State v. Graham

869 S.E.2d 776

STATE of North Carolina

v.Kevin GRAHAM, Defendant.

No. COA21-440

Court of Appeals of North Carolina.

Filed March 1, 2022

Attorney General Joshua H. Stein, by Assistant Attorney General Benjamin Szany, for State-appellant.

Jason Christopher Yoder, for defendant-appellee.

GORE, Judge.

¶ 1 Defendant Kevin Graham appeals from a judgment revoking his probation. On appeal, defendant argues that the trial court erred by revoking his probation on the basis of pending charges and unpaid court costs. For the following reasons, we reverse the trial court's judgment.

¶ 2 On 10 November 2005, defendant pled guilty to second-degree murder and possession of a firearm by a convicted felon. Defendant was sentenced to active terms of 176-221 months imprisonment for the second-degree murder charge and 16-20 months imprisonment for the possession of a firearm by a convicted felon charge. Defendant's active sentence for possession of a firearm by a convicted felon was suspended for 36 months of supervised probation, to commence after he was released from prison following his active sentence for second-degree murder. Defendant was released from prison on 12 August 2019.

¶ 3 On 23 February 2021, the State filed a Violation Report alleging defendant violated his probation by failing to pay the full monetary judgment entered against him and because he was arrested and charged with possession of a firearm by a felon on 11 February 2021. Following a hearing, the trial court found defendant committed a crime and revoked defendant's probation on 6 April 2021. Defendant entered written notice of appeal on 15 April 2021 and gave oral notice of appeal in open court on 16 April 2021. Defendant filed a Petition for Writ of Certiorari to correct errors within his oral and written notice of appeal. In our discretion we grant defendant's petition.

¶ 4 Defendant argues the trial court erred when it revoked his probation based on pending charges and unpaid court costs. The State concedes that defendant's failure to pay full court costs may not serve as grounds for revocation of probation. Thus, we only discuss the trial court's revocation of defendant's probation based on pending criminal charges.

¶ 5 Under the Justice Reinvestment Act a trial court may only revoke probation if (1) the probationer commits a criminal offense in any jurisdiction, (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 confinement in response to violations ("CRV") under N.C. Gen. Stat. § 15A-1344(d1). N.C. Gen. Stat. § 15A-1344(a) (2020). Here, the parties agree that defendant did not abscond supervision nor did he serve two prior periods of CRV; thus, defendant could only have his probation revoked for committing a criminal offense.

¶ 6 A proceeding to revoke probation is not a criminal prosecution and is often regarded as informal or summary. State v. Hewett , 270 N.C. 348, 353, 154 S.E.2d 476, 479 (1967). Thus, "the alleged violation of a valid condition of probation need not be proven beyond a reasonable doubt." State v. Duncan , 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967). Instead, "[a]ll that is required in a hearing of this character is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation ...." Hewett , 270 N.C. at 353, 154 S.E.2d at 480. "Accordingly, the decision of the trial court is reviewed for abuse of discretion." State v. Murchison , 367 N.C. 461, 464, 758 S.E.2d 356, 358 (2014) (citation omitted). Abuse of...