An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-891
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 21 January 2014


STATE OF NORTH CAROLINA

      v.                                         Alamance County
                                                 Nos. 11 CRS 50193, 51683
TRAVIS DYSHAUWN WATLINGTON



      Appeal by defendant from judgments entered 21 February 2013

by Judge Robert F. Johnson in Alamance County Superior Court.

Heard in the Court of Appeals 30 December 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Tiffany Y. Lucas, for the State.

      Gerding Blass,        PLLC,    by    Danielle    Blass,     for   defendant-
      appellant.


      HUNTER, JR., Robert N., Judge.


      Defendant Travis Dyshauwn Watlington (“Defendant”) appeals

from judgments entered upon revocation of his probation.                        For

the   reasons    discussed      herein,     we    reverse   the   judgments     and

remand for further proceedings.

      On    21   February     2012,       pursuant    to    a   plea    agreement,

Defendant pleaded guilty to four counts of common law robbery
                                            -2-
and two counts of felony larceny.                      In accordance with the plea

agreement, Defendant was to receive an active sentence for the

common law robbery convictions.                       With respect to his larceny

convictions,       Defendant    received             two    consecutive       sentences     of

eight   to   ten     months    imprisonment,               which   were      suspended     and

Defendant    was     placed    on    supervised            probation      for    twenty-four

months.

    On 13 September 2012, Defendant’s probation officer filed

violation reports alleging Defendant violated the conditions of

his probation in that he failed to pay court costs and probation

supervision     fees     and        that        he     committed       the       offense    of

misdemeanor     possession          of    drug        paraphernalia.             Defendant’s

probation officer filed additional reports on 5 October 2012

alleging Defendant tested positive for marijuana.                               On 27 and 29

November     2012,    Defendant’s          probation          officer      filed     reports

alleging Defendant failed to appear in superior court for his

probation violation, failed to appear in district court for his

pending charge of misdemeanor possession of drug paraphernalia,

failed to report for his scheduled office visit on 1 November

2012, and that on 31 October 2012 Defendant left his place of

residence    and     failed    to        make    his       whereabouts       known   to    his

probation officer.
                                         -3-
       The matter came on for hearing on 21 February 2013.                           The

State     withdrew     the    allegation       that     Defendant       violated     his

probation by committing the offense of misdemeanor possession of

drug    paraphernalia         and    Defendant         admitted     the     remaining

allegations.          The    trial   court     found    Defendant       violated    the

conditions of his probation willfully and without lawful excuse.

The trial court revoked Defendant’s probation and activated his

suspended sentence.           Defendant timely filed written notice of

appeal.

       Defendant’s sole argument on appeal is that the trial court

erred in revoking his probation because Defendant did not commit

a new criminal offense, did not abscond, and had not previously

received two periods of confinement in response to violation.

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

probation, and the State concedes that the judgments should be

reversed.

       We are unable to distinguish the present case from our

recent decision in State v. Nolen, ___ N.C. App. ___, 743 S.E.2d

729    (2013).   In    Nolen,    the   defendant       argued     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
                                      -4-
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.

           [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.

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, Defendant’s larceny offenses were committed on 8
January 2011 and 2 March 2011.
                                     -5-
           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,
           her probation could not be revoked.

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

       In the present case, the State withdrew the allegation that

defendant committed a new criminal offense.             Also there is no

evidence that Defendant served any CRVs.            Moreover, although the

probation officer told the trial court that Defendant absconded

and the trial court found that             Defendant had absconded,      the

absconding condition was not applicable to Defendant.            As noted,

the new absconding condition only applies to offenses committed

on or after 1 December 2011, and Defendant’s underlying offenses

were   committed   prior   to   1   December    2011.     Accordingly,   we

conclude     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).
