Opinion
No. COA12–1241.
2013-05-7
STATE of North Carolina v. Allen Curtis MAYES.
Attorney General Roy Cooper, by Assistant Attorney General Kenneth A. Sack, for the State. The Law Office of Bruce T. Cunningham, Jr., by Bruce T. Cunningham, Jr., for defendant-appellant.
Upon writ of certiorari to review judgments entered 25 July 2011 by Judge Gregory A. Weeks in Cumberland County Superior Court. Heard in the Court of Appeals 22 April 2013. Attorney General Roy Cooper, by Assistant Attorney General Kenneth A. Sack, for the State. The Law Office of Bruce T. Cunningham, Jr., by Bruce T. Cunningham, Jr., for defendant-appellant.
STEELMAN, Judge.
The probation violation report alleging that defendant had failed to comply with the conditions of the drug treatment court provided defendant with adequate notice of the alleged violation of the terms and conditions of his probation. Where defendant pled guilty to being an habitual felon, and the trial court personally went over the transcript with defendant, the issue contained in State v. Gilmore was not implicated.
I. Factual and Procedural Background
Alan Curtis Mayes (defendant) pled guilty on 4 June 2009 to one count of felonious larceny in case number 08 CRS 63626, and one count of felonious larceny and to being an habitual felon in case number 08 CRS 57332. Pursuant to a plea agreement, the trial court imposed a suspended sentence with 36 months of supervised probation in 08 CRS 63626, and entered a prayer for judgment continued (“PJC”) in 08 CRS 57332.
Defendant was assigned to drug treatment court as a condition of his probation, which required him to “[c]omply with the rules adopted for the program ... and report on a regular basis for a specified time to participate in court supervision, drug screening or testing, and drug or alcohol treatment programs.” The plea agreement provided that if defendant successfully completed drug treatment court, the trial court would enter a permanent PJC in 08 CRS 57332. If defendant failed to complete the program, however, the State could pray judgment and defendant would be sentenced as an habitual felon.
A violation report filed on 11 May 2011 alleged that defendant had failed to comply with the rules of the Drug Treatment Court Program. At his revocation hearing on 25 July 2011, defendant's probation officer, Amy Godfroy (Godfroy), described a pattern of non-compliance beginning in January of 2011 and concluding with defendant's termination from the drug court program on 3 May 2011. In addition to missing support-group meetings, drug screens, and an office visit, defendant violated curfew, tested positive for cocaine, and admitted to a second instance of using cocaine.
Prior to his termination from the program, defendant was provided a series of graduated sanctions ranging from a simple warning to time in jail for contempt of court. After his release from jail in April of 2011, defendant attended one additional drug court session before failing to appear on 3 May 2011. Based on defendant's overall course of conduct, including a prior occasion when he was absent from home while ostensibly on bed-rest, his drug court team concluded that he was not an appropriate candidate for the program. In a letter dated 24 May 2011, the program coordinator detailed to defendant the reasons for his termination. Over objection, the State tendered a copy of the letter to the trial court.
At the conclusion of the hearing, the trial court found defendant to be in willful violation of the terms and conditions of his probation. The State prayed judgment in 08 CRS 57332. The court sentenced defendant to an active prison term of 80 to 105 months. The court also revoked defendant's probation in 08 CRS 63626 and imposed an active sentence of 9 to 11 months, to be served concurrently with his sentence in 08 CRS 57332.
On 20 March 2012, the trial court granted defendant's petition for writ of certiorari.
II. Probation Revocation in Case Number 08 CRS 63626
In his first argument, defendant contends that the State failed to provide proper notice of the alleged violations of his probation prior to the hearing of 25 July 2011. We disagree.
The violation report, dated 19 May 2011, charged defendant with willfully violating the terms and conditions of his probation, as follows:
1. Condition of probation “Enroll in the Drug Treatment Court Program and comply with all conditions in the Drug Court Agreement,” in that ...
THE DEFENDANT FAILED TO APPEAR IN THE DRUG TREATMENT COURT SESSION HELD 5–3–11 AND HAS FAILED TO COMPLY WITH THE CONDITIONS OF DRUG TREATMENT COURT.
At the revocation hearing, defendant moved to strike the phrase “AND HAS FAILED TO COMPLY WITH THE CONDITIONS OF DRUG TREATMENT COURT[,]” from the violation report, contending that the violation report alleged “one violation [,]” defendant's failure to appear in drug court on 3 May 2011.
The trial court deferred ruling on defendant's motion, and allowed the State to present evidence. Following Godfroy's testimony, defendant renewed his objection to the sufficiency of the notice provided in the violation report. The trial court overruled the objection.
At the close of all of the evidence, the court reiterated its ruling, holding that defendant “had access to a copy of the drug court agreement and ... had a copy of the letter dated May 24th by ... the coordinator of that program, which specifies the basis upon which they contend [defendant] did not comply.” The court then found that defendant willfully failed to comply with the conditions of drug treatment court.
On appeal, defendant argues that the trial court erred in revoking his probation based on the violation report's allegation that he “failed to comply with the conditions of drug treatment court.” Citing the requirements of N.C. Gen.Stat. § 15A–1345(e) (2011) and the Fourteenth Amendment's Due Process Clause, defendant contends that the State did not afford him notice of any specific alleged violation other than failing to appear in the drug treatment court session on 3 May 2011.
“A probation violation hearing is not a synonymous proceeding to a criminal prosecution.” State v. Cleary, ––– N.C.App. ––––, ––––, 712 S.E.2d 722, 725 (2011). “However, due process does require [that a defendant receive] a written notice of the conditions allegedly violated[.]” Id. Accordingly, N.C. Gen.Stat. § 15A–1345(e) requires the State to provide a defendant with “notice of the hearing and its purpose, including a statement of the violations alleged ... at least 24 hours before the hearing.” N.C. Gen.Stat. § 15A–1345(e) (2011). Such notice must be of a nature “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). Because the relevant facts are not in dispute, we review de novo the trial court's conclusion that defendant received adequate notice prior to his revocation hearing. State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011).
We hold that the notice provided to defendant satisfied the demands of due process and the provisions of N.C. Gen.Stat. § 15A–1345(e). On 17 May 2011, defendant received a copy of the violation report identifying the specific condition of probation that he was charged with violating. The report alleged two separate violations: failing to appear in court on 3 May 2011; and failing to comply with the conditions of drug treatment court. Although the violation report did not set forth in detail all of the specifics of defendant's non-compliance with the conditions of drug court, defendant had also received a letter from the program coordinator on or about 24 May 2011, detailing the course of conduct that led to his termination from the program on 3 May 2011. Defendant had access to each of these documents prior to the revocation hearing and conceded that the State's evidence was consistent with the contents of the letter. Defendant thus had ample opportunity to prepare for the revocation hearing and respond to the State's evidence. Compare Hubbard, 198 N.C.App. at 159, 678 S.E.2d at 394 (affirming revocation despite ambiguity in the violation report, where the State's evidence was consistent with the report's allegations); with State v. Cunningham, 63 N.C.App. 470, 473, 475, 305 S.E.2d 193, 196 (1983) (reversing revocation where the State and trial court relied upon acts by defendant after the motion for revocation was filed).
This argument is without merit.
III. Defendant's Guilty Plea to Habitual Felon Status in Case Number 08 CRS 57332
In his second argument, defendant asserts that the trial court lacked jurisdiction to sentence him as an habitual felon in 08 CRS 57332, because he merely “stipulated” to habitual felon status rather than pleading guilty. We disagree.
On 4 June 2005, defendant entered pleas of guilty to two counts of felonious larceny and one count of being an habitual felon. In the portion of the plea transcript setting forth the terms and conditions of defendant's plea, it states that “defendant will stipulate to the habitual felon status [.]” Defendant contends that this language brings this case under the rationale of State v. Gilmore, 142 N.C.App. 465, 542 S.E.2d 694 (2001). In Gilmore, the defendant stipulated to his three prior felony convictions, but did not plead guilty to being an habitual felon. We held that such a stipulation was “not tantamount to a guilty plea,” citing State v. Williams, 133 N.C.App. 326, 330, 515 S.E.2d 80, 83 (1989). Gilmore at 471, 542 S.E.2d at 699.
We hold that the instant case is distinguishable from Gilmore. There was a plea transcript which clearly stated that defendant was pleading guilty. The trial judge personally went over the transcript with defendant on the record. Defendant was specifically asked:
THE COURT: ... Do you understand you're pleading guilty to one larceny charge, but that is raised to a Class C felony by virtue of a[sic] habitual felon indictment being attached thereto; and, therefore, the exposure on that—that one is 261 months. Additionally, you have a larceny charge which is a Class H felony which carries a maximum punishment of 30 months; and, that is the charge that I will sentence you on today. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: All right, sir. Do you now personally plead guilty to the charges that I've just described to you and admit to being in the status of a[sic] habitual felon?
THE DEFENDANT: Yes, sir.
THE COURT: Are you in fact guilty of each of those matters?
THE DEFENDANT: Yes, sir.
At the time of the entry of defendant's plea on 4 June 2009, the trial court made all of the required inquiries for the proper entry of a guilty plea. SeeN.C. Gen.Stat. § 15A–1022(a) (2011). Since this inquiry was made on the record, the concerns cited in Gilmore are not applicable.
This argument is without merit.
AFFIRMED. Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).