{
  "id": 4221721,
  "name": "STATE OF NORTH CAROLINA v. COREY LEIGHANN NOLEN",
  "name_abbreviation": "State v. Nolen",
  "decision_date": "2013-07-02",
  "docket_number": "No. COA13-132",
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          "parenthetical": "reversing dismissal of the defendant's appeal on grounds that the plaintiff \"waived service of notice of appeal\" by failing to raise the issue \"by motion or otherwise and by participating without objection in the appeal\""
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          "page": "232",
          "parenthetical": "reversing dismissal of the defendant's appeal on grounds that the plaintiff \"waived service of notice of appeal\" by failing to raise the issue \"by motion or otherwise and by participating without objection in the appeal\""
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  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges McGEE and ELMORE concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. COREY LEIGHANN NOLEN"
    ],
    "opinions": [
      {
        "text": "STEPHENS, Judge.\nBackground\nCorey Leighann Nolen (\u201cDefendant\u201d) appeals from a judgment entered upon revocation of her probation. Because the trial court lacked statutory authority to revoke Defendant\u2019s probation in response to the violation alleged in the probation officer\u2019s report, we reverse the judgment and remand for further proceedings.\nOn 13 April 2010, Defendant pled guilty to attempted trafficking in opiates by sale and attempted trafficking in opiates by delivery. The trial court consolidated the offenses for judgment, suspended a prison sentence of 14 to 17 months, and placed Defendant on supervised probation for 28 months. A violation report filed 29 June 2012 charged that Defendant violated the following regular condition of probation: \u201cRemain within the jurisdiction of the [c]ourt unless granted written permission to leave by the [c]ourt or the probation officerf.]\u201d See N.C. Gen. Stat. \u00a7 15A-1343(b)(2) (2011). The report alleged that Defendant was not present at her last known address when her probation officer attempted a home contact on 15 June 2012 and that she had \u201cmade her whereabouts unknown to probation, therefore absconding supervision.\u201d A second violation report filed the same day charged Defendant with failure to satisfy the monetary conditions of probation.\nAt a hearing held 26 September 2012, Defendant admitted to the alleged violations and asked the court to \u201cdo some sort of CRV\u201d in lieu of revoking her probation. Instead, the court revoked Defendant\u2019s probation and activated her suspended sentence of 14 to 17 months of imprisonment.\nDefendant filed timely notice of appeal from the judgment. Because her notice of appeal lacked proof of service upon the State, as required by our appellate rules, she has since filed a petition for a writ of certiorari in this Court as an alternative basis for appellate review, alleging that her notice of appeal was defective through no fault of her own. See N.C.R. App. R 21(a)(1). Despite Defendant\u2019s failure to offer evidence of service of process, the State did not move to dismiss Defendant\u2019s appeal and has actively participated in this case \u2014 properly filing its brief after Defendant filed hers and responding to Defendant\u2019s petition for certiorari in a timely manner. In that response, the State further contends that \u201c[wjhether to allow the [p]etition is within this Court\u2019s discretion.\u201d Therefore, we dismiss the petition and consider the merits of Defendant\u2019s direct appeal. See Hale v. Afro-American Arts Int'l, Inc., 335 N.C. 231, 232, 436 S.E.2d 588, 589 (1993) (reversing dismissal of the defendant\u2019s appeal on grounds that the plaintiff \u201cwaived service of notice of appeal\u201d by failing to raise the issue \u201cby motion or otherwise and by participating without objection in the appeal\u201d).\nDiscussion\nDefendant claims the trial court lacked statutory authority to revoke her probation based on the violations alleged by her probation officer. She notes that her violations occurred after the effective date of the Justice Reinvestment Act of 2011 (\u201cJRA\u201d), which placed limits on the court\u2019s authority to revoke probation for violations occurring on or after 1 December 2011. See 2011 N.C. Sess. Laws 192, sec. 4. Defendant further asserts that the trial court erroneously found her in violation of a condition of probation enacted by the JRA in N.C. Gen. Stat. \u00a7 15A-1343(b)(3a), which \u201cwas not in existence when the trial court originally sentenced her in 2010.\u201d\nThe enactment of the JRA brought two significant changes to North Carolina\u2019s probation system. First, for probation violations occurring on or after 1 December 2011, the JRA limited trial courts\u2019 authority to revoke probation to those circumstances in which the probationer: (1) commits a new crime in violation of N.C. Gen. Stat. \u00a7 15A-1343(b)(1); (2) absconds supervision in violation of N.C. Gen. Stat. \u00a7 15A-1343(b) (3a); or (3) violates any condition of probation after serving two prior periods of CRV under N.C. Gen. Stat. \u00a7 15A-1344(d2). See N.C. Gen. Stat. \u00a7 15A-1344(a). For all other probation violations, the JRA authorizes courts to alter the terms of probation pursuant to N.C. Gen. Stat. \u00a7 15A-1344(a) or impose a CRV in accordance with N.C. Gen. Stat. 15A-1344(d2), but not to revoke probation. Id.\nSecond, \u201cthe JRA made the following a regular condition of probation: \u2018Not to abscond, by willfully avoiding supervision or by willfully making the defendant\u2019s whereabouts unknown to the supervising probation officer.\u2019 \u201d State v. Hunnicutt,__ N.C. App._,_, 740 S.E.2d 906, 910 (2013) (quoting N.C. Gen. Stat. \u00a7 15A-1343(b)(3a)).\nThe JRA initially made both provisions effective for probation violations occurring on or after 1 December 2011. See 2011 N.C. Sess. Laws 192, sec. 4.(d). The effective date clause was later amended, however, to make the new absconding condition applicable only to offenses committed on or after 1 December 2011, while the limited revoking authority remained effective for probation violations occurring on or after 1 December 2011. See 2011 N.C. Sess. Laws 412, sec. 2.5.\nId. at_, 740 S.E.2d at 911 (emphasis in original).\nThe judgment entered by the trial court herein includes the finding that Defendant willfully violated probation as alleged in the violation reports. The court also found that revocation of probation was authorized \u201cfor the willful violation of the condition(s) that [Defendant] not commit any criminal offense, [N.C. Gen. Stat. \u00a7] 15A-1343(b)(1), or abscond from supervision, [N.C. Gen. Stat. \u00a7] 15A-1343(b)(3a)[.]\u201d See 2011 N.C. Sess. Laws 192, sec. 4(b), (d). This finding is erroneous.\nThe State neither alleged nor proved that Defendant had committed a new crime. Further, the underlying offenses were committed in 2010 \u2014 when Defendant was not yet subject to the new absconding condition of probation set out in N.C. Gen. Stat. \u00a7 15A-1343(b)(3a). See Hunnicutt,_N.C. App. at_, 740 S.E.2d at 910-11. Although the probation officer used the term \u201cabsconding\u201d to describe Defendant\u2019s noncompliance with the regular condition of probation under N.C. Gen. Stat. \u00a7 15A-1343(b)(2) (requiring the defendant to \u201c[r]emain within the jurisdiction of the Court unless granted written permission to leave\u201d), the trial court\u2019s limited revoking authority under the JRA does not include this section 15A-1343(b)(2) condition.\nThe record establishes that Defendant violated only the condition of probation under N.C. Gen. Stat. \u00a7 15A-1343(b)(2) and the monetary conditions under N.C. Gen. Stat. \u00a7 15A-1343(b). She did not commit a new crime and was not subject to the new absconding condition codified by the JRA in N.C. Gen. Stat. \u00a7 15A-1343(b)(3a). In addition, the violation reports show that Defendant had served no prior CRVs under N.C. Gen. Stat. \u00a7 15A-1344(d2). Therefore, in light of the changes wrought by the JRA, her probation could not be revoked. See N.C. Gen. Stat. \u00a7 15A-1344(a).\nThe judgment entered upon revocation of probation is hereby reversed. We remand to the trial court for entry of an appropriate judgment for Defendant\u2019s admitted probation violations consistent with the provisions of N.C. Gen. Stat. \u00a7 15A-1344.\nREVERSED and REMANDED for further proceedings.\nJudges McGEE and ELMORE concur.\n. A CRV is a \u201cconfinement in response to violations\u201d and is provided for in N.C. Gen. Stat. \u00a7 15A-1344(d2) (2011).",
        "type": "majority",
        "author": "STEPHENS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General .Roy Cooper, by Assistant Attorney General Phyllis Tranchese, for the State.",
      "Don Willey for Defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. COREY LEIGHANN NOLEN\nNo. COA13-132\nFiled 2 July 2013\nProbation and Parole \u2014 revocation of probation \u2014 Justice Reinvestment Act \u2014 revocation improper\nThe trial court erred by revoking defendant\u2019s probation in light of the changes wrought by the Justice Reinvestment Act (JRA). Defendant had not committed a new crime and was not subject to the new absconding condition codified by the JRA in N.C.G.S. \u00a7 15A-1343(b)(3a). Furthermore, defendant had served no prior confinements in response to violations (CRVs) under N.C.G.S. \u00a7 15A-1344(d2). The judgment entered upon revocation of defendant\u2019s probation was reversed.\nAppeal by Defendant from judgment entered 26 September 2012 by Judge Hugh B. Lewis in Gaston County Superior Court. Heard in the Court of Appeals 24 June 2013.\nAttorney General .Roy Cooper, by Assistant Attorney General Phyllis Tranchese, for the State.\nDon Willey for Defendant."
  },
  "file_name": "0203-01",
  "first_page_order": 213,
  "last_page_order": 216
}