              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-707

                                Filed: 26 March 2019

New Hanover County, No. 15CRS053062

STATE OF NORTH CAROLINA

             v.

MATTHEW CHRISTOPHER NEWSOME, Defendant.


      Appeal by defendant from judgment entered 8 February 2018 by Judge Albert

D. Kirby in New Hanover County Superior Court. Heard in the Court of Appeals 28

November 2018.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Daniel
      P. O’Brien and Assistant Attorney General Amy Bircher, for the State.

      Lisa A. Bakale-Wise for defendant-appellant.


      BERGER, Judge.


      Matthew Christopher Newsome (“Defendant”) appeals from a judgment

revoking his probation and activating his suspended sentence. On appeal he argues

that the trial court abused its discretion when it revoked his probation. We affirm in

part and remand in part.

                        Factual and Procedural Background

      On April 15, 2015, Defendant was arrested for felony possession of cocaine and

misdemeanor open container of alcohol. Pursuant to a plea arrangement with the
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                                  Opinion of the Court



State on May 21, 2015, Defendant pleaded guilty to possession of cocaine. The State

agreed not to pursue an habitual felon indictment and dismissed the open container

charge. Defendant received a ten to twenty-one month suspended sentence and was

placed on probation for eighteen months.

      Defendant’s probation officers filed multiple violation reports due to

Defendant’s willful failure to comply with the terms and conditions of his probation.

On October 28, 2016, Defendant’s probation officer filed a violation report, alleging

that Defendant had been charged with driving while impaired on June 11, 2015, and

resisting a public officer and intoxicated and disruptive on October 1, 2016. The

violation report also alleged that Defendant had failed to pay over $2,000.00 in court-

ordered fees. In April 2017, Defendant’s probation was modified and extended for an

additional twelve months only for his failure to comply with the monetary terms of

his probation.

      On July 7, 2017, Defendant’s probation officer filed a second violation report,

alleging that Defendant had absconded by willfully avoiding supervision or willfully

making his whereabouts unknown on July 5. The report also alleged that Defendant

had refused to make himself available for supervision “after numerous attempts to

contact the Defendant at the last known address;” had tested positive for PCP on May

10; had failed to report for office visits as instructed on May 9 and June 6; and had

failed to pay his monetary obligation. Defendant was arrested after the July 7



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                                   Opinion of the Court



violation report was filed, and he remained in custody until he posted bond on August

30.

       Defendant had been instructed to make contact with the probation office

within 72 hours of his release from custody. Defendant had failed to contact his

probation officer or the probation office after his release from custody. The probation

officer had attempted to locate Defendant by calling him and visiting his residence.

After observing Defendant enter his residence in September 2017, the probation

officer went to Defendant’s door, introduced herself as Defendant’s probation officer,

and spoke with Defendant’s mother. Defendant’s mother informed the probation

officer that Defendant was not at home.

       On September 22, 2017, his probation officer filed an Addendum that alleged

Defendant had absconded when he failed to report to the probation office within 72

hours of his release from custody on August 30. Defendant testified at his probation

hearing that he did in fact go to the probation office as instructed and that he was not

the person the probation officer had seen enter his residence. However, the trial court

found that Defendant’s testimony was not credible. In fact, the trial court found that

“there is such a disparity – in the testimony – I mean, it’s almost – almost – you’re

reciting something that’s complete opposite from what [the probation officer] testified

to.”




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                                    Opinion of the Court



      On February 8, 2018, the trial court found that Defendant had willfully

violated the terms and conditions of his probation set forth in both the July 7 and

September 22, 2017 violation reports, and that Defendant’s probation could be

revoked pursuant to N.C. Gen. Stat. § 15A-1343(b)(3a) for willfully absconding. The

trial court activated Defendant’s suspended sentence.

      Defendant appeals, but failed to comply with the requirements of Rule 4 of the

Rules of Appellate Procedure. Defendant filed a petition for writ of certiorari to

address his defective notice of appeal. In our discretion, we grant certiorari and

review the merits of his appeal.

                                   Standard of Review

      On appeal, Defendant argues that the trial court abused its discretion when it

revoked Defendant’s probation. We disagree.

      “[I]n a probation revocation, the standard is that the evidence be such as to

reasonably satisfy the [trial court] in the exercise of [its] sound discretion that the

defendant has willfully violated a valid condition [upon which probation can be

revoked].” State v. Harris, 361 N.C. 400, 404, 646 S.E.2d 526, 529 (2007) (citation

and quotation marks omitted).        We review a trial court’s decision to revoke a

defendant’s probation for an abuse of discretion. State v. Miller, 205 N.C. App. 291,

293, 695 S.E.2d 149, 150 (2010) (citation omitted). Abuse of discretion “occurs when

a ruling is manifestly unsupported by reason or is so arbitrary that it could not have



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been the result of a reasoned decision.” State v. Maness, 363 N.C. 261, 279, 677 S.E.2d

796, 808 (2009) (citation and quotation marks omitted).

                                        Analysis

      “Probation or suspension of sentence comes as an act of grace to one convicted

of, or pleading guilty to, a crime.” State v. Murchison, 367 N.C. 461, 463, 758 S.E.2d

356, 358 (2014) (citations and quotation marks omitted). “A probation revocation

proceeding is not a formal criminal prosecution,” and an “alleged violation of a valid

condition of probation need not be proven beyond a reasonable doubt.” Id. at 464, 758

S.E.2d at 358 (citations and quotation marks omitted).

      A trial court “may only revoke probation for [committing a criminal offense] or

[absconding], except as provided in G.S. 15A-1344(d2).” N.C. Gen. Stat. § 15A-1344(a)

(2017). A probationer absconds when he willfully avoids supervision or willfully

makes his whereabouts unknown to his probation officer. N.C. Gen. Stat. § 15A-

1343(b)(3a) (2017). It is a “defendant’s responsibility to keep his probation officer

apprised of his whereabouts.” State v. Trent, ___ N.C. App. ___, ___, 803 S.E.2d 224,

232 (2017), review denied, 370 N.C. 576, 809 S.E.2d 599 (2018).

      Merely failing to report for an office visit,

             does not, without more, violate N.C. Gen. Stat. § 15A-
             1343(b)(3a) when these exact actions violate the explicit
             language of a wholly separate regular condition of
             probation which does not allow for revocation and
             activation of a suspended sentence. . . .



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                                   Opinion of the Court



                    To hold otherwise would render portions of N.C.
             Gen. Stat. § 15A-1344(a) superfluous. Allowing actions
             which explicitly violate a regular or special condition of
             probation other than those found in N.C. Gen. Stat. § 15A-
             1343(b)(1) or N.C. Gen. Stat. § 15A-1343(b)(3a) to also
             serve, without the State showing more, as a violation of
             N.C. Gen. Stat. § 15A-1343(b)(1) or N.C. Gen. Stat. § 15A-
             1343(b)(3a) would result in revocation of probation without
             following the mechanism the General Assembly expressly
             provided in N.C. Gen. Stat. § 15A-1344(d2).

State v. Johnson, 246 N.C. App. 139, 146, 783 S.E.2d 21, 26 (2016) (emphasis added).

“[O]nce the State present[s] competent evidence establishing defendant’s failure to

comply with the terms of his probation, the burden [is] on defendant to demonstrate

through competent evidence his inability to comply with those terms.” Trent, ___

N.C. App. at ___, 803 S.E.2d at 231.

      In the present case, the second violation report was filed against Defendant for

absconding, testing positive for PCP, failing to report for two office visits, and failing

to comply with certain monetary conditions. The allegation regarding absconding

specifically states that Defendant willfully violated the

             Regular Condition of Probation General Statue 15A-
             1343(b)(3a) ‘Not to abscond, by willfully avoiding
             supervision or by willfully making the supervisee’s
             whereabouts unknown to the supervising probation
             officer[’] in that, on or about 7/5/2017, and after numerous
             attempts to contact the Defendant at the last known
             address . . . the said Defendant has refused to make
             himself available for supervision as instructed by the
             probation       officer,   thereby   absconding     probation
             supervision.



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                                  Opinion of the Court



Defendant was subsequently served with the violation report and taken into custody.

Defendant knew or should have known upon being served with the violation report

that he was considered to be an absconder by his probation officer.

      Upon his release from custody on August 30, 2017, Defendant was then

instructed to make contact with his probation officer within 72 hours of his release.

This was more than a regular office visit. It was a special requirement imposed upon

Defendant because he was considered to be an absconder, and it was his

“responsibility to keep his probation officer apprised of his whereabouts.” Trent, ___

N.C. App. at ___, 803 S.E.2d at 232.

      While in custody, the probation officer knew Defendant’s whereabouts and how

to contact him.   Once Defendant had posted bond, Defendant never made his

probation officer aware of his whereabouts as instructed.       The requirement for

Defendant to contact the probation officer within 72 hours of release from custody

alerted Defendant that his probation officer was attempting to actively monitor him.

Had Defendant complied, he would have enabled the probation officer to attempt

appropriate monitoring of Defendant.

      However, because Defendant failed to contact his probation officer or the

probation office after his release from custody, the probation officer was forced to

locate Defendant. She then made multiple phone calls to Defendant’s phone number




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                                  Opinion of the Court



that were not returned. When she had finally tracked him down and observed him

enter his residence, she was informed by Defendant’s mother that he was not there.

      On September 22, 2017, Defendant’s probation officer filed an Addendum to

the July 7 violation report because Defendant had failed to report to his probation

officer or the probation office upon his release from custody, failed to contact his

probation officer or the probation office for nearly one month, and willfully made his

whereabouts unknown to his probation officer. The probation officer alleged in the

Addendum that Defendant violated a

             Regular Condition of Probation General Statue 15A-
             1343(b)(3a) “Not to abscond, by willfully avoiding
             supervision or by willfully making the supervisee’s
             whereabouts unknown to the supervising probation officer”
             in that, on or about 08-30-2017, the offender bonded out of
             custody, offender is a returned absconder[.] Offender failed
             to report the probation office within 72 hours of release,
             and has made no contact attempts despite several attempts
             to contact the offender, his whereabouts remain
             unknown[.] The offender is actively avoiding supervision,
             thereby absconding.

      The State presented sufficient evidence that Defendant willfully absconded by

failing to report within 72 hours of his release from custody and thereafter avoiding

supervision and making his whereabouts unknown from August 20 through the filing

of the violation report on September 22.

      The burden was then on Defendant to “demonstrate through competent

evidence his inability to comply with these terms” of his probation upon release from

custody. Trent, ___ N.C. App. at ___, 803 S.E.2d at 231. Defendant admitted during

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                                    Opinion of the Court



the hearing that he knew he had to report to the probation office within 72 hours of

his release, that his mother had informed him that a probation officer had stopped by

their home, and that his mother had given him a business card with a probation

officer’s information on it. Moreover, the trial court determined that Defendant was

not credible. In fact, the trial court went as far as to find that the evidence offered by

Defendant was completely opposite of the testimony provided by the probation officer.

      Defendant, however, argues that the trial court abused its discretion because

missing scheduled appointments cannot constitute absconding pursuant to State v.

Williams, 243 N.C. App. 198, 776 S.E.2d 741 (2015) and State v. Krider, ___ N.C. App.

___, 810 S.E.2d 828 (2018), aff’d in part per curiam, ___ N.C. ___, 818 S.E.2d 102

(2018). Here, however, Defendant did not simply miss an appointment or phone call

with his probation officer. Defendant had willfully failed to comply with probation

leading up to the July 7 violation report by making himself unavailable for

supervision “after numerous attempts to contact Defendant at the last known

address,” and then again for almost one month following his release from custody on

August 30.

      In Williams, the allegations in the violation report that the probationer had

failed to remain within the jurisdiction and had failed to report for regular office visits

could not be bootstrapped into a finding of absconding. Williams, 243 N.C. App. at

200, 776 S.E.2d at 743. In Williams, this Court specifically noted that “the State does



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                                  Opinion of the Court



not argue that Defendant absconded” in its brief and the violation “report did not

include reference to N.C. Gen. Stat. § 15A-1343(b)(3a).” Id. at 200, 205, 776 S.E.2d

at 743, 745. Similarly, this Court in Krider stated that evidence of Section 15A-

1343(b)(2) and (3) violations could not be considered absconding, and, as in Williams,

the violation report in Krider had not referenced Section 15A-1343(b)(3a). Krider, ___

N.C. App. at ___, 810 S.E.2d at 831.

      Here, however, the violation report and Addendum specifically alleged that

Defendant had violated Section 15A-1343(b)(3a) by failing to make himself available

for supervision and actively avoiding supervision. Defendant had not simply missed

appointments or phone calls. After he was taken into custody for a violation based

on absconding, Defendant had knowingly failed to notify his probation officer of his

release from custody. Thereafter, Defendant actively avoided supervision each day

after the initial 72-hour time period through and until September 22, 2017. This was

a willful course of conduct by Defendant that thwarted supervision. Defendant’s

actions were a persistent avoidance of supervision and a continual effort to make his

whereabouts unknown.

      Because the trial court had not abused its discretion when it found Defendant

had absconded, we affirm the revocation of Defendant’s probation and activation of

the suspended sentence.




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                                   Opinion of the Court



      However, we remand this matter for correction of a clerical error in the trial

court’s judgment. “When, on appeal, a clerical error is discovered in the trial court’s

judgment or order, it is appropriate to remand the case to the trial court for correction

because of the importance that the record speak the truth.” State v. Smith, 188 N.C.

App. 842, 845, 656 S.E.2d 695, 696 (2008) (citation and quotation marks omitted). As

stated above, a trial court “may only revoke probation for [committing a criminal

offense] or [absconding].” N.C. Gen. Stat. § 15A-1344(a). Thus, the judgment form

must clearly indicate that probation was revoked because Defendant had committed

a criminal offense or absconded. When the trial court incorrectly checks a box on a

judgment form that contradicts its findings and the mistake is supported by the

evidence in the record, we may remand for correction of this clerical error in the

judgment. See State v. Jones, 225 N.C. App. 181, 186, 736 S.E.2d 634, 638 (2013)

(affirming the trial court’s revocation of defendant’s probation, but remanding for the

sole purpose of correcting a clerical error on the judgment form).

      Here, the trial court found on Defendant’s judgment form that Defendant had

violated the conditions of probation as set forth in paragraphs 1 through 5 of the July

7, 2017 violation report, and paragraph 1 of the September 22, 2017 Addendum. The

trial court had checked the box indicating that Defendant’s probation could only be

revoked for committing a criminal offense or absconding.             However, because

violations 2 through 5 in the July 7, 2017 violation report are neither criminal



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                                  Opinion of the Court



offenses nor do they constitute absconding, the trial court should not have selected

the box that “[e]ach violation is in and of itself was sufficient basis upon which this

Court should revoke probation and activate the suspended sentence.” Accordingly,

we remand to the trial court to correct this clerical error on the judgment.

                                     Conclusion

      For the reasons stated above, we affirm the trial court’s judgment. However,

we remand for the limited purpose of correcting the clerical error described above.

      AFFIRMED IN PART; REMANDED IN PART.

      Judge HUNTER, JR. concurs.

      Judge DAVIS concurred in result only in this opinion prior to 25 March 2019.




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