An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-825
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 21 January 2014


STATE OF NORTH CAROLINA

      v.                                      Pitt County
                                              Nos. 09 CRS 059887, 059891
MINDY LEIGH-ANNA JACKSON



      Appeal by defendant from judgments entered 10 December 2012

by Judge W. Russell Duke, Jr. in Pitt County Superior Court.

Heard in the Court of Appeals 30 December 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Micheal E. Butler, for the State.

      Mary McCullers Reece for defendant-appellant.


      HUNTER, JR., Robert N., Judge.


      Defendant     Mindy    Leigh-Anna     Jackson      (“Defendant”)     appeals

from judgments entered upon revocation of her probation.                          We

reverse the judgments and remand for further proceedings.

      On 9 March 2011, Defendant pleaded guilty to two counts of

felony breaking or entering of a motor vehicle and two counts of

misdemeanor larceny.         The trial court sentenced Defendant to six

to   eight    months     imprisonment      for    each    felony    breaking      or
                                           -2-
entering conviction        and to forty-five days                    in jail     for each

misdemeanor larceny conviction.                   The sentences were suspended

and Defendant was placed on forty-eight months of supervised

probation.

    On    22    October    2012,     Defendant’s         probation        officer    filed

violation      reports    as   to    both        of    the    breaking      or   entering

convictions and one of the larceny convictions.                             The reports

alleged that Defendant:             (1) “FAILED TO REPORT ON ASSIGNED DAY

THE LAST FIVE OFFICE APPOINTMENTS[;]” (2) “HAS NOT BEEN SEEN AT

A VALID ADDRESS SINCE 7/11/12 . . . .                         OFFENDER HAS ABSCONDED

AND IS ACTIVELY AVOIDING SUPERVISION[;]” and (3) “HAS FAILED TO

BE AT ASSIGNED RESIDENCE WHEN TOLD ON 8/08 AT 1540, 9/05 AT

1915, 9/23 AT 1522, & 9/26 AT 1421.”                           One of the violation

reports also alleged that Defendant “IS IN ARREARS $7,497.82.”

On 30 November 2012, the probation officer filed a violation

report as to the other larceny conviction.                         The allegations were

the same as in the prior reports, except there was no allegation

regarding Defendant being in arrears.

    The     matter   came      on    for     hearing          on    10   December   2012.

Defendant admitted she was in arrears, but denied the other

allegations.      After hearing testimony from Defendant’s probation

officer   and    Defendant,     the    trial          court    found     that    Defendant
                                          -3-
failed to report for her last five office visits, she was behind

on her court indebtedness, she had absconded, she had not made

herself available for supervision, and she had failed to be at

her     residence    at    set   times.           The   trial     court     found   the

violations were willful and revoked Defendant’s probation.                          The

trial     court     activated     Defendant’s           suspended     sentence      and

sentenced     her    to     twelve   to         sixteen    months     imprisonment.

Defendant filed timely notice of appeal.

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

(2013), Defendant argues the trial court erred by revoking her

probation and activating her suspended sentences.                     We agree that

the trial court lacked statutory authority to revoke Defendant’s

probation and the State concedes that the judgments should be

reversed.

      In Nolen, the defendant argued that the trial court lacked

statutory    authority      to   revoke         her   probation     based    upon   the

violations alleged by her probation officer.                       Id. at ___, 743

S.E.2d at 730.            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.

Id.
                                      -4-
           [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)).   The   defendant

further contended 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.1            Id.   This Court reversed and

remanded the case for further proceedings, holding:

           The   record   establishes   that   Defendant
           violated only the condition of probation
           under N.C. Gen. Stat. § 15A-1343(b)(2) and
           the monetary conditions under N.C. Gen.
           Stat. § 15A-1343(b). She did not commit a
           new crime and was not subject to the new
           absconding condition codified by the JRA in
           N.C.   Gen.  Stat.   §  15A-1343(b)(3a).   In
           addition, the violation reports show that
           Defendant had served no prior CRVs under
           N.C. Gen. Stat. § 15A-1344(d2). Therefore,
           in light of the changes wrought by the JRA,

1
 Under the JRA, “the new absconding condition [is] applicable
only to offenses committed on or after 1 December 2011.” State
v. Hunnicutt, ___ N.C. App. ___, ___, 740 S.E.2d 906, 911
(2013).   Here, each of Defendant’s underlying offenses were
committed in April 2009.
                                       -5-
           her probation could not be revoked.

Id. at ___, 743 S.E.2d at 731.

      We are unable to distinguish the present case from Nolen.

Here, Defendant did not commit any new crimes, she did not serve

any CRVs, and her underlying offenses were committed prior to

the new absconding condition’s effective date.            Accordingly, the

trial court erred in revoking Defendant’s probation.             Therefore,

we   reverse   the   judgments   and    remand   for   further   proceedings

consistent with this opinion.

      Reversed and remanded.

      Chief Judge MARTIN and Judge DILLON concur.

      Report per Rule 30(e).
