An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-428
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 21 January 2014


STATE OF NORTH CAROLINA

      v.                                        Johnston County
                                                No. 10CRS50020
CARL DEION JOHNSON



      Appeal by defendant by writ of certiorari from judgment

entered    5   November    2012   by    Judge    James   G.   Bell   in   Johnston

County Superior Court.         Heard in the Court of Appeals 6 November

2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Ellen A. Newby, for the State.

      Mark Hayes for defendant-appellant.


      HUNTER, Robert C., Judge.


      Defendant appeals by writ of certiorari from the superior

court’s    judgment     revoking       his   probation    and    activating     his

suspended sentence.          We reverse and remand            the judgment      for

further proceedings.

      On 8 April 2010, defendant entered a plea of guilty to

malicious conduct by a prisoner and assault on a government
                                          -2-
official.    The trial court sentenced defendant to a suspended

term of 21 to 26 months imprisonment and placed defendant on

probation for 36 months.

    On 4 June 2012, the trial court entered an order finding

that defendant violated the conditions of his probation.                           The

trial   court        imposed    a    90-day     confinement      in    response     to

violation (“CRV”) pursuant to N.C. Gen. Stat. § 15A-1344(d2).

Additionally,        the     conditions    of    defendant’s         probation    were

modified on three occasions between February 2012 and September

2012.

    On 15 October 2012, defendant’s probation officer filed a

violation report charging defendant with violating the following

conditions of probation:             (1) “Report as directed by the Court,

Commission      or     the     supervising      officer   to     the    officer    at

reasonable times and places”; (2) “Be assigned to the Electronic

House   Arrest/Electronic           Monitoring    program      for    the   specified

period and obey all rules and regulations of the program until

discharge”; (3) “Remain within the jurisdiction of the Court

unless granted written permission to leave by the Court or the

probation officer”; and (4) “Commit no criminal offense in any

jurisdiction[.]”           The trial court held a probation violation

hearing on 5 November 2012 and found that defendant committed
                                             -3-
the first three alleged violations.                    Based on these findings,

the trial court revoked defendant’s probation and activated his

suspended sentence.

      On 9 November 2012, defendant filed a pro se notice of

appeal   that    fails       to   fully    comply     with    the    requirements      of

N.C.R. App. P. 4.            Defendant, however, has filed an alternative

petition for writ of certiorari acknowledging that his notice of

appeal is deficient.                In the interest of justice, we hereby

allow his petition.           See State v. Hammonds, __ N.C. App. __, __,

720   S.E.2d     820,    823      (2012)     (allowing      petition    for     writ   of

certiorari in the interest of justice where the defendant failed

to comply with Rule 4).

      Defendant        first      argues      that    the    trial      court     lacked

statutory authority to revoke his probation in light                             of the

Justice Reinvestment Act of 2011 (“JRA”), which placed limits on

a trial court’s authority to revoke probation.                         See N.C. Gen.

Stat. § 15A-1344(a) (2013).                For probation violations occurring

on or after 1 December 2011, a trial court may only revoke

probation      where     a     defendant:         (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
                                    -4-
prior periods of CRV under N.C. Gen. Stat. § 15A–1344(d2).            N.C.

Gen. Stat. § 15A–1344(a).        For all other probation violations, a

trial court has authority to alter the conditions of probation

or impose a period of CRV, but does not have authority to revoke

probation.    N.C. Gen. Stat. §§ 15A–1344(a), (d2).

    We agree that the trial court erred in revoking defendant’s

probation.     In addition to limiting a trial court’s revoking

authority, “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)).         Although the JRA’s limited revoking

authority applies to violations occurring on or after 1 December

2011,   the   new   absconding   condition   applies   only   to   offenses

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

at 911 (citing 2011 N.C. Sess. Laws 412, sec. 2.5).

    In the instant case, defendant’s underlying offenses were

committed in 2010; therefore, defendant was not yet subject to

the new absconding condition added by the JRA.            See N.C. Gen.

Stat. § 15A-1343(b)(3a); Hunnicutt, ___ N.C. App. at ___, 740

S.E.2d at 910-11.      Additionally, defendant did not commit a new
                                 -5-
crime, and had only served one prior period of CRV.      Finally, we

note that the statutory authority does not authorize revocation

based on   the remaining violations found by the trial court.

Therefore, the trial court did not have authority to revoke

defendant’s probation.

     Accordingly, we reverse the judgment revoking defendant’s

probation and remand the case to the trial court for entry of an

appropriate judgment for defendant’s violations consistent with

the provisions of N.C. Gen. Stat. § 15A-1344.      In light of our

disposition,   we   need   not   address   defendant’s   alternative

argument that the trial court erred by allowing defendant to

proceed pro se without inquiring as to whether he made that

decision knowingly, intelligently, and voluntarily.1



1
  Were we to address this argument, we would hold that the trial
court erred by failing to conduct the requisite inquiry pursuant
to N.C. Gen. Stat. § 15A-1242 (2013).    Section 15A-1242 states
that the trial court may allow a defendant to proceed pro se
only after making a “thorough inquiry” and is satisfied that the
defendant “(1)[h]as been clearly advised of his right to the
assistance of counsel, including his right to the assignment of
counsel when he is so entitled; (2) [u]nderstands and
appreciates  the   consequences  of   this  decision;   and  (3)
[c]omprehends the nature of the charges and proceedings and the
range of permissible punishments.”   Here, the record is devoid
of any inquiry, before or after defendant signed the waiver of
his right to counsel, as to the three prongs of section 15A-
1242. “[A]lthough a written waiver sets forth a presumption of
a knowing, intelligent and voluntary waiver, that presumption
can be overcome if the record demonstrates otherwise.” State v
Hyatt, 132 N.C. App. 697, 703, 513 S.E.2d 90, 94 (1999). There
                                -6-
                             Conclusion

    After careful review, we reverse the trial court’s judgment

and remand for further proceedings.



    REVERSED AND REMANDED.

    Judges CALABRIA and ROBERT N.HUNTER, JR. concur.

    Report per Rule 30(e).




were multiple instances throughout the hearing where defendant
seemed confused as to the nature of the proceeding and the
charges against him.    Specifically, he was not aware of the
possible punishment that he faced on the underlying convictions.
Should defendant elect to proceed pro se on remand, we caution
the trial court to conduct the necessary inquiry pursuant to
section 15A-1242.
