An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-562
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 18 March 2014


STATE OF NORTH CAROLINA

      v.                                      Columbus County
                                              No. 07 CRS 53687
TREVOR DEMON BROWN,
          Defendant.


      Appeal by defendant from judgment entered 5 December 2012

by Judge D. Jack Hooks, Jr. in Columbus County Superior Court.

Heard in the Court of Appeals 7 November 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Gaines M. Weaver and Assistant Attorney General Kimberly N.
      Callahan, for the State.

      New Hanover County Public Defender's Office, by Assistant
      Public Defender Brendan O'Donnell, for defendant-appellant.


      GEER, Judge.


      Defendant Trevor Demon Brown appeals from the trial court's

judgment    revoking     his   probation     and   activating     his   suspended

sentence of 15 to 18 months imprisonment.                 On appeal, defendant

primarily argues       that the trial court erred in revoking his

probation because the competent evidence showed, at most, that

defendant committed two Class 3 misdemeanors while on probation
                                             -2-
and, under N.C. Gen. Stat. § 15A-1344(d) (2013), the trial court

had no authority to revoke his probation based solely on two

Class 3 misdemeanor convictions.                     However, our review of the

transcript reveals that defendant also admitted to committing a

Class     1       misdemeanor       offense,    as    alleged   in     the     verified

probation violation report.                 Based upon defendant's admission,

we hold that the trial court could properly revoke defendant's

probation.          Nonetheless, because the record suggests that the

trial court may have also based its revocation of defendant's

probation on a ground not supported by the evidence, we must

reverse and remand for further proceedings.

                                            Facts

    On        9    December     2010,     defendant    pled   guilty    in     Columbus

County    Superior          Court    to    assault    inflicting     serious    bodily

injury.       The trial court sentenced defendant to a presumptive-

range term of 15 to 18 months imprisonment, but suspended the

sentence and placed defendant on 36 months supervised probation.

    On        1    August    2012,     defendant's     probation     officer,    Tarni

Carter,       filed   a     verified      probation   violation    report      alleging

that defendant had violated the condition of his probation that

he "'[r]eport as direct [sic] by the Court or the probation

officer to the officer at reasonable times and places.'"                           The

report alleged that defendant had failed to meet Ms. Carter at
                                       -3-
defendant's residence on 10 May and 19 May 2012 and had also

failed to meet Ms. Carter on 15 May 2012 and on 17 July 2012.

The    report   further     asserted   that    defendant      had    violated     the

condition that he pay monies owed to the clerk of superior court

-- defendant was $180.00 in arrears on his payments.

       Ms. Carter then filed a second verified probation violation

report, entitled an "Addendum," on 15 November 2012.                         The 15

November 2012 report alleged that defendant had also violated

the    condition    of    his    probation    that    he    commit   no    criminal

offense.     According to the report, defendant had been convicted

in New Hanover County of (1) possession of more than one-half

ounce but less than one and one-half ounces of marijuana (with

an offense date of 9 August 2012) and (2) possession of up to

one-half ounce of marijuana, (with an offense date of 8 August

2012).       The   report   further    alleged       that   defendant      had   been

charged with driving while license revoked ("DWLR") in Brunswick

County, with an offense date of 21 February 2012, and that "IF

HE IS CONVICTED," the DWLR charge "WILL BE [A] VIOLATION[]."

       At a 5 December 2012 hearing on the probation violation

reports, Ms. Carter testified that defendant failed to attend

three scheduled probation appointments at defendant's home and

that defendant was, at that time, $300.00 in arrears in payments

owed    to   the   clerk    of   superior     court.        Ms.   Carter    further
                                         -4-
testified    that    defendant      "committed        the    offense    of    marijuana

[sic] in New Hanover County on 8/8/12 and then he committed the

offense of possession of marijuana up to one half [ounce] in New

Hanover     County    on    8/9/12."           She    testified        defendant      was

"convicted of those two on October 18, 2012."                       Ms. Carter also

testified that defendant had "a pending charge and if he were

convicted of driving while license revoked in Brunswick County,

that would be a violation."

    Defendant testified at the hearing and admitted that he had

missed     some    scheduled      appointments,        although        he    stated    it

"didn't happen very many times."                     Defendant further admitted

that he had pled guilty to the New Hanover County marijuana

convictions       alleged   in    the   November      2012    report.         Defendant

claimed that the marijuana charges were based upon an incident

in which defendant had marijuana in his pocket and had "a dollar

bill with some marijuana in it."

    On 5 December           2012, the trial court entered a                     judgment

revoking    defendant's       probation       and     activating       his    suspended

sentence.         In its order, the court found that defendant had

violated his probation based upon the allegations set out in the

November    2012     report      regarding     the     two    New     Hanover    County

marijuana     convictions        and    the    pending       charge    for    DWLR    in
                                              -5-
Brunswick      County.          Defendant     timely       filed     written     notice    of

appeal.

                                        Discussion

       As     an    initial      matter,      we     must     address       this     Court's

jurisdiction to hear this appeal.                    Defendant did not give oral

notice of appeal at the probation revocation hearing, but the

record includes a timely filed pro se Columbus County Clerk of

Superior Court form document that contains defendant's name and

signature and the signature of the deputy clerk of                                   superior

court.        The    form      document     states     defendant      gave      "Notice    of

Appeal to the Superior Court in the case(s) of 07 CRS 53687."

       This    document        does   not     comply       with    Rule     4   because    it

erroneously states that the appeal is to "Superior Court," it

does not identify the judgment or order appealed from, and there

is no indication in the record that the document was served on

the State.           See N.C.R. App. P. 4(a)(2) (requiring service of

written     notice        of   appeal     "upon      all    adverse        parties    within

fourteen days after entry of the judgment or order"); N.C.R.

App.   P.     4(b)       (providing   written       notice        "shall    designate     the

judgment or order from which appeal is taken and the court to

which appeal is taken").

       "[W]hen       a    defendant     has    not     properly       given     notice    of

appeal, this Court is without jurisdiction to hear the appeal."
                                        -6-
State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320

(2005).      We, therefore, dismiss defendant's appeal for lack of

jurisdiction.      However, defendant has also filed a petition for

writ of certiorari with this Court.               Pursuant to Rule 21 of the

Rules   of    Appellate    Procedure,     we     exercise    our   discretion    to

grant defendant's petition for writ of certiorari and reach the

merits of his appeal.

       Defendant   first     contends     that    the   trial   court   erred   in

revoking his probation because there was no competent evidence

supporting the trial court's finding that defendant violated his

probation by being convicted of the Class 1 misdemeanor offense

of possession of more than one-half ounce but less than one and

one-half ounces of marijuana as alleged in the November 2012

probation      violation     report.          Defendant     contends    that    the

competent evidence showed only that he had been convicted of two

Class 3 misdemeanor offenses of possession of up to one-half

ounce   of    marijuana     and   that,   under     N.C.    Gen.   Stat.   §   15A-

1344(d), the court had no authority to revoke his probation

solely for two convictions of Class 3 misdemeanors.

       It is well established that when a trial court's findings

that    a    defendant     violated    his     probation     are   supported    by

competent evidence, we review the court's decision to revoke the

defendant's probation for an abuse of discretion.                       State v.
                                         -7-
Young,   190    N.C.   App.      458,   459,    660    S.E.2d    574,    576   (2008).

Here,    defendant's      probation      required       that     he     "[c]ommit    no

criminal offense in any jurisdiction."                  Generally, if the State

proves a violation of a condition of probation, the trial court

has authority to revoke the defendant's probation under N.C.

Gen. Stat. § 15A–1344(a) and § 15A–1343(b)(1) (2013).                          However,

as defendant points out, N.C. Gen. Stat. § 15A-1344(d) provides

"probation may not be revoked solely for conviction of a Class 3

misdemeanor."

    The State argues that under N.C. Gen. Stat. § 15A-1344(d),

a court could revoke defendant's probation for commission of two

or more Class 3 misdemeanors or for commission of a Class 3

misdemeanor and other probation violations that would not alone

be sufficient for revocation.             See id. (providing "probation may

not be revoked solely for conviction of a Class 3 misdemeanor"

(emphasis      added)).       However,         since   defendant        admitted    the

convictions     alleged     in    the   November       2012     verified    probation

violation report,         which included         a conviction for a Class 1

misdemeanor, we need not address the State's contention.

    At the hearing, defendant testified as follows:

                 Q.   As far as the allegations in
            regards to the new convictions [sic].      Now
            you -- originally when you were served with
            this probation violation, there was nothing
            on it about a conviction; is that correct?
                                -8-
              A.   No, when I was first served with
         the probation violation, no.

              Q.   And you were represented by      Ms.
         Miller from New Hanover County, correct?

              A.    Yes, sir.

              Q.   You don't deny that        you   were
         convicted of these two charges?

              A.    No.

              Q.    Was it a trial or did you plead
         guilty?

              A.    I guess I pled guilty to it.

              Q.    What was the plea deal?

              A.    Repeat the question.

              Q.   What was the plea deal such that
         you pled guilty?   Did you get probation or
         did you get time served?

              A.    It was time served.

              . . . .

              Q.   And obviously those convictions
         were not a part of your original violation
         [sic] they did an addendum to your violation
         report November 15th; is that correct?

              A.    Right.

(Emphasis added.)

    At the hearing, the probation officer referred to the 15

November 2012 report as an addendum to the August 2012 report,

as defendant acknowledged.   The 15 November 2012 report alleged

two 18 October 2012 convictions: (1) a conviction for "POSS
                                         -9-
MARIJUANA >1/2 TO 1 1/2 OZ" with an offense date of 9 August

2012; and (2) a conviction for "POSS MARIJUANA UP [TO] 1/2 OZ"

with an offense date of 8 August 2012.                     There were no other

allegations of convictions contained in the 15 November 2012

report.     Thus, defendant's testimony that he did not deny being

convicted of "these two charges," and that he "pled guilty to

it,"    clearly   references        "those     convictions"    alleged   in    the

"November 15th" violation report, including the conviction for

possession of more than one-half ounce but less than one and

one-half ounces of marijuana.

       Defendant's admission constituted competent evidence that

he committed the offense of possession of more than one-half

ounce but less than one and one-half ounces of marijuana.                      See

State v. Henderson, 179 N.C. App. 191, 198, 632 S.E.2d 818, 822-

23     (2006)   ("In    light       of   defendant's       clear   admission    of

violations of the conditions of his probation and the probation

officer's testimony that he was personally aware of defendant's

arrearage, competent evidence exists in the record to support

revocation of defendant's probation.").                Possession of more than

one-half    ounce      but   less    than      one   and   one-half   ounces    of

marijuana is a Class 1 misdemeanor.                  See N.C. Gen. Stat. § 90-

95(d)(4) (2013).
                                     -10-
       Because the trial court found that defendant violated his

probation based upon the allegations in the November 2012 report

and    because    those    allegations    --   admitted     by   defendant     --

established that defendant had committed a Class 1 misdemeanor,

the trial court's findings of fact support the trial court's

revocation of defendant's probation.

       Defendant    further    contends     that     Ms.   Carter's    testimony

regarding the convictions and the allegations in the November

2012 verified probation violation report -- the State's other

evidence of the convictions -- constituted hearsay and, thus,

were not competent evidence to support the trial court's finding

that   defendant    committed    a   Class     1   misdemeanor.        Defendant

further argues that, even if it was not hearsay, Ms. Carter's

testimony at the hearing only showed that defendant had been

convicted of, at most, two Class 3 misdemeanors for possession

of up to one-half ounce of marijuana.

       However,    given    defendant's      admission      of   the   Class   1

misdemeanor      conviction    alleged    in   the    report,    the    verified

report and Ms. Carter's testimony were merely cumulative and

were not necessary to support the court's finding.                     State v.

Hewett, 270 N.C. 348, 356, 154 S.E.2d 476, 482 (1967) (holding

that although some of trial court's findings were improperly

based upon hearsay, "there [was] enough competent evidence in
                                           -11-
the record to support the judge's crucial findings of fact" that

defendant     violated       his    probation           as    concluded       in    order).

Compare State v. Pratt, 21 N.C. App. 538, 541, 204 S.E.2d 906,

907 (1974) (holding that probation revocation was improper when

only evidence that defendant violated probation by changing her

residence     was    hearsay       and    "defendant          and    several       witnesses

presented by her testified that defendant had not changed her

residence").        Therefore, even assuming, without deciding, that

the challenged evidence was inadmissible, the record contained

sufficient evidence to support the trial court's finding that

defendant was convicted of a Class 1 misdemeanor.

       Defendant     next    argues       that    the        trial    court    could      not

properly revoke his probation based upon the violations alleged

in the 1 August 2012 report: that defendant (1) failed to report

to    his   probation   officer      as     directed         and    (2)    failed    to    pay

monies owed to the clerk.                 Defendant reasons that all of the

alleged violations in this case occurred after 1 December 2011

and, therefore, the trial court could only revoke defendant's

probation under a limited set of circumstances as provided in

the    Justice    Reinvestment       Act.         See    N.C.       Gen.    Stat.    §    15A-

1344(a); 2011 N.C. Sess. Laws ch. 192, § 4(a)-(c) (effective

December     1,     2011);   2011        N.C.    Sess.       Laws     ch.    412,    §     2.5

(effective December 1, 2011).
                                                 -12-
    However,         in     its     written             order        revoking      defendant's

probation, the trial court found only that defendant violated

his probation based upon the allegations in the November 2012

report.      The    order    does       not       mention       the    allegations      in    the

August     2012     report    as        a        basis    for        revoking      defendant's

probation.

    Defendant points to the fact that, at                                  the hearing, the

court     orally    found     that          of     "the     violations          alleged,     each

occurred."      Nevertheless, the court went on to specifically find

"[t]hat     the     allegations             regarding        the       violations      include

commission of new offenses and convictions of the same while on

probation."           After        specifically                 discussing         defendant's

violations based on the marijuana convictions, the court stated:

"[T]he Court finds based upon the foregoing that his probation

should be and the same is hereby ordered revoked."

    Since the oral order of revocation immediately followed the

court's comments regarding the convictions, it appears from the

transcript that, as provided in the written order, the court was

revoking    defendant's       probation             based    upon         its   findings     that

defendant    was     convicted       of      the        marijuana         offenses    while    on

probation.         Defendant concedes that the court could properly

revoke    his     probation       for       commission          of    a    criminal    offense

(greater than a Class 3 misdemeanor), and we have already upheld
                                    -13-
the trial court's finding, based upon defendant's admission of

an   allegation   in   the   November      2012   report,   that   defendant

committed a Class 1 misdemeanor.

     Consequently, the trial court revoked defendant's probation

consistent   with   its   limited    revocation      authority     under   the

Justice Reinvestment Act.        To the extent that the court also

orally found defendant to have violated his probation based upon

his failure to report as directed and failure to pay monies

owed, the absence of findings on those matters in the written

order does not impact the        validity of the        court's judgment,

since revocation was proper based upon the court's findings that

defendant committed the marijuana offenses.

     Defendant also argues that the trial court erred in finding

in its written order that defendant "violated" the condition of

his probation that he commit no criminal offense based upon the

allegation in the November 2012 report that defendant "HAS BEEN

CHARGED WITH" DWLR "AND IF HE IS CONVICTED THEN [IT] WILL BE [A]

VIOLATION[]."     Defendant contends that the allegations in the

verified report refer only to a pending charge, and that the

only relevant evidence at the hearing, Ms. Carter's testimony,

showed the charge was still pending and provided no independent

evidence that defendant actually committed the offense.
                                         -14-
       "[A]    revocation       of   suspension   cannot      be     bottomed      solely

upon a pending criminal charge; a conviction or a plea of guilty

is required."         State v. Causby, 269 N.C. 747, 749, 153 S.E.2d

467,    469    (1967)     (emphasis     added).         However,      if     the   court

receives competent evidence of the facts underlying a charged

offense       and,   based       upon   that    evidence,       the     court      makes

independent findings that the defendant committed the charged

offense, the court may revoke a defendant's probation based upon

those independent findings.             State v. Monroe, 83 N.C. App. 143,

145, 349 S.E.2d 315, 317 (1986).

       Ms. Carter's testimony at the hearing regarding the DWLR

charge consisted of the following:

                   Q.         What   other   violations       have    been
              filed?

                   A.      The   only  other  part   for  the
              addendum    is that he has a pending charge and
              if he       were convicted of driving while
              license     revoked in Brunswick County, that
              would be    a violation.

                     Q.       When was the -- that charge?

                     A.       February 21st of this year.

       The verified report alleged only that defendant had been

charged with DWLR and, if defendant was convicted, that charge

would   constitute        a    violation.       There   was    no     other    evidence

regarding the pending DWLR charge presented.                       Under Causby and

Monroe, we agree with defendant that the trial court was not
                                        -15-
presented with sufficient evidence to support its finding that

defendant violated his probation based upon the allegations in

the November 2012 report that he had a pending DWLR charge.

    The State argues, however, that because the 15 November

2012 violation report did not actually allege that the DWLR

charge   was    a     violation   and    "the   pending     charge     was   never

intended to be part of the basis for Defendant's revocation,"

the fact that the trial judge referenced the paragraph alleging

the pending DWLR charge was "of no moment."                We cannot agree.

    The     judgment     revoking    defendant's      probation       specifically

states that "[t]he condition(s) violated and the facts of each

violation are as set forth . . . in Paragraph(s) 1-2 of the

Violation Report or Notice dated 11/07/2012[.]"                   Consequently,

the judgment provides that paragraph 2 of the 15 November 2012

report is one of the bases for the probation revocation.                         In

addition, the trial court did not check the box on the form that

specifies      that    "[e]ach    violation     is,   in   and   of    itself,   a

sufficient basis upon which this Court should revoke probation

and activate the suspended sentence."

    Therefore, the judgment does not permit us to conclude that

the trial court would still have revoked defendant's probation

in the absence of paragraph 2 of the 15 November 2012 report.

We must, therefore, reverse the judgment revoking defendant's
                              -16-
probation and remand for a determination whether the violation

in paragraph 1 of the 15 November 2012 report is a sufficient

basis upon which to revoke defendant's probation.


    Reversed and remanded.

    Judges STEPHENS and ERVIN concur.

    Report per Rule 30(e).
