Opinion
No. COA08-868
Filed 7 April 2009 This case not for publication
Appeal by Defendant from order reinstating District Court probation violation notices and remanding case to District Court by Judge William Z. Wood, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 27 January 2009.
Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State. Michele Goldman, for Defendant-Appellant.
Forsyth County No. 02 CRS 60317; 05 CrS 53900.
Scott F. Washington ("Defendant") appeals a Superior Court order that reversed the District Court's dismissal of Defendant's alleged probation violations based upon a lack of subject matter jurisdiction and remanded this case to the District Court for further proceedings. We affirm in part, reverse in part, and remand this case to the Superior Court for further proceedings.
I. Background
On 27 July 2005, Defendant pled guilty to misrepresentation to obtain Employment Security Commission benefits, loitering for drug activity, and possession of drug paraphernalia. The District Court imposed a suspended sentence of forty-five days imprisonment and placed Defendant on eighteen months supervised probation for his misrepresentation conviction. The District Court further imposed a concurrent twelve month probationary sentence for Defendant's other convictions. Defendant's probationary periods in these cases were due to expire on 26 July 2006 and 26 January 2007, respectively. Defendant was required to report to his probation officer, Sherry Larsen ("Officer Larsen"), once a month as a condition of his probation.
On 13 July 2006, Officer Larsen filed two probation violation reports against Defendant. With respect to the probation imposed upon Defendant for his drug-related convictions, Officer Larsen alleged that Defendant: (1) had tested positive for cocaine on 3 April 2006; (2) failed to complete "TASC[;]" and (3) failed to report to the probation office on four occasions. Officer Larsen further alleged that she "ha[d] been by Defendant's residence many times and left written notes for him to report to probation office [sic] and he had not responded." In addition, Officer Larsen filed a second probation violation report relating to Defendant's conviction of misrepresentation to obtain Employment Security Commission benefits in which she alleged that Defendant had failed to pay restitution in the amount of $780.50. Two arrest warrants were subsequently filed, and this case was transferred to North Carolina Department of Correction Intensive Surveillance Officer Hal McNeely ("Officer McNeely"). On 27 December 2007, almost one year after his probationary period had expired, Defendant was arrested for his alleged probation violations, possession of cocaine, and resisting arrest. On 2 January 2008, Officer McNeely "sent [his] notice of arrest in to DCI in Raleigh, and . . . transferred the case back to Officer Larsen."
On 4 February 2008, the District Court granted Defendant's motions to dismiss the probation violation notices and terminated these probation violation proceedings based upon the State's failure to schedule a revocation hearing prior to Defendant's arrest. The State gave timely notice of appeal to the Superior Court. On 20 March 2008, Defendant filed two pre-trial motions to dismiss his probation violations based upon a lack of subject matter jurisdiction. Defendant argued that the State had failed to comply with N.C. Gen. Stat. § 15A-1344(f), which sets forth the statutory requirements under which the State may seek to revoke a defendant's probation and activate his suspended sentence after his probationary period has expired.
Defendant's case was called for hearing before the Honorable William Z. Wood, Jr., Judge of the Superior Court (the trial court), on 28 March 2008. At that time, both parties were given an opportunity to present evidence and otherwise be heard. The State tendered two witnesses, Officers Larsen and McNeely, to describe their attempts to locate Defendant both prior and subsequent to the date the probation violation reports were filed.
Officer Larsen testified that Defendant failed to report to the probation office on 3 November 2005, 26 March 2006, 12 May 2006, and 30 May 2006. Officer Larsen did not testify regarding her efforts to locate Defendant after his failure to report on 3 November 2005. When Defendant failed to report for his scheduled appointment on 26 March 2006, Officer Larsen called Defendant on 31 March 2006 and left a voice mail informing him that she "would come by his house on Sunday." Officer Larsen also reiterated that Defendant was required by law to report to the probation office once a month. At approximately 1:30 p.m. on 1 April 2006, Officer Larsen traveled to Defendant's residence and talked to his daughter, who informed Officer Larsen that Defendant was at the grocery store. Officer Larsen left a note directing Defendant to report to the probation office on 3 April 2006 at 4:30 p.m. Defendant complied with Officer Larsen's instructions.
On both 26 and 30 May 2006, subsequent to Defendant's third and fourth failures to report, Officer Larsen again traveled to Defendant's residence and left Defendant multiple notes directing him to report to the probation office. When Defendant failed to comply with these requests, Officer Larsen telephoned Defendant's employer and left a message for Defendant to contact her as soon as possible. Officer Larsen testified that 3 April 2006 was the final time she had established contact with Defendant.
The State's second witness, Officer McNeely, testified he had received Defendant's file on 25 July 2006. In his role as a surveillance officer, Officer McNeely's primary responsibility is to "try to make contact [with the probationer] as soon as [he] receive[s] the case[.]" In order to attempt to locate Defendant, Officer McNeely reviewed daily jail logs, spoke with law enforcement officers, and made monthly record checks. Officer McNeely also testified he "went by [Defendant's] residence." Officer McNeely also added that "I will be honest with you, I was trying to find other people too, at the same time, so [sic]." During the week of Christmas in 2007, Officer McNeely received notice that Defendant had been arrested, so his file was transferred back to Officer Larsen.
After hearing the evidence, the trial court entered an order containing fourteen findings of fact and six conclusions of law. The trial court concluded, inter alia:
3. Pursuant to North Carolina General Statutes Section 15A-1344(f)(1), Probation Officer Larsen timely filed the probation violation reports in each case prior to the expiration of the defendant's probation.
4. Pursuant to North Carolina General Statutes Section 15A-1344(f)(2), the State made reasonable efforts to notify the probationer. Probation Officer Larsen attempted to contact the defendant regarding the probation violations before the violation reports were filed. Officer McNeely tried to contact the defendant once at his home after the probation violation reports were filed and checked the jail list daily to see whether the defendant had been arrested.
5. The efforts by the officers in this case may not have been the best means used but were reasonable. While the State could have extended the defendant's probation by holding a modification hearing in the defendant's absence under North Carolina General Statutes Section 15A-1344(d), it was not required to hold such hearing.
6. Pursuant to North Carolina General Statutes Section 15A-1344(f)(2), reasonable efforts to conduct the hearing earlier pertains to the time after the defendant was served. The probation violation hearing in this case was scheduled by the magistrate after the defendant was arrested on December 27, 2007.
In sum, the trial court determined that the State had complied with the requirements of N.C. Gen. Stat. § 1344(f) and that the District Court was vested with subject matter jurisdiction to adjudicate the issues raised by the probation violation notices. The trial court reversed the District Court's order granting Defendant's motions to dismiss and remanded this case to the District Court for further proceedings. Defendant appeals pursuant to N.C. Gen. Stat. § 15A-1432(d).
II. Issue
The sole issue brought forth on appeal is whether the trial court erred by finding that the District Court was vested with subject matter jurisdiction to conduct Defendant's probation revocation hearing pursuant to N.C. Gen. Stat. § 15A-1344. The Defendant advances a number of arguments in support of his contention that the trial court erred in reaching this conclusion.
III. Standard of Review
When the trial court sits without a jury and renders judgment, the standard of review on appeal is "whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment." State v. Simon, 185 N.C. App. 247, 250, 648 S.E.2d 853, 855 (quoting Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d 160, 163 (2001)), disc. review denied, 361 N.C. 702, 653 S.E.2d 158 (2007). The court's findings of fact are conclusive if supported by [substantial] evidence, and judgment supported by them will be affirmed even though there is evidence contra. Where there is no evidence to support an essential finding of fact, however, and where conclusions are not supported by sufficient factual findings, the judgment cannot be sustained.
Spivey v. Porter, 65 N.C. App. 818, 819, 310 S.E.2d 369, 370 (1984) (citation omitted). "Where an appellant fails to assign error to the trial court's findings of fact, the findings are presumed to be correct. . . . However, the trial court's conclusions of law are reviewed de novo and must be legally correct." State v. Pickard, 178 N.C. App. 330, 334, 631 S.E.2d 203, 206 (citation and quotation omitted), disc. rev. denied, 361 N.C. 177, 640 S.E.2d 59 (2006).
Initially, we note Defendant failed to except to or assign as error any of the findings of fact contained in the trial court's order. Consequently, the trial court's findings are presumed to be correct and are binding on appeal. Pickard, 178 N.C. at 334, 631 S.E.2d at 206. Our scope of review is limited to whether the findings of fact support the conclusions and whether the conclusions "reflect[] a correct application of applicable legal principles to the facts found." State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997); see also State v. High, 183 N.C. App. 443, 447, 645 S.E.2d 394, 396 (2007) (holding that, because the defendant failed to bring forth his assignments of error challenging the trial court's findings of fact in his brief, this Court's task was "to consider whether those findings support the court's conclusion that the State met its obligations under § 15A-1344(f)" (citing State v. Rhyne, 124 N.C. App. 84, 89, 478 S.E.2d 789, 791 (1996)).
IV. Subject Matter Jurisdiction
Defendant argues the trial court erred by concluding the State complied with the requirements of N.C. Gen. Stat. § 15A-1344 and failing to uphold the District Court's dismissal of Defendant's alleged probation violations due to lack of subject matter jurisdiction.
"A court's jurisdiction to review a probationer's compliance with the terms of his probation is limited by statute." State v. Burns, 171 N.C. App. 759, 760, 615 S.E.2d 347, 348 (2005) (quoting State v. Hicks, 148 N.C. App. 203, 204, 557 S.E.2d 594, 595 (2001)). In order for a trial court to revoke a defendant's probation after the expiration of the probationary period, the State must comply with a number of statutory requirements:
(1) Before the expiration of the period of probation the State has filed a written motion with the clerk indicating its intent to conduct a revocation hearing; and
(2) The court finds that the State has made reasonable efforts to notify the probationer and to conduct the hearing earlier.
N.C. Gen. Stat. § 15A-1344(f) (2007). This Court has held that N.C. Gen. Stat. § 15A-1344(f) (2007) requires that three conditions be met before a trial court has the authority to enter an order revoking probation after the expiration of the probationary period:
The General Assembly has amended N.C. Gen. Stat. § 15A-1344(f)(2) so as to eliminate the "reasonable efforts" requirement found in that statutory provision as it existed during the consideration of this matter in the trial courts. See N.C. Gen. Stat. § 15A-1344(f) (2008 Interim Supplement) (providing that a trial court may revoke probation after the expiration of the period of probation if all of the following apply: "(1) Before the expiration of the period of probation the State has filed a written violation report with the clerk indicating its intent to conduct a hearing on one or more violations of one or more conditions of probation[;] (2) The court finds that the probationer did violate one or more conditions of probation prior to the expiration of the period of probation[;] (3) The court finds for good cause shown and stated that the probation should be extended, modified, or revoked[;] [and] (4) If the court opts to extend the period of probation, the court may extend the period of probation up to the maximum allowed under G.S. 15A-1342(a)."). However, since this amendment did not become effective until 1 December 2008 and is inapplicable to revocation hearings occurring before that time, it has no application to our analysis of the present appeal.
[T]he probationer must have committed a violation during his probation, the State must file a motion indicating its intent to conduct a revocation hearing, and the State must have made a reasonable effort to notify the probationer and conduct the hearing sooner. State v. Cannady, 59 N.C. App. 212, 214, 296 S.E.2d 327, 328 (1982).
If the requirements of § 15A-1344(f) are not met, a trial court lacks jurisdiction to revoke a defendant's probation after the expiration of the probationary term. State v. Burns, 171 N.C. App. 759, 760, 615 S.E.2d 347, 348 (2005). Further, if the trial court fails to make the "reasonable effort" finding mandated by § 15A-1344(f)(2), "the trial court's jurisdiction to revoke probation after expiration of the probationary period is not preserved." State v. Bryant, 361 N.C. 100, 103, 637 S.E.2d 532, 534 (2006).
High, 183 N.C. App. at 446-47, 645 S.E.2d at 96. "When the record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest judgment or vacate any order entered without authority." Hicks, 148 N.C. App. at 205, 557 S.E.2d at 596 (citation and quotation omitted).
A. N.C. Gen. Stat. § 15A-1344(f)(1 )
Defendant contends the State failed to file a written motion indicating its intent to conduct a revocation hearing prior to the expiration of Defendant's probationary period. Defendant argues a probation violation report does not satisfy the "written motion" requirement of N.C. Gen. Stat. § 15A-1344(f)(1) because "[t]he report alone is not a `motion', nor does it indicate `an intent to conduct a revocation hearing. . . ." We disagree.
Although N.C. Gen. Stat. § 1344(f)(1) does not specify exactly what is meant by a "written motion," N.C. Gen. Stat. § 15A-951(a) provides that "[a] motion must: (1) [u]nless made during a hearing or trial, be in writing; (2) [s]tate the grounds of the motion; and (3) [s]et forth the relief or order sought." An examination of the violation reports filed by Officer Larsen as found in the record establishes that they are in writing, that they state the grounds upon which Defendant allegedly violated the terms and conditions of his probation; and that they request that the trial court take appropriate action in response to the alleged violations. As a result, the probation violation reports filed by Officer Larsen fully comply with the definition of a "motion" set out in N.C. Gen. Stat. § 951(a), a fact which undoubtedly led this Court to implicitly treat a violation report filed by a probation officer as adequate compliance with the "motion" requirement of N.C. Gen. Stat. § 1344. State v. Hicks, 148 N.C. App. 203, 557 S.E.2d 594 (2001).
Defendant also argues that the probation violation reports filed in these cases are deficient because they were signed by a probation officer rather than a lawyer, because they fail to specify a hearing date, because they do not request that specific relief be awarded, and because they were not served on Defendant or his attorney. Nothing in N.C. Gen. Stat. § 15A-951(a) or any other provision of the Criminal Procedure Act requires that a motion be signed by a member of the Bar. Furthermore, neither N.C. Gen. Stat. § 951(a) or N.C. Gen. Stat. § 15A-1344 requires that a violation report include a hearing date. Moreover, by requesting that the court take appropriate action in response to Defendant's alleged violations, the notice contains an adequate request for relief. Finally, the record reflects that Defendant was arrested "for the probation violations and other charges" as allowed by N.C. Gen. Stat. §§ 15A-305(b)(4) and 15A-1345(a) and contains no indication that Defendant challenged the adequacy of service of the probation violation reports in the trial courts.
This Court has repeatedly interpreted N.C. Gen. Stat. § 15A-1344(f)(1) to treat a violation report as timely as long as it was filed with the office of the Clerk of Superior Court prior to the end of the probationary period. Id.; see also State v. Moore, 148 N.C. App. 568, 559 S.E.2d 565 (2002) (holding the State failed to comply with the plain language of N.C. Gen. Stat. § 15A-1344(f)(1) because the defendant's probation violation report was not file-stamped and the record did not otherwise support the State's contention that defendant's violation report was filed before the expiration of defendant's period of probation). With respect to this issue, the trial court made the following finding of fact and conclusion of law: Probation Officer Larsen filed probation violation reports for each case on July 13, 2006 and alleged multiple violations. The reports were filed while the defendant was still on probation.
. . . .
Pursuant to North Carolina General Statutes Section 15A-1344(f)(1), Probation Officer Larsen timely filed the probation violation reports in each case prior to the expiration of the defendant's probation.
(Emphasis supplied). The record clearly shows that the probation violation reports at issue in this case were filed on 13 July 2006 at 11:08 a.m. Defendant's probationary periods expired on 26 July 2006 in Case No. 05CR53900 and 26 January 2007 in Case No. 02CRS60317. Thus, the State presented sufficient evidence tending to show it filed a written motion with the clerk indicating its intent to conduct a revocation hearing prior to the end of the probationary period, and the trial court's findings of fact to that effect provide adequate support for his conclusions of law concerning the State's compliance with the requirements of N.C. Gen. Stat. § 15A-1344(f)(1). Defendant's contention is without merit.
B. N.C. Gen. Stat. § 15A-1344(f)(2 )
Defendant further argues the State failed to comply with the provisions of N.C. Gen. Stat. § 15A-1344(f)(2), which requires the State to make reasonable efforts to notify the probationer and conduct a hearing at an earlier point in time.
A. Notification
This Court's decisions concerning the reasonableness of the State's efforts to notify a defendant of alleged probation violations hinge upon whether there was a conclusive finding that the defendant had absconded. See High, 183 N.C. App. 443, 645 S.E.2d 394; State v. Burns, 171 N.C. App. 759, 615 S.E.2d 347 (2005). An analysis of the facts in those cases indicates that the State's efforts to notify Defendant of his alleged probation violations at an earlier time were adequate because the defendant before the court in those cases had absconded supervision, thereby making more timely notice impracticable.
In Burns, this Court acknowledged that the trial court had failed to make any findings as to the reasonableness of the State's efforts to locate defendant and found that the evidence in the record would not support such a finding based upon the State's limited attempts to locate the defendant:
At the revocation hearing, defendant's probation officer testified she only made one attempt to locate defendant in 2001 at the address he had listed, which was prior to the filing of the probation violation report and issuance of the arrest warrant. She turned the file over to a surveillance officer following the issuance of the arrest warrant. No attempt was made to serve the order for arrest until March 2004.
171 N.C. App. at 762, 615 S.E.2d at 349. This Court also noted in Burns that, while there was a notation on the order for arrest that the defendant was an absconder, the probation violation report did not charge that defendant had absconded. Id. The Court concluded that the information set out in the arrest warrant constituted an allegation, not a statement of established fact, and that the notation that the defendant was an absconder on the arrest warrant did not establish that the State had made adequate efforts to notify the defendant of his alleged probation violations at an earlier time. Id. at 762, 615 S.E.2d at 349-50. As a result, this Court held that the trial court lacked jurisdiction to revoke the defendant's probation. Id. at 763, 615 S.E.2d at 350.
This Court addressed the same issue in High. 183 N.C. App. at 447, 645 S.E.2d at 396. In that decision, the Court acknowledged that a trial court's failure to enter a revocation judgment during the defendant's probationary period could not be attributed to the defendant's conduct where "[h]e never absconded[;] [h]e never concealed himself to delay or avoid a revocation hearing[;] [and] [h]e was never charged with the commission of another crime during the probation period. . . ." Id. at 447-48, 645 S.E.2d at 397 (quoting State v. Camp, 299 N.C. 524, 528, 263 S.E.2d 592, 595 (1980)). However, this Court found in High that the trial court's failure to enter a revocation judgment before the expiration of the defendant's probationary period was chargeable to the defendant rather than the State because the "defendant had absconded and . . . the probation officer . . . from time to time . . . checked to see if there was any record of [the] defendant's arrest or whether [the] defendant was in jail." Id. at 448, 263 S.E.2d at 397.
The Court further concluded in High that the defendant's reliance on Burns was misplaced. Id. at 449, 263 S.E.2d at 397. In High, the defendant's probation officer filed a probation violation report that specifically alleged that the defendant had absconded and the trial court found that the defendant had, in fact, absconded. Id. at 448, 263 S.E.2d at 397-98. As a result, in High, unlike Burns, the trial court found that the defendant had absconded. Id. at 448, 263 S.E.2d at 398. Thus, because the trial court in High found that the defendant had absconded and that the State's subsequent use of a surveillance officer was a "reasonable effort," the trial court had the authority to revoke the defendant's probation and activate his suspended sentence after the expiration of the defendant's probationary period. Id.
Here, Officer Larsen filed two probation violation reports, each of which alleged the following violations:
Regular Condition of Probation "Report as directed by the Court or the probation officer to the officer at reasonable times and places . . ." in that
THE DEFENDANT FAILED TO REPORT TO PROBATION OFFICE ON: 11-03-05, 3-28-06, 5-12-06, AND 5-30-06. HE WILL NOT REPORT TO OFFICE.
Regular Condition of Probation "Remain within the jurisdiction of the Court unless granted written permission to leave by the Court or the probation officer" in that
THIS OFFICER HAS BEEN BY DEFENDANT'S RESIDENCE MANY TIMES AND LEFT WRITTEN NOTES FOR HIM TO REPORT TO PROBATION OFFICE AND HE HAS NOT RESPONDED. HE HAS FAILED TO MAKE HIMSELF AVAILABLE FOR SUPERVISION. . . .
Here, although the trial court did not specifically find in so many words that Defendant had "absconded," it found:
4. Probation Officer Larsen testified that the defendant failed to report to the probation office on the following dates: November 3, 2005, March 28, 2006, May 12, 2006, and May 30, 2006.
5. Probation Officer Larsen went to the defendant's residence on multiple occasions(including April, 1, 2006, May 21, 2006, and May 30, 2006) and left messages for the defendant to contact her.
6. Probation Officer Larsen attempted to contact the defendant on several other occasions, including March 31, 2006, when she left voice messages on the defendant's telephone.
7. During the time that Probation Officer Larsen attempted to make contact with defendant, she also tried to reach him by calling the defendant's employer.
8. The defendant met with Probation Officer Larsen on April, 3, 2006. This was the last time Probation Officer Larsen had contact with the defendant.
The trial court further found, in summary, that, when her efforts to locate Defendant failed, Officer Larsen filed two probation violation reports. Officer Larsen then transferred Defendant's case to a surveillance officer, who reviewed daily jail logs and spoke with law enforcement to discover whether defendant had been arrested. Based on this set of facts, the trial court concluded that the efforts made by the officers to locate Defendant in this case were "reasonable."
The facts presented in the case sub judice are analogous to the factual scenario in High, and we find that the analysis set out in that decision is applicable here. The evidence clearly shows that defendant absconded after 3 April 2006, the date of Officer Larsen's last established contact with Defendant. After multiple attempts to locate Defendant, Officer Larsen transferred this case to a surveillance officer, who also attempted to locate Defendant without success. Because the record supports the trial court's findings that Defendant had effectively absconded and that the State's subsequent use of a surveillance officer in its efforts to locate Defendant was reasonable, the trial court appropriately concluded that the State had met its burden of showing that it had made reasonable efforts to notify Defendant of his probation violations before the expiration of the probationary period. High, 183 N.C. App. at 448, 263 S.E.2d at 398. Defendant's contentions to the contrary are without merit.
B. Conduct a Hearing
Defendant cites State v. Bryant, 361 N.C. 100, 101-02, 625 S.E.2d 532, 534 (2006), in challenging the trial court's conclusion of law to the effect that:
Pursuant to North Carolina General Statutes Section 15A-1344(f)(2), reasonable efforts to conduct the hearing earlier pertains to the time after the defendant was served. The probation violation hearing in this case was scheduled by the magistrate after the defendant was arrested on December 27, 2007.
(Emphasis supplied). In Bryant, our Supreme Court analyzed N.C. Gen. Stat. § 15A-1344(f)(2) using well-established principles of statutory construction and stated that "[t]he statute unambiguously requires the trial court to make a judicial finding that the State has made a reasonable effort to conduct the probation revocation hearing during the period of probation set out in the judgment and commitment." Id. at 102-03, 625 S.E.2d at 534 (emphasis supplied). The Court further stated that, "[i]n the absence of statutorily mandated factual findings, the trial court's jurisdiction to revoke probation after expiration of the probationary period is not preserved." Bryant, 361 N.C. at 103, 637 S.E.2d at 534.
The trial court appears to have misapprehended "the applicable legal principles" in its conclusion of law addressing the nature of State's burden to make reasonable efforts to conduct a hearing at an earlier time. Fernandez, 346 N.C. at 11, 484 S.E.2d at 357. Pursuant to Bryant, the State must make reasonable efforts to conduct a revocation hearing during a defendant's probationary period, not "after the defendant was served[,]" as the trial court asserted. Therefore, the trial court's Conclusion of Law No. 6 rests upon a misapprehension of the applicable law.
A similar issue arose in State v. Daniels, 185 N.C. App. 535, 649 S.E.2d 400 (2007), in which the trial court ruled that the issuance of an order for arrest was sufficient to meet the State's burden of making a reasonable effort to conduct a hearing prior to the expiration of the defendant's probationary period. Id. at 537, 649 S.E.2d at 400. In Daniels, this Court held that issuance of such process, standing alone, was insufficient to constitute "reasonable effort" of the type required by N.C. Gen. Stat. § 15A-1344(f)(2). Id. at 537, 649 S.E.2d at 401 (citing Burns, 171 N.C. App. at 762-63, 615 S.E.2d at 349-50). The Court further stated that, "`when [there is a failure] to make a material finding of fact[,] . . . the case must be remanded . . . for a proper finding. . . .' [However], when the record lacks sufficient evidence to support such a finding, the case should not be remanded in order to conserve judicial resources." Id. (quoting Bryant, 361 N.C. at104, 637 S.E.2d at 535). In Daniels, the record contained sufficient evidence that would, if accepted, support a finding that the State had made a reasonable effort to contact the defendant prior to the expiration of his probationary period, with that evidence including:
(1) calling defendant's employer, only to be informed that defendant no longer worked there; (2) leaving a note at defendant's residence, only to receive a phone call from defendant's mother saying that defendant no longer lived there; (3) attempting to personally serve the warrant at defendant's residence, but being unable to locate defendant; and (4) soliciting the help of a surveillance officer to locate defendant after the warrant was returned unserved.
Id. at 537, 649 S.E.2d at 401 (footnote omitted). This Court ultimately remanded the case to the trial court to enter "sufficient material findings." Id. at 538, 649 S.E.2d at 401.
Officers Larsen and McNeely's efforts to locate defendant are indistinguishable in any meaningful way from the efforts described as adequate in Daniels. In its order in this case, the trial court made findings of fact that set out in detail the steps that Officers Larsen and McNeely took in order to locate Defendant prior to the expiration of the probationary period, a step which would have resulted in the scheduling of a hearing. The trial court's findings would be sufficient to support, although not compel, a determination that the State made a "reasonable effort" "to conduct the hearing earlier" as required by N.C. Gen. Stat. § 15A-1344(f)(2). However, as has been noted above, N.C. Gen. Stat. § 15A-1344(f)(2) requires the court to make such a determination as a precondition for revoking the defendant's probation after the end of the probationary period and the trial court never made such a determination. The absence of such a determination constitutes error. We cannot find this error harmless, since the trial court stated that "[t]he efforts made by the officers in this case may not have been the best means used" and since the record does not allow this Court to determine that the State's efforts were reasonably adequate as a matter of law. Thus, this case should be remanded to the trial court for the making of further findings of fact and conclusions of law with respect to the adequacy of the State's efforts to conduct a revocation hearing prior to the end of the Defendant's probationary period.
V. Conclusion
We conclude that the Superior Court's order should be affirmed in part and reversed in part due to the Superior Court's error in applying N.C. Gen. Stat. § 15A-1344(f)(2) — specifically, the court's failure to make findings and conclusions with respect to the issue of whether the State made reasonable efforts to conduct the hearing on Defendant's alleged probation violations before the end of the probationary period. Therefore, this matter is remanded to the Superior Court for further proceedings as required by law not inconsistent with this opinion.
AFFIRMED in part; REVERSED and REMANDED in part.
Judges WYNN and HUNTER, Robert C. concur.
Report per Rule 30(e).