Opinion
No. COA12–1196.
2013-06-18
STATE of North Carolina v. Carl Douglas HILLIARD, Defendant.
Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant Attorney General, for the State. Irons & Irons, P.A., by Ben G. Irons, II, for defendant-appellant.
Appeal by defendant from judgment entered 29 May 2012 by Judge Milton F. Fitch, Jr. in Edgecombe County Superior Court. Heard in the Court of Appeals 12 March 2013. Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant Attorney General, for the State. Irons & Irons, P.A., by Ben G. Irons, II, for defendant-appellant.
DAVIS, Judge.
Carl Douglas Hilliard (“defendant”) appeals from the trial court's judgment revoking his probation and activating his sentence. After careful review, we affirm.
Factual Background
On 8 March 2010, defendant was indicted for maintaining a vehicle for the purpose of keeping or selling a controlled substance as well as possession with intent to sell and deliver marijuana. On 11 May 2010, in exchange for the State's agreement not to prosecute the charge of maintaining a vehicle for the purpose of keeping or selling a controlled substance, defendant pled guilty to the charge of possession with intent to sell and deliver marijuana. The trial court sentenced defendant to a presumptive range term of six to eight months imprisonment, suspended the sentence, and placed defendant on supervised probation for a period of 24 months.
Beginning in February 2012, defendant's probation officer filed three probation violation reports alleging that defendant had failed to comply with certain conditions of his probation. The first report, filed 20 February 2012, alleged that defendant (1) was in arrears on his court debt; (2) was in arrears on his supervision fees; and (3) had failed to comply with the trial court's condition that he complete his GED by the end of 2011. The second violation report, filed 22 February 2012, alleged that defendant—in violation of the condition of his probation that he not use any illicit drugs—had tested positive for marijuana. The final violation report, filed 20 March 2012, alleged that defendant had absconded from supervision.
A hearing on the probation violation reports was initially scheduled for 26 March 2012, but the matter was continued until 29 May 2012. The transcript from the 29 May 2012 hearing provides, in its entirety, as follows:
[PROSECUTOR:] Mr. Hilliard, Mr. Muse.
[DEFENSE COUNSEL:] Carl Hilliard, come up, Mr. Hilliard. Here's your file, Steve.
THE COURT[:] Did your client get a copy?
[DEFENSE COUNSEL:] Yes, sir, he did.
THE COURT[:] Admit or deny[?]
[DEFENSE COUNSEL:] Judge, he admits, except he denies the one about his diploma. He actually got an online high school diploma. It says, apparently it says a GED or diploma.
THE COURT[:] All right. Well, let's get through the willful violation of his drug screen.
[DEFENSE COUNSEL:] Well, he admits that. He admits that.
THE COURT[:] All right. Who's the probation officer?
[PROBATION OFFICER:] I am, your Honor.
THE COURT[:] What do you say good for him anything or nothing?
[PROBATION OFFICER:] Well, he hadn't caused me a lot of problems. But he either tested positive and you ordered him not to test positive. And he absconded supervision and he understood that there was an order for his arrest outstanding.
THE COURT[:] You got a recommendation?
[PROBATION OFFICER:] Revocation, your Honor.
THE COURT[:] Revoke him and invoke his active.
The trial court entered an order that same day revoking defendant's probation and activating his sentence. On 4 June 2012, the office of the Clerk of Court in Edgecombe County received a letter from defendant, dated 1 June 2012, in which he requested an “appeal for [his] case.” On 2 October 2012, defendant filed a petition for writ of certiorari, requesting that this Court review the trial court's judgment in the event we find his 1 June 2012 letter to be a defective notice of appeal.
Although the State submitted a response to defendant's certiorari petition, it does not appear to oppose this Court's granting of the petition.
Analysis
I. Petition for Writ of Certiorari
Rule 4 of the North Carolina Rules of Appellate Procedure provides that a party to a criminal action may appeal from a trial court's judgment or order by:
(1) giving oral notice of appeal at trial, or
(2) filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties within fourteen days after entry of the judgment or order....
N.C.R.App. P. 4(a)(1)-(2). Rule 4 further requires any written notice of appeal to “designate the judgment or order from which appeal is taken” and to be signed either by counsel of record or by the defendant when proceeding pro se.N.C. R.App. P. 4(b).
Defendant acknowledges that his 1 June 2012 letter to the Clerk of Court was not served on the State, does not specify any judgment or order on which his appeal is predicated, and is not signed either by him or by his counsel of record. Where, as here, “a defendant has not properly given notice of appeal, this Court is without jurisdiction to hear the appeal.” State v. McCoy, 171 N.C.App. 636, 638, 615 S.E.2d 319, 320,appeal dismissed,360 N.C. 73, 622 S.E.2d 626 (2005). Although defendant's failure to properly perfect his appeal deprives this Court of jurisdiction to consider his direct appeal, Rule 21 of the North Carolina Rules of Appellate Procedure provides this Court with the discretion, “in appropriate circumstances,” to issue a writ of certiorari “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 action .... “ N.C. R.App. P. 21(a)(1); McCoy, 171 N.C.App. at 638, 615 S.E.2d at 320–21.
Here, defendant had a right to appeal the judgment revoking his probation and activating the suspended sentence pursuant to N.C. Gen.Stat. § 15A–1347 (2011). The 1 June 2010 letter is not an unreasonable attempt by an incarcerated pro se defendant to comply with Rule 4. It is also an indication of a genuine intent on the part of defendant to seek review of the trial court's decision to revoke his probation. Accordingly, we exercise our discretion and grant defendant's petition for writ of certiorari for the purpose of reviewing the judgment below. See State v. Long, –––N.C.App. ––––, ––––, 725 S.E.2d 71, 72 (reviewing judgment revoking defendant's probation pursuant to writ of certiorari where notice of appeal was defective but record showed that defendant attempted to comply with Rule 4 and that he “ ‘desire[d] to appeal’ from” judgment), disc. review denied,––– N.C. ––––, 726 S.E.2d 836 (2012).
II. Probation Revocation
Turning to the merits of defendant's appeal, he contends that the trial court lacked subject matter jurisdiction to revoke his probation for the violation of a condition for which he did not receive proper notice. Before the trial court may extend or revoke probation, “[t]he State must give the probationer notice of the hearing and its purpose, including a statement of the violations alleged.” N.C. Gen.Stat. § 15A1345 (e) (2011). As this Court has recognized, “[t]he purpose of the notice mandated by this section is to allow the defendant to prepare a defense and to protect the defendant from a second probation violation hearing for the same act .” State v. Hubbard, 198 N.C.App. 154, 158, 678 S.E.2d 390, 393 (2009).
We note that although defendant's sentence expired prior to our disposition, defendant's appeal is not moot in light of the fact that “collateral legal consequences of an adverse nature” may result from the use of defendant's probation violations as aggravating factors during any potential sentencing proceedings involving him in the future. State v. Black, 197 N.C.App. 373, 375, 677 S.E.2d 199, 201 (2009); N.C. Gen.Stat. § 15A–1340.16(d)(12a) (2011). We also observe that despite the fact that the trial court revoked defendant's probation after his term of probation had expired, the trial court had jurisdiction to do so because the revocation proceedings were commenced prior to the expiration of his term of probation. See State v. Bridges, 189 N .C.App. 524, 526–27, 658 S.E.2d 527, 528 (2008) (holding trial court “retained jurisdiction” to revoke probation where proceedings were begun prior to expiration of probation period but continued until after expiration).
Specifically, defendant contends that he did not receive sufficient notice of the violation alleged in the 20 March 2012 report stating that he had absconded from supervision. Contrary to defendant's argument, however, the record indicates that defendant did, in fact, receive proper notice of the alleged violation. Immediately upon beginning the revocation hearing, the trial court asked defense counsel whether defendant “g[ot] a copy” of the violation reports. Defense counsel responded: “Yes.” Furthermore, upon being asked, defense counsel advised the trial court that defendant “admit[ted]” all violations except one concerning defendant's failure to timely obtain a high school diploma.
The trial court's judgment further confirms that defendant received sufficient notice of the alleged violation given that the judgment (1) incorporated by reference all three violation reports, including the 20 March 2012 report; (2) stated that defendant had waived a violation hearing by admitting that he had committed the alleged violations specifically set out in the judgment (with the exception of the condition that defendant obtain his GED); and (3) specified that defendant had admitted to committing the sole violation alleged in the 20 March 2012 report—absconding from supervision.
Acceptance of defendant's argument would require this Court to ignore both (1) the exchange at the revocation hearing in which defense counsel acknowledged defendant's receipt of the violation reports; and (2) the findings of fact in the trial court's judgment that all three reports were before the court at the hearing and that defendant admitted to all but one alleged violation. In essence, defendant asks this Court to improperly assume that the trial court erred despite the complete absence of any indication in the record suggesting that such error occurred. This we will not do. See State v. Phifer, 290 N.C. 203, 212, 225 S.E.2d 786, 792 (1976) (“An appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court.”), cert. denied,429 U.S. 1050, 50 L.Ed.2d 766 (1977).
Moreover, even assuming arguendo that defendant did not receive written notice of the alleged violation, defendant waived his right to contest this issue by failing to object to the lack of notice and by participating in the hearing. See State v. Langley, 3 N.C.App. 189, 191, 164 S.E.2d 529, 530 (1968) (holding defendant waived any objection to proper notice of probation revocation where “defendant voluntarily appear[ed] at the appointed time and place and participate[d] in the hearing”).
Defendant nonetheless contends that, despite his failure to object at the hearing, his argument is preserved for appellate review based on State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985). Specifically, defendant points to our Supreme Court's statement in Ashe that “when a trial court acts contrary to a statutory mandate and a defendant is prejudiced thereby, the right to appeal the court's action is preserved, notwithstanding [the] defendant's failure to object at trial.” Id. at 39, 331 S.E.2d at 659.
Defendant's reliance on Ashe is misplaced. In Ashe, the Supreme Court held that the statute at issue, N.C. Gen.Stat. § 15A–1233(a), mandates that, if the jury asks during deliberations to review evidence admitted at trial, the jury must be returned to the courtroom and the trial judge must exercise his or her discretion in determining whether to allow the jury to view the evidence. Ashe, 314 N.C. at 34, 331 S.E.2d at 656. Unlike the language of § 15A–1233(a), which was found to be mandatory in Ashe, the statute at issue here— § 15A–1345 (e)—expressly provides that notice, as well as the revocation hearing itself, may be “waived by the probationer....” N.C. Gen.Stat. § 15A–1345(e).
This Court's decision in State v. Love, 156 N.C.App. 309, 576 S.E.2d 709 (2003), is inapplicable for the same reason. In Love, we held that N.C. Gen.Stat. § 15A–1343.2(d) imposes a “mandate” that, unless the trial court makes appropriate findings that a shorter or longer probationary period is necessary under the circumstances, the court may not deviate from the statutory framework. Love, 156 N.C.App. at 317–18, 576 S.E.2d at 714. We, therefore, remanded that case for resentencing due to the trial court's failure to make the necessary findings supporting the imposition of a longer probationary period despite the defendant's failure to object at the hearing. Id. at 318, 576 S.E.2d at 714. Once again, in contrast to the statute at issue in Love, the plain language of § 15A–1345(e) provides that a defendant may waive notice of the alleged violations serving as the basis for revocation of probation.
Accordingly, we conclude that the trial court had subject matter jurisdiction to revoke defendant's probation. As defendant does not argue that the court erred in revoking his probation—only that it lacked jurisdiction to do so—the trial court's judgment must be affirmed.
Conclusion
For the reasons stated above, we affirm the trial court's judgment revoking defendant's probation.
AFFIRMED. Judges McGEE and GEER concur.
Report per Rule 30(e).