              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-743

                              Filed: 6 February 2018

Wake County, No. 13CRS210475

STATE OF NORTH CAROLINA

             v.

TYLER BRYANT PEED, Defendant.


      Appeal by Defendant from judgment entered 12 December 2016 by Judge

Michael R. Morgan in Wake County Superior Court. Heard in the Court of Appeals

12 December 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Zachary
      Padget, for the State.

      Appellate Defender G. Glenn Gerding, by Assistant Appellate Defender Aaron
      Thomas Johnson, for the Defendant.


      DILLON, Judge.


      Tyler Bryant Peed (“Defendant”) appeals from the trial court’s judgment

revoking his probation. Defendant’s probation had been extended to allow Defendant

time to complete one of the conditions of his probation. His probation was revoked

for a violation which occurred during the extension. On appeal, Defendant contends

that the trial court did not have jurisdiction to revoke his probation because the

extension was not statutorily authorized. After careful review, we reverse.

                                   I. Background
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                                  Opinion of the Court



      In 2013, Defendant received thirty (30) months of supervised probation in lieu

of an active sentence in connection with a felony conviction. In February 2016,

approximately four days before his probation was to expire, the trial court entered an

order extending Defendant’s probation for 12 months, with Defendant’s consent. The

purpose of the extension was to allow Defendant “to complete Substance Abuse

Treatment[.]”

      During the 12-month period of extension, Defendant violated probation. A

hearing was held to determine whether Defendant’s probation should be revoked

based on the violation. During the hearing, Defendant moved to dismiss, arguing

that the extension of his probation period was not authorized by statute. The trial

court denied the motion. Defendant then admitted to willfully violating probation.

The trial court revoked Defendant’s probation. Defendant timely appealed.

                                  II. Justiciability

      The State contends that Defendant’s appeal is moot because he has already

served the entire sentence assigned for revocation, leaving no controversy left to be

redressed.

      Defendant, however, argues that his appeal is not moot, as there are

potentially adverse consequences that he may endure as a result of the order revoking

his probation. Indeed, our Supreme Court has stated that a criminal appeal is not

moot, though the sentence has been served, where the “mere fact of conviction may



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result in various adverse consequences to the individual[.]” In re A.K., 360 N.C. 449,

453, 628 S.E.2d 753, 756 (2006). Defendant cites a potential adverse consequence of

the trial court’s order that the “willful violation of the conditions of probation imposed

pursuant to a suspended sentence” may be considered in a future criminal proceeding

as an aggravating factor during sentencing. N.C. Gen. Stat. § 15A-1340.16(d)(12)(a)

(2015). And, here, the trial court did find that Defendant willfully violated his

probation.

      The State, though, contends that the appeal is still moot because Defendant is

not contesting the trial court’s finding that he willfully violated his probation, only

that the trial court lacked jurisdiction to revoke his probation. And, so the State’s

argument goes, it is only the fact that a defendant has willfully violated a condition

of probation, and not the fact that a defendant’s probation has been revoked, which

may be used as an aggravating factor in a future criminal matter. The State cites as

authority our holding in State v. Posey, ___ N.C. App. ___, 804 S.E.2d 580 (2017). We,

however, hold that our Posey decision is distinguishable.

      In Posey, the defendant’s probation was revoked for a willful violation of a

condition. We considered the defendant’s appeal after he had served his time. As

Defendant has done here, the defendant in Posey argued that his appeal was not moot

because the order revoking his probation could be used against him as an aggravating

factor in a future criminal proceeding. We held, though, that the appeal was still



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moot because the defendant was not challenging the trial court’s finding that he had

willfully violated his violation, but only the trial court’s jurisdiction to revoke his

probation:

             [T]he fact that [the defendant’s] probation was revoked, in
             and of itself, does not trigger the application of N.C. Gen.
             Stat. § 15A-1340.16(d)(12a) [which allows a prior willful
             violation of a probation condition to be considered as an
             aggravating factor]. The only part of the trial court’s
             judgment that could have any future detrimental effect is
             the finding that [the defendant] was in willful violation of
             his probation, a finding that [the defendant] does not
             challenge. And, clearly, the trial court acted within its
             authority in entering its finding of willfulness,
             notwithstanding that it may have erroneously [revoked the
             defendant’s probation].

Id. at ___, 804 S.E.2d at 581-82 (emphasis added).

      This present matter is distinguishable from Posey because Defendant

challenges the trial court’s jurisdiction, not only to revoke his probation, but to even

consider whether he willfully violated a condition of his probation. That is, unlike

the defendant in Posey, Defendant here essentially argues that he was not even on

probation when he committed his alleged violation.

      Accordingly, with the revocation order in place, Defendant will be subject to

potential adverse consequences in the future since that order contains a

determination that Defendant willfully violated his probation. However, if we agree

with Defendant’s argument that his probation period had, in fact, already ended

before he allegedly committed the act found by the trial court to constitute a willful


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violation, then the trial court’s finding of a willful violation would be vacated.

Therefore, Defendant’s appeal is not moot. We now turn to the merits of Defendant’s

argument on appeal.

                                     III. Analysis

      Defendant essentially argues that the trial court lacked jurisdiction to find that

he had violated his probation because his probationary period was unlawfully

extended. Specifically, Defendant contends that the reasoning the trial court used to

extend his probation was not authorized by the governing statutes. We agree.

      “[A]n 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.” State v. Satanek, 190 N.C. App. 653,

656, 660 S.E.2d 623, 625 (2008) (citing State v. Bryant, 361 N.C. 100, 102, 637 S.E.2d

532, 534 (2006)).

      In order to extend an individual’s probationary period, the trial court must

have statutory authority; absent such authority, any orders extending probation are

void. See State v. Gorman, 221 N.C. App. 330, 335, 727 S.E.2d 731, 734 (2012). Here,

the trial court extended Defendant’s probation based on Defendant’s consent. There

are two statutes which authorize the trial court to extend the period of probation

based on a defendant’s consent, both of which authorize an extension to allow the

defendant to complete/continue “medical or psychiatric treatment ordered as a



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condition of” the probation, namely N.C. Gen. Stat. §§ 15A-1342(a) and 15A-

1343.2(d).1

       Neither N.C. Gen. Stat. § 15A-1342(a) (2015) nor N.C. Gen. Stat. § 15A-

1343.2(d) (2015) expressly authorize a trial court to extend a defendant’s period of

probation to allow him time to complete a “substance abuse program,” as was done in

this case. The State argues, though, that the completion of Defendant’s “substance

abuse program” is a permissible reason for the trial court to extend Defendant’s

probation as a continuation of “medical or psychiatric treatment.” For the following

reasons, we must disagree.

       This is a question of statutory interpretation: Both N.C. Gen. Stat. § 15A-

1342(a) and N.C. Gen. Stat. § 1343.2(d) authorize a trial court to extend a defendant’s

period of probation (with the defendant’s consent) to allow a defendant time to

complete “medical or psychiatric treatment.” Did the General Assembly intend to

authorize the trial court to extend the period of probation under these sections for the

purpose of allowing the defendant additional time to complete “substance abuse

treatment”? In other words, did the General Assembly intend for “substance abuse




       1These   statutes also allow the trial court to extend the probation period with a defendant’s
consent to allow the defendant more time to complete making restitution. However, restitution is not
an issue in the present case. Also, another statute, N.C. Gen. Stat. § 15A-1344 (2015) authorizes a
trial court to extend the probation period without a defendant’s consent if good cause is shown.
However, here, neither party argues that N.C. Gen. Stat. § 15A-1344 applies and, further, the trial
court did not make any finding of good cause shown, but rather rested its authority on the basis of
Defendant’s consent.

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treatment” to be a type of “medical or psychiatric treatment”?        In deciding this

question, we are guided by our Supreme Court’s directive that “[w]here the language

of a statute is clear and unambiguous, there is no room for judicial construction, and

the courts . . . are without power to interpolate, or superimpose, provisions and

limitations not contained therein.” In re Redmond, ___ N.C. ___, ___, 797 S.E.2d 275,

279 (2017).

      We conclude that the General Assembly did not intend for a probation

condition to complete “substance abuse treatment” to be synonymous with (or a

subset of) a probation condition to complete “medical or psychiatric treatment.”

Specifically, N.C. Gen. Stat. § 15A-1343, which enumerates the conditions of

probation which may be imposed, lists “substance abuse . . . treatment” separately

from “medical or psychiatric treatment.” N.C. Gen. Stat. § 15A-1343(a1) (2015)

(listing “[s]ubstance abuse assessment, monitoring, or treatment” as a permissible

“intermediate probation” condition); N.C. Gen. Stat. § 15A-1343(b1)(2015) (listing

“[m]edical or psychiatric treatment” as a permissible “special condition” of probation).

      In sum, the General Assembly enumerates in N.C. Gen. Stat. § 15A-1343 the

various conditions of probation available to a trial court to impose, which include

separately “substance abuse . . . treatment” and “medical or psychiatric treatment.”

Based on N.C. Gen. Stat. § 15A-1343, there are situations where a trial court could

order a defendant to participate in substance abuse treatment, or in medical



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treatment, or in psychiatric treatment, or in two of these three types of treatment, or

in all three types.

       The General Assembly further authorizes the trial court to extend the period

of probation with the defendant’s consent in limited situations.        These limited

situations enumerated by the General Assembly include ‘allowing the defendant more

time to complete his medical treatment or to complete his psychiatric treatment. The

General Assembly could have also expressly authorized a trial court to extend the

probation period to allow a defendant time to complete substance abuse treatment.

However, the General Assembly has not done so. We, therefore, must hold that the

General Assembly did not authorize the trial court to extend Defendant’s period of

probation in this case.   We reverse the trial court’s order revoking Defendant’s

probation in its entirety, including the trial court’s finding that Defendant willfully

violated his probation.

       REVERSED.

       Judges BRYANT and DIETZ concur.




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