              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                       No. COA14-971

                                 Filed: 6 October 2015

Rowan County, Nos. 08CRS052871-906, 08CRS052916, 08CRS052953,
08CRS052954, 08CRS052959, 08CRS052960, 08CRS052965, 08CRS052966,
08CRS052971, 08CRS052972, 08CRS052977, 08CRS052978, 08CRS052983,
08CRS052989, 08CRS052990, 08CRS053043

STATE OF NORTH CAROLINA

             v.

JERRY LANE HARWOOD, JR., Defendant.


      Appeal by defendant from judgments entered on or about 14 March 2014 by

Judge Mark E. Klass in Superior Court, Rowan County. Heard in the Court of

Appeals on 19 March 2015.


      Attorney General Roy A. Cooper III, by Assistant Attorney General Christine
      Anne Goebel, for the State.

      Peter Wood, for defendant-appellant.


      STROUD, Judge.


      Jerry Lane Harwood, Jr. (“defendant”) appeals from judgments in which the

trial court found defendant in willful violation of his probation, revoked his probation,

and activated five consecutive sentences. Defendant contends that the trial court

lacked subject matter jurisdiction. We vacate.

                                  I.       Background
                                         STATE V. HARWOOD

                                         Opinion of the Court



        On or about 28 April 2008, a grand jury indicted defendant for one count of

felonious burning of a public building and forty-three counts of felonious cruelty to

animals for offenses committed in March 2006, arising from the burning of the Dan

Nicholas Park petting zoo. See N.C. Gen. Stat. §§ 14-59, -360(b) (2005). On or about

23 June 2008, a grand jury indicted defendant for two counts of felonious breaking or

entering, two counts of felonious larceny pursuant to a breaking or entering, two

counts of felonious possession of stolen goods, thirteen counts of felonious breaking

or entering a motor vehicle, two counts of financial transaction card theft, one count

of possession of burglary tools, twelve counts of misdemeanor larceny, and one count

of larceny of a firearm for offenses committed in April 2008.1 See id. §§ 14-54(a), -55,

-56, -71.1, -72(a), (b), -113.9(a)(1) (2007). At a 29 May 2009 hearing, defendant pled

no contest to all seventy-nine charges.

        On or about 29 May 2009, the trial court consolidated defendants’ convictions

into seven judgments. In the first judgment (No. 08CRS052862), the trial court

consolidated one count of felony burning of a public building and seven counts of

felonious cruelty to animals, and sentenced defendant to 16 to 20 months’

imprisonment. The trial court also credited defendant for 405 days of imprisonment.

In the second judgment (No. 08CRS052942), the trial court consolidated two counts


        1We note that the indictment for possession of burglary tools lists the offense date as 19 April
2007, whereas the judgment lists this date as 19 April 2008. Given that every other June 2008
indictment lists an offense date in April 2008, we assume that the date listed in the judgment is correct
and note that this discrepancy is immaterial to our analysis.

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                                  Opinion of the Court



of felonious breaking or entering, two counts of felonious larceny pursuant to a

breaking or entering, two counts of felonious possession of stolen goods, one count of

possession of burglary tools, and one count of larceny of a firearm, and sentenced

defendant to 6 to 8 months’ imprisonment.                In the third judgment (No.

08CRS052871), the trial court consolidated nine charges of felonious cruelty to

animals and sentenced defendant to 6 to 8 months’ imprisonment. In the fourth

judgment (No. 08CRS052880), the trial court consolidated eight charges of felonious

cruelty to animals and sentenced defendant to 6 to 8 months’ imprisonment. In the

fifth judgment (No. 08CRS052888), the trial court consolidated eight charges of

felonious cruelty to animals and sentenced defendant to 6 to 8 months’ imprisonment.

In the sixth judgment (No. 08CRS052896), the trial court consolidated eleven charges

of felonious cruelty to animals and sentenced defendant to 6 to 8 months’

imprisonment.    In the seventh judgment (No. 08CRS052916), the trial court

consolidated thirteen charges of breaking or entering a motor vehicle, twelve charges

of misdemeanor larceny, and two charges of financial transaction card theft, and

sentenced defendant to 6 to 8 months’ imprisonment. The trial court ordered that

defendant serve all seven sentences consecutively.

      The trial court suspended the last five sentences (Nos. 08CRS052871,

08CRS052880, 08CRS052888, 08CRS052896, 08CRS052916) and placed defendant

on 48 months of supervised probation. The trial court also ordered that defendant



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                                       Opinion of the Court



pay $2,337 in restitution, a $1,000 fine and a $200 community service fee. The trial

court ordered that during his probation, defendant complete 100 hours of community

service, which could not involve any animals or any areas where they are kept,

housed, or boarded. The trial court also included the following among the conditions

of defendant’s probation:        (1) submit to warrantless searches for stolen goods,

controlled substances, contraband, child pornography, weapons, pets, and

incendiaries; (2) have no contact with Joshua Dunaway, a co-defendant; and (3)

obtain a psychological evaluation and abide by all of its recommendations. In each of

the five judgments, the trial court failed to either check the box to order that the

probation would begin upon defendant’s release from incarceration or the box to order

that the probation would begin at the expiration of another sentence. In each of the

last four judgments, the trial court checked a box to order that defendant comply with

the probation conditions described in the third judgment (No. 08CRS052871).

       On 11 June 2010, defendant was released from incarceration.2 On 27 January

2014, a probation officer filed probation violation reports alleging that defendant had

been convicted by a court in Tennessee for one count of aggravated burglary, four

counts of fraudulent use of a credit card, two counts of theft, one count of attempted

theft, one count of vandalism, and one count of possession of burglary tools. At a 14



       2  Under North Carolina Rule of Evidence 201, we take judicial notice of this fact from the
Department of Public Safety website’s offender search results. See N.C. Gen. Stat. § 8C-1, Rule 201
(2013); State v. Surratt, ___ N.C. App. ___, ___, 773 S.E.2d 327, 331 (2015).

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                                   Opinion of the Court



March 2014 hearing, defendant admitted to willfully violating the terms of his

probation without lawful justification. On or about 14 March 2014, the trial court

revoked defendant’s probation, activated all five suspended sentences, and ordered

that defendant serve them consecutively. Defendant gave notice of appeal in open

court.

                          II.    Subject Matter Jurisdiction

A.       Standard of Review

                     The issue of a court’s jurisdiction over a matter may
              be raised at any time, even for the first time on appeal or
              by a court sua sponte. It is well settled that a court’s
              jurisdiction to review a probationer’s compliance with the
              terms of his probation is limited by statute. Where
              jurisdiction is statutory and the Legislature requires the
              Court to exercise its jurisdiction in a certain manner, to
              follow a certain procedure, or otherwise subjects the Court
              to certain limitations, an act of the Court beyond these
              limits is in excess of its jurisdiction. If the court was
              without authority, its judgment is void and of no effect.
                     An appellate court necessarily conducts a statutory
              analysis when analyzing whether a trial court has subject
              matter jurisdiction in a probation revocation hearing, and
              thus conducts a de novo review.

State v. Gorman, 221 N.C. App. 330, 333, 727 S.E.2d 731, 733 (2012) (citations,

quotation marks, brackets, and ellipsis omitted). “In a criminal case, . . . North

Carolina requires the State to prove jurisdiction beyond a reasonable doubt. . . . . The

burden of perfecting the trial court’s jurisdiction for a probation revocation hearing




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                                   Opinion of the Court



after defendant’s period of probation has expired lies squarely with the State.” State

v. Moore, 148 N.C. App. 568, 570-71, 559 S.E.2d 565, 566-67 (2002).

B.    Analysis

      In his sole argument on appeal, defendant contends that the 2014 trial court

lacked subject matter jurisdiction to revoke his probation, because the probation

officer filed the probation violation reports after defendant’s probation had expired.

Defendant argues that his four-year period of probation began on or about 29 May

2009 and thus expired on or about 29 May 2013, several months before the probation

officer filed violation reports on 27 January 2014. N.C. Gen. Stat. § 15A-1344(f)

(2013) provides that, in order for a trial court to revoke a defendant’s probation after

the expiration of the period of probation, the State must have filed a written violation

report before the expiration of the period of probation, among other conditions.

      The State responds that defendant’s period of probation actually began upon

his release from incarceration on 11 June 2010. According to the State, defendant’s

four-year period of probation expired 11 June 2014, after the 2014 trial court revoked

defendant’s probation, and thus the trial court did not violate N.C. Gen. Stat. § 15A-

1344(f). The State acknowledges that the 2009 trial court failed to check the box to

indicate that the period of probation would begin upon defendant’s release from

incarceration. But the State argues that this omission was due to a clerical mistake

and requests that we remand this case to the trial court for correction of that mistake.



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                                  STATE V. HARWOOD

                                  Opinion of the Court



      N.C. Gen. Stat. § 15A-1346 (2013) provides that the default rule is that a

defendant’s period of probation runs concurrently with his period of imprisonment:

                    (a) Commencement of Probation.—Except as
             provided in subsection (b), a period of probation commences
             on the day it is imposed and runs concurrently with any
             other period of probation, parole, or imprisonment to which
             the defendant is subject during that period.
                    (b) Consecutive and Concurrent Sentences.—If a
             period of probation is being imposed at the same time a
             period of imprisonment is being imposed or if it is being
             imposed on a person already subject to an undischarged
             term of imprisonment, the period of probation may run
             either concurrently or consecutively with the term of
             imprisonment, as determined by the court. If not specified,
             it runs concurrently.

North Carolina Rule of Civil Procedure 60(a) provides the rule for clerical errors:

             Clerical mistakes in judgments, orders or other parts of the
             record and errors therein arising from oversight or
             omission may be corrected by the judge at any time on his
             own initiative or on the motion of any party and after such
             notice, if any, as the judge orders. During the pendency of
             an appeal, such mistakes may be so corrected before the
             appeal is docketed in the appellate division, and thereafter
             while the appeal is pending may be so corrected with leave
             of the appellate division.

N.C. Gen. Stat. § 1A-1, Rule 60(a) (2013). However,

             [t]he court’s authority under Rule 60(a) is limited to the
             correction of clerical errors or omissions. Courts do not
             have the power under Rule 60(a) to affect the substantive
             rights of the parties or correct substantive errors in their
             decisions. We have repeatedly rejected attempts to change
             the substantive provisions of judgments under the guise of
             clerical error.



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                                   STATE V. HARWOOD

                                   Opinion of the Court



Gerhauser v. Van Bourgondien, ___ N.C. App. ___, ___, 767 S.E.2d 378, 384 (2014)

(citations omitted). In Gerhauser, the trial court originally held that it had subject

matter jurisdiction under N.C. Gen. Stat. § 50A-201(a)(2). Id. at ___, 767 S.E.2d at

383. But after the plaintiff filed a Rule 60 motion, the trial court changed its basis

for subject matter jurisdiction and held that it had jurisdiction instead under N.C.

Gen. Stat. § 50A-201(a)(4). Id. at ___, 767 S.E.2d at 382-84. This Court held that this

change was substantive, not clerical, because the “trial court did not merely cite an

incorrect subsection of N.C. Gen. Stat. § 50A-201 in the [original order]; the trial court

quoted large portions of the statute in detail and made findings of fact and conclusions

of law based upon the provisions of N.C. Gen. Stat. § 50A-201(a)(2)[.]” Id. at ___, 767

S.E.2d at 383.

      Here, in each of the five judgments in which the 2009 trial court placed

defendant on supervised probation, the 2009 trial court failed to either check the box

to order that the probation would begin upon defendant’s release from incarceration

or check the box to order that the period of probation would begin at the expiration of

another sentence. We first note that the fact that the 2009 trial court made both

omissions five times strongly suggests that the trial court did not make a mistake but

rather intended for defendant’s probation to run concurrently with his incarceration,

as this is the default rule under N.C. Gen. Stat. § 15A-1346. We also note that in

each of the last four judgments, the 2009 trial court checked a box to order that



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                                     STATE V. HARWOOD

                                     Opinion of the Court



defendant comply with the probation conditions described in the third judgment (No.

08CRS052871), which also indicates that the trial court was being careful in ordering

the details of defendant’s probation. Additionally, even assuming the 2009 trial court

made a mistake, we hold that this mistake would be a substantive error, rather than

a clerical one. Changing this provision would retroactively extend defendant’s period

of probation by more than one year and would grant the trial court subject matter

jurisdiction to activate five consecutive sentences of 6 to 8 months’ imprisonment.

Because this provision is substantive, we lack authority to change it under Rule 60(a).

See id. at ___, 767 S.E.2d at 384.

      The State argues that the 2009 trial court’s comments to defendant indicate

that it intended for defendant’s probation to begin upon his release from

incarceration. At the 29 May 2009 hearing, the trial court addressed defendant: “I

want you to know that I have imposed a very strenuous and very serious probation

period for you. I do that out of a sincere desire to see you walk on a very straight and

narrow path.”    But these comments are not inconsistent with a decision that

defendant’s probation run concurrently with defendant’s active sentences.

Defendant’s total active sentence was 22 to 28 months’ imprisonment. But the 2009

trial court credited defendant 405 days, approximately 13 months, so defendant’s

period of incarceration beginning from the date of the 29 May 2009 hearing was

between 9 to 15 months.       Defendant was actually released on 11 June 2010,



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                                 STATE V. HARWOOD

                                  Opinion of the Court



approximately 12 months after the hearing, which fits within this range. According

to the judgments on their face, defendant was on probation until 29 May 2013, almost

three years after his release from incarceration on 11 June 2010. During this period,

defendant was required to complete 100 hours of community service, which could not

involve any animals or any areas where they are kept, housed, or boarded. Defendant

was also subject to the following conditions: (1) submit to warrantless searches for

stolen goods, controlled substances, contraband, child pornography, weapons, pets,

and incendiaries; (2) have no contact with Joshua Dunaway, a co-defendant; and (3)

obtain a psychological evaluation and abide by all of its recommendations.

Accordingly, we hold that the trial court’s comments to defendant at the 29 May 2009

hearing were not inconsistent with the judgments on their face as they impose a

lengthy period of probation with several conditions. Additionally, as discussed above,

even if the 2009 trial court did make a mistake, we cannot change a substantive error.

See id., 767 S.E.2d at 384.

      The State next argues that the 2009 trial court intended for defendant’s

probation to begin upon defendant’s release from incarceration, because defendant

would not be able to complete his 100 hours of community service otherwise. But as

discussed above, according to the judgments on their face, defendant served nearly

three years of his probation after being released from incarceration.        Because

completing 100 hours of community service in three years is certainly feasible, we



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                                   Opinion of the Court



disagree with the State. The State further argues that given the large number of

charges involved in this case, “it is no surprise that such clerical errors were made.”

But the 2009 trial court properly included all seventy-nine charges in the seven

judgments, and no mistake in the judgments is readily apparent from the record.

      The State finally points out that in the third judgment (No. 08CRS052871), the

2009 trial court checked the box to order that the first suspended sentence run

consecutively to the second active sentence.        The State asks, “If the trial court

intended for the 48-month probation period to run concurrently with Defendant’s two

active sentences starting on May 29, 2009, why would this box have been checked,

indicating that the sentence was to run after the second of the two active sentences?”

The trial court checked this box because it intended for the five suspended sentences

of 6 to 8 months’ imprisonment to serve as a penalty for a probation violation. At the

29 May 2009 hearing, the trial court emphasized this penalty to defendant: “[I]f you

reappear before the Superior Court on probation violations for failure to comply with

these conditions, then you are looking at five back-to-back six-to-eight sentences. Do

you understand that?” The fact that the trial court checked this box indicates that it

intended for the first suspended sentence to run consecutively to the second active

sentence, but it does not indicate that the trial court intended for the probation period

to run consecutively to the second active sentence.




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                                         STATE V. HARWOOD

                                          Opinion of the Court



        In summary, we hold that the State has failed to show from the record that the

2009 trial court intended for defendant’s probation to begin upon his release from

incarceration. Assuming arguendo that the State had made this showing, we would

be without authority to make such a substantive change to the judgments. See id.,

767 S.E.2d at 384. Accordingly, we hold that defendant’s probation expired on or

about 29 May 2013, several months before the probation officer filed the probation

violation reports. Therefore, under N.C. Gen. Stat. § 15A-1344(f), the 2014 trial court

lacked subject matter jurisdiction to revoke defendant’s probation and activate his

five remaining sentences.3

                                         III.     Conclusion

        Because we hold that the 2014 trial court lacked subject matter jurisdiction to

revoke defendant’s probation, we vacate the 2014 judgments.



        3 We note that N.C. Gen. Stat. § 15A-1344(g) (2009) provides: “If there are pending criminal
charges against the probationer in any court of competent jurisdiction, which, upon conviction, could
result in revocation proceedings against the probationer for violation of the terms of this probation,
the probation period shall be tolled until all pending criminal charges are resolved. The probationer
shall remain subject to the conditions of probation, including supervision fees, during the tolled period.
If the probationer is acquitted or if the new charge is dismissed, the time spent on probation during
the tolled period shall be credited against the period of probation.” But this subsection is inapplicable
to defendant because it applies to offenses committed on or after 1 December 2009. 2009 N.C. Sess.
Laws 667, 675, 679, ch. 372, §§ 11(b), 20. We also note that Session Law 2009-372 also deleted similar
tolling language from N.C. Gen. Stat. § 1344(d) and that this amendment applies to hearings held on
or after 1 December 2009. 2009 N.C. Sess. Laws 667, 674-75, 679, ch. 372, §§ 11(a), 20. Because
defendant committed the underlying offenses before 1 December 2009 and his probation revocation
hearing occurred after 1 December 2009, we hold that these tolling provisions are inapplicable here.
See State v. Sitosky, ___ N.C. App. ___, ____, 767 S.E.2d 623, 627 (2014) (“[W]e conclude that
Defendant, who committed her offenses . . . prior to 1 December 2009 but had her revocation hearing
after 1 December 2009, was not covered by either statutory provision—§ 15A-1344(d) or § 15A-
1344(g)—authorizing the tolling of probation periods for pending criminal charges.”), disc. review
denied, ___ N.C. ___, 768 S.E.2d 847 (2015).

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                      STATE V. HARWOOD

                       Opinion of the Court



VACATED.

Judges DILLON and DAVIS concur.




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