An unpublished opinion of the North Carolina Court of Appeals does not constitute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.


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA15-112

                               Filed: 15 September 2015

McDowell County, Nos. 11-CRS-51965, 11-CRS-51971-73

STATE OF NORTH CAROLINA

              v.

DONALD WESLEY WEATHERS


       Appeal by defendant from judgments entered 11 August 2014 by Judge J.

Thomas Davis in McDowell County Superior Court. Heard in the Court of Appeals

10 August 2015.


       Roy Cooper, Attorney General, by Deborah M. Greene, Assistant Attorney
       General, for the State.

       James W. Carter for defendant-appellant.


       DAVIS, Judge.


       Donald Wesley Weathers (“Defendant”) appeals from the trial court’s

judgments revoking his probation and activating his suspended sentences.                On

appeal, he contends that the trial court lacked the statutory authority to revoke his

probation and activate his suspended sentences. After careful review, we vacate the

trial court’s judgments and remand for further proceedings.

                                 Factual Background
                                 STATE V. WEATHERS

                                  Opinion of the Court



      On 4 April 2012, Defendant pled guilty to four counts each of felony breaking

or entering, felony larceny after breaking or entering, and attempted breaking or

entering. All of these offenses were committed on 13 October 2011. The trial court

sentenced Defendant to eight consecutive sentences of six to eight months

imprisonment, suspended the sentences, and placed Defendant on supervised

probation for a period of 48 months.

      Defendant’s probation officer filed violation reports on 27 November 2012 in

all eight cases. The violation reports uniformly alleged that Defendant violated his

probation by failing to (1) report for scheduled office visits on two dates; (2) comply

with electronic monitoring (based on the allegation that Defendant cut off his

electronic monitoring unit on 16 November 2012); and (3) make his whereabouts

known to his North Carolina and South Carolina probation officers. The following

day, Defendant’s probation officer filed an addendum to each report further alleging

that Defendant had additionally violated his probation by failing to (1) report for

scheduled office visits on five other dates; (2) pay probation supervision fees (having

fallen in arrears in the amount of $1,839.50); and (3) attend substance abuse

counseling referrals.

      On 1 July 2014, Defendant was arrested and served with the violation reports

and the addenda thereto. A hearing on the alleged probation violations was held in

McDowell County Superior Court on 11 August 2014 before the Honorable J. Thomas



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                                 STATE V. WEATHERS

                                   Opinion of the Court



Davis. At the conclusion of the hearing, the trial court revoked Defendant’s probation

and activated his suspended sentences. In each judgment, the trial court found that

Defendant had committed the violations charged in the violation reports and

addenda. The trial court concluded that Defendant’s probation should be revoked “for

the willful violation of the condition(s) that he/she not commit any criminal offense,

G.S. 15A-1343(b)(1), or abscond from supervision, G.S. 15A-1343(b)(3a) . . . .”

Defendant gave oral notice of appeal in open court.

                                       Analysis

      Defendant argues on appeal that the trial court lacked the statutory authority

to revoke his probation for absconding from supervision because the offenses for

which he was sentenced occurred prior to the 1 December 2011 effective date of the

Justice Reinvestment Act of 2011 (“JRA”). Defendant additionally contends that the

trial court lacked the authority to revoke his probation for violating the condition of

his probation that he not commit a new criminal offense because the violation reports

and addenda thereto did not actually allege a violation of that condition. We address

each of these arguments in turn.

I. Absconding from Supervision

      In State v. Nolen, __ N.C. App. __, 743 S.E.2d 729 (2013), we held that a trial

court lacks authority under the JRA to revoke probation and activate a sentence on

the basis that the defendant absconded from supervision when the offense for which



                                          -3-
                                 STATE V. WEATHERS

                                   Opinion of the Court



the defendant was sentenced occurred prior to 1 December 2011. Id. at __, 743 S.E.2d

at 730. In the present case, Defendant committed each of the underlying offenses

giving rise to his probation prior to 1 December 2011. Therefore, the trial court lacked

the statutory authority to revoke Defendant’s probation and activate his suspended

sentences on the basis of his absconding from the supervision of his probation officers.

II. Commission of New Criminal Offense

      We next address Defendant’s argument that because he was not given advance

notice of this ground for revocation, the trial court erred in activating his probation

on the basis that he had committed a new criminal offense. We agree.

      In both State v. Tindall, __ N.C. App. __, 742 S.E.2d 272 (2013), and State v.

Kornegay, __ N.C. App. __, 745 S.E.2d 880 (2013), the defendants’ probation was

revoked based on their commission of a new criminal offense despite the fact that

they failed to receive advance notice that this ground was being asserted as the basis

for seeking the revocation of their probation. See Kornegay, __ N.C. App. at __, 745

S.E.2d at 883; Tindall, __ N.C. App. at __, 742 S.E.2d at 275. In each case, we held

that the trial court lacked jurisdiction to revoke the defendant’s probation because

the violation reports did not expressly allege that the defendants committed criminal

offenses that could result in their probation being revoked and, therefore, the

defendants were not given adequate notice. See Kornegay, __ N.C. App. at __, 745

S.E.2d at 883; Tindall, __ N.C. App. at __, 742 S.E.2d at 275.



                                          -4-
                                 STATE V. WEATHERS

                                   Opinion of the Court



      In the present case, the trial court similarly lacked jurisdiction to revoke

Defendant’s probation on this basis. Although Defendant’s counsel admitted that

Defendant had recently been incarcerated in South Carolina due to his commission

of another crime, the violation reports did not allege that his probation was subject

to possible revocation on this ground or even that Defendant had committed a new

offense at all. As a result, at the time of the hearing, Defendant had not been provided

with advance notice that his probation could potentially be revoked for the

commission of a new offense, and Defendant did not waive his right to receive such

notice. See Kornegay, __ N.C. App. at __, 745 S.E.2d at 883 (“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.”). Therefore, the trial court erred

in revoking his probation on this ground.

                                     Conclusion

      For the reasons stated above, we vacate the trial court’s judgments revoking

Defendant’s probation and activating his sentences and remand for further

proceedings.

      VACATED AND REMANDED.

      Judges STROUD and INMAN concur.

      Report per Rule 30(e).



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