An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1108
                       NORTH CAROLINA COURT OF APPEALS

                                Filed:    6 May 2014


STATE OF NORTH CAROLINA

      v.                                      Scotland County
                                              No. 11 CRS 50535
ROMAN CHANDLER DAVIS



      Appeal by defendant from judgment entered 3 June 2013 by

Judge Richard Brown in Scotland County Superior Court.                    Heard in

the Court of Appeals 31 March 2014.


      Roy Cooper, Attorney General, by Kathryn Jones                       Cooper,
      Special Deputy Attorney General, for the State.

      W. Michael Spivey for defendant-appellant.


      DAVIS, Judge.


      Roman Chandler Davis          (“Defendant”)      appeals from judgment

entered upon revocation of his probation.                On appeal, he argues

that the trial court lacked the statutory authority to revoke

his probation under the absconding provision of N.C. Gen. Stat.

§ 15A-1343(b)(3a) because that provision was not applicable to

him in light of the date of his offense.                After careful review,

we reverse the judgment and remand for further proceedings.
                                             -2-
                                 Factual Background

       On    21     August     2012,       Defendant      pled     guilty       to    assault

inflicting serious bodily injury — an offense that occurred on 5

March 2011.         The trial court sentenced Defendant to a term of 19

to    23    months    imprisonment.           The    trial       court    suspended         the

sentence and placed Defendant on supervised probation for 24

months.

       On 15 November 2012, Defendant’s probation officer filed a

violation         report     alleging       that    Defendant       had       violated      the

conditions of probation in that (1) he failed to make scheduled

office visits on 5 September 2012 and 7 November 2012; (2) he

was    no    longer    staying        at    his    last    known     address         and    was

therefore     an     absconder;       and    (3)    he    failed    to    provide      a    DNA

sample for testing.

       The matter came on for hearing on 3 June 2013.                            The trial

court revoked Defendant’s probation and activated his sentence

of 19 to 23 months imprisonment.                     The trial court found that

Defendant’s probation was subject to revocation “for the willful

violation      of     the     condition(s)         that    he/she       not    commit      any

criminal       offense,        G.S.        15A-1342(b)(1),         or     abscond          from

supervision, G.S. 15A-1343(b)(3a).”                       Defendant gave notice of

appeal in open court.
                                              -3-
                                         Analysis

    Citing State v. Nolen, ___ N.C. App. ___, 743 S.E.2d 729

(2013), Defendant argues the trial court erred by revoking his

probation    and   activating           his    suspended     sentence.        The    State

concedes    that   it   is    unable          to    distinguish   the   facts       in   the

present case from the facts in Nolen.                    We agree.

    In Nolen, the defendant argued that the trial court lacked

statutory    authority       to    revoke          her   probation   based    upon       the

violations    alleged    by       her    probation        officer.      The   defendant

contended that her violations 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.                   Nolen, ___ N.C. App. at ___, 743

S.E.2d at 730.

            [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).
                                      -4-
Id. at ___, 743 S.E.2d at 730 (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   that

condition was not in existence at the time she committed her

offenses.       Id. at ___, 743 S.E.2d at 730.           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) (emphasis

omitted).       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.
               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.

Nolen, ___ N.C. App. at ___, 743 S.E.2d at 731.

      In the present case,         it was not alleged that Defendant

committed a new criminal offense.             Also, there is no evidence
                                        -5-
that   Defendant     served    any    CRVs.       Moreover,       although   it    was

alleged    and     found   that   Defendant       absconded,       the    absconding

condition    was    not    applicable    to     him     because    his    underlying

offense     of   assault      inflicting      serious      bodily        injury    was

committed    before    1   December     2011.      As    noted     above,    the   new

absconding condition only applies to offenses committed on or

after 1 December 2011, and            Defendant’s offense was committed on

5 March 2011.         Accordingly, we conclude that the trial court

lacked the authority to revoke Defendant’s probation.

                                     Conclusion

       For the reasons set out above, the trial court erred in

revoking    Defendant’s       probation.          We    therefore     reverse      the

judgment and remand for further proceedings consistent with this

opinion.

       REVERSED AND REMANDED.

       Judges McGEE and ELMORE concur.

       Report per Rule 30(e).
