               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-995

                                 Filed: 19 May 2020

Henderson County, Nos. 17 CRS 054550, 17 CRS 054551

STATE OF NORTH CAROLINA

              v.

DAVID JOHN GANTT, Defendant.


        Appeal by defendant from judgments entered 24 June 2019 by Judge Peter B.

Knight in Henderson County Superior Court. Heard in the Court of Appeals 15 April

2020.


        Attorney General Joshua H. Stein, by Associate Attorney General Elizabeth B.
        Jenkins, for the State.

        Reece & Reece, by Mary McCullers Reece, for defendant-appellant.


        BERGER, Judge.


        On January 30, 2018, David John Gantt (“Defendant”) was placed on

supervised probation for felony breaking or entering and larceny after breaking or

entering.   Defendant’s probation was revoked and his suspended sentence was

activated on June 24, 2019, after he admitted that he willfully violated the terms and

conditions of his probation, including an allegation that he absconded. Defendant

appeals from judgments upon revocation of his probation.        However, Defendant
                                        STATE V. GANTT

                                       Opinion of the Court



concedes his notice of appeal was defective. In the exercise of our discretion, we deny

his petition for writ of certiorari and dismiss his appeal.

                            Factual and Procedural Background

       On January 30, 2018, Defendant pleaded guilty to felony breaking or entering

and felony larceny after breaking or entering. The trial court sentenced Defendant

to two consecutive 8- to 19-month prison terms, suspended both sentences, and placed

Defendant on supervised probation for 24 months. Probation violations were filed for

Defendant’s failure to comply with the terms and conditions of his probation on March

12 and July 13, 2018 (the “Violation Reports”). The Violation Reports alleged that

Defendant possessed drugs, possessed a firearm, possessed a stolen firearm, missed

an office visit, was charged with defrauding a drug screen, was charged with

possession of methamphetamine, had an outstanding warrant for possession of a

stolen vehicle, and absconded.1

       On June 24, 2019, the trial court conducted a hearing on the Violation Reports.

Defendant admitted that he had willfully violated the terms and conditions of his

probation as set forth in the reports, and he also informed the trial court that he had



       1  The March 12, 2018 Violation Report contains the file number for the breaking or entering
charge, 17 CRS 54551. The July 13, 2018 Violation Report contains the file number for the larceny
after breaking or entering charge, 17 CRS 54550. During the hearing, the probation officer discussed
the initial violations which follow the language in the March 12, 2018 Violation Report for 17 CRS
54551, and he then informed the trial court that there was an “Addendum violation” which alleged
absconding. However, there is no addendum in the record
        After discussing the “Addendum violation,” the probation officer discussed the alleged
violations in the July 13, 2018 Violation Report for 17 CRS 54550.

                                                 2
                                     STATE V. GANTT

                                     Opinion of the Court



been convicted of a criminal offense. In addition, defense counsel stated to the trial

court, “my recommendation is to terminate, . . . [a]nd I believe that’s by agreement

with probation.” Defendant specifically admitted to absconding and conviction of a

new criminal offense in 17 CRS 54551.

       At the conclusion of the hearing, the trial court announced Defendant’s

probation was revoked. In the written judgment for File Number 17 CRS 54550, the

trial court found Defendant had willfully violated the terms and conditions of his

probation by absconding, missing and office visit, and possession of marijuana and

drug paraphernalia. In the written judgment revoking Defendant’s probation in 17

CRS 54551, the trial court found Defendant had willfully violated the terms of his

probation as set forth in paragraph 1 of the July 13, 2018 Violation Report.

       Defendant filed a pro se purported written notice of appeal. Defendant argues

on appeal that the trial court erred by revoking his probation in 17 CRS 54551 for a

violation of which he had no notice or, in the alternative, for a violation that was not

revocable. However, Defendant’s notice of appeal failed to comply with N.C. R. App.

P. 4 in that the notice did not (1) designate the judgment from which he was

appealing, (2) designate the court to which he was appealing, and (3) properly certify

service. Defendant concedes that he neither designated the judgment or judgments

from which he was appealing nor the court to which he was appealing, and he had

failed to attach a certificate of service.



                                              3
                                     STATE V. GANTT

                                    Opinion of the Court



       The defects in Defendant’s notice deprive this Court of jurisdiction over his

direct appeal. State v. Hughes, 210 N.C. App. 482, 484, 707 S.E.2d 777, 778 (2011);

see also State v. McMillian, 101 N.C. App. 425, 427, 399 S.E.2d 410, 411 (1991).

Therefore, Defendant’s appeal is dismissed.

                     The writ of certiorari may be issued in appropriate
              circumstances by either appellate court to permit review of
              the judgments and orders of trial tribunals when the right
              to prosecute an appeal has been lost by failure to take
              timely action, or when no right of appeal from an
              interlocutory order exists, or for review pursuant to
              N.C.G.S. § 15A-1422(c)(3) of an order of the trial court
              ruling on a motion for appropriate relief.

N.C. R. App. P. 21(a)(1) (2019).

       “A petition for the writ must show merit or that error was probably committed

below. Certiorari is a discretionary writ, to be issued only for good and sufficient

cause shown.” State v. Killette, ___ N.C. App. ___, ___, 834 S.E.2d 696, 698 (2019)

(citation and quotation marks omitted). Petitioner must also demonstrate “that the

ends of justice will be . . . promoted.” King v. Taylor, 188 N.C. 450, 451, 124 S.E. 751,

751 (1924). In addition, the decision of “[w]hether to allow a petition and issue the

writ of certiorari is not a matter of right and rests within the discretion of this Court.”

State v. Biddix, 244 N.C. App. 482, 486, 780 S.E.2d 863, 866 (2015) (citation omitted).

       Defendant’s probation was revoked and his suspended sentence activated for

absconding and possession of drug paraphernalia. These are regular conditions of

probation. See N.C. Gen. Stat. § 15A-1343(b) (2019); see also N.C. Gen. Stat. § 15A-


                                             4
                                   STATE V. GANTT

                                   Opinion of the Court



1344(a) (2019) (“The court may only revoke probation for a violation of a condition of

probation under G.S. 15A-1343(b)(1) [new criminal offense] or G.S. 15A-1343(b)(3a)

[abscond by willfully avoiding supervision]”).

       Defendant admitted in open court that he was in willful violation of these

regular conditions. Defendant has failed to demonstrate that the ends of justice

would be promoted by allowing the petition and issuing the writ. In the exercise of

our discretion, we deny Defendant’s petition for writ of certiorari.

      For the reasons stated herein, Defendant’s petition for writ of certiorari is

denied and his appeal is dismissed.

      DENIED IN PART AND DISMISSED.

      Judge TYSON concurs.

      Judge COLLINS dissents in separate opinion.




                                            5
 No. COA19-995 – State v. Gantt


       COLLINS, Judge, concurring in part and dissenting in part.


       I concur in the majority opinion to deny Defendant’s petition for writ of

certiorari in 17 CRS 054550 and to dismiss his appeal in that case. However, where

Defendant’s probation in 17 CRS 054551 was revoked for absconding–a violation not

alleged in the probation violation report–I respectfully dissent from the remainder of

the majority opinion that leads to its conclusion to deny Defendant’s petition for writ

of certiorari in 17 CRS 054551 and to dismiss his appeal in that case.

                                 I. Factual Background

       Although the majority opinion includes a recitation of the facts, I include a

recitation of the facts as well.

       On 30 January 2018, Defendant pled guilty in district court to felony breaking

and entering in 17 CR 54550, and felony larceny after breaking and entering in 17

CR 54551.2 The trial court sentenced Defendant to two consecutive 8-19 month prison

terms, suspended both sentences, and placed Defendant on 24 months’ supervised

probation.




       2 The district court file numbers were 17 CR 54550 and 17 CR 54551. Upon the filing of the
probation violation reports in superior court, the file numbers became 17 CRS 054550 and 17 CRS
054551.
                                      STATE V. GANTT

                   COLLINS, J., concurring in part and dissenting in part.



      On 12 March 2018, Defendant’s probation officer filed a probation violation

report in superior court in 17 CRS 054551 (“March report”). The March report alleged

the following probation violations:

             1. “Report as directed by the Court, Commission or the
                supervising officer to the officer at reasonable times and
                places . . .” in that
                OFFENDER FAILED TO REPORT FOR OFFICE
                VISIT ON 3/7/2018.

             2. Condition of Probation “Not possess contraband or
                stolen goods” in that
                DURING WARRANTLESS SEARCH OFFENDER
                WAS FOUND TO HAVE STOLEN PROPERTY IN HIS
                POSSESSION INCLUDING A STOLEN FIREARM.
                PROPERTY WAS SEIZED BY HENDERSON
                COUNTY SHERIFFS DEPARTMENT

             3. Condition of Probation “Possess no firearm, explosive
                device or other deadly weapon” in that []
                OFFENDER WAS FOUND TO BE IN POSSESSION
                OF RIFLE/FIREARM DURING SEARCH OF HIS
                RESIDENCE ON 3/9/2018. RIFLE WAS TAKEN AS
                EVIDENCE BY HENDERSON COUNTY SHERIFFS
                DEPARTMENT.

             4. Condition of Probation “Not use, possess or control any
                illegal drug or controlled substance unless it has been
                prescribed for the defendant by a licensed physician and
                is in the original container with the prescription
                number affixed on it . . .” in that
                MARIJUANA AND A HOMEADE WATER BONG
                WERE FOUND DURING ROUTINE SEARCH OF
                OFFENDERS RESIDENCE ON 3/09/2018




                                            -2-
                                     STATE V. GANTT

                   COLLINS, J., concurring in part and dissenting in part.



      On 13 July 2018, the probation officer filed a probation violation report in

superior court in 17 CRS 054550 (“July report”). The July report alleged the following

probation violations:

             1. Regular Condition of Probation: General Statute
                15A-1343(b) (3a) “Not to abscond, by willfully avoiding
                supervision or by willfully making the supervisee’s
                whereabouts unknown to the supervising probation
                officer” in that,
                OFFENDER LEFT SOUTHERNAIRE MOTEL ROOM
                NUMBER 12 ON OR ABOUT 6/20/2018 AND HAS
                FAILED TO MAKE WHEREABOUTS KNOWN THUS
                ABSCONDING

             2. “Report as directed by the Court, Commission or the
                supervising officer to the officer at reasonable times and
                places . . .” in that
                OFFENDER MISSED OFFICE VISIT ON 3/7/2018.

             3. Condition of Probation “Not possess contraband or
                stolen goods” in that
                OFFENDER WAS IN POSSESSION OF STOLEN
                ITEMS DURING ROUTINE SEARCH ON 3/09/2018
                AT HIS RESIDENCE. ITEMS SEIZED BY
                HENDERSON COUNTY SHERIFFS DEPARTMENT.

             4. Condition of Probation “Possess no firearm, explosive
                device or other deadly weapon” in that []
                OFFENDER IN POSSESSION OF STOLEN FIREARM
                DURING ROUTINE SEARCH ON 3/9/2018. WEAPON
                SEIZED BY HENDERSON COUNTY SHERIFFS
                DEPARTMENT

             5. Condition of Probation “Not use, possess or control any
                illegal drug or controlled substance unless it has been
                prescribed for the defendant by a licensed physician and
                is in the original container with the prescription
                number affixed on it . . .” in that


                                            -3-
                                      STATE V. GANTT

                    COLLINS, J., concurring in part and dissenting in part.



                 MARIJUANA AND HOMEADE WATER BONG
                 FOUND DURING SEARCH OF OFFENDERS
                 RESIDENCE ON 3/09/2018.

              6. General Statute 15A-1343(b)(1) “Commit no criminal
                 offense in any jurisdiction” in that
                 WARRANT ISSUED FOR DEFRAUDING DRUG
                 SCREEN ON 3/12/2018 AFTER ATTEMPTING TO
                 PROVIDE URINE IN PLASTIC[] BOTTLE HIDDEN
                 IN PANTS DURING ROUTINE SCREEN.

              7. General Statute 15A-1343(b)(1) “Commit no criminal
                 offense in any jurisdiction” in that
                 OFFENDER CHARGED WITH POSSESSION OF
                 METHAMPHETAMINE                ON    4/08/2018 IN
                 HENDERSON COUNTY NC AND OUTSTANDING
                 WARRANT OF POSSESSION OF STOLEN MOTOR
                 VEHICLE WITH OFFENSE DATE OF 6/20/2018

        The trial court held a hearing on the probation violation reports on 24 June

2019.

        At the conclusion of the hearing, the trial court announced it was revoking

Defendant’s probation in both 17 CRS 054550 and 054551 for absconding. In the

written judgment revoking Defendant’s probation in 17 CRS 054550, the trial court

found Defendant had willfully violated the terms of his probation as set forth “in

Paragraph(s) 1-2, 5 of the Violation Report or Notice dated 07/13/2018.” Similarly, in

the written judgment revoking Defendant’s probation in 17 CRS 054551, the trial

court found Defendant had willfully violated the terms of his probation as set forth

in “in Paragraph(s) 1 of the Violation Report or Notice dated 07/13/2018.”

        Defendant filed a written notice of appeal on 2 July 2019.


                                             -4-
                                     STATE V. GANTT

                   COLLINS, J., concurring in part and dissenting in part.



                                   II. Discussion

      Defendant argues that the trial court erred by revoking his probation in 17

CRS 054551 for a violation of which he had no notice or, in the alternative, for a

violation that was not revocable.

      A. Jurisdiction

      Initially, I address our jurisdiction over this appeal.

      Rule 4(a) of the Rules of Appellate Procedure provides that notice of appeal

from a criminal case may be taken by “(1) giving oral notice of appeal at trial, or (2)

filing notice of appeal with the clerk of superior court and serving copies thereof upon

all adverse parties within fourteen days after entry of the judgment or order[.]” N.C.

R. App. P. 4(a). Such written notice

             shall specify the party or parties taking the appeal; shall
             designate the judgment or order from which appeal is
             taken and the court to which appeal is taken; and shall be
             signed by counsel of record for the party or parties taking
             the appeal, or by any such party not represented by counsel
             of record.

N.C. R. App. P. 4(b).

      However, even if a written notice of appeal does not technically comply with

Rule 4, “[w]e may liberally construe a notice of appeal in one of two ways to determine

whether it provides jurisdiction[.]” Von Ramm v. Von Ramm, 99 N.C. App. 153, 156,

392 S.E.2d 422, 424 (1990). “First, a mistake in designating the judgment, or in

designating the part appealed from if only a part is designated, should not result in


                                            -5-
                                     STATE V. GANTT

                   COLLINS, J., concurring in part and dissenting in part.



loss of the appeal as long as the intent to appeal from a specific judgment can be fairly

inferred from the notice and the appellee is not misled by the mistake.” Id. at 156-

57, 392 S.E.2d at 424 (internal quotation marks and citations omitted). “Second, if a

party technically fails to comply with procedural requirements in filing papers with

the court, the court may determine that the party complied with the rule if the party

accomplishes the ‘functional equivalent’ of the requirement.” Id. at 157, 392 S.E.2d

at 424 (citation omitted).

      In this case, Defendant filed a pro se notice of appeal on 2 July 2019 on what

appears to be a pre-printed form for noticing appeal from Henderson County District

Court to Henderson County Superior Court. The notice appears in the record as

follows:

                                 NOTICE OF APPEAL

             RE: CASE NUMBER 19009692

                   I, David John Gantt, give Notice of Appeal in the
             above-referenced case. My case was disposed of on 6/24/19
             in Henderson County District Superior Court.

                                                  David Gantt
                                                  (Signature of Defendant)

             NEXT COURT APPEARANCE:
             N/A
             (date)
             Henderson County Superior Court




                                            -6-
                                     STATE V. GANTT

                   COLLINS, J., concurring in part and dissenting in part.



The underlined portions of the above form indicate blanks that Defendant filled in by

hand. Additionally, Defendant crossed out “District” and wrote in “Superior” Court.

      Also on 2 July 2019, the trial court entered Appellate Entries in both 17 CRS

054550 and 17 CRS 054551 indicating that “[D]efendant has given Notice of Appeal

to the N.C. Court of Appeals,” and appointing the Appellate Defender to perfect

Defendant’s appeal. Appointment of Appellate Counsel by the Appellate Defender

was entered 19 August 2019. On 27 August 2019, the transcript of the proceedings

was delivered to appellate counsel; the assistant district attorney; and the North

Carolina Department of Justice, Appellate Section.               On 26 September 2019,

Defendant served the proposed record on appeal on the State. As the State did not

serve on Defendant “a notice of approval of the Proposed Record on Appeal or

objections, amendments or alternative Proposed Record on Appeal[,]” the record was

settled by operation of N.C. R. App. P. 11(b) and filed on 8 November 2019.

      Defendant’s notice of appeal, though timely filed, does not clearly designate

the judgments from which he was appealing nor the court to which he was appealing,

and failed to attach a certificate of service to confirm service, in violation of N.C. R.

App. P. 4. Nonetheless, it can be fairly inferred from Defendant’s “NOTICE OF

APPEAL” that he intended to appeal the judgments entered against him on “6/24/19”

in Henderson County Superior Court. Indeed, neither the trial court nor the State

were unclear that Defendant was appealing the judgments in 17 CRS 054550 and 17



                                            -7-
                                      STATE V. GANTT

                    COLLINS, J., concurring in part and dissenting in part.



CRS 054551 entered on 24 June 2019 in Henderson County Superior Court.

Furthermore, “‘since this Court is the only court with jurisdiction to hear

[D]efendant’s appeal, it can be fairly inferred [D]efendant intended to appeal to this

Court.’” State v. Rouse, 234 N.C. App. 92, 94, 757 S.E.2d 690, 692 (2014) (quoting

State v. Ragland, 226 N.C. App. 547, 553, 739 S.E.2d 616, 620, disc. review denied,

367 N.C. 220, 747 S.E.2d 548 (2013)).            Accordingly, neither of these technical

deficiencies are jurisdictional in this case.

      Additionally, “a party upon whom service of notice of appeal is required may

waive the failure of service by not raising the issue by motion or otherwise and by

participating without objection in the appeal[.]” Hale v. Afro-Am. Arts Int’l, Inc., 335

N.C. 231, 232, 436 S.E.2d 588, 589 (1993). The State did not move to dismiss

Defendant’s appeal based on lack of service. However, the State did not respond to

Defendant’s proposed record on appeal and then raised the issue of jurisdiction in its

response to Defendant’s petition for writ of certiorari and in its response brief.

Because there is no certificate of service of the notice of appeal and the State has not

waived Defendant’s failure to include proof of service of his notice of appeal, this

appeal must be dismissed. See Ribble v. Ribble, 180 N.C. App. 341, 343, 637 S.E.2d

239, 240 (2006).

      However, Defendant has filed a petition for certiorari asking this Court “to

review the Judgment and Commitments Upon Revocation of Probation in Henderson



                                             -8-
                                     STATE V. GANTT

                   COLLINS, J., concurring in part and dissenting in part.



County files 17 CRS 54550 and 54551 entered on 24 June 2019[.]” “The writ of

certiorari may be issued in appropriate circumstances by either appellate court to

permit review of the judgments and orders of trial tribunals when the right to

prosecute an appeal has been lost by failure to take timely action . . . .” N.C. R. App.

P. 21(a).   “A petition for the writ must show merit or that error was probably

committed below. Certiorari is a discretionary writ, to be issued only for good and

sufficient cause shown.” State v. Killette, 834 S.E.2d 696, 698 (N.C. Ct. App. Nov. 5,

2019) (citation and quotation marks omitted). Petitioner must also demonstrate “that

the ends of justice will be . . . promoted.” King v. Taylor, 188 N.C. 450, 451, 124 S.E.

751, 751 (1924).

      On appeal, Defendant argues that the trial court erred in revoking his

probation in 17 CRS 054551 but makes no argument regarding the revocation of his

probation in 17 CRS 054550. Thus, I concur with the majority’s conclusion to deny

Defendant’s petition for writ of certiorari to review the judgment upon revocation of

his probation in 17 CRS 054550.

      However, in light of Defendant’s timely, albeit technically deficient, pro se

Notice of Appeal, and the due process violations that led to the improper revocation

of Defendant’s probation, I believe it an abuse of discretion to overlook those

violations and deny a petition for writ of certiorari to review the judgment upon

revocation of Defendant’s probation in 17 CRS 054551. I would thus grant the



                                            -9-
                                      STATE V. GANTT

                    COLLINS, J., concurring in part and dissenting in part.



petition for writ of certiorari and review the merits of Defendant’s appeal in 17 CRS

054551.

B. Analysis

      “A probation revocation proceeding is not a formal criminal prosecution, and

probationers thus have ‘more limited due process right[s].’” State v. Murchison, 367

N.C. 461, 464, 758 S.E.2d 356, 358 (2014) (quoting Gagnon v. Scarpelli, 411 U.S. 778,

789 (1973), superseded by statute, Parole Commission and Reorganization Act, Pub.

L. No. 94-233, 90 Stat. 228 (1976)). As a matter of due process, however,

              [t]he probationer is entitled to written notice of the claimed
              violations of his probation; disclosure of the evidence
              against him; an opportunity to be heard in person and to
              present witnesses and documentary evidence; a neutral
              hearing body; and a written statement by the factfinder as
              to the evidence relied on and the reasons for revoking
              probation.

Black v. Romano, 471 U.S. 606, 612 (1985) (citing Gagnon, 411 U.S. at 786). The

General Assembly has effectuated this notice-related due process requirement by

enacting N.C. Gen. Stat. § 15A-1345(e), which states in pertinent part:

              Before revoking or extending probation, the court must,
              unless the probationer waives the hearing, hold a hearing
              to determine whether to revoke or extend probation and
              must make findings to support the decision and a summary
              record of the proceedings. The State must give the
              probationer notice of the hearing and its purpose, including
              a statement of the violations alleged.




                                            - 10 -
                                        STATE V. GANTT

                      COLLINS, J., concurring in part and dissenting in part.



N.C. Gen. Stat. § 15A-1345(e) (2019). “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).

       A defendant’s probation can be revoked only if the defendant (1) commits a

criminal offense in any jurisdiction in violation of N.C. Gen. Stat. § 15A-1343(b)(1);

(2) absconds from supervision in violation of N.C. Gen. Stat. § 15A-1343(b)(3a); or (3)

has already served two periods of confinement for violating other conditions of

probation according to N.C. Gen. Stat. § 15A-1344(d2). N.C. Gen. Stat. § 15A-1344(a)

(2019); State v. Williams, 243 N.C. App. 198, 199-200, 776 S.E.2d 741, 742 (2015).

       At the beginning of the hearing on the probation violation reports, Defendant

acknowledged, through counsel, that he “waive[d] a formal reading and admit[ted] a

willful violation of his probation[.]” The probation officer then purported to read the

allegations in the violation reports. After detailing the violations of probation in 17

CRS 054551 alleged in the March report, he added, “Addendum violation, offender

left room No. 12 of the Southern Air Motel on or about 6/22/2018 and failed to make

his whereabouts known.” However, that violation is not alleged in the March report

in 17 CRS 054551, no addendum to the March report appears in the record on appeal,3


       3 Had an addendum to the March report been erroneously excluded from the proposed record
on appeal, the State could have timely served the addendum as an amendment to the proposed record
on appeal. See N.C. R. App. P. 11. Moreover, after the record on appeal had been settled, the State



                                              - 11 -
                                           STATE V. GANTT

                       COLLINS, J., concurring in part and dissenting in part.



and the State does not argue on appeal that there was an addendum to the March

report.

        The probation officer then stated that the July report in 17 CRS 054550 alleged

“the same violations” as the March report in 17 CRS 054551, with the addition of “a

warrant was issued for defrauding a drug screen. That’s since been dismissed. And

he had a charge of possession of methamphetamine and an outstanding warrant for

possession of a stolen motor vehicle. Those have all been resolved at this time.”

        The probation officer and defense counsel both recommended the trial court

terminate Defendant’s probation. The trial court announced, “Well, let me just first

make the record or help the record be clear on what it is you’re admitting[,]” after

which the following dialogue took place:

                THE COURT: And 17CRS54551, there are two allegations
                that I see. One of them is the absconsion, the other is the
                outstanding warrants for possession of stolen, I guess,
                property. So apparently no conviction yet in that. You’re
                admitting to absconsion in that?
                [DEFENSE COUNSEL]: Yes, Your Honor.
                THE COURT: And I’m not sure, the State, I don’t think, is
                pursuing the other. So we will note that the State is
                pursuing No 1 in that, and that’s admitted. The State is
                not pursuing No. 2, if I’m correct on that. Does that sound
                right? Just the conviction for the marijuana that is alleged
                on the other file which is 17CRS54550. The absconsion,



could have supplemented the record with the addendum, had it been presented to the trial court. N.C.
R. App. P. 9(b)(5) (“If the record on appeal as settled is insufficient to respond to the issues presented
in an appellant’s brief . . ., the responding party may supplement the record on appeal with any items
that could otherwise have been included pursuant to this Rule 9.”).

                                                 - 12 -
                               STATE V. GANTT

             COLLINS, J., concurring in part and dissenting in part.



      No. 1, is admitted. Is he admitting he missed the visit on
      March 7 or no?
      [DEFENSE COUNSEL]: We will admit that as well, Your
      Honor.
      THE COURT: Okay. Number 2 is admitted. Not possess
      contraband is No. 3. Possess no firearm is No. 4. It sounds
      like you’re saying, Mr. Collis, we’re not pursuing those.
      The State is not pursuing those?
      ....
      PROBATION OFFICER:           It was a violation of his
      probation, but he was never charged with that.
      THE COURT: All right. Well, I will just note it denied.
      And -- and State is not pursuing it in a hearing format
      today. And I’ll -- with no evidence, I’ll just find he’s not in
      violation of 3 and 4 on that. And then No. 5, admitting the
      homemade water [bong] and marijuana, I gather, because
      of the possession charged, that you are admitting?
      [DEFENSE COUNSEL]: Number 5, Your Honor?
      THE COURT: On that file, yes, sir.
      [DEFENSE COUNSEL]: Yes, Your Honor. We will admit
      that.
      THE COURT: 1 and 5 on that are admitted. 3 and 4, I’m
      finding, are dismissed.

Immediately after this colloquy, the trial court announced as follows:

             And so in response, let’s see, I’ll order that the
      earlier -- that [Defendant’s] probation be revoked. And I
      will just address 17CRS54550 first.
      ....
             So with respect to the file ending in 550, the
      probation is revoked. The earlier suspended sentence of
      minimum of 8, maximum of 19, is ordered activated.
      ....
             With respect to the other file, 17CRS54551, again, I
      will note the absconsion and revoke probation. The earlier
      suspended sentence of a minimum of 8, maximum 19 is --

                                     - 13 -
                                      STATE V. GANTT

                    COLLINS, J., concurring in part and dissenting in part.



               was to run at the expiration of the one I just mentioned,
               and so that would be activated as a consecutive sentence.

       Here, the trial court stated that it saw two allegations in 17 CRS 054551, one

of which was absconsion. It then asked defense counsel if Defendant was admitting

to absconsion, and defense counsel answered in the affirmative. The trial court noted

that “the State is pursuing No. 1 in that, and that’s admitted.” However, there is no

allegation of absconding in 17 CRS 054551. The first paragraph of the March report

in 17 CRS 054551 alleges that Defendant violated the condition of his probation that

he “[r]eport as directed by the Court, Commission or the supervising officer to the

officer at reasonable times and places . . .” in that he failed to report to an office visit

on 3/7/2018.

       The first paragraph of the July report in 17 CRS 054550 does allege that

Defendant violated the condition of probation “[n]ot to abscond” in that he “left

Southernaire motel room number 12 on or about 6/20/2018 and has failed to make

whereabouts known thus absconding.” (original in all capital letters). After inquiring

about the absconding allegation, the trial court then inquired sequentially about the

remaining allegations in the July report in 17 CRS 054550. Thus, it is apparent that

the trial court’s line of questioning pertained to 17 CRS 054550 in the July report.

       After its questioning, the trial court orally found the allegations in paragraphs

1, 2, and 5 admitted and dismissed allegations in paragraphs 3 and 4 in 17 CRS

054550 in the July report. The trial court then stated, “With respect to the other file,


                                            - 14 -
                                     STATE V. GANTT

                   COLLINS, J., concurring in part and dissenting in part.



17CRS54551, again, I will note the absconsion and revoke probation.” In the written

judgment revoking Defendant’s probation in 17 CRS 054550, the trial court found

Defendant had willfully violated the terms of his probation as set forth in paragraphs

1, 2, and 5 of the violation report in 17 CRS 054550 “dated 07/13/2018.” In the written

judgment revoking Defendant’s probation in 17 CRS 054551, the trial court found

Defendant had willfully violated the terms of his probation as set forth in paragraph

1 of the violation report in 17 CRS 054550 “dated 07/13/2018.”

      The allegations contained in the July report in 17 CRS 054550 were

insufficient to put Defendant on notice of a violation in 17 CRS 054551. Two different

judgments suspending the sentences were entered with two different file numbers–

17 CRS 054550 and 17 CRS 054551–for two different offenses; separate violation

reports were filed in each case, with four months in between the report filed in 17

CRS 054551 and the report filed in 17 CRS 054550; and the violation reports did not

contain the same allegations. As absconding was not alleged in the March report in

17 CRS 054551, Defendant was not on notice that he could be found to have violated

his probation for absconding or that his probation could be revoked for absconding in

17 CRS 054551.

      Furthermore, even if the written judgment in 17 CRS 054551 is treated as

containing a clerical error in referring to the violation report “dated 07/13/2018” and

we instead look to the violation report filed in that case on 12 March 2018, the



                                           - 15 -
                                     STATE V. GANTT

                   COLLINS, J., concurring in part and dissenting in part.



allegation in paragraph 1–“’Report as directed by the Court, Commission or the

supervising officer to the officer at reasonable times and places . . .’ in that

OFFENDER FAILED TO REPORT FOR OFFICE VISIT ON 3/7/2018”–does not,

without more, allege absconding in violation of N.C. Gen. Stat. § 15A-1343(b)(3a). See

State v. Johnson, 246 N.C. App. 139, 142, 783 S.E.2d 21, 24 (2016) (“[A] defendant

informing his probation officer he would not attend an office visit the following day

and then subsequently failing to report for the visit, does not, without more, violate

N.C. Gen. Stat. § 15A-1343(b)(3a) when these exact actions violate the explicit

language of a wholly separate regular condition of probation which does not allow for

revocation and activation of a suspended sentence.”). Instead, paragraph 1 alleges a

violation of the condition of probation that Defendant “[r]eport as directed by the

Court, Commission or the supervising officer to the officer at reasonable times and

places[,]” as specifically alleged by the State in the March report. A violation of this

condition is a non-revocable violation.

      The State argues that Defendant was on notice that his probation could be

revoked in 17 CRS 054551 because “the March 2018 report alleged that Defendant

possessed a stolen firearm and possessed marijuana and drug paraphernalia, all of

which constitute criminal offenses in North Carolina, which makes those actions

grounds for probation revocation under [N.C. Gen. Stat.] § 15A-1343(b)(1) (commit no

criminal offense in any jurisdiction).” This argument is meritless.



                                           - 16 -
                                     STATE V. GANTT

                   COLLINS, J., concurring in part and dissenting in part.



       First, the March report alleged that Defendant’s behavior violated the regular

terms of probation that he “possess no firearm” under N.C. Gen. Stat. §

15A-1343(b)(5) and “[n]ot use, possess or control any illegal drug or controlled

substance” under § 15A-1343(b)(15). The violation of either of these conditions of

probation is not a revocable violation. Williams, 243 N.C. App. at 200, 776 S.E.2d at

743.   Furthermore, while the notice required by N.C. Gen. Stat. § 15A-1345(e)

“requires only a statement of the actions that violated the conditions, not of the

conditions that those actions violated[,]” State v. Moore, 370 N.C. 338, 341, 807 S.E.2d

550, 553 (2017), due process under the Federal Constitution and our state statute

“requires a specific description of the condition of probation violated . . . and not

simply a description of the behavior that constituted the violation.” Id. at 356, 807

S.E.2d at 561 (Beasley, J. dissenting); see id. at 345, 807 S.E.2d at 555 (explaining

that the majority opinion addresses only the statutory notice required by N.C. Gen.

Stat. § 15A-1345(e) and does not address a due process or the Fourteenth Amendment

argument). As the March report did not allege that Defendant violated the condition

of his probation that he commit no crime, the March report did not put Defendant on

notice that his probation could be revoked under N.C. Gen. Stat. § 15A-1343(b)(1).

Finally, neither the behavior alleged, nor the conditions alleged to have been violated,

put Defendant on notice that he could be found to have violated his probation for

absconding or that his probation could be revoked for absconding. See Hubbard, 198



                                           - 17 -
                                      STATE V. GANTT

                    COLLINS, J., concurring in part and dissenting in part.



N.C. App. at 158, 678 S.E.2d at 393 (“The purpose of the notice mandated by [N.C.

Gen. Stat. § 15A-1345(e)] is to allow the defendant to prepare a defense and to protect

the defendant from a second probation violation hearing for the same act.”) (citation

omitted).

                                     III. Conclusion

      As the trial court erred by revoking Defendant’s probation in 17 CRS 054551

for a violation of which he had no notice or, in the alternative, for a violation that was

not revocable, I would reverse the judgment entered upon the revocation of

Defendant’s probation in 17 CRS 054551.




                                            - 18 -
