{ "id": 4357841, "name": "STATE OF NORTH CAROLINA v. DAVID ELDON TALBERT", "name_abbreviation": "State v. Talbert", "decision_date": "2012-07-17", "docket_number": "No. COA12-240", "first_page": "650", "last_page": "654", "citations": [ { "type": "official", "cite": "221 N.C. App. 650" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 14-208.18", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "pin_cites": [ { "parenthetical": "setting out locations at which registered sex offenders cannot \"knowingly be\"" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "pin_cites": [ { "parenthetical": "setting out residential restrictions" } ], "opinion_index": 0 }, { "cite": "154 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "57" } ], "opinion_index": 0 }, { "cite": "270 N.C. 241", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566904 ], "year": 1967, "pin_cites": [ { "page": "245" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0241-01" ] }, { "cite": "510 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "415", "parenthetical": "quoting State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967)" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 209", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237366 ], "year": 1999, "pin_cites": [ { "page": "212", "parenthetical": "quoting State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0209-01" ] }, { "cite": "562 S.E.2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "540", "parenthetical": "citation omitted" }, { "page": "540", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 434", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9128716 ], "year": 2002, "pin_cites": [ { "page": "437-38", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0434-01" ] }, { "cite": "154 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "480" } ], "opinion_index": 0 }, { "cite": "270 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568006 ], "year": 1967, "pin_cites": [ { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0348-01" ] }, { "cite": "540 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "808", "parenthetical": "quotation and citation omitted" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 524", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441929 ], "year": 2000, "pin_cites": [ { "page": "526", "parenthetical": "quotation and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0524-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 584, "char_count": 11112, "ocr_confidence": 0.752, "pagerank": { "raw": 1.4266741564604607e-07, "percentile": 0.6500753518834496 }, "sha256": "eafe57afb77276409327a75c8c91b17f5799cba7c4366402e8d61615ec5b56e5", "simhash": "1:c56b66a3f165cc26", "word_count": 1775 }, "last_updated": "2023-07-14T16:36:11.101860+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge HUNTER, JR., Robert N., concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID ELDON TALBERT" ], "opinions": [ { "text": "ELMORE, Judge.\nDavid Eldon Talbert (defendant) appeals from a judgment and commitment revoking his probation and activating his sentence. We reverse the judgment because defendant did not willfully violate the terms of his probation.\nOn 20 September 2010, defendant pled guilty to one count of felony failure to register as a sex offender. The trial court imposed an intermediate punishment, sentencing defendant as a Level III offender to a term of 19 to 23 months. The sentence was suspended, and defendant was placed on supervised probation for 24 months, subject to several special conditions of probation, including that defendant \u201cabide by all terms of the sex offender control program.\u201d The first special condition of the sex offender control program, as set out by the Division of Community Corrections (DCC), is that defendant \u201c[r]eside at a residence to be approved by the supervising officer.\u201d\nOn 4 October 2010, defendant was also convicted of felony larceny after breaking and entering in Yancey County. He received an active sentence of ten to twelve months\u2019 imprisonment. He was scheduled to be released from prison on 29 April 2011. That day, defendant\u2019s probation officer met defendant in prison. However, defendant had not yet obtained a place to live following his release. While still in prison, defendant had worked with his case worker to find a place to live, but they had been unsuccessful. Defendant could not stay with family members because he was adopted but had been removed from his adoptive family\u2019s care at the age of 15 because of physical and sexual abuse. He also had no money, as indicated by his affidavit of indigency. In addition, the probation officer explained, it is sometimes difficult for convicted sex offenders to find residences after they are released from prison because they cannot live near schools or daycares and \u201cjust the fact that they are a sex offender limits their possibilities of having a residence.\u201d Although defendant contacted several shelters and rescue missions, they all turned him down because he was a convicted sex offender.\nOn 29 April 2011, before he was released from jail or ever \u201ctouched outside,\u201d defendant\u2019s probation officer filed a violation report and took defendant into custody for violating the terms of his probation. The violation report asserted: \u201c[Djefendant has willfully violated sex offender special condition no. 1 that he reside at a residence to be approved by the supervising officer, in that as of 4/29/11, [defendant] doesn\u2019t have an approved residence.\u201d Defendant professed to both his probation officer and his attorney that he would be willing to live on the streets and provide his probation officer with coordinates, and his attorney even proposed that \u201cthe sidewalk out in front of the federal courthouse\u201d could be a suitable residence. However, the probation officer opined that, pursuant to DCC policy, registered sex offenders cannot live on the streets while they are on probation; being homeless is not a \u201csuitable residence.\u201d\nAt the hearing, defendant\u2019s attorney asked the court to give his client 24 or 48 hours to find a suitable residence, explaining:\nIt seems just illogical, I suppose, to allow an individual to be released from DOC custody, but at the very moment he is to be released from DOC custody, and find an appropriate place to reside, that you take him into custody and put him in the Buncombe County Detention Facility where the opportunities to make phone calls and contact individuals, including shelters, is basically nil. He just doesn\u2019t have this opportunity to get out there and find a place to stay.\nDefendant\u2019s probation officer recommended revocation because he did not believe that defendant would be able to find a suitable residence: \u201cI don\u2019t see anything else we can offer the gentleman. I mean, he\u2019s given us residences. We\u2019ve checked them out. And I just don\u2019t see any light at the end of the tunnel, Your Honor.\u201d Though defense counsel asked that defendant be released for 24 or 48 hours to call friends and ask if he could stay with them, which he had been unable to do while incarcerated, the trial court revoked defendant\u2019s probation and activated his sentence. The trial court found that defendant had willfully violated the terms of his probation, \u201cwithout valid excuse,\u201d by failing to find a suitable residence.\nDefendant now appeals, pursuant to a petition for writ of certiorari, which we grant. Defendant argues that his failure to find a suitable residence was not a willful violation of his probation. He argues that he had no \u201cmeaningful opportunity\u201d to find a residence while he was incarcerated. Defendant also points to N.C. Gen. Stat. \u00a7 14-208.7, which requires a registered sex offender to register his address within three business days of his release from a penal institution. N.C. Gen. Stat. \u00a7 14-208.7 (2011). Defendant contends that he was entitled to this three-day period to find a suitable residence before having his probation revoked, arguing that the DCC policy of requiring an offender to obtain a suitable residence before he is released \u201cimpos[es] a penalty the legislature did not envision.\u201d\nWe first address whether defendant\u2019s violation was willful and hold that it was not and that the trial court erred by so finding. Because we reverse on the basis that the trial court erred by finding that defendant\u2019s violation was willful, we do not reach defendant\u2019s argument that DCC\u2019s policy is incompatible with N.C. Gen. Stat. \u00a7 14-208.7.\nWe review a trial court\u2019s decision to revoke probation only for \u201cmanifest abuse of discretion.\u201d State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000) (quotation and citation omitted). To revoke a defendant\u2019s probation, the trial court need only find that the defendant has \u201cwillfully violated a valid condition of probation or that the defendant has violated without lawful excuse a valid condition upon which the sentence was suspended.\u201d State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967). \u201cAdditionally, once the State has presented competent evidence establishing a defendant\u2019s failure to comply with the terms of probation, the burden is on the defendant to demonstrate through competent evidence an inability to comply with the terms.\u201d State v. Terry, 149 N.C. App. 434, 437-38, 562 S.E.2d 537, 540 (2002) (citation omitted). \u201cIf the trial court is then reasonably satisfied that the defendant has violated a condition upon which a prior sentence was suspended, it may within its sound discretion revoke the probation.\u201d Id. at 438, 562 S.E.2d at 540 (citation omitted). Though trial judges have discretion in probation proceedings, that discretion \u201c \u2018implies conscientious judgment, not arbitrary or willful action. It takes account of the law and the particular circumstances of the case, and is directed by the reason and conscience of the judge as to a just result.\u2019 \u201d State v. Hill, 132 N.C. App. 209, 212, 510 S.E.2d 413, 415 (1999) (quoting State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967)). Thus, \u201cfairness dictates that in some instances a defendant\u2019s probation should not be revoked because of circumstances beyond his control.\u201d Id.\nHere, defendant\u2019s probation was revoked because of circumstances beyond his control. Evidence presented at the hearing showed that defendant\u2019s lack of personal resources \u2014 social, familial, and financial \u2014 severely limited his ability to obtain a suitable residence while incarcerated. According to the State, the special condition that defendant \u201c[r]eside at a residence to be approved by the supervising officer\u201d is a pre-condition to release, and any failure to satisfy this pre-condition results in probation revocation. This interpretation resulted in the odd situation here, that defendant did not \u201creside\u201d at an approved residence even though his residence was prison and he never \u201ctouched outside.\u201d The State asserts that defendant \u201cexerted minimal effort\u201d to satisfy this condition; we cannot agree. At ten, defendant was adopted into a sexually abusive family from which he was removed when he was a teenager. He then lived in foster care until he turned 21, staying in the foster system for three additional years because of a mental illness. This situation obviously limited his ability to stay with family until he found a more permanent residence. As indicated by his affidavit of indigency, defendant had no assets and no job, which alone presents a very real obstacle to renting a hotel room or apartment. Because he is a sex offender, defendant could not stay in the shelters and missions he contacted; because many shelters and missions either house children or have children\u2019s programs, it was unlikely that contacting additional shelters or missions would have produced a different result. Defendant was willing to live on the streets, reporting his coordinates to his probation officer, even living on the \u201csteps of the federal courthouse\u201d; however, according to DCC, homelessness would not satisfy the suitable residence requirement, though the State has not pointed to any authority or internal rules to support this stance. Despite the State\u2019s suggestion to the contrary, defendant\u2019s ability to communicate with friends or potential employers from inside prison was not unfettered. Although the statutes permit an offender to serve a term of probation concurrently with a term of incarceration, see N.C. Gen. Stat. \u00a7 15A-1346(b) (2011), offenders who are incarcerated do not have the same opportunities to satisfy certain terms of their probation as offenders who are not incarcerated. They have limited means with which to investigate and contact prospective residences. In addition, registered sex offenders are quite limited by residency restrictions. See N.C. Gen. Stat. \u00a7 14-208.16 (2011) (setting out residential restrictions); see also N.C. Gen. Stat. \u00a7 14-208.18 (2011) (setting out locations at which registered sex offenders cannot \u201cknowingly be\u201d). The trial court heard all of this evidence at the hearing, and it abused its discretion by concluding that defendant\u2019s failure to secure suitable housing before his release was willful. Accordingly, we reverse the judgment revoking defendant\u2019s probation and activating his sentence.\nVacated.\nChief Judge MARTIN and Judge HUNTER, JR., Robert N., concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Phyllis A. Tamer, for the State.", "Daniel F. Read for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID ELDON TALBERT\nNo. COA12-240\n(Filed 17 July 2012)\nProbation and Parole \u2014 violation\u2014approved residence\u2014 not willful\nThe trial court abused its discretion in a probation revocation case by finding that defendant had willfully violated the terms of his probation by failing to supply an approved residence. Defendant was unable to obtain suitable housing before his release from incarceration because of circumstances beyond his control.\nAppeal pursuant to writ of certiorari by defendant from judgment entered 3 November 2011 by Judge Alan Z. Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 21 May 2012.\nAttorney General Roy Cooper, by Assistant Attorney General Phyllis A. Tamer, for the State.\nDaniel F. Read for defendant." }, "file_name": "0650-01", "first_page_order": 660, "last_page_order": 664 }