{ "id": 4357607, "name": "STATE OF NORTH CAROLINA v. KEVIN ASKEW", "name_abbreviation": "State v. Askew", "decision_date": "2012-07-17", "docket_number": "No. COA11-1598", "first_page": "659", "last_page": "662", "citations": [ { "type": "official", "cite": "221 N.C. App. 659" } ], "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" ] } ], "analysis": { "cardinality": 469, "char_count": 8177, "ocr_confidence": 0.757, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14847467941181128 }, "sha256": "020446dce20d5b5c533551e37fd06657a97f732bc248cc7b68fba4586f770f6d", "simhash": "1:4d0ff72b7e57e436", "word_count": 1341 }, "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. KEVIN ASKEW" ], "opinions": [ { "text": "ELMORE, Judge.\nOn 16 June 2005, a jury found Kevin Askew (defendant) guilty of two counts of indecent liberties with a child. The trial court sentenced defendant to two terms of 21 to 26 months\u2019 imprisonment, to be served consecutively. The trial court suspended both sentences and placed defendant on 36 months of supervised probation, beginning when defendant was \u201creleased from incarceration\u201d in another case (04 CRS 1542). As part of his intermediate sentence, defendant was ordered to \u201creport to his probation officer within 24 hours of his release of serving his active sentences\u201d- and to \u201c[c]omply with the Special Conditions of Probation \u2014 Intermediate Punishments\u2014 Contempt which\u201d were set forth on page two of AOC-CR-603. Defendant was also placed on nine months of intensive supervision and ordered to \u201ccomply with the rules adopted by that program,\u201d which is administered by the Division of Community Corrections (DCC).\nOn 1 July 20ll, defendant\u2019s probation officer filed a violation report, alleging that defendant had willfully violated the terms of his probation by failing to have an approved residence plan. An order for defendant\u2019s arrest was issued, and defendant was arrested. However, defendant was still in custody at the time of his alleged violation and when he was arrested.\nOn 1 July 2011, defendant was transported from prison to the Sheriffs Office in Elizabeth City for release following his incarceration for 04 CRS 1542. However, defendant\u2019s probation officer arrested defendant for violating his probation while defendant was in the custody of the Pasquotank Sheriff\u2019s Department. He was then transported back to prison.\nAt the revocation hearing, Judge Milton F. Fitch, Jr., questioned this turn of events, asking how defendant could have been in willful violation of his probation terms \u201cwhen the State of North Carolina did not allow him to do what [the] order said to do.\u201d Judge Fitch observed, \u201cIf you pick him up, you don\u2019t turn him a loose, he can\u2019t go nowhere unless he\u2019s got the key to the jail house.\u201d\nDefendant\u2019s probation officer explained that DCC policy requires offenders on intensive probation to provide a suitable residence before they are released. When Judge Fitch asked if DCC had given defendant \u201can opportunity to get a house\u201d \u2014 specifically the 24 hours that he had ordered in the judgment \u2014 the probation officer answered, \u201cNo.\u201d Judge Fitch replied,\nI don\u2019t see how I can find that he\u2019s in willful violation of my order when you brought him from prison to jail and he\u2019s been in jail ever since he was brought from prison. If you-all can tell me how I can do that, tell me how he is in willful violation, I will be glad to send him on. If you can\u2019t tell me that then I\u2019m going to give him at least 24 hours to get a place to stay. That is what everybody else has when you give that order.\nIn response, the probation officer explained\nWhen a person is placed on \u2014 as far as intensive probation, we have got to go to a house to check him. He did not provide us the house. The program person, we spoke to that person, we tried to find a place for him to stay, they tried to find a place for him to stay, couldn\u2019t find a place. Since he\u2019s been here I have called seven different numbers to try to find a place. No one will let him stay there. While someone is on intensive probation we have to go check him that night, due to a curfew check. When he couldn\u2019t provide us a residence, so we at that time locked him up, Your Honor.\nDefendant\u2019s relatives also refused to allow him to live with them.\nJudge Fitch noted that defendant had found himself in a Catch-22 but ultimately found that defendant was in willful violation of the terms and conditions of his probation, revoked defendant\u2019s probation, and activated his sentence.\nOn appeal, defendant argues that the trial court erred by finding that he had willfully violated the terms of his probation by failing to supply an approved residence. We agree.\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 for reasons beyond his control. Defendant\u2019s probation officer testified that he called seven different numbers in his unsuccessful efforts to secure defendant a suitable place to reside. In addition, his family members refused to allow him to live with them. Defendant\u2019s probation officer also testified that DCC did not give defendant an \u201copportunity to get a house,\u201d an opportunity the trial judge clearly expected defendant to have. 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). Accordingly, we hold that d\u00e9fendant has demonstrated that he was unable to obtain suitable housing before his release from incarceration because of circumstances beyond his control. The trial court abused its discretion by finding otherwise. We reverse the judgment revoking defendant\u2019s probation and activating his sentence.\nReversed.\nChief Judge MARTIN and Judge HUNTER, JR., Robert N., concur.\n. The file stamp states that the violation report was filed on 31 June 2011, which is not a day; text within the report states that the probation officer reviewed the alleged violations on 1 July 2011.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Bethany A. Burgon, for the State.", "Wait Law, RL.L.C., by John L. Wait, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KEVIN ASKEW\nNo. COA11-1598\n(Filed 17 July 2012)\nProbation and Parole \u2014 violation\u2014approved residence\u2014 not willful\nThe trial court manifestly 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 by defendant from judgments entered 28 July 2011 by Judge Milton F. Fitch, Jr., in Pasquotank County Superior Court. Heard in the Court of Appeals 21 May 2012.\nAttorney General Roy Cooper, by Assistant Attorney General Bethany A. Burgon, for the State.\nWait Law, RL.L.C., by John L. Wait, for defendant." }, "file_name": "0659-01", "first_page_order": 669, "last_page_order": 672 }