State v. Williams
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NO. COA13-246 NORTH CAROLINA COURT OF APPEALS Filed: 5 November 2013 STATE OF NORTH CAROLINA v. Wilson County No. 10 CRS 1399 1409 JONATHAN RAY WILLIAMS On writ of certiorari to review judgments entered 22 August 2011 by Judge Milton F. Fitch, Jr. in Wilson County Superior Court. Heard in the Court of Appeals 26 August 2013. Attorney General Roy Cooper, by Assistant Attorney General Kathryn H. Shields, for the State. Richard Croutharmel for defendant. HUNTER, JR., Robert N., Judge. We have granted Jonathan Ray Williams ( Defendant s ) petition for writ of certiorari to review judgments revoking his probation and activating his sentences in Wilson County case numbers 10 CRS 1399 1409. For the following reasons, we vacate the judgment in 10 CRS 1409, but leave the judgments in 10 CRS 1399 1408 undisturbed. -2I. Factual & Procedural History On 12 March 2007, Defendant pled guilty to one count of obtaining Wake property County by false Superior pretenses Court. ( false Defendant was pretenses ) sentenced to in an intermediate punishment of 6-8 months imprisonment, suspended for 18 months of supervised probation. Defendant s probation was to begin at the expiration of his probation in a previous Wake County case, 05 CRS 7502. Defendant s probation was transferred to Wilson County, where Defendant resided, and given file number 10 CRS 1409. On 5 January 2009, Defendant pled guilty to 14 counts of false pretenses in Alamance County Superior Court. consolidated imposed a Defendant judgments the 14 community to 8-10 with consecutively. counts punishment months the into ten in each imprisonment sentences in separate The court judgments judgment, for each each and sentencing of the judgment ten running The court suspended the sentences and placed Defendant on 36 months of supervised probation in each judgment, with the probationary periods running concurrently. Defendant s probation in those cases was transferred Wilson County and given case numbers 10 CRS 1399 1408. March 2010, Defendant s probation officer filed to On 23 violation -3reports in the Wake County case and in the ten Alamance County cases, alleging that Defendant willfully violated his probation. Among the allegations were that Defendant violated the condition of probation jurisdiction. that he commit no criminal offense in any On 10 May 2010, in Wilson County Superior Court, the Honorable Milton F. Fitch, Jr. found Defendant to be in violation of his probation in all eleven cases and modified Defendant s probation by ordering him to serve nine months of electronic house arrest. On 8 July 2010, Defendant s probation officer filed violation reports alleging that Defendant failed to comply with the terms of the electronic house arrest. On 19 July 2010, Judge in Fitch again found Defendant to be violation of probation and modified his probation by ordering him not to be away from his residence during curfew hours. Defendant s probation officer filed violation reports on 13 August 2010, alleging that Defendant failed again to comply with the terms of his house arrest. On 31 August 2010, Judge Fitch found Defendant to be in willful violation of probation for a third time and again modified Defendant s probation, this time by ordering him to serve a 30-day period of confinement in the county jail. -4On or about 27 July 2011, Defendant s probation officer prepared and signed probation violation reports in each case alleging that Defendant was in violation of his probation by possessing a firearm.1 On 17 August 2011, the probation officer filed additional violation reports in each case except 10 CRS 1409 (the case originated in Wake County). These reports alleged that Defendant was in violation of his probation by failing to adhere to restrictions placed on his employment. Judge Fitch conducted a probation violation hearing on 22 August 2011. Defendant contested the violations. The evidence presented at the hearing was as follows. Defendant s probation officer, Ms. Cameron, testified that during a warrantless search of Defendant s residence on 27 July 2011, a loaded .40 caliber pistol was found in a cabinet housing the motor of a whirlpool tub. Defendant was arrested and charged with being a felon in possession of a firearm in Nash County the day the gun was found. Ms. Cameron testified regarding Defendant s alleged noncompliance with his probationary employment restrictions. Defendant was permitted to do only commercial construction work while on probation and was barred from performing residential 1 The report in the record contains no file stamp. -5home improvement Attorney work General s pursuant Office. to This an injunction injunction from the included a prohibition on Defendant giving estimates to potential customers for such work. While on house arrest in July 2011, Defendant s GPS device indicated that he was at two separate residences in Raleigh. improvement Ms. Cameron contract later with discovered Defendant s a residential signature on it. home The residence listed on this contract was the address of one of the two residences Defendant went to, according to his GPS device. Ms. Cameron acknowledged that she did not know if Defendant prepared the contract and stated that Defendant merely being present at a residence would not constitute a violation under his conditions of probation. In his defense, Defendant testified that the gun found in his home was not his and denied knowing that it was there. He testified that he had lived at that address for about a month and a half with his girlfriend and that other people had lived there before him. house and stole Defendant claimed that someone broke into his his motorcycle a couple of days before the search. He believed his girlfriend was involved in this breakin, because whoever broke in had a key. Defendant believed that -6the gun belonged to his girlfriend s stepfather and that someone had planted the gun. Regarding the injunction violation, Defendant admitted that he was in Raleigh on the days in question. He said his house arrest conditions allowed him to work without consulting with his probation officer. Defendant testified that his employer directed him to go to the residences in Raleigh to see if the customers wanted his employer to proceed on work and to get a contract signed if they did. Defendant stated that he had signed the contract as an agent of his employer, but that he did not write it or perform the estimate. Defendant said that he knew he was prohibited from doing residential work and that he did not perform any work on the homes. Defendant testified that the Attorney General s Office had not notified him that he was in violation of the injunction. At the conclusion of the hearing, Judge Fitch found Defendant in willful violation of his probation on the basis of the allegations contained in both sets of reports. revoked Defendant s probation in all eleven Judge Fitch judgments and ordered him to serve his underlying active prison sentences. On 18 April 2012 Defendant filed a hand-written Petition for Writ of Certiorari with this Court. pro se Defendant s -7petition only listed case numbers 10 CRS 1399 1408, but stated that Defendant sought review of his sentence [sic] hearing. On 9 May 2012 we granted certiorari for the purpose of reviewing the judgments entered upon revocation of probation on 22 August 2011, but did not specify any file numbers. On 15 October 2012, the trial court found Defendant to be indigent and appointed the Appellate Defender s Office to represent Defendant on appeal, who in turn appointed private counsel for Defendant. On 25 March 2013, Defendant s counsel filed a Petition for Writ of Certiorari, seeking review of 10 CRS 1409 in addition to the other ten judgments. We grant this petition in the interest of reviewing all of the judgments revoking probation entered by the trial court on 22 August 2011. Defendant filed a reply brief in this case on 13 August 2013. Under new Rule 28(h) of our Rules of Appellate Procedure, effective 15 April 2013, reply briefs may only be filed within 14 days of service of the Appellee s brief. was filed on 29 April 2013. Appellee s brief Appellant s reply brief, filed more than three months later, was therefore untimely under the new rule. On 16 August 2013, the State filed a Motion to Strike Appellant-Defendant s Reply Brief. and strike Defendant s reply brief. We grant the State s motion -8Also on 13 August 2013, Defendant filed a Motion to Amend Record on Appeal to Include a Criminal Judgment Pertaining to the Case. Defendant s sentence in 10 CRS 1409 was to begin at the expiration of his sentence in Wake County file number 05 CRS 7502. as to The State s brief pointed out that the record was silent when Defendant s Defendant s motion to sentence amend the expired in 05 CRS 7502. record was to include certified summary of the criminal judgment in 05 CRS 7502. a We grant Defendant s motion to amend the record to include this judgment. II. Analysis Defendant raises three arguments in his brief, which we address in turn. A. Lack of Subject Matter Jurisdiction to Revoke in 10 CRS 1409 Defendant first argues that the trial court erred in revoking his probation in 10 CRS 1409 because the State failed to present Defendant s evidence that probation the officer violation was filed termination of Defendant s probation. asserts that the State failed to report prepared before the by natural As a result, Defendant meet its burden of demonstrating that the revoking court possessed subject matter jurisdiction. We agree. -9The State bears the burden in criminal matters of demonstrating beyond a reasonable doubt that a trial court has subject matter jurisdiction. State v. Petersilie, 334 N.C. 169, 175, 432 S.E.2d 832, 835 (1993). Furthermore, a defendant may properly raise the issue of subject matter jurisdiction at any time, even for the first time on appeal. State v. Reinhardt, 183 N.C. App. 291, 292, 644 S.E.2d 26, 27 (2007). 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. State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981). A trial court may only revoke a Defendant s probation if [b]efore 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. N.C. Gen. Stat. § 15A- 1344(f)(1) (2011). We have previously held that in order for a trial court to retain jurisdiction over a probationer after his period of probation has expired, there must be some record evidence that the State complied with the language of N.C. Gen. Stat. § 15A1344(f)(1). State v. Moore, 148 N.C. App. 568, 570-71, 559 -10S.E.2d 565, 566 (2002). The burden of perfecting the trial court s jurisdiction for a probation revocation hearing after defendant s period of probation has expired lies squarely with the State. Id. at 570 71, 559 S.E.2d at 566 67. Defendant s probation in 10 CRS 1409 was 18 months long, to be served number 05 at the CRS expiration 7502. of his According to sentence the in summary Wake County provided in Defendant s amendment to the record, Defendant s final discharge in 05 CRS 7502 was on 12 September 2008. in 10 CRS 1409, therefore, would Defendant s probation have run for 18 months following that date, ending 12 March 2010. The first violation report was filed 23 March 2010. Therefore, every violation report for 10 CRS 1409 was filed after Defendant s period of probation had ended and the trial court had no subject matter jurisdiction over Defendant. We therefore vacate the trial court s 22 August 2011 judgment revoking Defendant s probation in 10 CRS 1409. B. Lack of Subject Matter Jurisdiction to Revoke in 10 CRS 1399 1408 Defendant next argues that the trial court lacked subject matter jurisdiction to revoke his probation in 10 CRS 1399-1408. Specifically, Defendant argues that the trial court that -11sentenced him in Alamance County was required to make findings of fact before it placed him on probation for a period greater than 30 months. Defendant argues that absent these findings, he could not have been placed on probation for more than 30 months. As a result, Defendant argues that the Wilson County Superior Court lacked jurisdiction when it revoked his probation in what was the 31st month of his probationary sentence. However, evaluating Defendant s argument would necessarily require us to consider the propriety of the Alamance County trial court s original judgments placing Defendant on probation 5 January 2009. The record is silent as to whether Defendant appealed these judgments at the time they were entered. In any event, a request to review these judgments was not contained in either of Defendant s petitions for writ of certiorari. Accordingly, we decline to address Defendant s second argument when neither of the petitions for writ of certiorari requested failed to review object of to the Alamance those County judgments at judgments, the time, Defendant and those judgments were made final nearly four and a half years ago. C. Abuse of Discretion in Revoking Probation in All Eleven Cases Defendant lastly contends that the trial court abused its discretion when it revoked his probation in all eleven -12judgments, because there was insufficient evidence presented to find that Defendant had violated the terms of his probation. We disagree. A proceeding to revoke probation [is] often regarded as informal or summary, and the court is not bound by strict rules of evidence. An alleged violation by a defendant of a condition upon which his sentence is suspended need not be proven beyond a reasonable doubt. All that is required is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has violated a valid condition upon which the sentence was suspended. The findings of the judge, if supported by competent evidence, and his judgment based thereon are not reviewable on appeal, unless there is a manifest abuse of discretion. State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000) (citations and quotation marks omitted) (alteration in original). An abuse of discretion occurs only when a court s decision is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision. State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005). Defendant s arguments fail under this standard. of whether it would meet the standard of proof Regardless beyond a reasonable doubt, some evidence of Defendant s possession was presented. home. A firearm was found during a search of Defendant s Although Defendant testified that he didn t know about -13the gun, the judge stated, I don t believe what he said on the stand. Since there was evidence of Defendant s possession of a firearm and the judge made the determination that Defendant was not telling the truth while testifying, we find no abuse of discretion in the trial court s revocations. As [t]he breach of any single valid condition upon which the sentence was suspended will support an order activating the sentence, we need not address Defendant s argument regarding the violation based on his having allegedly provided residential construction services. State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973) (citation omitted). III. Conclusion For the foregoing reasons, we vacate activating Defendant s sentence in 10 CRS 1409. trial court s judgments in 10 CRS 1399 1408. VACATED IN PART; AFFIRMED IN PART. Chief Judge MARTIN and Judge ELMORE concur. the judgment We affirm the
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