State v. Lawson

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-529 NORTH CAROLINA COURT OF APPEALS Filed: 19 November 2013 STATE OF NORTH CAROLINA v. Cumberland County Nos,. 97CRS2927-28; 97CRS3634 10CRS51009-11 CLARA LAWSON, Defendant. Appeal by defendant from Judgments entered on or about 28 January 2013 by Judge James Floyd Ammons, Jr. in Superior Court, Cumberland County. Heard in the Court of Appeals 22 October 2013. Attorney General Roy A. Cooper III, by Assistant Attorney General Tenisha S. Jacobs, for the State. Irons & Irons, P.A., by Ben G. Irons, II, for defendantappellant. STROUD, Judge. Clara Lawson ( defendant ) appeals from judgments entered on or about 29 January activating her sentence. pled guilty obtaining a to three controlled 2013 revoking her probation and On or about 14 April 2010, defendant counts of substance forgery by and three counts misrepresentation. of The -2three forgery January 1997, substance offenses were and January offenses 13 were committed 1997. committed December 2008, and 4 February 2009. consolidated into one judgment. on on 6 January The 13 three October 1997, 8 controlled 2008, 15 Each group of offenses was Defendant was sentenced to consecutive periods of six to eight months confinement, each suspended for twenty-four months of supervised probation. Between 10 May 2012 and 5 July 2012, defendant s probation officer filed several violation reports, alleging that defendant was in arrears on her required payments, that defendant had failed to report on a number of occasions, and that defendant is making herself unavailable for supervision and is classified as an absconder. On 28 January 2013, the Superior Court entered a judgment finding that defendant had willfully violated the terms of her probation by failing to report as directed on a number of occasions and failing to pay costs and fees as required. The trial court revoked defendant s probation for absconding from supervision under N.C. Gen. Stat. § 15A-1343(b)(3a) Defendant gave notice of appeal in open court. (2011). -3Defendant argues that the trial court erred in revoking her probation for absconding when that condition was not applicable to her, given the dates of her offenses. We agree. All of defendant s relevant probation violations occurred after 1 December 2011. Therefore, under the Justice Reinvestment Act, the trial court could only revoke defendant s probation if she (1) commits a new crime in violation of N.C. Gen. Stat. § 15A 1343(b)(1); (2) absconds supervision in violation of N.C. Gen. Stat. § 15A 1343(b)(3a); or (3) violates any condition of probation after serving two prior periods of CRV under N.C. Gen. Stat. § 15A 1344(d2). State v. Nolen, ___ N.C. App. ___, ___, 743 S.E.2d 729, 730 (2013); N.C. Gen. Stat. § 15A-1344(a) (2011). But defendant s underlying offenses were all committed before 1 December 2011. Therefore, the absconding condition of N.C. Gen. Stat. § 15A-1343(b)(3a) does not apply to her. See id. at ___, 743 S.E.2d at 731 (recognizing that the absconding condition only applies to offenses committed after 1 December 2011); State v. Hunnicutt, ___ N.C. App. ___, ___, 740 S.E.2d 906, 911 (2013) ( [T]he new absconding condition [applies] only to offenses committed on or after 1 December 2011. ). Defendant s probation cannot be revoked for violating a condition that does not apply to her. -4The State did not allege or prove that defendant had committed a new criminal offense, in violation of N.C. Gen. Stat. § 15A-1343(b)(1). As outlined by Nolen and Hunnicutt, the absconding provision in N.C. Gen. Stat. § 15A-1343(b)(3a) does not apply to defendant because her committed prior to 1 December 2011. never been 1344(d2). subject to a CRV under underlying offenses were Finally, defendant has N.C. Gen. Stat. § 15A- Therefore, we conclude that there was no basis upon which the trial court could revoke defendant s probation. See N.C. Gen. Stat. § 15A-1344(a); Nolen, ___ N.C. App. at ___, 743 S.E.2d at 730. We hold that the trial court erred in revoking defendant s probation and activating her sentence. Accordingly, we reverse the judgment entered upon revocation of defendant s probation; appropriate we remand judgment to the for trial court defendant s for entry admitted of an probation violations consistent with the provisions of N.C. Gen. Stat. § 15A-1344. REVERSED and REMANDED. Judges MCGEE and BRYANT concur. Report per Rule 30(e).

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