An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-219
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 5 August 2014


STATE OF NORTH CAROLINA

      v.                                      Forsyth County
                                              No. 11 CRS 55247
ANGELICA CORNISE TUCKER



      Appeal from judgment entered 12 July 2013 by Judge David

Hall in Forsyth County Superior Court.                 Heard in the Court of

Appeals 21 July 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Adam M. Shestak, for the State.

      James N. Freeman, Jr., for defendant-appellant.


      HUNTER, JR., Robert N., Judge.


      Defendant appeals from a judgment entered upon revocation

of   her   probation.       We   reverse     the   judgment     and   remand    for

further proceedings.

      On 21 May 2012, defendant pled guilty to negligent child

abuse resulting in serious bodily injury, which she committed on

28 December 2010.        The trial court sentenced her to a suspended
                                          -2-
prison term of twenty to thirty-three months and placed her on

eighteen months of supervised probation.

     In reports filed on 19 December 2012 and 2 April 2013,

defendant was charged with violating multiple conditions of her

probation.      After a hearing on 12 July 2013, the trial court

found   defendant     had    willfully      committed        five    of    the    alleged

violations.1        Further       concluding    that    “at    least       one    of     the

violations     authorizes     revocation        of   her     . . .       probation       and

activation     of    her     suspended      sentence,”        the        court    revoked

defendant’s     probation         and   activated      her    prison       sentence      of

twenty to thirty-three months.

     Citing this Court’s holding in State v. Nolen, ___ N.C.

App. ___,     ___,   743 S.E.2d 729, 730–31 (2013),                      defendant now

argues that the trial court lacked the authority to revoke her

probation     due    to     the     constraints      enacted        by     the    Justice

Reinvestment Act of 2011 (“JRA”).                The State concedes that the

court erred for the reasons set forth in Nolen.                          We agree with

the parties’ analysis.

     “[F]or     probation         violations     occurring          on    or     after    1

December 2011, the JRA limited trial courts’ authority to revoke



1
 Although the trial court found a sixth violation in open court,
i.e., defendant’s failure to provide a DNA sample to the local
sheriff, the judgment does not reflect this finding.
                                              -3-
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 [confinement in

response to violation] under N.C. Gen. Stat. § 15A-1344(d2).”

Nolen, ___ N.C. App. at ___, 743 S.E.2d at 730 (citing N.C. Gen.

Stat.      §    15A-1344(a)       (2013)).           Moreover,      the     “absconding”

condition in § 15A-1343(b)(3a) (2013), which was enacted as part

of   the       JRA,    applies    only    to    defendants        who    are       placed   on

probation        for    “‘offenses       committed      on   or    after       1    December

2011[.]’”         Id. at ___, 743 S.E.2d at 731 (quoting State v.

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

      In the case sub judice, defendant committed her probation

violations        in    2012     and   2013,    and    committed        the    underlying

criminal        offense    in     2010.         Therefore,        the     trial      court’s

revocation authority was limited by the JRA’s amendments to N.C.

Gen. Stat. § 15A-1344(a), and defendant was not subject to the

new “absconding” condition codified in N.C. Gen. Stat. § 15A-

1343(b)(3a).

      Paragraph 2 of the report filed 2 April 2013 alleged that

defendant had violated the regular condition of probation found
                                            -4-
in N.C. Gen. Stat. § 15A-1343(b)(2) (2013), which required her

to “[r]emain within the jurisdiction of the Court unless granted

written       permission      to   leave    by    the    Court    or    the   probation

officer[.]”          In support of this charge, the report specifically

alleged       that      “[d]efendant   has    absconded         supervision     and   her

whereabouts are unknown at this time.”                         Moreover, in finding

this violation, the court announced itself “satisfied that the

defendant         did    abscond   supervision      as    indicated      in   paragraph

number 2[.]”            Notwithstanding this use of the term “abscond” to

describe      a    defendant’s     violation      of     N.C.    Gen.   Stat.    §    15A-

1343(b)(2), the fact remains that defendant was not subject to

the condition that she “[n]ot abscond” in N.C. Gen. Stat. § 15A-

1343(b)(3a); nor was she subject to revocation for the charged

violation of (b)(2).           Nolen, ___ N.C. App. at ___, 743 S.E.2d at

731.      Insofar as the court revoked defendant’s probation for

absconding supervision, the court exceeded its authority under

N.C. Gen. Stat. § 15A-1344(a).               Id. at ___, 743 S.E.2d at 731.

       Paragraph 4 of the report filed on 19 December 2012 alleged

defendant’s commission of a new crime, in violation of N.C. Gen.

Stat.     §       15A-1343(b)(1),      in    that        she    was     “charged      with

misdemeanor larceny on December 7, 2012[.]”                        Defendant adduced

evidence that she had pled guilty to the Class 3 misdemeanor of
                                  -5-
shoplifting.   See N.C. Gen. Stat. § 14-72.1(e) (2013).      Although

the State contested the issue, the trial court expressly found

as follows:

           As to paragraph number [4] the misdemeanor
           larceny, the court does not find that, or is
           not substantially satisfied. . . .  However,
           [defendant] was convicted of a [C]lass 3
           misdemeanor,   which   does  bear   on   her
           performance.  It’s just not independent and
           in and of itself a reason to revoke her
           probation.

Thus, while the court found the violation alleged in paragraph

4, it correctly noted “that probation may not be revoked solely

for conviction of a Class 3 misdemeanor.”        N.C. Gen. Stat. §

15A-1344(d) (2013).    Because defendant was not found to have

committed another violation of N.C. Gen. Stat. § 15A-1343(b)(1),

she was not subject to revocation for committing a new crime.

    Finally,   both   violation   reports   indicate   defendant   had

served no periods of confinement in response to violation under

N.C. Gen. Stat. § 15A-1344(d2).         As the trial court made no

finding to the contrary, defendant’s probation could not revoked

on this ground.

    The judgment includes a finding by the trial court that it

was authorized to “revoke defendant’s probation . . . for the

willful violation of the condition(s) that []she not commit any

criminal   offense,   G.S.   15A-1343(b)(1),     or    abscond     from
                                 -6-
supervision,    G.S.    15A-1343(b)(3a)[.]”     “This   finding   is

erroneous.”    Nolen, ___ N.C. App. at ___, 743 S.E.2d at 731.    We

must therefore reverse the judgment and “remand to the trial

court for entry of an appropriate judgment for Defendant's . . .

probation violations consistent with the provisions of N.C. Gen.

Stat. § 15A-1344.”     Id. at ___, 743 S.E.2d at 731.

    Reversed and remanded.

    Judges BRYANT and STROUD concur.

    Report per Rule 30(e).
