defendant's probationary term expired on 28 August 2016. Twelve days later, a hearing was held in Superior Court, McDowell County before the Honorable Jeffrey P. Hunt. At the hearing, defendant's counsel admitted that defendant had "violated probation by failing to report, failing to pay money and supervision fees, and being convicted of a new crime while on probation and absconding." Officer Poteat testified that defendant had missed two consecutive appointments with him in May 2015. He further stated that defendant "started going downhill" in October 2015 and "missed appointments on November 10, February 3, and February 29 that all had to be rescheduled."

         In addition, Officer Poteat testified that defendant had been admitted to Grace Hospital on 29 March 2016 and remained in that facility's mental health ward until 19 April. According to Officer Poteat, defendant did not contact him until 1 May, which was twelve days after his release from the hospital. On that date, Officer Poteat instructed defendant to report to him the following Wednesday. When defendant failed to show up for that appointment, Officer Poteat filed the 23 May probation violation report alleging that he had absconded.

         Defendant did not testify on his own behalf at the 9 September 2016 hearing, but his counsel informed the trial court that his mental health problems had worsened in May 2015 when his ten-year-old son was removed from his custody. Defense counsel further stated that defendant was able to comply with the terms of his probation when he was taking his medication. Defense counsel asked the court to grant a continuance to give defendant, who was then employed, a chance to pay his outstanding probation fees. In response, the trial court stated: "No, I am going to revoke his probation for absconding and for the conviction. He will do the sentences that were imposed by the original judgments."

         On that same date, the trial court entered judgments using AOC Form CR-607 revoking defendant's probation and activating his suspended sentences. The judgments contained the following pertinent findings:

The defendant is charged with having violated specific conditions of the defendant's probation as alleged in the . . . Violation Report(s) on file herein, which is incorporated by reference.
The condition(s) violated and the facts of each violation are as set forth . . . in Paragraph(s) 1 of the Violation Report or Notice dated 05/23/2016 [and] in Paragraph(s) 1-4 of the Violation Report or Notice dated 05/12/2016.
The Court may revoke defendant's probation . . . for the willful violation of the condition(s) that he/she not commit any criminal offense ...

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