             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA17-816

                              Filed: 6 February 2018

Alamance County, No. 14 CRS 55089

STATE OF NORTH CAROLINA

            v.

FALECIA ANN RICHMOND MCCASTER


      Appeal by defendant from judgment entered 23 May 2017 by Judge G. Wayne

Abernathy in Alamance County Superior Court. Heard in the Court of Appeals 22

January 2018.


      Attorney General Joshua H. Stein, by Associate Attorney General Cara Byrne,
      for the State.

      Yoder Law PLLC, by Jason Christopher Yoder, for defendant-appellant.


      TYSON, Judge.


      Falecia Ann Richmond McCaster (“Defendant”) appeals the trial court’s order

revoking her probation. The trial court erred in revoking Defendant’s probation

under these facts. We vacate the order and remand.

                                  I. Background

      On 2 November 2015, a jury found Defendant guilty of assault on a law

enforcement officer. Defendant was sentenced to five to fifteen months in prison.

Due to her lack of prior record level points and the classification of the offense,
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                                     Opinion of the Court



Defendant’s active sentence was suspended, and she was placed on probation for

twelve months. Defendant appealed.

      The day after judgment was entered, the trial judge filed an affidavit and

petition for involuntary commitment, due to Defendant’s behavior in court. The trial

court stated that after the judgment was entered, “Defendant refused to complete the

intake process,” begging the court to allow her to serve her time.         She became

“hysterical,” alleging “a conspiracy against her by law enforcement, judges, the DA,

and, at time [sic] her attorney.”

      On 4 April 2017, this Court issued an opinion finding no error at trial and

denying Defendant’s motion for appropriate relief. State v. McCaster, __N.C. App. __,

797 S.E.2d 711, 2017 WL 1276071 (unpublished). The mandate from that appeal was

issued to the Alamance County Superior Court on 24 April 2017.

      The Alamance County District Attorney’s office sent Defendant a letter on 3

May 2017, ordering her to appear in court on 22 May 2017 for imposition of judgment.

Defendant appeared at the hearing, repeatedly refused to accept probation

supervision, and asked for time to get her affairs in order prior to reporting to prison.

The trial court asked her to meet with the probation officer prior to making any

decisions regarding actively serving a prison term.

      Later that day, Defendant’s counsel reported to the court that Defendant had

not met with the probation officer, as instructed. Defendant allegedly “cursed the



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courtroom” and threw spices and garlic upon the floor. At around 5:00 that evening,

Defendant was sitting in the courtroom, without her attorney.         The trial court

instructed Defendant to report to the probation officer by 9:30 the next morning, and

if she was not there, the court would issue an order for her arrest. Defendant told

the judge a warrant would not be necessary, as she would report to the sheriff.

      On 23 May 2017, Defendant timely appeared in court, and the matter was held

over until her attorney arrived. Once her counsel arrived, Defendant again refused

to be placed on probation supervision multiple times. She again alluded to a possible

conspiracy against her, stating “You want me – for Mr. Barber to take my money and

they beat me. I’m a widow.” After Defendant continued to refuse probation, the trial

court revoked her probation.

      The trial court’s written order stated: “The Defendant refused to be processed

for probation and stated that she did not want to be on probation in open court,

therefore [sic] was violated and probation revoked.” The order also indicated the

revocation was based upon Defendant’s “willful violation of the condition(s) that [she]

not commit any criminal offense . . . or abscond from supervision.”

      On 24 May 2017, the trial court filed a supplement to its previous order, and

made the following findings of fact:

             4. The Court reviewed the judgment with the defendant at
             10:38 and ordered defendant to report to the probation
             office (in the courthouse). The defendant did not report.



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             The court advised the defendant if she refused probation,
             she would have to serve her active sentence.

             5. At 12:04 defendant’s attorney, Jeff Connolly, returned to
             the courtroom without the defendant and reported
             defendant is refusing to serve probation.

             6. Defendant appeared in court on May 23, 2017, about
             10:38. The Court advised defendant it was in a jury trial
             and to report at 12:15. Defendant’s counsel was present.
             The Court reiterated to defendant that if she refused
             probation, the active sentence would be imposed.

             7. At 12:33 the defendant appeared and affirmed she did
             not report to probation and said, “You can put me in jail.”
             The Court again asked her if she was certain she did not
             want to be on probation and she said “I have refused
             probation a hundred times and I am refusing it now.”

             8. It being obvious that the defendant was refusing to serve
             probation, the active sentence was instituted.

                                   II. Jurisdiction

      This Court possesses jurisdiction pursuant to N.C. Gen. Stat. §§ 7A-27(b) and

15A-1444(a) (2017).

                                      III. Issues

      Defendant argues the trial court lacked jurisdiction to revoke her probation

and violated her right to due process by revoking her probation without providing

notice of a scheduled hearing or a filed violation report. Defendant also asserts her

right to counsel was violated and that the trial court erred by not holding a

competency hearing prior to her revocation hearing.

                               IV. Standard of Review

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      “A trial court must have subject matter jurisdiction over a case in order to act

in that case.” State v. Satanek, 190 N.C. App. 653, 656, 660 S.E.2d 623, 625 (2008)

(citing State v. Reinhardt, 183 N.C. App. 291, 292, 644 S.E.2d 26, 27 (2007)). “Where

jurisdiction is statutory and the Legislature requires the Court to exercise its

jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects

the Court to certain limitations, an act of the Court beyond these limits is in excess

of its jurisdiction.” State v. Gorman, 221 N.C. App. 330, 333, 727 S.E.2d 731, 733

(2012) (citation and quotation marks omitted).

      “Further, an appellate court necessarily conducts a statutory analysis when

analyzing whether a trial court has subject matter jurisdiction in a probation

revocation hearing, and thus conducts a de novo review.” Satanek, 190 N.C. App. at

656, 660 S.E.2d at 625. We review subject matter jurisdiction as a question of law,

de novo. State v. Taylor, 155 N.C. App. 251, 260, 574 S.E.2d 58, 65 (2002).

                             V. Revocation of Probation

      Defendant first argues the trial court lacked jurisdiction to conduct a probation

revocation hearing because it failed to provide Defendant with adequate notice,

including a written statement of the violations alleged. Under these facts, we agree.

      A defendant’s consent is not required for the court to suspend an active

sentence and to order a convicted defendant to undergo probation supervision

instead. N.C. Gen. Stat. § 15A-1341(c) (1995), repealed by 1995 N.C. Sess. Laws 429,



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secs. 1, 5 (effective 1 January 1997) (eliminating a defendant’s right to elect to serve

a prison sentence in lieu of submitting to probation). Because Defendant had zero

prior record level points, and was convicted of a Class I felony, the court was only

authorized to sentence her to community punishment, which it correctly did when

her active sentence was suspended and she was placed on probation. N.C. Gen. Stat.

§§ 14-34.7(c)(1), 15A-1340.17(c) (2017).

      As is required by statute, prior to revocation of probation, a court must hold a

hearing, unless waived by probationer, and must provide prior “notice of the hearing

and its purpose” at least twenty-four hours in advance, unless waived. N.C. Gen. Stat.

§ 15A-1345(e) (2017). This statutory notice must also include a statement of the

violations alleged. Id. “The purpose of the notice mandated by this section is to allow

the defendant to prepare a defense and to protect the defendant from a second

probation violation hearing for the same act.” State v. Hubbard, 198 N.C. App. 154,

158, 678 S.E.2d 390, 393 (2009) (citation omitted).

      The State argues Defendant waived her right to prior statutory notice by

voluntarily appearing before the court and participating in her revocation hearing.

See State v. Gamble, 50 N.C. App. 658, 660, 274 S.E.2d 874, 875 (1981). However,

unlike the probationer in Gamble, Defendant had not been and was not served with

an order for arrest prior to her hearing. See id.




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      Defendant re-appeared in court as instructed by the judge the previous day.

While Defendant’s multiple and repeated objections to probation are documented, the

court did not indicate the purpose of the hearing was to revoke Defendant’s probation,

nor provide her with notice of any statement of her alleged violations, or seek her

waiver of same, contrary to the mandate of N.C. Gen. Stat. § 15A-1345(e).

      Without prior and proper statutory notice and a statement of violations

provided to Defendant, the trial court lacked jurisdiction to revoke her probation. In

light of our holding, it is not necessary to address Defendant’s other issues on appeal.

                                    V. Conclusion

      Absent jurisdiction, a court is without authority to act. Satanek, 190 N.C. App.

at 656, 660 S.E.2d at 625. The State failed to provide prior and proper statutory

notice to Defendant to revoke her probation.          Without proper notice, it lacked

jurisdiction to do so and its order must be vacated. “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.” State v.

Crawford, 167 N.C. App. 777, 779, 606 S.E.2d 375, 377 (2005) (citation and quotation

marks omitted).

      While the trial court had no authority to conduct a revocation hearing under

these facts, it was not without recourse to compel a recalcitrant defendant.          A

violation report could have been filed and an arrest warrant could have been issued,



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to provide Defendant with proper notice. See State v. Brown, 222 N.C. App. 738, 739-

40, 731 S.E.2d 530, 531 (2012) (violation report filed for absconding after defendant

failed to report to probation officer after initial sentence).

       Alternatively, the trial court could have found Defendant in contempt of court

pursuant to N.C. Gen. Stat. § 5A-11(a)(3) (2017) (“[w]illful disobedience of, resistance

to, or interference with a court’s lawful process, order, directive, or instruction or its

execution) or N.C. Gen. Stat. § 5A-11(a)(9a) (“[w]illful refusal by a defendant to

comply with a condition of probation”).

       Regardless of Defendant’s statements and protests, the trial court could have

simply ordered Defendant be accompanied by a law enforcement or probation officer

to register and implement probation supervision.

       The trial court erred by revoking Defendant’s probation without proper prior

statutory notice of a hearing and without a violation report filed. Without proper

jurisdiction to hear Defendant’s probation revocation, the trial court’s order is

vacated. See Crawford, 167 N.C. App. at 779, 606 S.E.2d at 377. This cause is

remanded for further proceedings not inconsistent with this opinion. It is so ordered.

       VACATED AND REMANDED.

       Chief Judge McGEE and Judge DAVIS concur.




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