An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-337
                        NORTH CAROLINA COURT OF APPEALS

                               Filed: 4 February 2014


STATE OF NORTH CAROLINA

      v.                                      Hertford County
                                              No. 10 CRS 51612
QUAYSHAUN WYNN,
          Defendant.


      Appeal by defendant from judgment entered 10 December 2012

by Judge Cy A. Grant in Hertford County Superior Court.                       Heard

in the Court of Appeals 9 September 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Carolyn McLain and Assistant Attorney General Kimberly N.
      Callahan, for the State.

      Yoder Law PLLC, by Jason Christopher Yoder, for defendant-
      appellant.


      GEER, Judge.


      Defendant     Quayshaun     Wynn    appeals    from    the    trial   court's

judgment    revoking     his    probation    and    activating      his   suspended

sentence    for    conspiracy     to     commit    robbery   with    a    dangerous

weapon.     On appeal, defendant primarily argues that the trial

court revoked his probation based upon an absconding condition

provided    for    in   the    Justice    Reinvestment       Act   ("JRA")    that,
                                       -2-
because of the effective date of the applicable JRA provision,

did not apply to defendant's probation.

      We hold that even though the absconding provision of the

JRA did not apply to defendant's probation, the trial court

properly revoked defendant's probation based on his violation of

the   probationary        conditions    that       defendant   not   (1)     change

residences without prior approval or (2) leave the jurisdiction

of the trial court without permission.                Consequently, we affirm

the   trial     court's    judgment,    but    remand    for   correction     of   a

clerical error.

                                       Facts

      On 8 February 2011, defendant pled guilty to conspiracy to

commit robbery with a dangerous weapon in Hertford County, North

Carolina.       The trial court sentenced defendant to a presumptive-

range term of 20 to 33 months imprisonment, but suspended the

sentence      and   ordered   defendant       to    serve   six   months     active

imprisonment followed by 24 months of supervised probation.                     The

court ordered as a condition of probation that defendant report

as directed to the "Day Reporting Center" for 24 months.

      On    7    March    2012,   defendant's        probation    officer,     Todd

Sellers, filed a verified probation violation report in Hertford

County alleging that defendant willfully violated the conditions

of his probation by (1) being $400.00 in arrears in payments on
                                          -3-
his   case    and   (2)   failing    to    report    as   directed     to   the   Day

Reporting Center since October 2011.                 In addition, the report

alleged that defendant also committed the following probation

violations:

              3.    Condition of Probation ". . . obtain
                    prior approval from the officer for,
                    and notify the officer of, any change
                    in address . . ." in that
                    ON OR ABOUT 11/15/2011 OFFENDER LEFT
                    HIS PLACE OF RESIDENCE AT 104 WATFORD
                    PARK LN. AND FAILED TO MAKE IS [sic]
                    WHEREABOUTS KNOWN.

              4.    Condition of Probation "Remain within
                    the jurisdiction of the Court unless
                    granted written permission to leave by
                    the Court or the probation officer" in
                    that
                    OFFENDER ABSCONDED SUPERVISION AND HAS
                    FAILED TO REPORT OR GIVE A VALID
                    ADDRESS TO HIS PROBATION OFFICER SINCE
                    11/15/12.

      At a 10 December 2012 hearing on the probation violation

report,      defendant    admitted    the       existence   of   the    first     two

violations alleged in the report but denied the existence of the

third and fourth violations.               The probation officer who filed

the report, Mr. Sellers, did not testify at the hearing because

he had moved out of Hertford County.                It appears, however, from

the transcript, that defendant's supervision was transferred to

Bertie County at some point.

      In place of Mr. Sellers, the State presented the testimony

of Dessie Outlaw, a probation officer in Hertford County to whom
                                          -4-
defendant was assigned following his arrest in Plymouth, North

Carolina on a warrant for absconding from his probation.                               Ms.

Outlaw testified that when defendant was discovered in Plymouth,

he   was    supposed     to   be    living     at   104     Watford   Park    Lane     in

Colerain, North Carolina, but he was not living at that address.

Ms. Outlaw testified that other than this basic information, she

only     knew    the     information      on    the    violation         report    since

defendant had not been assigned to her prior to being arrested

in Plymouth.

       Defendant testified at the hearing that in April 2011, Mr.

Sellers      gave      defendant     permission       to    move    to     Nags    Head.

Defendant admitted that his last contact with Mr. Sellers was in

April 2011, although defendant claimed he tried to contact Mr.

Sellers at other times.               According to defendant, Mr. Sellers

said   he    would      transfer    defendant's       file    to   the     appropriate

probation office in Nags Head, but he never did.                         Consequently,

defendant returned to Bertie County at some point in 2011 to

find out what was happening with his probation.

       When defendant returned to Bertie County, he lived with his

mother      at   an    address     that   defendant        never   provided       to   the

probation office.          Defendant claimed that he went to the Bertie

County probation office to find Mr. Sellers, but Mr. Sellers was

never in the office.
                                              -5-
       Defendant further testified that he most recently tried to

report    to    a     probation      officer       in    November     2012.        Defendant

admitted       he    was    arrested    on     24    November       2012    at    a    traffic

checkpoint in Plymouth for absconding from probation.                              Defendant

had been in jail since his arrest.

       At the conclusion of the hearing, the trial court ordered

defendant's probation revoked "for absconding."                             The same day,

10 December 2012, the trial court entered a judgment revoking

defendant's probation and activating defendant's sentence, with

credit    for       the    active    imprisonment         defendant        already      served

under the prior split sentence.                    In its judgment, using the form

AOC-CR-607, Rev. 12/12, entitled "JUDGMENT AND COMMITMENT UPON

REVOCATION OF PROBATION -- FELONY (STRUCTURED SENTENCING) (For

Revocation Hearings On Or After Dec. 1, 2011)," the court found

that     defendant         violated     his     probation         based     on    all     four

violations alleged in the probation violation report.                                  We have

granted    defendant's            petition    for       writ   of    certiorari        seeking

review     of       the    trial     court's       judgment       revoking       defendant's

probation.

                                               I

       Defendant          first    contends    that      the     trial    court       erred    in

revoking his probation for "absconding" because the absconding

condition       of    probation       only     came       into      existence     with        the
                                  -6-
enactment of the JRA, and the JRA is inapplicable to defendant's

probation.    Defendant further claims he was not given notice

that the new absconding provision applied to his probation.

      This Court has previously recognized that

          for 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)      [(2011)];      (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(d2) [(2011)].    See N.C. Gen. Stat.
          § 15A–1344(a).      For all other probation
          violations, the JRA authorizes courts to
          alter the terms of probation pursuant to
          N.C. Gen. Stat. § 15A–1344(a) or impose a
          CRV in accordance with N.C. Gen. Stat. §
          15A–1344(d2), but not to revoke probation.
          Id.

State v. Nolen, ___ N.C. App. ___, ___, 743 S.E.2d 729, 730

(2013).

      Further, "the JRA made the following a regular condition of

probation: 'Not to abscond, by willfully avoiding supervision or

by willfully making the defendant's whereabouts unknown to the

supervising probation officer.'"        State v. Hunnicutt, ___ N.C.

App. ___, ___, 740 S.E.2d 906, 910 (2013) (quoting N.C. Gen.

Stat. § 15A–1343(b)(3a)).      Following amendments to the JRA, "the

new   absconding   condition   [is]     applicable   only   to   offenses
                                          -7-
committed    on    or    after    1     December       2011,     while       the    limited

revoking     authority     [is]        effective       for    probation        violations

occurring on or after 1 December 2011."                      Id. at ___, 740 S.E.2d

at 911.

    Defendant        correctly         asserts     that        the     new     absconding

condition    provided      for    in     the     JRA    does     not     apply       to   his

probation,       since   his     probation       was     based       upon     an    offense

committed on 28 September 2010.                    We, however, disagree with

defendant's contention that since he was not subject to the new

absconding       condition,      the    trial      court's       revocation         of    his

probation "for absconding" was necessarily invalid.

    In Hunnicutt, as here, the defendant argued that the trial

court erred in activating his sentence on the grounds that he

"'absconded by willfully avoiding supervision'" since "no such

condition was ever imposed upon him, . . . he had no notice of

such a condition, and . . . the trial court had no authority to

impose     any    condition      prohibiting           'absconding       by        willfully

avoiding supervision.'"            Id. at ___, 740 S.E.2d at 910.                         The

violation report at issue in Hunnicutt alleged:

            "Of the conditions of probation imposed in
            [the] judgment, the defendant has willfully
            violated:

            1.   Condition of   Probation  'Report  as
            directed by the Court or the probation
            officer to the officer at reasonable times
            and places . . .' in that THE DEFENDANT
                                            -8-
              FAILED TO REPORT TO HIS SUPERVISING OFFICER
              AS DIRECTED ON 11/10/2011 AND 11/21/2011.

              2. Condition of Probation 'Remain within the
              jurisdiction of the Court unless granted
              written permission to leave by the Court or
              the probation officer' in that DESPITE
              NUMEROUS    ATTEMPTS     BY   THE   SUPERVISING
              OFFICER, THE DEFENDANT REFUSES TO REPORT AS
              DIRECTED AND DOES NOT RESPOND TO CONTACT
              NOTICES LEFT BY THE SUPERVISING OFFICER.
              THE    DEFENDANT     HAS    RENDERED    HIMSELF
              UNAVAILABLE FOR SUPERVISION."

Id. at ___, 740 S.E.2d at 911.

       At   the   conclusion         of   the   revocation    hearing,        the    trial

court in Hunnicutt found that the defendant's probation officer

called the defendant on a certain date, and the defendant hung

up on her; that on a different date, the defendant reported to

the probation office on a day he was supposed to report, but at

an improper time; and that on the latter day, the defendant left

the    office     on   his     own    despite     being    told    to    wait   by     the

probation officer until the officer finished a meeting.                             Id. at

___, 740 S.E.2d at 912.

       On appeal, this Court held that neither the JRA's limited

revoking authority nor the new absconding condition applied to

the    defendant       because    "both     the   offenses    and       the   probation

violations at issue occurred prior to 1 December 2011."                             Id. at

___,    740     S.E.2d    at     911.       The    Court    then    turned      to     the

defendant's contention that the trial court necessarily relied
                                               -9-
upon    the    new    absconding     condition          in      revoking      his    probation

given    the    trial    court's     statements            at    the   hearing       that    the

defendant "'did abscond'" and that "'[i]t's not that he made his

whereabouts       unknown,       it's      that       he     absconded        by    willfully

avoiding supervision.'"             Id. at ___, 740 S.E.2d at 911.                          The

defendant further noted that the trial court checked the box on

the    Administrative      Office         of    the    Courts      form       judgment      that

stated    the        defendant      had        "'abscond[ed]           from    supervision'

pursuant to 'G. S. 15A–1343(b)(3a).'"                      Id. at ___, 740 S.E.2d at

911.

       This Court rejected the argument that the trial court's

references to absconding and the AOC form showed the trial court

improperly       relied      upon       the      new,        inapplicable           absconding

condition of the JRA when revoking the defendant's probation,

explaining:

                     Although   N.C.  Gen.    Stat.   §   15A–
               1343(b)(3a) introduced the term "abscond"
               into our probation statutes for the first
               time, the term "abscond" has frequently been
               used when referring to violations of the
               longstanding statutory probation conditions
               to "remain within the jurisdiction of the
               court" or to "report as directed to the
               officer."    See, e.g., State v. Brown, ___
               N.C. App. ___, 731 S.E.2d 530 (2012); State
               v. High, 183 N.C. App. 443, 645 S.E.2d 394
               (2007); State v. Coffey, 74 N.C. App. 137,
               327 S.E.2d 606 (1985).       Both are regular
               conditions of probation under N.C. Gen.
               Stat. § 15A–1343 and, therefore, "are in
               every    circumstance  valid    conditions   of
                                        -10-
               probation."       N.C. Gen. Stat. § 15A–1342(g)
               (2011).

Id. at ___, 740 S.E.2d at 911.                  The Court observed that the

defendant "had notice of his obligation to 'remain within the

jurisdiction of the court' and to 'report as directed to the

[probation] officer'" based on the language providing for those

conditions       in    the    defendant's      original      judgment       suspending

sentence.      Id. at ___, 740 S.E.2d at 911.

       This    Court    in    Hunnicutt     then    held    that     "[d]espite    its

colloquial and perhaps imprecise usage of the term 'abscond,' it

is     clear    from    the   record    that       the    trial    court    activated

Defendant's sentence on the basis of [the probation officer's]

testimony        explaining       the     circumstances           surrounding      the

violations listed in the reports."                  Id. at ___, 740 S.E.2d at

912.     Accordingly, the Court rejected the defendant's argument

"that    the    trial    court    retroactively          engrafted    the    condition

created by the JRA onto his existing probation conditions."                        Id.

at ___, 740 S.E.2d at 912.

       Here, the third alleged violation in the report was that

defendant failed to "'obtain prior approval from the officer

for, and notify the officer of, any change in address'" when he

left his residence of record on 15 November 2011 and failed to

make his whereabouts known to his probation officer after that

date.     Since the alleged violation occurred prior to 1 December
                                            -11-
2011, the JRA's limited revoking authority did not apply to that

violation.

       Defendant     does       not    dispute      that   his    original    judgment

suspending sentence provided as a condition of probation that he

"obtain prior approval from the officer for, and notify the

officer    of,     any    change       in   address."       We     believe   that    the

reasoning of Hunnicutt applies to this violation, and that the

trial court's statement that defendant's probation was revoked

for "absconding" was a reference to the third alleged violation

in the report.           See High, 183 N.C. App. at 445, 645 S.E.2d at

395   (referring     to     probation       violation      report      allegation    that

"'[o]n or about 6–13–03 the defendant left his residence . . .

in    Knightdale    and     has       failed   to   make   himself      available    for

supervision or notify his probation officer of his whereabouts'"

as    allegation         that    defendant         "violated     his     probation    by

absconding").

       Turning to the fourth alleged violation, the 7 March 2012

report alleged that defendant failed to "'[r]emain within the

jurisdiction of the Court unless granted written permission to

leave by the Court or the probation officer'" since defendant

"ABSCONDED" supervision and had failed to give his probation

officer a valid address "SINCE 11/15/12."                        In other words, the

report, which was filed in March 2012, alleged that defendant
                                                  -12-
had    violated        his     probation          eight     months     in    the     future    in

November 2012.          Although defendant argues that the report should

be    read     as     referring       to     a     2012     violation,       obviously,        the

reference       to    2012     is     a    typographical        error.        Comparing       the

allegations in the third alleged violation and in the fourth

violation, it appears that the probation officer intended the

fourth violation to have the same date as the third violation,

15 November 2011.

        Indeed,       defendant           himself        testified    that     he    failed     to

contact any probation officer after April 2011 and moved back to

Bertie County, to an address not known to his probation officer,

at     some    point      in    2011.             Defendant's        testimony       thus     also

indicates that the trial court and the parties all understood

the fourth alleged violation to refer to a violation in November

2011    and     not    November           2012.      Under    these        circumstances,       we

conclude that the fourth alleged violation, actually referring

to a violation on 15 November 2011, was also not subject to the

JRA's limited revoking authority.

       Defendant nonetheless cites State v. Jarman, 140 N.C. App.

198, 535 S.E.2d 875 (2000), in support of his argument that we

should        interpret        the    probation           violation        report,    and     the

proceedings based upon it, as providing for an alleged violation

in    November        2012     that       was     subject     to     the    court's     limited
                                            -13-
revoking      authority.        In     Jarman,       this   Court     explained     that

"[w]here there has been uncertainty in whether an error was

'clerical,' the appellate courts have opted to 'err on the side

of    caution    and    resolve      [the    discrepancy]      in    the   defendant's

favor.'"      Id. at 203, 535 S.E.2d at 879 (first alteration added)

(quoting State v. Morston, 336 N.C. 381, 410, 445 S.E.2d 1, 17

(1994)).

       Jarman,       however,   provides       no    authority       for   defendant's

argument      that     this   court    is    bound    to    interpret      the   alleged

fourth violation of the report, as incorporated by reference

into    the   trial      court's      judgment      revoking   probation,        without

taking into account the date listed for the factually similar

third alleged violation,              the filing date of the report, and

defendant's own testimony at trial.                    We do not believe, given

the    entire    record,      that     there   is     any   uncertainty      regarding

whether there was a typographical error as to the date of the

fourth violation alleged in the report.

       Given the fourth violation occurred in November 2011, under

Hunnicutt, we believe the trial court's reference in the hearing

to "absconding" expressed the court's intent to revoke based on

the fourth, as well as the third, violation.                        As with the third

violation, defendant does not dispute that his original judgment

suspending sentence required defendant to "[r]emain within the
                                         -14-
jurisdiction of the Court unless granted written permission to

leave by the Court or the probation officer."

    In   sum,      we    hold    that    the    trial       court's    reference    to

"absconding" does not show that the court improperly revoked

defendant's     probation        based    on    the     JRA's       new   absconding

provision.     Further, defendant had notice of the conditions for

which his probation was revoked.

    However,        the        court's     judgment          revoking      probation

incorporates    the     four    paragraphs      of    the    violation    report    by

reference, including the error regarding the date of the fourth

violation.      Accordingly,       we must      remand the judgment to the

trial court to correct the clerical error in the date of the

violation, found by the court, based upon the fourth paragraph

in the report.      See State v. Smith, 188 N.C. App. 842, 845, 656

S.E.2d 695, 696 (2008) ("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.'"

(quoting State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d

781, 784 (1999))).

                                          II

    Defendant next contends that the trial court abused its

discretion in revoking his probation.                   When the trial court's
                                          -15-
findings that a defendant violated his probation are supported

by competent evidence, we review the court's decision to revoke

the defendant's probation for an abuse of discretion.                        State v.

Young, 190 N.C. App. 458, 459, 660 S.E.2d 574, 576 (2008).

      The   verified     violation         report     in     this    case    provided

competent evidence from which the trial court could find that

defendant left his residence of record on 15 November 2011 and

subsequently    failed    to       make    his   whereabouts         known    to   his

probation officer.       See State v. Gamble, 50 N.C. App. 658, 661,

274 S.E.2d 874, 876 (1981) ("Defendant's allegation that the

State presented no evidence is erroneous, because introduction

of the sworn probation violation report constituted competent

evidence    sufficient        to      support       the     order    revoking      his

probation.").

      In addition, defendant testified that he last successfully

contacted Mr. Sellers in April 2011 and that he moved from Nags

Head to Bertie County later that year.                    Defendant admitted that

he never provided his new Bertie County address to his probation

officer.    Thus, the report and defendant's testimony constituted

competent   evidence     that      defendant     violated      his    probation     by

moving from Nags Head to Bertie County without prior approval

and   failing   to     keep     his    probation          officer    aware   of    his

whereabouts.
                                       -16-
       Moreover, with respect to the court's decision to revoke

defendant's     probation,      defendant       admitted       to    violating     his

probation by being in arrears with respect to court indebtedness

in    the   amount    of   $400.00   and   by   failing    to       attend   the   Day

Reporting Center as directed since October 2011.                      Following the

presentation     of    evidence,     the   trial   court       further   questioned

defendant about why he left Nags Head and returned to Bertie

County in 2011, and the court indicated that it did not believe

defendant's story that defendant returned in order to check on

his probation and, yet, never turned himself in for absconding.

Indeed, as the trial court noted, defendant admitted that he

never actually made contact with his probation officer after

April 2011, and defendant was out of touch with the probation

office until he was arrested for absconding from probation in

November 2012 at a traffic checkpoint in Plymouth.

       Defendant nonetheless cites State v. Boone, ___ N.C. App.

___, 741 S.E.2d 371 (2013), in support of his argument that the

court abused its discretion in revoking his probation.                        There,

the    defendant's     probation     officer    "filed     a    violation     report

alleging that defendant had willfully violated his probation by

failing to complete any of his community service, being $700 in

arrears of his original balance, and being $150 in arrears of

his supervision fee."          Id. at ___, 741 S.E.2d at 371-72.                    On
                                  -17-
appeal, the defendant argued "there was no evidence presented

that he violated the terms of his probation because the State

failed to present evidence of a payment plan and schedule for

community service . . . ."    Id. at ___, 741 S.E.2d at 372.

    This Court agreed and reversed the judgment revoking the

defendant's   probation   since   the    judgment   suspending   sentence

left the schedule for payment of fees and community service to

be set by the probation officer, the officer never testified to

any schedule for the fees or community service, and, at the time

of the violation report, six months remained on the defendant's

probation.    Id. at ___, 741 S.E.2d at 372.

    Defendant    argues   here,   similarly,   that   "the   State   never

established a schedule for reporting or any evidence that he

failed to report to his probation officer" and "never cited a

single instance that [defendant] was asked to report or was

asked to provide a valid address to his probation officer."

However, in this case, defendant's original judgment suspending

sentence required defendant to "obtain prior approval" for any

change in address and "[r]emain within the jurisdiction of the

Court unless granted written permission to leave."           Thus, unlike

the original judgment in Boone, the judgment here specifically

provides that defendant must obtain prior approval when changing
                                       -18-
his address or leaving the jurisdiction; no further "schedule"

was necessary.

    Defendant also argues that because of the clerical error in

the fourth alleged violation in the report, the verified report

could not constitute competent evidence supporting the court's

revocation of his probation and must be treated as an unverified

report.     However, defendant does not cite any authority, and we

have found none, supporting defendant's contention.

    Although defendant further challenges the testimony of Ms.

Outlaw as based upon hearsay and as insufficient to support the

court's findings, his hearsay argument was not made below and is

therefore    not   preserved     for    appeal.      See    N.C.R.   App.     P.

10(a)(1).     In any event, the other competent evidence -- the

verified report and defendant's own testimony -- supported the

court's   findings     and    judgment.       The   trial   court    did    not,

therefore,     abuse    its    discretion      in    revoking    defendant's

probation.


    Affirmed in part; remanded in part.

    Chief Judge MARTIN and Judge STROUD concur.

    Report per Rule 30(e).
