in the Supreme Court on 8 April 2019.
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.
H. Stein, Attorney General, by Brenda Eaddy, Assistant
Attorney General, for the State.
Gerding, Appellate Defender, by Sterling Rozear, Assistant
Appellate Defender, for defendant-appellant.
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.
and Procedural Background
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.
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.
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."
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
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."
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
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 ...