                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA19-281

                              Filed: 21 January 2020

Durham County, No. 14CRS003709, 14CRS003710

STATE OF NORTH CAROLINA

            v.

TONY DESHON JONES, Defendant.


      Appeal by Defendant from judgments entered 23 October 2017 by Judge James

K. Roberson in Durham County Superior Court. Heard in the Court of Appeals 30

October 2019.


      Attorney General Joshua H. Stein, by Assistant Attorney General Christine
      Wright, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas
      C. Woomer-Deters, for Defendant.


      BROOK, Judge.


      Tony Deshon Jones (“Defendant”) appeals from judgments entered upon the

trial court’s finding that he violated his probation by committing new crimes. The

trial court activated two of Defendant’s suspended sentences after finding the

probation violation. We hold that Defendant has failed to show error and affirm.

                                  I. Background

      On 5 August 2015, Defendant pleaded guilty to one count of possession of a

firearm by a felon and one count of discharging a weapon into occupied property.
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                                  Opinion of the Court



Judge G. Wayne Abernathy entered two judgments in Durham County Superior

Court that day, determining Defendant to be a prior record level II offender and

sentencing him to 14 to 26 months for possession of a firearm by a felon and 29 to 47

months for discharging a weapon into occupied property.      These sentences were to

run concurrently. However, Judge Abernathy suspended the sentences and placed

Defendant on a 36-month term of supervised probation.

      On 1 April 2016, less than a year into the term of that probation, law

enforcement observed Defendant outside the Joy Mart, a store in Durham, North

Carolina, while officers were investigating potential criminal activity. Defendant was

observed outside the Joy Mart for approximately one hour without going inside the

store from approximately 50 yards away by Officer Norwood, who was monitoring the

Joy Mart in an unmarked vehicle.

      When Defendant left the store “sometime prior to midnight,” Officer Norwood

began following him in his car. As he was following Defendant, Officer Norwood

noticed Defendant driving approximately 15 miles over the speed limit, and activated

his blue lights and siren, conducting a traffic stop of Defendant.

      During the stop, Officer Norwood requested Defendant’s drivers license and

registration and when Defendant replied that he did not have “any ID,” Officer

Norwood asked that Defendant exit the vehicle. After quickly frisking Defendant for

weapons, Officer Norwood stepped to the front passenger side of Defendant’s vehicle



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and, shining a flashlight inside, observed “what appeared to him to be a handgun,

specifically 2 to 3 inches of the grip of what appeared to be a handgun or pistol

between the console and seat.” Defendant had not previously alerted Officer Norwood

to the presence of a gun in the vehicle or informed Officer Norwood that he had a

concealed carry permit allowing him to carry a concealed gun. Officer Norwood

reached into the vehicle and retrieved what he discovered was a loaded Smith &

Wesson pistol. Officer Norwood then placed Defendant under arrest.

        Defendant was charged with carrying a concealed weapon and possession of a

firearm by a felon. On 24 April 2017, Defendant filed a motion to suppress the pistol

recovered during the search, which the trial court denied in open court on 11 July

2017.     At the trial of these charges, however, the jury was unable to reach a

unanimous verdict, and Defendant’s motion for mistrial was granted on 14 July 2017.

        Previously, on 7 June 2017, a violation report had been filed in Durham County

Superior Court alleging that Defendant had violated his probation by absconding. On

10 and 18 August 2017, supplemental violation reports were filed in Durham County

Superior Court alleging that Defendant had violated probation by committing new

criminal offenses, despite the fact that the jury had not found him guilty of these

crimes.

        The violations came on for hearing on 14 September 2017 before the Honorable

James K. Roberson. On 23 October 2017, after two continuances, Judge Roberson did



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not find an absconding violation but did find that Defendant had committed the new

criminal offenses of possession of a firearm by a felon and carrying a concealed

weapon and revoked probation for committing these offenses.           Judge Roberson

activated the suspended sentences previously imposed by Judge Abernathy.           The

court entered two judgments to that effect.

                           II. Petition for Writ of Certiorari

      Before reaching the merits of Defendant’s sole argument on appeal, we first

address his petition for certiorari, which he has filed because of his failure to timely

notice appeal from the revocation of his probation. In our discretion, we grant the

petition and issue the writ.

      Rule 21 of the North Carolina Rules of Appellate Procedure provides that “[t]he

writ of certiorari may be issued in appropriate circumstances . . . to permit review of

the judgments . . . of trial tribunals when the right to prosecute an appeal has been

lost by failure to take timely action[.]” N.C. R. App. P. 21(a)(1). Under N.C. Gen.

Stat. § 15A-1347(a), “[w]hen a superior court judge, as a result of a finding of a

violation of probation, activates a sentence . . . , the defendant may appeal under G.S.

7A-27.” N.C. Gen. Stat. § 15A-1347(a) (2019). There is an appeal as of right to our

Court under N.C. Gen. Stat. § 7A-27(b) from “any final judgment of a superior court,”

with exceptions not at issue here. Id. § 7A-27(b)(1).




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      In the present case, Defendant was found to be in violation of his probation on

23 October 2017 in superior court. However, he did not notice appeal from that

finding within 14 days, as required by Rule 4(a)(2) of the North Carolina Rules of

Appellate Procedure. See N.C. R. App. P. 4(a)(2) (“Any party . . . may take appeal by

. . . filing notice of appeal with the clerk of superior court and serving copies thereof

upon all adverse parties within fourteen days after entry of the judgment”). In a

supporting affidavit attached as an exhibit to Defendant’s petition for certiorari,

Defendant’s trial counsel avers that he lacks “any specific recollection of discussing

an appeal . . . with [Defendant],” nor can Defendant’s trial counsel recall “advising

[Defendant] that an attorney would be appointed to handle his appeal if he could not

afford one,” or that “there was a 14-day deadline . . . to enter notice of appeal.” In a

letter filed with the trial court on 24 April 2018, Defendant alerted the court that he

wished to appeal the finding that he violated his probation, explaining that his trial

counsel did not explain his right to appeal from the finding, and had not assisted him

by exercising that right on his behalf. Defendant’s right to appeal therefore “has been

lost by failure to take timely action[.]” N.C. R. App. P. 21(a)(1). Because Defendant

evidently did not understand that he had a right to an appeal from the violation, and

it appears that his trial counsel did not explain this right to him – a right he wished

to exercise – in the exercise of our discretion we grant Defendant’s petition and issue

the writ.



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                                         III. Merits

      In his sole argument on appeal, Defendant argues that the trial court erred in

revoking his probation based on the testimony of an officer who testified at a previous

hearing on a motion to suppress but not at the revocation hearing. Specifically,

Defendant contends that he was deprived of the right to confront and cross-examine

this officer at his revocation hearing because the trial court allowed the transcript of

his testimony to be introduced and did not find that good cause existed to justify the

officer’s absence from the revocation hearing. We disagree.

      N.C. Gen. Stat. § 15A-1345(e) governs probation revocation hearings,

providing in relevant part as follows:

             (e) Revocation Hearing.--Before revoking or extending
             probation, the court must, unless the probationer waives
             the hearing, hold a hearing to determine whether to revoke
             or extend probation and must make findings to support the
             decision and a summary record of the proceedings. . . . At
             the hearing, evidence against the probationer must be
             disclosed to him, and the probationer may appear and
             speak in his own behalf, may present relevant information,
             and may confront and cross-examine adverse witnesses
             unless the court finds good cause for not allowing
             confrontation.      The probationer is entitled to be
             represented by counsel at the hearing and, if indigent, to
             have counsel appointed in accordance with rules adopted
             by the Office of Indigent Defense Services. Formal rules of
             evidence do not apply at the hearing, but the record or
             recollection of evidence or testimony introduced at the
             preliminary hearing on probation violation are
             inadmissible as evidence at the revocation hearing.

N.C. Gen. Stat. § 15A-1345(e) (2019) (emphasis added).


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      “A proceeding to revoke probation is not a criminal prosecution,” however.

State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967). The statutory right

conferred by N.C. Gen. Stat. § 15A-1345(e) is a codification of the probationer’s right

to due process under the Fourteenth Amendment and “[t]hus, Sixth Amendment

rights . . . are not involved.” State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188

(1973).   Although under N.C. Gen. Stat. § 15A-1345(e), a probationer must be

“effectively allowed to speak on [his or] her own behalf[,] [and] to present information

relevant to the charge that [he or] she [] violated a condition of probation,” State v.

Coltrane, 307 N.C. 511, 516, 299 S.E.2d 199, 202 (1983), the failure of a probationer

to request that a witness attend the violation hearing or be subpoenaed and required

to testify can constitute waiver of the right to confrontation, State v. Terry, 149 N.C.

App. 434, 438, 562 S.E.2d 537, 539-40 (2002). The due process right to confrontation

prior to a probation revocation also permits “use where appropriate of the

conventional substitutes for live testimony, including affidavits, depositions, and

documentary evidence.” Gagnon v. Scarpelli, 411 U.S. 778, 782 n. 5, 93 S. Ct. 1756,

1760 n. 5, 36 L. Ed.2d 656 (1973). And while N.C. Gen. Stat. § 15A-1345(e) confers

upon a probationer a right to confrontation, it commits to the discretion of the trial

court whether “good cause [exists] for not allowing confrontation.” N.C. Gen. Stat.

§ 15A-1345(e) (2019).    Finally, the State need only present “competent evidence

establishing a defendant’s failure to comply with the terms of probation” to establish



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the predicate required for the trial court to determine “that the defendant has

violated a condition[.]” Terry, 149 N.C. App. at 437-38, 562 S.E.2d at 540. “If the

trial court is then reasonably satisfied that the defendant has violated a condition

upon which a prior sentence was suspended, it may within its sound discretion revoke

the probation.” Id. at 438, 562 S.E.2d at 540 (citation omitted).

      In the present case, Defendant did not request the trial court to make a good

cause finding that confrontation should not be allowed. Nor is there anything in the

record to suggest that Defendant requested testimony from the officer or subpoenaed

the officer to compel his attendance at the revocation hearing. Instead, Defendant’s

argument in the trial court was that admission of the transcript of testimony by the

officer presented at the motion to suppress should not be allowed because it was

introduced to prove that he had committed additional criminal offenses during his

term of probation, violating a condition of probation, when the jury did not find him

guilty at the trial of these charges. We hold that the officer’s testimony at the prior

hearing on the motion to suppress, relating to whether Defendant was in possession

of a firearm while being a felon during the term of his probation and was possessing

a concealed weapon without a permit on 1 April 2016, was competent evidence. The

trial court’s determination that he had violated probation, though the State was

unable to prove these charges to the jury, is not error. It therefore was not error for

the trial court to neglect to make a ruling on whether good cause existed where such



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ruling was not requested by Defendant. Furthermore, live testimony from the officer,

who testified at the suppression hearing but not at the revocation hearing, was not

required under N.C. Gen. Stat. § 15A-1345(e). There is no indication in the record

that Defendant or his counsel sought to confront and cross-examine the officer at the

revocation hearing.

                                   IV. Conclusion

      Defendant has failed to show that the trial court erred by revoking his

probation and activating his sentence. However, the judgments revoking Defendant’s

probation and activating his sentences state that they are based on the alleged

probation violation of absconding rather than committing new criminal offenses,

which was the basis for the trial court’s activation of Defendant’s previously

suspended sentences. Therefore, these judgments are remanded only for correction

of the clerical errors to make “the record speak the truth.” State v. May, 207 N.C.

App. 260, 263, 700 S.E.2d 42, 44 (2010) (internal marks and citation omitted).

      AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERRORS.

      Judges TYSON and COLLINS concur.




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