{
  "id": 4220553,
  "name": "STATE OF NORTH CAROLINA v. HOLLY DAWN TINDALL",
  "name_abbreviation": "State v. Tindall",
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    "judges": [
      "Judges ERVIN and DILLON concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. HOLLY DAWN TINDALL"
    ],
    "opinions": [
      {
        "text": "CALABRIA, Judge.\nHolly Dawn Tindall (\u201cdefendant\u201d) appeals from judgments entered upon revocation of her probation. We reverse and remand.\nOn 21 November 2011, defendant pled guilty to forgery of an instrument, uttering a forged instrument, obtaining property by false pretenses, obtaining controlled substance (\u201cCS\u201d) by fraud, financial transaction card theft, three counts of financial transaction card fraud, and three counts of larceny. The court found, and defendant admitted to, an aggravating factor, namely that defendant committed the offenses while on pretrial release from another charge. The trial court sentenced defendant to a minimum of eight and a maximum of ten months for one count of larceny. Defendant was placed on supervised probation for sixty months. The trial court consolidated defendant\u2019s sentences for obtaining CS by fraud, three counts of financial card fraud, financial card theft, forgery of an instrument, uttering a forged instrument and two counts of larceny. Defendant was sentenced to a minimum of eight and a maximum of ten months. For obtaining property by false pretenses, defendant was sentenced to a minimum of eight and a maximum of ten months. Defendant was ordered to comply with the conditions set forth in the previous sentence. All sentences were suspended, were to run consecutively and were to be served in the North Carolina Department of Correction. One of the conditions of defendant\u2019s probation was that she was to comply with a substance abuse program at a facility called Crystal Lake.\nDefendant was admitted to the Crystal Lake treatment facility on 28 January 2012. Defendant\u2019s probation officer (\u201cPO\u201d) was contacted in February, after defendant was caught \u201cpartying\u201d with other residents. Defendant admitted to snorting ten lines of cocaine. At the time defendant was arrested, the PO found a diet pill on defendant\u2019s person. On 23 February 2012, the PO filed violation reports indicating that defendant had violated her probation by using illegal drugs because she \u201cadmitted to using 10 lines of cocaine while at Cosa Works treatment center on 19 February 2012\u201d and by failing to \u201ccomplete Crystal Lakes treatment program\u201d as ordered.\nAt the probation revocation hearing in Moore County Superior Court, defendant\u2019s PO testified that defendant had been \u201carrested.\u201d The trial court found that defendant \u201cdid unlawfully willfully without legal justification violate [] the terms and conditions of her probation as alleged in the violation report, and the [c]ourt specifically [found] that she [] committed a subsequent offense while on probation.\u201d The trial court then activated defendant\u2019s suspended sentences, with modifications. The trial court sentenced defendant to three consecutive sentences of a minimum of six and a maximum of eight months in the North Carolina Division of Adult Correction. Defendant appeals.\nDefendant contends that the trial court lacked jurisdiction to enter judgments revoking defendant\u2019s probation on the basis of a probation violation that was not alleged in the violation report and of which she was not given notice. We agree.\nPursuant to statute, \u201cprobation may be reduced, terminated, continued, extended, modified, or revoked....\u201d N.C. Gen. Stat. \u00a7 15A-1344(a) (2011). The Justice Reinvestment Act of 2011 (\u201cthe Act\u201d) amended the statutes governing probation revocation. See State v. Jones, _ N.C. App. _, _, 736 S.E.2d 634, 637 (2013). The Act amended subsection (a) of N.C. Gen. Stat. \u00a7 15A-1344 by adding the following provision: \u201c[t]he court may only revoke probation for a violation of a condition of probation under G.S. 15A-1343(b)(l)\u201d or N.C. Gen. Stat. \u00a7 15A-1343(b) (3a), except as provided in N.C. Gen. Stat. \u00a7 15A-1344(d2). Id. N.C. Gen. Stat. \u00a7 15A-1343(b)(l) imposes a \u201ccommit no criminal offense\u201d condition and N.C. Gen. Stat. \u00a7 15A-1343(b)(3a) provides that a probationer cannot \u201cabscond, by willfully avoiding supervision or by willfully making the defendant\u2019s whereabouts unknown to the supervising probation .officer.\u201d N.C. Gen. Stat. \u00a7 15A-1343(b)(l); (3a) (2011). In addition, the Act added a subsection entitled \u201cConfinement in Response to Violation\u201d (\u201cCRV\u201d) which provides that the court may revoke probation for violations other than N.C. Gen. Stat. \u00a7 15A-1343(b)(l) or N.C. Gen. Stat. \u00a7 15A-1343(b)(3a), only if the probationer has already served two periods of confinement in response to a violation under this subsection. N.C. Gen. Stat. \u00a7 15A-1344(d2) (2011); Jones, _ N.C. App. at _, 736 S.E.2d at 637. \u201cAccordingly, under these revised provisions, the trial court \u2018may only revoke probation if the defendant commits a criminal offense or absconds[,]\u2019 and may \u2018impose a ninety-day period of confinement for a probation violation other than committing a criminal offense or absconding.\u2019 \u201d Jones,_N.C. App. at_, 736 S.E.2d at 637.\nPrior to revocation of probation, the court must hold a hearing, \u201cunless the probationer waives the hearing....\u201d N.C. Gen. Stat. \u00a7 15A-1345(e) (2011). \u201cThe State must give the probationer notice of the [probation revocation] hearing and its purpose, including a statement of the violations alleged.\u201d Id. \u201cThe notice, unless waived by the probationer, must be given at least 24 hours before the hearing.\u201d Id. \u201cThe purpose of the notice mandated by this section is to allow the defendant to prepare a defense and to protect the defendant from a second probation violation hearing for the same act.\u201d State v. Hubbard, 198 N.C. App. 154, 158, 678 S.E.2d 390, 393 (2009).\nThis Court has reversed revocation of a defendant\u2019s probation when the revocation was based, in part, on a violation for which defendant had no notice. State v. Cunningham, 63 N.C. App. 470, 475, 305 S.E.2d 193, 196-97 (1983). In Cunningham, the violation reports alleged that the defendant played loud music which disturbed his neighbors and removed their personal property, but \u201cthe State sought to prove additional conduct... that defendant trespassed upon and damaged real and personal property....\u201d Id. at 475, 305 S.E.2d at 196. Since the defendant did not receive notice of the additional conduct alleging a violation based on trespass and damage to property, the Court held that the trial court erred by revoking the defendant\u2019s suspended sentence based on alleged violations that were not included in the violation report. Id. at 475, 305 S.E.2d at 196-97.\nIn contrast, this Court has found that a defendant received sufficient notice when the violation report alleged the behavior that was the basis of the revocation, even if the violation report alleged that the probationer violated a different condition of probation. Hubbard, 198 N.C. App. at 159, 678 S.E.2d at 394. In Hubbard, the violation report alleged that the defendant \u201cfailed to report in a reasonable manner to his probation officer during a curfew check\u201d which constituted a violation of Regular Condition number six that the defendant \u201cfailed to \u2018report as directed by the [c]ourt or the probation officer to the officer....\u201d Id. at 158, 678 S.E.2d at 394. The trial court inteipreted the language as a violation of Special Condition number four, that the \u201c[defendant \u2018failed to ... submit to supervision by officers of the intensive probation program and comply with the rules adopted by that program....\u2019 \u201d Id. The specific facts that constituted the violation indicated that the defendant was \u201cso drunk that he could hardly walk\u201d when the probation officer checked his curfew, the probation officer left and returned later to find that despite his instructions, defendant \u201cwas still drinking and raising cain [sic].\u201d Id. at 159, 678 S.E.2d at 394. The Court found that \u201cthe evidence at the revocation hearing established these same facts[,]\u201d that the defendant \u201creceived notice of the specific behavior [the] [defendant was alleged and found to have committed in violation of [the] [defendant's probation\u201d and thus the defendant received \u201csufficient notice of the alleged violation.\u201d Id.\nIn the instant case, the violation reports alleged that defendant violated two conditions of her probation: to \u201c[n]ot use, possess or control any illegal drug\u201d and to \u201cparticipate in further evaluation, counseling, treatment or education programs recommended ... and comply with all further therapeutic requirements....\u201d The specific facts upon which the State relied were that \u201cdefendant admitted to using 10 lines of cocaine while at Cosa Works Treatment Center on 2/19/2012\u201d and that defendant failed to comply with treatment as ordered. In the judgments, the trial court found that defendant violated the conditions alleged in the violation reports and that defendant\u2019s probation was revoked \u201cfor the willful violation of the conditions) that he/she not commit any criminal offense ... or abscond from supervision ....\u201d\nDefendant contends that Cunningham controls because the violation reports alleged that defendant violated her probation by using illegal drugs and failing to comply with treatment requirements, but her probation was revoked because she committed a criminal offense. Therefore, according to Cunningham, her judgments must be reversed. According to the reasoning in Hubbard, cited by the State, defendant had notice of conduct that potentially supported the revocation of her probation: use of illegal drugs. However, since Hubbard was decided prior to the Justice Reinvestment Act, we hold that it does not control in the instant case.\nHere, although defendant received notice that she violated conditions of her probation, by using illegal drugs and failing to comply with treatment requirements, such violations do not support a revocation of her probation. See Jones, _ N.C. App. at _, 736 S.E.2d at 637. At the hearing, defendant\u2019s PO testified that defendant was \u201carrested\u201d but did not allege in the violation report that she violated her probation by committing a criminal offense. Based upon the PO\u2019s report and testimony, the trial court determined that defendant had committed a criminal offense and revoked her probation. However, defendant did not have notice that her probation could potentially be revoked when she appeared at the hearing. Defendant should have either received notice that the alleged violation was the type of violation that could potentially result in a revocation of her probation or had the opportunity to waive notice prior to having her probation revoked. Since the violation reports did not allege that defendant had committed a criminal act, absconded, or had two prior Confinements in Response to Violations, she had no notice and did not waive the notice. Therefore, the trial court improperly revoked her probation. We reverse and remand.\nReversed and Remanded.\nJudges ERVIN and DILLON concur.",
        "type": "majority",
        "author": "CALABRIA, Judge."
      }
    ],
    "attorneys": [
      "Attorney GeneralRoy Cooper, by Assistant Attorney General Jason R Burton, for the State.",
      "Don Willey, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. HOLLY DAWN TINDALL\nNo. COA12-1145\nFiled 7 May 2013\nProbation and Parole \u2014 revocation\u2014notice\u2014insufficient\nThe trial court improperly revoked defendant\u2019s probation where defendant received notice that she had violated the conditions of her probation by using illegal drugs and failing to comply with treatment requirements but was not notified that her probation could be revoked when she appeared at the hearing.\nAppeal by defendant from judgments entered 12 March 2012 by Judge James M. Webb in Moore County Superior Court. Heard in\nAttorney GeneralRoy Cooper, by Assistant Attorney General Jason R Burton, for the State.\nDon Willey, for defendant-appellant."
  },
  "file_name": "0183-01",
  "first_page_order": 193,
  "last_page_order": 197
}
