An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 4 October 2005
STATE OF NORTH CAROLINA
Nos. 00 CRS 6799
DECARLOS MOSS 00 CRS 6800
01 CRS 4790
01 CRS 50629
Appeal by defendant from judgments entered 13 October 2004 by
Judge W. Osmond Smith, III, in Person County Superior Court. Heard
in the Court of Appeals 14 September 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Clinton C. Hicks, for the State.
Terry F. Rose, for defendant-appellant.
DeCarlos Moss (defendant) appeals from the trial court's
revocation of his probation and the activation of his suspended
sentences. We remand for resentencing.
On 14 February 2001, defendant pled guilty to one count of
breaking and entering and one count of conspiracy to commit
breaking and entering. Defendant was sentenced to a suspended term
of six to eight months imprisonment on the conspiracy charge and
six to eight months imprisonment on the breaking and entering
charge to run consecutively with the sentence imposed on the
conspiracy charge. Defendant served a two month active sentence asa condition of special probation and was placed on regular
supervised probation for a period of thirty-six months. Defendant
received credit for the two months he served.
On 16 January 2002, defendant pled guilty to possession of a
firearm by a felon and felonious assault with a deadly weapon. He
was sentenced to a suspended term of fifteen to eighteen months
imprisonment. Defendant served 135 days incarceration as a
condition of special probation and was given credit for time
served. Defendant's previous probation was modified and he was
placed on intensive supervised probation for a period of six
On 26 April 2002, an arrest warrant was issued charging
defendant with murder. On the same day, an order was issued for
defendant's arrest for violating his probation. Defendant was
charged with failing to: (1) abide by his curfew; (2) attend a day
reporting program; (3) obtain his G.E.D.; and (4) pay toward his
financial obligations. Defendant was jailed on a $25,000.00
secured bond for the probation violations, which he was unable to
post. The probation revocation hearing was calendared for 13 May
Defendant remained in jail from the time of his arrest,
through trial, and was convicted of first-degree murder. He was
sentenced to life in prison without parole on 28 May 2004.
Defendant's probation violation hearing was held on 13 October
2004. At the conclusion of the hearing, the court found defendant
had willfully violated his curfew. Defendant's six to eight monthterm of imprisonment imposed on the breaking and entering charge
was activated to run consecutively with all sentences he was
obligated to serve. The six to eight month sentence imposed on the
conspiracy to commit breaking and entering charge was activated to
run concurrently with the breaking and entering sentence and the
first-degree murder sentence. The fifteen to eighteen month
imprisonment for possession of a firearm and assault imposed on 16
January 2002 was activated to run at the expiration of the breaking
and entering sentence. Defendant appeals.
The issues on appeal are whether: (1) the trial court violated
defendant's Sixth Amendment right to confront witnesses at the
probation revocation hearing when the trial court allowed hearsay
testimony by a probation officer concerning statements made by an
out of court third party to a different out of court probation
officer; (2) defendant was denied his constitutional right to a
speedy trial and due process; (3) the trial court erred when it
activated defendant's sentences for probation violation when he was
served with orders for arrest for probation violations on 26 April
2002 and the revocation hearing was not held until 13 October 2004;
and (4) the trial court erred in refusing to grant defendant credit
for time awaiting trial when he was served with orders for arrest
for probation violations on 26 April 2002 and remained incarcerated
until the hearing on 13 October 2004.
III. Sixth Amendment Right to Confront Witnesses
Defendant argues the trial court violated his right to
confront and cross-examine witnesses at the probation revocation
hearing because the trial court allowed testimony by one probation
officer concerning what a third party told a second probation
officer. We disagree.
Defendant's Intensive Probation Officer, Robby Carver
(Officer Carver), testified at the probation revocation hearing.
Defendant's probation imposed a curfew requiring him to be at his
residence from 7:00 p.m. until 6:00 a.m. Officer Carver alleged
defendant was away from his residence between these hours on six
occasions and that his whereabouts were unknown.
Officer Carver testified that he visited defendant's residence
at 8:14 p.m. on 18 February 2002 and a female household member
advised defendant was not home. He further testified that at 8:38
p.m. on that same evening, a surveillance officer visited
defendant's residence and was told by defendant's sister that
defendant was not home and his whereabouts were unknown. Defendant
objected to Officer Carver's testimony regarding what defendant's
sister told the surveillance officer as impermissible hearsay
Officer Carver then testified that he visited defendant's
residence at 9:54 p.m. on 27 March 2002 and no one answered the
door. He further testified that a surveillance officer visited
defendant's residence at 8:37 p.m. on that evening and was told by
a fifteen-year-old girl that defendant was not at the residence.
Defendant also objected to the testimony regarding what thefifteen-year-old girl told the surveillance officer as
impermissible hearsay evidence.
Officer Carver also testified he visited defendant's residence
again on the evening of 2 April 2002 and no one answered the door.
On 18 April 2002, a surveillance officer visited defendant's
residence and no one answered the door. On 22 April 2002, Officer
Carver visited defendant's residence and was advised by defendant's
sister that defendant was not home and had not been there since the
previous Wednesday. On the evening of 25 April 2002, Officer
Carver again visited defendant's residence and defendant was not
Revocation of probation proceedings are often regarded as
informal or summary because probation or suspension of sentence
is an act of grace and not of right. State v. Duncan, 270 N.C.
241, 246, 154 S.E.2d 53, 57 (1967). [T]he rights of an offender
in a proceeding to revoke his conditional liberty under probation
or parole are not coextensive with the federal constitutional
rights of one accused in a criminal prosecution. Id. at 246, 154
S.E.2d at 58 (citations omitted). A revocation of parole
proceeding is not a criminal prosecution and no formal trial is
required. Id. at 245, 154 S.E.2d at 57. The trial court is not
bound by strict rules of evidence. Id. All that is required in
a hearing of this character is that the evidence be such as to
reasonably satisfy the judge in the exercise of his sound
discretion that the defendant has violated a valid condition upon
which the sentence was suspended. Id. Defendant erroneously relies on State v. Hewett, 270 N.C. 348,
154 S.E.2d 476 (1967), for the proposition that a trial court may
not rely on hearsay evidence as the sole basis for making factual
determinations at a probation revocation hearing. In Hewett, our
Supreme Court held that some of the trial court's findings of fact
were based on hearsay evidence and should not have been considered,
but there was enough evidence in the record to support the trial
court's finding that the defendant willfully violated the
conditions of his probation. 270 N.C. at 356, 154 S.E.2d at 482.
Here, as in Hewett, substantial evidence, in addition to the
testimony to which defendant objected, supports the trial court's
finding that defendant willfully failed to abide by his curfew.
Officer Carver personally visited defendant's residence between the
hours of 7:00 p.m. and 6:00 a.m. on 27 March 2002 and 2 April 2002.
A surveillance officer visited defendant's residence between those
hours on 18 April 2002. No one answered the door at defendant's
residence on these three occasions. Officer Carver also personally
visited defendant's residence between the hours of 7:00 p.m. and
6:00 a.m. on the evenings of 18 February 2002, 22 April 2002, and
25 April 2002. On all three occasions, Officer Carver was advised
by someone at defendant's residence that defendant was not home.
In determining whether the evidence warrants the revocation of a
suspended sentence, the credibility of the witnesses and the
evaluation and weight of their testimony, are for the judge.
State v. Robinson, 248 N.C. 282, 286, 103 S.E.2d 376, 379 (1958)
(citations omitted). Substantial evidence in the record based uponthe personal knowledge of Officer Carver in addition to that
objected to by defendant exists upon which the trial court could
have reasonably found that defendant violated the conditions of his
probation. This assignment of error is overruled.
IV. Sixth Amendment Right to a Speedy Trial
Defendant next contends his Sixth Amendment right to a speedy
trial under the United States Constitution was violated due to the
length of time between his arrest for probation violations on 26
April 2002 and the probation revocation hearing held on 13 October
2004. We disagree.
The Sixth Amendment, which guarantees to the accused 'in all
criminal prosecutions' a speedy and public trial 'by an impartial
jury of the state and district wherein the crime shall have been
committed,' is inapposite here. State v. Green, 29 N.C. App. 574,
576, 225 S.E.2d 170, 172 (1976) (quoting State v. Braswell, 283
N.C. 332, 196 S.E. 2d 185 (1973)). Hearings to determine whether
the terms of a suspended sentence have been violated are not
criminal prosecutions for the purpose of invoking the right to a
speedy trial under the Sixth Amendment of the United States
Constitution. Id. This assignment of error is overruled.
V. Activation of Defendant's Suspended Sentences
Defendant next contends the trial court erred when: (1) his
sentences were activated to begin at the expiration of any
sentences he was currently serving; (2) the probation revocation
hearing was not until 13 October 2004; and (3) he was sentenced tolife in prison without parole on charges filed subsequent to the
probation violation charges. We disagree.
Defendant was placed in custody on allegations of violating
his probation on 26 April 2002. Defendant's bond and conditions of
release were set on the same day. Defendant was unable to post the
required bond. The notice of hearing indicated that defendant's
probation violation hearing was scheduled to be held on 13 May
2002. Defendant was also arrested and charged with murder on 26
April 2002. No conditions of release were set. The probation
revocation hearing was held on 13 October 2004. On 28 May 2004,
prior to the probation revocation hearing, defendant was convicted
of first-degree murder and sentenced to life imprisonment without
Defendant argues the revocation hearing should have been held
within a reasonable time period after he was arrested for the
probation violations. Defendant asserts that if the probation
revocation hearing had been held when scheduled, his activated
suspended sentences would have run before, rather than after, his
life sentence. Defendant has failed to argue or show how he was
prejudiced by the fact that his suspended sentences were activated
to consecutively run with the life sentence without possibility of
parole. This assignment of error is dismissed.
VI. Credit for Time Spent Incarcerated
Defendant finally contends the trial court erred in refusing
to grant him credit for time awaiting trial. We agree.
N.C. Gen. Stat. § 15-196.1 (2003) provides: The credit provided shall be calculated from
the date custody under the charge commenced
and shall include credit for all time spent in
custody pending trial, trial de novo, appeal,
retrial, or pending parole, probation, or
post-release supervision revocation hearing:
Provided, however, the credit available herein
shall not include any time that is credited on
the term of a previously imposed sentence to
which a defendant is subject.
On 28 May 2004, defendant received a credit for 695 days
incarceration awaiting trial under the first-degree murder
conviction. Defendant spent 763 days incarcerated from 26 April
2002 until 28 May 2004. Defendant is entitled to an additional
sixty-eight days credit towards his sentences. N.C. Gen. Stat. §
15-196.2 (2003) provides:
In the event time creditable under this
section shall have been spent in custody as
the result of more than one pending charge,
resulting in imprisonment for more than one
offense, credit shall be allowed as herein
provided. Consecutive sentences shall be
considered as one sentence for the purpose of
providing credit, and the creditable time
shall not be multiplied by the number of
consecutive offenses for which a defendant is
Defendant's first-degree murder sentence and parole violation
sentences are treated as one sentence for the purpose of
determining credit for pre-conviction incarceration. It is
therefore irrelevant to which of the consecutive sentences the
sixty-eight days credit applies. State v. Richardson, 295 N.C.
309, 319, 245 S.E.2d 754, 761-62 (1978). We disagree with
defendant's contention that he is entitled to credit on his
activated probationary sentences for the time served from his
first-degree murder conviction on 28 May 2004 until his probationrevocation hearing on 13 October 2004. Defendant was serving an
active life sentence during that period of time. We decline to
hold that defendant is entitled to credit on the activated
sentences for the entire time he was incarcerated and for which he
received credit for time served.
Defendant also served a number of active days incarcerated as
part of special probation. He served two months as a condition of
special probation on the breaking and entering offense and 135 days
as a condition of special probation on the possession of a firearm
by a felon and assault with a deadly weapon offenses. [A]
defendant who has served, pursuant to special probation, an active
sentence, is entitled to credit for that time on any sentence
imposed upon revocation of probation. State v. Farris, 111 N.C.
App. 254, 256, 431 S.E.2d 803, 805 (1993). None of the judgments
activating defendant's sentences on the probation violations
reflect whether the trial court determined what, if any, credit
defendant was due or received.
The granting of credit for time served incarcerated is not
within the discretion of the trial court. N.C. Gen. Stat. §
15-196.1. Defendant is entitled to credited for two months time
served on the six to eight month sentence for the breaking and
entering offense and 135 days credit on the fifteen to eighteen
month sentence for the possession of a firearm by a felon and
assault with a deadly weapon offenses. Defendant is entitled to
receive credit for the time he served pursuant to special probation
and credit for the sixty-eight days he served prior to his first-degree murder conviction if he has not previously received credit
for time served.
Defendant failed to show prejudicial error in the trial
court's admitting hearsay testimony in his probation revocation
hearing or in activating his suspended sentences to run
consecutively with his life sentence. Defendant is entitled to
credit for the sixty-eight days he was incarcerated prior to his
first-degree murder conviction for which he did not receive credit
and for days he was actually incarcerated pursuant to special
probation. We remand this case to the trial court for resentencing
of defendant consistent with this opinion.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).
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