IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-937
Filed: 15 August 2017
Cabarrus County, Nos. 10 CRS 9879-80
STATE OF NORTH CAROLINA
v.
MONTANELLE DEANGELO POSEY
Appeal by Defendant from judgment entered 20 December 2012 by Judge W.
Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals
17 May 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Heather A.
Haney, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Hannah H.
Love, for defendant-appellant.
DILLON, Judge.
Montanelle Deangelo Posey (“Defendant”) appeals from a judgment revoking
his probation and activating his suspended sentence. After careful consideration, we
conclude Defendant’s appeal is moot and, therefore, dismiss his appeal.
I. Background
Defendant was placed on 36 months of supervised probation, beginning after
his release from incarceration, for certain crimes he committed prior to April 2011.
STATE V. POSEY
Opinion of the Court
While on probation, a trial court found that Defendant had not been at his
residence during a mandatory curfew on two occasions in 2012, and that these
absences constituted willful violations of a condition of his probation and that these
violations constituted absconding supervision. The trial court entered judgment
finding Defendant in willful violation of his probation, revoking his probation on the
basis of absconding and activating his suspended sentence. Defendant appealed.
II. Appellate Jurisdiction
As an initial matter, Defendant concedes that his notice of appeal was defective
for failure to satisfy multiple procedural requirements for giving notice of appeal as
set out in N.C. R. App. P. 4. In recognition of these defects, Defendant has filed a
petition for writ of certiorari contemporaneously with the filing of his appellate brief
requesting that this Court review the trial court’s judgment revoking his probation.
In our discretion, we allow Defendant’s petition for writ of certiorari.
III. Analysis
The State concedes that the trial court lacked jurisdiction to revoke
Defendant’s probation under the Justice Reinvestment Act, as the offenses he
committed for which he was placed on probation occurred prior to 1 December 2011.
The State only argues that the appeal is moot as Defendant has served his
time.
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STATE V. POSEY
Opinion of the Court
A pending appeal from a judgment that has been fully effectuated is generally
moot because a subsequent appellate decision “cannot have any practical effect on the
existing controversy.” In re A.K., 360 N.C. 449, 452,
628 S.E.2d 753, 755 (2006)
(quotation marks and citation omitted). However, before an appeal is dismissed for
mootness, “it is necessary to determine whether collateral legal consequences of an
adverse nature may result.” State v. Black,
197 N.C. App. 373, 375,
677 S.E.2d 199,
201 (2009). If so, the appeal is not moot. A.K.,
360 N.C. at 452,
628 S.E.2d at 755.
Here, Defendant contends that he may suffer collateral consequences as a
result of the trial court’s alleged error in the event he is subsequently convicted of a
new crime. Defendant points to N.C. Gen. Stat. § 15A-1340.16(d)(12a) (2015), which
provides that, for sentencing purposes, an aggravating factor is found where “[t]he
defendant has, during the 10-year period prior to the commission of the offense for
which the defendant is being sentenced, been found by a court of this State to be in
willful violation of the conditions of probation imposed pursuant to a suspended
sentence . . . .” As such, a result of the trial court’s alleged error in revoking
Defendant’s probation is that Defendant may receive an enhanced sentence if he is
ever convicted of a subsequent offense.
We conclude that Defendant’s argument is misplaced. Specifically, Defendant
makes no argument that the trial court had erred in finding him in willful violation
of his probation, the factor that triggers N.C. Gen. Stat. 15A-1340.16(d)(12a). Rather,
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STATE V. POSEY
Opinion of the Court
Defendant only argues that the trial court erred in revoking his probation based on
the application of the Justice Reinvestment Act, which did not take effect until after
Defendant violated his probation. However, the fact that Defendant’s probation was
revoked, in and of itself, does not trigger the application of N.C. Gen. Stat. 15A-
1340.16(d)(12a). The only part of the trial court’s judgment which could have any
future detrimental effect is the finding that Defendant was in willful violation of his
probation, a finding that 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 applied N.C. Gen. Stat. 15A-1340.16(d)(12a). Specifically,
the conditions of Defendant’s probation included a mandatory curfew; Defendant was
cited for violating this curfew; the trial court had the jurisdiction to hold its hearing
to consider Defendant’s violation; and the trial court found that Defendant violated
his curfew and that the violation was willful. Therefore, since Defendant will not
suffer future collateral consequences stemming from the trial court’s error in revoking
his probation, we conclude that Defendant’s appeal is moot.
DISMISSED.
Judge BERGER concurs.
Judge ZACHARY dissenting by separate opinion.
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No. COA16-937 – State v. Posey
ZACHARY, Judge, dissenting:
In this case the trial court’s revocation judgment was entered only upon a
finding that defendant had absconded supervision. The trial court, however, lacked
the statutory authority to revoke defendant’s probation on the basis of absconding
and, as a result, the revocation judgment was erroneous as a matter of law. Should
this erroneous judgment remain in place, it could subject defendant to future adverse
collateral legal consequences. For these reasons, the instant appeal is not moot and
the revocation judgment should be vacated. Accordingly, I dissent from the majority
opinion.
The general rule is that “this Court will not hear an appeal when the subject
matter of the litigation . . . has ceased to exist.” In re Swindell, 326 N.C. 473, 474,
390 S.E.2d 134, 135 (1990) (citation and quotation marks omitted). When a defendant
has been released from custody, “the subject matter of [that] assignment of error has
ceased to exist and the issue is moot.”
Id. at 475,
390 S.E.2d at 135. But “ ‘[w]hen
the terms of the judgment below have been fully carried out, if collateral legal
consequences of an adverse nature can reasonably be expected to result therefrom,
then the issue is not moot and the appeal has continued legal significance.’ ” State v.
Black,
197 N.C. App. 373, 375-76,
677 S.E.2d 199, 201 (2009) (quoting In re Hatley,
291 N.C. 693, 694,
231 S.E.2d 633, 634 (1977)). Pursuant to N.C. Gen. Stat. § 15A-
1340.16(d)(12a) (2015), a trial court may sentence a defendant to a term in the
aggravated range upon proof that:
STATE V. POSEY
ZACHARY, J., dissenting
The defendant has, during the 10-year period prior
to the commission of the offense for which the defendant is
being sentenced, been found by a court of this State to be
in willful violation of the conditions of probation imposed
pursuant to a suspended sentence or been found by the
Post-Release Supervision and Parole Commission to be in
willful violation of a condition of parole or post-release
supervision imposed pursuant to release from
incarceration.
Although it concedes that defendant’s probation was erroneously revoked on
the basis of absconding, the State asserts, and the majority agrees, that this appeal
is moot because defendant has failed to argue that the trial court erred in finding that
defendant willfully violated the terms of his probation. According to the majority, it
is this finding that may trigger subsection 15A-1340.16(d)(12a)’s aggravating factor
in the future, not the revocation itself. Yet the majority fails to recognize that the
revocation judgment was entered only upon a finding that defendant absconded
supervision. As explained below, defendant was not subject to the absconding
condition set forth in N.C. Gen. Stat. § 15A-1343(b)(3a), and the trial court lacked
statutory authority to enter the revocation judgment in the first instance.
In 2011, our General Assembly enacted the Justice Reinvestment Act (“JRA”),
which
modified our probation statutes in two important ways.
First, the JRA made the following a regular condition of
probation: “Not to abscond, by willfully avoiding
supervision or by willfully making the defendant’s
whereabouts unknown to the supervising probation
officer.” See N.C. Gen. Stat. § 15A-1343(b)(3a) (2011).
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STATE V. POSEY
ZACHARY, J., dissenting
Second, the JRA revised N.C. Gen. Stat. § 15A-1344 to
provide that a trial court may only revoke probation if the
defendant commits a criminal offense [under N.C. Gen.
Stat. § 15A-1343(b)(1)] or “absconds” as defined by the
revised Section 15A-1343(b)(3a). See N.C. Gen. Stat. § 15A-
1344(a) (2011).
State v. Hunnicutt, 226 N.C. App. 348, 354,
740 S.E.2d 906, 910-11 (2013). Under the
JRA, the new absconding provision was made applicable only to offenses committed
on or after 1 December 2011.
Id. at 355,
740 S.E.2d 906 at 911. However, “the limited
revoking authority remained effective for probation violations occurring on or after 1
December 2011.”
Id. at 355,
740 S.E.2d 906 at 911. “Consequently, a defendant who
committed the offense underlying his probation before 1 December 2011 but who
violated the conditions of his probation on or after that date cannot have his probation
revoked for absconding.” State v. Johnson, __ N.C. App. __, __, __ S.E.2d __, __, No.
COA16-734,
2017 WL 3027266, at *4 (July 18, 2017) (recognizing that “[t]his
irregularity in the statutes is colloquially referred to as a ‘donut hole.’ ”).
In the present case, defendant admitted to violating several conditions of his
probation, but he specifically challenged the absconding allegation. In announcing
its ruling at the end of the revocation hearing, the trial court did not find that
defendant had admitted any violations; instead, the court found only that defendant
“ha[d], in fact, absconded” and activated his sentence on that basis. [T pp 3, 23]
The revocation judgment was then entered on a pre-printed form, “Judgment
and Commitment Upon Revocation of Probation-Felony,” AOC Form CR-607 Rev.
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STATE V. POSEY
ZACHARY, J., dissenting
12/12, which includes a section labeled “FINDINGS” with various optional
subsections. The trial court checked finding No. 5(a), indicating that the court
revoked defendant’s probation “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)[.]” Because in none of the violation reports filed does the
probation officer allege that defendant violated subdivision 15A-1343(b)(1), the trial
court did not make a finding that defendant had committed a new criminal offense.
In addition, the trial court did not check finding No. 5(b), which is used when a
defendant’s probation is revoked for violation of a condition of his probation after
serving two prior periods of confinement in response to violations under subsection
15A-1344(d2). Considering the trial court’s oral and written findings together,
defendant’s probation was necessarily revoked based upon a finding that he had
absconded supervision in violation of subsection 15A-1343(b)(3a).
As defendant committed the underlying offenses prior to 1 December 2011, he
was not subject to the JRA’s absconding condition of probation enacted in subsection
15A-1343(b)(3a). The trial court, therefore, lacked statutory authority to revoke
defendant’s probation based on the finding that he had absconded supervision. The
appropriate disposition on appeal would normally be to reverse the revocation
judgment and “remand to the trial court for entry of an appropriate judgment for
Defendant’s admitted probation violations consistent with the provisions of N.C. Gen.
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STATE V. POSEY
ZACHARY, J., dissenting
Stat. § 15A-1344.” State v. Nolen, 228 N.C. App. 203, 206,
743 S.E.2d 729, 731 (2013)
(holding that, given the changes produced by the JRA and the date of the defendant’s
underlying offenses, the trial court erred in revoking his probation on the basis of
absconding). However, given that defendant has already served his full sentence,
that option is unavailable in this case. If this Court fails to address the issue raised
by defendant on appeal, the revocation of probation will remain on his criminal
record. If defendant is convicted of another offense within the next ten years, his
record will establish that defendant “has, during the 10-year period prior to the
commission of the offense for which the defendant is being sentenced, been found by
a court of this State to be in willful violation of the conditions of probation.” The
majority posits a distinction between a defendant whose probation was revoked and
one who is found to be in willful violation of probation. This proposed distinction is
meaningless, given that a defendant’s probation may not be revoked absent a finding
of willful violation of the conditions of probation. Defendant’s exposure to the
possibility of an aggravated sentence is clearly a collateral consequence of our failure
to review his appeal.
Accordingly, I would vote to reach the merits of defendant’s appeal and to
vacate the revocation judgment. See Black, 197 N.C. App. at 377,
677 S.E.2d at 202
(recognizing that the judgment revoking the defendant’s probation could be used as
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STATE V. POSEY
ZACHARY, J., dissenting
an aggravating factor in a subsequent sentencing hearing pursuant to subdivision
15A-1340.16(d)(12a)).
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