             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-734

                               Filed: 18 July 2017

Currituck County, No. 12 CRS 646

STATE OF NORTH CAROLINA

            v.

CHRISTOPHER MICHAEL JOHNSON


      Appeal by defendant, by writ of certiorari, from judgment entered 14 March

2016 by Judge Milton Fitch in Currituck County Superior Court. Heard in the Court

of Appeals 25 January 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General W. Thomas
      Royer, for the State.

      Peter Wood, for defendant-appellant.


      CALABRIA, Judge.


      Christopher Michael Johnson (“defendant”) appeals, by writ of certiorari, from

a judgment revoking his probation and activating his suspended sentence. After

careful review, we conclude that the trial court lacked jurisdiction to revoke

defendant’s probation based on the violations alleged. Accordingly, we vacate the

trial court’s judgment and remand for further proceedings.

                                 I. Background
                                      STATE V. JOHNSON

                                      Opinion of the Court



       On 16 August 2013, defendant entered an Alford plea to two counts of taking

indecent liberties with a child. See generally North Carolina v. Alford, 400 U.S. 25,

27 L. Ed. 2d 162 (1970).        These offenses occurred on or about 4 October 2011.

According to the plea arrangement, defendant was to “receive an active sentence on

one charge, and a probationary type sentence on the second count.”1 For the second

count, the trial court sentenced defendant to 16 to 20 months in the custody of the

North Carolina Division of Adult Correction but suspended his sentence and placed

him on 36 months of supervised probation.

       On 5 February 2016, defendant’s probation officer (“Officer Gibbs”) filed a

report alleging that defendant had willfully violated the following conditions of his

probation:

              1. “Report as directed by the Court, Commission or the
              supervising officer to the officer at reasonable times and
              places . . . ” in that
              OFFENDER WAS ARRESTED IN VIRGINIA AND
              FAILED TO REPORT TO THIS OFFICE WITHIN 72
              HOURS AFTER ARREST.                     RELEASE DATE
              ACCORDING TO JAIL WAS 1/21/16

              2. Condition of Probation “The defendant shall pay to the
              Clerk of Superior Court the ‘Total Amount Due’ as directed
              by the Court or probation officer” in that
              OFFENDER WAS ORDERED TO PAY COURT
              INDEBTEDNESS BY JUDGE IN SUPERIOR COURT
              AND AT THIS TIME HE HAS PAID $70.48 AND IS IN
              ARREARS $454.52

       1 The instant appeal only pertains to file number 12 CRS 646. Neither the appellate record
nor the parties’ briefs contain further information about the active sentence that defendant
purportedly received in file number 12 CRS 645.

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                                  Opinion of the Court




             3. Condition of Probation “The defendant shall pay to the
             Clerk of Superior Court the monthly supervision fee as set
             by law” in that
             OFFENDER WAS ORDERED TO PAY SUPERVISION
             FEES AND AS OF THIS DATE HE HAS PAID [$]104.52
             AND IS IN ARREARS [$]815.48. WAS SUPPOSED TO
             PAY $40 A MONTH

             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 WAS TOLD NOT TO LEAVE THE STATE
             OF NORTH CAROLINA BY THIS OFFICER UNLESS HE
             HAD PERMISSION AND ON 1/16/16 AN OFFICER
             FROM VA BEACH POLICE DEPARTMENT INFORMED
             ME THAT HE WAS FOUND ASLEEP IN VIRGINIA AND
             ARRESTED FOR TRESPASSING. ALSO ON 8/8/15 HE
             WAS CAOUGHT [sic] STAYING AT A PLACE CALLED
             DERBY RUN IN VIRGINIA. BOTH NOT IN THE STATE
             OF NC AND BOTH TIMES WITHOUT PERMISSION.

             5. Other Violation
             OFFENDER WAS TOLD THAT HE HAD TO GO BACK
             TO SEX OFFENDER TREATMENT STARTING ON
             1/13/16 BUT HE FAILED TO REPORT FOR THAT
             TREATMENT.

      On 16 February 2016, Officer Gibbs filed an addendum alleging the following

additional willful violations of defendant’s probation:

             1. “Report as directed by the Court, Commission or the
             supervising officer to the officer at reasonable times and
             places . . . ” in that
             OFFENDER MISSED HIS SCHEDULED OFFICE VISIT
             WITH HIS OFFICER ON 2/4/16 AND THIS IS A
             REGULAR CONDITION OF PROBATION. HE DID NOT
             CALL TO LET ME KNOW HE WOULD NOT BE HERE.



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                                    Opinion of the Court



             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
             ON OR ABOUT 1/21/16 OFFENDER WAS RELEASED
             FROM CUSTODY IN VA BEACH ACCORDING TO
             THEIR RECORDS AND HE HAS FAILED TO MAKE HIS
             WHEREABOUTS KNOWN TO THIS OFFICE. I CALLED
             HIS NUMBER AND CHECKED HIS RESIDENCE ON
             2/5/16 & 2/11/16. I WAS TOLD HE HAS NOT BEEN
             THERE IN A WHILE. HE IS NOT IN THE LOCAL
             HOSPITAL OR JAIL AND HE MISSED HIS LAST APPT
             WITH ME.         I AM NOW DECLARING HIM AN
             ABSCONDER.

According to the violation reports filed by Officer Gibbs, defendant had not previously

served any periods of confinement in response to violations (“CRV”) pursuant to N.C.

Gen. Stat. § 15A-1344(d2) (2015).

      A probation violation hearing was held in Currituck County Superior Court on

14 March 2016. Defendant admitted the violations, “but not the willfulness,” and

explained to the court that he was “not intending to abscond.” Defendant requested

that he be allowed to remain on probation so that he could continue to work and

proceed with sex offender treatment.          Officer Gibbs testified that he deemed

defendant to be an absconder after “30 days without any contact” following

defendant’s arrest in Virginia. At the conclusion of the hearing, the trial court found

defendant “in willful violation of his probation, revoke[d] him, and invoke[d] his

active sentence.” The court incorporated both of the violation reports filed by Officer

Gibbs into its written judgment.       The court also found, in pertinent part: that



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                                    Opinion of the Court



defendant had violated each of the conditions alleged “willfully and without valid

excuse”; that “[e]ach violation is, in and of itself, a sufficient basis upon which th[e]

Court should revoke probation and activate the suspended sentence”; and that “[t]he

Court may revoke defendant’s probation . . . for the willful violation of the condition(s)

that he . . . not commit any criminal offense, G.S. 15A-1343(b)(1), or abscond from

supervision, G.S. 15A-1343(b)(3a) . . . .”

      Three days later, on 17 March 2016, defendant reappeared before the trial

court requesting reconsideration of its decision to revoke his probation. The court

denied his motion. Defendant entered oral notice of appeal.

                         II. Petition for Writ of Certiorari

      On 29 August 2016, defendant petitioned this Court to issue its writ of

certiorari (“PWC”) to review the trial court’s judgment revoking his probation and

activating his suspended sentence.        See generally N.C.R. App. P. 21(a)(1).      He

acknowledges that a criminal defendant’s oral notice of appeal is only effective when

given “at trial,” N.C.R. App. P. 4(a)(1) (emphasis added), and it is “unclear” whether

the events of 17 March 2016 were a continuation of the probation violation hearing

or a new proceeding. Accordingly, defendant explains that he filed his PWC out of

“an abundance of caution to ensure that [his] right to appellate review is not lost due

to technical defect in his notice of appeal.” Since the State did not file a response and




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                                    Opinion of the Court



we have discretion pursuant to N.C.R. App. P. 21(a)(1), we conclude that defendant’s

PWC should be granted.

                     III. Revocation of Defendant’s Probation

       On appeal, defendant’s sole argument is that the trial court erroneously failed

to exercise its statutorily mandated discretion in revoking his probation, based on the

following statement at the hearing:

              THE COURT: Anything you want to tell me? He’s
              admitted his violations, his PO officer pointed out the
              addendum. The addendum says abscond. Either he is or
              he is not. If he is the statute calls for revocation.

However, we do not reach defendant’s argument, since the record reveals that the

trial court lacked jurisdiction to revoke defendant’s probation based on the violations

alleged.

       As an initial matter, neither the parties nor the trial court raised the issue of

jurisdiction, and typically, we only address questions that are properly before us. See,

e.g., State v. Johnston, 173 N.C. App. 334, 338, 618 S.E.2d 807, 809 (2005) (stating

that “it is not the role of the appellate courts . . . to create an appeal for an appellant”

(citation, quotation marks, and brackets omitted)). “Nevertheless, subject matter

jurisdiction may not be waived, and this Court has not only the power, but the duty

to address the trial court’s subject matter jurisdiction on its own motion or ex mero

motu.” State v. Kornegay, 228 N.C. App. 320, 321, 745 S.E.2d 880, 881 (2013) (citation




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                                   Opinion of the Court



and quotation marks omitted). We have explained that in cases such as probation

revocations, where the trial court’s

             jurisdiction is statutory and the Legislature requires the
             [c]ourt to exercise its jurisdiction in a certain manner, to
             follow a certain procedure, or otherwise subjects the [c]ourt
             to certain limitations, an act of the [c]ourt beyond these
             limits is in excess of its jurisdiction. If the court was
             without authority, its judgment is void and of no effect.

Id. at 321-22, 745 S.E.2d at 882 (citation omitted). “To establish jurisdiction over

specific allegations in a probation revocation hearing, the defendant either must

waive notice or be given proper notice of the revocation hearing, including the specific

grounds on which his probation might be revoked.” Id. at 324, 745 S.E.2d at 883

(emphasis added).

      In the instant case, defendant allegedly violated various conditions of his

probation in January and February of 2016. Therefore, the Justice Reinvestment Act

of 2011 (“JRA”) applies. See State v. Nolen, 228 N.C. App. 203, 204-05, 743 S.E.2d

729, 730 (2013) (noting that the JRA controls probation “violations occurring on or

after 1 December 2011”).

      “The enactment of the JRA brought two significant changes to North Carolina’s

probation system.” Id. at 205, 743 S.E.2d at 730. First, the JRA imposed stringent

limits on trial courts’ revocation authority. See id. “[I]t is no longer true that any

violation of a valid condition of probation is sufficient to revoke [a] defendant’s

probation.” Kornegay, 228 N.C. App. at 323, 745 S.E.2d at 882 (emphasis added)


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                                  STATE V. JOHNSON

                                   Opinion of the Court



(citation and internal quotation marks and brackets omitted). Instead, pursuant to

the JRA, trial courts are only authorized to revoke probation where the 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 prior periods of CRV under N.C. Gen. Stat. §

15A-1344(d2).” Nolen, 228 N.C. App. at 205, 743 S.E.2d at 730 (citing 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.

      Second, the JRA “introduced the term ‘abscond’ into our probation statutes for

the first time,” State v. Hunnicutt, 226 N.C. App. 348, 355, 740 S.E.2d 906, 911 (2013),

and established the requirement that a defendant must “[n]ot abscond by willfully

avoiding supervision or by willfully making the defendant’s whereabouts unknown to

the supervising probation officer,” pursuant to N.C. Gen. Stat. § 15A-1343(b)(3a).

Prior to the JRA, courts used the term “abscond” informally to describe violations of

N.C. Gen. Stat. §§ 15A-1343(b)(2)-(3), which respectively require a probationer to,

inter alia, “[r]emain within the jurisdiction of the court unless granted written

permission to leave” and “[r]eport as directed . . . to the [probation] officer at

reasonable times and places and in a reasonable manner . . . .” See Hunnicutt, 226

N.C. App. at 355, 740 S.E.2d at 911 (citations omitted). However, these terms are no



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                                    STATE V. JOHNSON

                                    Opinion of the Court



longer interchangeable. The JRA eliminated informal absconding as a basis for

revocation. See State v. Williams, __ N.C. App. __, __, 776 S.E.2d 741, 745 (2015)

(explaining that the State’s use of the phrase “absconding supervision” to describe

the defendant’s actions “cannot convert violations of N.C. Gen. Stat. §§ 15A-1343(b)(2)

and (3) into a violation of N.C. Gen. Stat. § 15A-1343(b)(3a)”). Today, courts may only

revoke probation for absconding based on violations of N.C. Gen. Stat. § 15A-

1343(b)(3a). Id. at __, 776 S.E.2d at 745-46.

      Although N.C. Gen. Stat. §§ 15A-1343(b)(3a) and 15A-1344(a) were both

enacted as part of the JRA, the provisions have different—and sometimes

conflicting—effective dates. Initially, the JRA made both changes

                effective for probation violations occurring on or after 1
                December 2011. See 2011 N.C. Sess. Laws 192, sec. 4.(d).
                The effective date clause was later amended, however, to
                make the new absconding condition applicable only to
                offenses committed on or after 1 December 2011, while the
                limited revoking authority remained effective for probation
                violations occurring on or after 1 December 2011. See 2011
                N.C. Sess. Laws 412, sec. 2.5.

Nolen, 228 N.C. App. at 205, 743 S.E.2d at 731 (citation and quotation marks

omitted).   Consequently, a defendant who committed the offense underlying his

probation before 1 December 2011 but who violated the conditions of his probation on

or after that date cannot have his probation revoked for absconding. See id. at 206,

743 S.E.2d at 731. This irregularity in the statutes is colloquially referred to as a

“donut hole.”


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                                  STATE V. JOHNSON

                                   Opinion of the Court



      We recently considered the “absconding donut hole” in State v. Hancock, __

N.C. App. __, 789 S.E.2d 522 (2016), disc. review denied, __ N.C. __, 795 S.E.2d 218

(2017). In that case, the defendant committed the offense of possession with intent

to sell or deliver cocaine on 18 January 2011 and was placed on supervised probation.

Id. at __, 789 S.E.2d at 523. On 8 February and 27 March 2013, the defendant’s

supervising officer filed reports alleging that he had willfully violated his probation.

Id. On appeal, we determined that because the “defendant committed his underlying

offense prior to 1 December 2011, he was not subject to the JRA’s ‘absconding’

condition of probation enacted in N.C. Gen. Stat. § 15A-1343(b)(3a).” Id. at __, 789

S.E.2d at 524. Moreover, because the absconding condition did not apply to him, we

held that the trial court did not have the authority to revoke the defendant’s

probation on that basis. Id. at __, 789 S.E.2d at 525. Ultimately, however, we

affirmed the trial court’s revocation of his probation based on the defendant’s

commission of a new criminal offense, in violation of N.C. Gen. Stat. § 15A-1343(b)(1).

Id. at __, 789 S.E.2d at 526. Although “the mere fact that he was charged with certain

criminal offenses [wa]s insufficient to support a finding that he committed them[,]”

we concluded that the trial court made an adequate “independent determination that

[the] defendant committed the three offenses he was charged with . . . as alleged in

paragraphs ten and eleven of the 27 March 2013 violation report.” Id. (emphasis

added).



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                                  STATE V. JOHNSON

                                   Opinion of the Court



      Probation proceedings are “often regarded as informal or summary.” State v.

Murchison, 367 N.C. 461, 464, 758 S.E.2d 356, 358 (2014). Nevertheless, as Hancock

demonstrates, the JRA’s notice requirements can have significant jurisdictional

implications in revocation cases. See __ N.C. App. at __, 789 S.E.2d at 526. “Absent

adequate notice that a revocation-eligible violation is being alleged, the trial court

lacks jurisdiction to revoke a defendant’s probation, unless the defendant waives the

right to notice.” State v. Moore, __ N.C. App. __, __, 795 S.E.2d 598, 599 (2016), appeal

docketed, No. 22A17, __ N.C. __, __ S.E.2d __ (filed Jan. 13, 2017).

      “Our Court has never explicitly held that certain ‘magic’ words must be used”

in order to confer the trial court with jurisdiction. Id.; see also id. at __, 795 S.E.2d

at 600 (concluding “that where the notice fails to allege specifically which condition

was violated but where the allegations in the notice could only point to a revocation-

eligible violation, the notice is adequate”); State v. Lee, 232 N.C. App. 256, 259, 753

S.E.2d 721, 723 (2014) (holding that the trial court properly exercised jurisdiction

where “the violation report specifically alleged that [the] defendant violated the

condition of probation that he commit no criminal offense in that he had several new

pending charges which were specifically identified”). However, we have consistently

held that the trial court lacked jurisdiction to revoke probation where the underlying

violation reports failed to notify the probationer that the State intended to pursue

revocation-eligible violations. See State v. Jordan, 240 N.C. App. 90, 772 S.E.2d 13



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                                  STATE V. JOHNSON

                                  Opinion of the Court



(2015) (unpublished); Kornegay, 228 N.C. App at 324, 745 S.E.2d at 883 (vacating the

court’s judgment because the “defendant did not waive notice, and the trial court

revoked [the] defendant’s probation for violation of a condition not included in the

State’s violation reports”); State v. Tindall, 227 N.C. App. 183, 187, 742 S.E.2d 272,

275 (2013) (holding that the trial court lacked jurisdiction to revoke probation where

the supervising officer testified that the “defendant was ‘arrested’ but did not allege

in the violation report that she violated her probation by committing a criminal

offense”).

       This case is functionally indistinguishable from our prior decisions holding

that the trial court lacked jurisdiction to revoke probation. Here, defendant did not

waive his right to notice of his alleged violations, Kornegay, 228 N.C. App at 324, 745

S.E.2d at 883, and the trial court mistakenly found that each violation provided

sufficient grounds for revocation. Regarding the absconding provision, N.C. Gen.

Stat. § 15A-1343(b)(3a) only applies to offenses committed on or after 1 December

2011. Hancock, __ N.C. App. at __, 789 S.E.2d at 524; Nolen, 228 N.C. App. at 205,

743 S.E.2d at 731.     According to the judgment in the instant case, defendant

committed the offense of taking indecent liberties with a child on 4 October 2011,

prior to the JRA’s effective date. Therefore, the absconding condition did not apply

to defendant. Hancock, __ N.C. App. at __, 789 S.E.2d at 524; Nolen, 228 N.C. App.

at 206, 743 S.E.2d at 731. Accordingly, the trial court erred in revoking defendant’s



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                                  STATE V. JOHNSON

                                   Opinion of the Court



probation based on his purported violation of N.C. Gen. Stat. § 15A-1343(b)(3a).

Hancock, __ N.C. App. at __, 789 S.E.2d at 525.

      If this case were similar to Hancock regarding defendant’s commission of a new

offense, then as in Hancock, we would affirm the trial court’s revocation of defendant’s

probation. See id. at __, 789 S.E.2d at 526. However, this case is distinguishable.

Unlike Hancock, where the officer alleged that the defendant’s new criminal charges

violated the “commit no criminal offense” condition of probation, id., here, the State

failed to notify defendant that his probation might be revoked based on his

trespassing arrest.    Officer Gibbs did not specifically allege that defendant’s

trespassing arrest constituted a “new criminal offense,” in violation of N.C. Gen. Stat.

§ 15A-1343(b)(1). While it seems abundantly clear from the transcript that the trial

court’s decision to revoke defendant’s probation was based on absconding, the written

judgment could be construed to revoke his probation based on his commission of a

new criminal offense. Finding 5(a) on the AOC-CR-607 standardized form judgment

states: “[t]he Court may revoke defendant’s probation . . . for the willful violation of

the condition(s) that he . . . not commit any criminal offense, G.S. 15A-1343(b)(1), or

abscond from supervision, G.S. 15A-1343(b)(3a) . . . .” (emphasis added). Insofar as

the trial court found a violation of N.C. Gen. Stat. § 15A-1343(b)(1), we hold that the

violation reports were insufficient to notify defendant that the State intended to

revoke his probation based on his trespassing arrest in Virginia. See Tindall, 227



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                                    Opinion of the Court



N.C. App. at 187, 742 S.E.2d at 275; cf. Hancock, __ N.C. App. at __, 789 S.E.2d at

525 (stating that “a trial court’s ruling must be upheld if it is correct upon any theory

of law” (citation and quotation marks omitted)).

                                    IV. Conclusion

      Since defendant did not waive his right to notice of his alleged probation

violations, and the State failed to allege a revocation-eligible violation, the trial court

lacked jurisdiction to revoke defendant’s probation. Kornegay, 228 N.C. App. at 324,

745 S.E.2d at 883. “When the record shows a lack of jurisdiction in the lower court,

the appropriate action on the part of the appellate court is to arrest judgment or

vacate any order entered without authority.” Id. at 323, 745 S.E.2d at 883 (citation

and quotation marks omitted). Accordingly, we vacate the trial court’s judgment

revoking defendant’s probation and remand for further proceedings.

      VACATED AND REMANDED.

      Chief Judge McGEE and Judge INMAN concur.




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