An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                  NO. COA14-245
                         NORTH CAROLINA COURT OF APPEALS

                              Filed: 19 August 2014


STATE OF NORTH CAROLINA

      v.                                      Guilford County
                                              No. 11CRS081948
SY LUCAS,
     Defendant.


      Appeal by defendant from judgment entered 10 October 2013

by Judge James M. Webb in Guilford County Superior Court.                      Heard

in the Court of Appeals 11 August 2014.


      Attorney General Roy A. Cooper III, by Assistant Attorney
      General Letitia C. Echols, for the State.

      Willis Johnson & Nelson,                PLLC,     by     Drew   Nelson     for
      defendant-appellant.


      STROUD, Judge.


      Defendant     Sy    Edward    Lucas   appeals     from    judgment    entered

upon revocation of his probation.                For the reasons discussed

herein,     we   reverse      the    judgment     and    remand       for   further

proceedings.

      On 3 February 2012, pursuant to a plea agreement, defendant

entered an Alford plea to one count of accessory after the fact
                                             -2-


to discharge of a weapon into occupied property.                        In accordance

with the plea agreement, the trial court sentenced defendant to

thirteen    to     sixteen       months      imprisonment.        The       trial   court

suspended       the    sentence        and   placed    defendant       on     supervised

probation for thirty-six months.

      On   20     July   2012,     defendant’s        probation   officer       filed   a

violation report alleging defendant violated the conditions of

his probation in that he failed to pay court costs and probation

supervision fees, admitted to recently using an illegal drug,

and was convicted of attempted larceny.                      In response to the

criminal     conviction          the     trial     court   modified         defendant’s

probation at the 30 October 2012 violation hearing so that he

was required to serve two days at Guilford County Farm, undergo

a   TASC substance abuse assessment and complete                        the One Step

Further program.

      Defendant’s probation officer filed an additional violation

report on 26 July 2013 alleging that defendant tested positive

for marijuana twice, failed to pay court costs and probation

supervision fees, was discharged from TASC and the One Step

Further program for non-compliance, attempted to falsify a drug

screen,     and       admitted    to     using     marijuana      on    two    separate

occasions.
                                      -3-


    On 6 September 2013, defendant’s probation officer filed a

violation report alleging defendant failed to appear in superior

court for his violation hearing on 20 August 2013, and failed to

report   to   his   probation   officer     on      20   August   2013    and   3

September 2013.       An order for arrest was issued and defendant

was arrested on 11 September 2013.

    The matter came on for a probation violation hearing on 30

September 2013.        The defendant admitted and the trial court

found that he violated the conditions of his probation willfully

and without lawful excuse.        The trial court revoked defendant’s

probation     and   activated   his   suspended      sentence.      Defendant

timely gave oral notice of appeal.

    Defendant’s      argument   on    appeal   is    that   the   trial   court

erred    in   revoking   his    probation      because:     (1)   defendant’s

underlying offense was committed prior to 1 December 2011, (2)

he did not abscond, (3) the court’s oral judgment was based on

the 6 September 2013 violation report which did not document a

new criminal offense, and (4) he had not previously received two

periods of confinement in response to a violation.                   We agree

that the trial court erred in revoking defendant’s probation,

and the State concedes that the judgment should be reversed.
                                     -4-


      We are unable to distinguish the present case from our

recent decision in State v. Nolen, ___ N.C. App. ___, 743 S.E.2d

729   (2013).   In   Nolen,   the   defendant   argued   the    trial   court

lacked statutory authority to revoke her probation based upon

the violations alleged by her probation officer.               The defendant

contended that her violations occurred after the effective date

of the Justice Reinvestment Act (“JRA”), which limited the trial

court’s authority to revoke probation for violations occurring

on or after 1 December 2011.         Nolen, ___ N.C. App. at ___, 743

S.E.2d at 730.

           [F]or probation violations occurring on or
           after 1 December 2011, the JRA limited trial
           courts’ authority to revoke probation to
           those     circumstances     in    which    the
           probationer: (1) commits a new crime in
           violation   of   N.C.   Gen.   Stat.   §  15A-
           1343(b)(1); (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    CRV   [confinement    in   response   to
           violation] under N.C. Gen. Stat. § 15A-
           1344(d2).

Id. (citing N.C. Gen. Stat. § 15A-1344(a)).              This Court found

that the trial court erred in finding her in violation of the

new absconding condition set forth in N.C. Gen. Stat. § 15A-

1343(b)(3a) because it was not in existence at the time she

committed her offenses.        Id. at ___, 743 S.E.2d at 731. Under
                                       -5-


the JRA, “the new absconding condition [is] 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.”                         State v.

Hunnicutt, ___ N.C. App. ___, ___, 740 S.E.2d 906, 911 (2013).

    In the present case, although the probation officer told

the trial court that defendant absconded and the trial court

found that defendant had absconded, the absconding condition was

not applicable to defendant.               As noted above, the absconding

condition    only   applies    to    offenses     committed     on    or    after   1

December 2011, and defendant’s underlying offense was committed

on 13 July 2011.      Accordingly, the trial court erred in revoking

defendant’s    probation      based    on    an     inapplicable      finding       of

absconding     supervision         under     N.C.     Gen.      Stat.       §   15A-

1343(b)(3a)(2013).

    Here, the oral rendering of judgment was based only on the

allegations in the 6 September 2013 violation report, which did

not include any criminal law violations.              The trial court solely

found that defendant had:

          unlawfully,    willfully,    and   without     legal
          justification violated the terms and conditions
          of his probation as is alleged in the violation
          report   file-stamped   September   6,   2013,   and
          incorporates    those   allegations    herein    and
                                        -6-


          specifically   finds   that         the     respondent         has
          absconded supervision.

            The sentence       heretofore      suspended     is     to    be
          activated[.]

Defendant’s positive tests for marijuana from the 17 July 2013

violation report were not convicted crimes nor was the report

presented    to    or   before    the    trial      court    when    it    rendered

judgment.    Defendant’s criminal conviction for attempted larceny

from the 20 July 2012 violation report was already addressed

through     probation    modification,        and     that    report       was    not

presented    to    or   before    the    trial      court    when    it    rendered

judgment.         Therefore,     neither      violation      report       could   be

considered by the trial court or used as additional grounds for

probation revocation in the written judgment.1

     In summary, the absconding supervision condition of N.C.

Gen. Stat. § 15A-1343(b)(3a) is not applicable; there was no

evidence at the hearing that defendant had committed a new crime

in violation of N.C. Gen. Stat. § 15A-1343(b)(1); and defendant

had not served two prior periods of confinement in response to

violation under N.C. Gen. Stat. § 15A-1344(d2).                     See N.C. Gen.

Stat. § 15A-1344(a) (2013); Nolen, ___ N.C. App. at ___, 743



1
  While the written judgment cites a violation report dated
“7/7/13” it is referring to the violation report dated 7/17/13.
                               -7-


S.E.2d at 730.   Therefore, we conclude the trial court erred in

revoking defendant’s probation.    As a result, we do not address

defendant’s remaining arguments.     We reverse the judgment and

remand for further proceedings consistent with this opinion.

    REVERSED and REMANDED.

    Judges BRYANT and HUNTER, JR., Robert N. concur.

    Report per Rule 30(e).
