Appeal by defendant from judgment entered 7 February 2006 by
Judge Howard E. Manning, Jr. in Wake County Superior Court. Heard
in the Court of Appeals 7 February 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Vanessa N. Totten, for the State.
Duncan B. McCormick for defendant-appellant.
Defendant Derrick A. High appeals from a judgment of the Wake
County Superior Court revoking his probation and activating his
suspended sentence. In his sole argument on appeal, defendant
contends that the trial court lacked jurisdiction to revoke his
probation after the expiration of his probationary term because the
State failed to make a "reasonable effort," as required by N.C.Gen. Stat. § 15A-1344(f) (2005), to notify him of the revocation
hearing and to conduct this hearing at an earlier date. Given the
court's factual finding that defendant absconded _ a finding that
defendant does not challenge on appeal and which we must,
therefore, accept as binding _ we hold that the trial court
properly determined that it had jurisdiction. Consequently, we
affirm the trial court's order.
In August 2001, defendant was indicted on charges of assault
inflicting serious bodily injury and first degree kidnapping. On
24 September 2001, defendant pled guilty to the assault charge and
to second degree kidnapping and, in turn, received a sentence of 29
to 44 months imprisonment. The active sentence was suspended, and
defendant was placed on supervised probation for a term of 36
months. Between February 2002 and April 2003, the trial court
entered several orders modifying the conditions of defendant's
probation, although none of those orders extended the 36-month term
of probation. As a result, defendant's probation was due to expire
24 September 2004.
On 3 July 2003, prior to the expiration of the probationary
term, defendant's probation officer filed a probation violation
report dated 28 May 2003 asserting that defendant had been
terminated from a required "Day Reporting Center" program and had
failed to report to two separate court-ordered jail stays. An
order for defendant's arrest had been issued based on that
violation report on 28 May 2003. On 18 July 2003, the officerfiled an additional violation report, dated 16 July 2003, asserting
that defendant had violated his probation by absconding: "On or
about 6-13-03 the defendant left his residence . . . in Knightdale
and has failed to make himself available for supervision or notify
his probation officer of his whereabouts. The defendant has
therefore, absconded supervision." Defendant was not located until
he was arrested for a traffic violation in fall of 2005.
Defendant's probation revocation hearing was held on 7
February 2006. Wake County Probation Officer John Crowder
explained that Kevin Carroll was defendant's probation officer in
2003 when the violation reports were filed, but that he had fully
reviewed defendant's file and confirmed the violations reported by
Officer Carroll. Officer Crowder testified that defendant had not
reported to his probation officer since June 2003 and that contact
with defendant was not re-established until the officer met with
defendant in jail in November 2005, following his traffic arrest.
Officer Crowder explained that, when defendant disappeared in 2003,
the case was turned over to a surveillance officer who checked to
see whether defendant had any pending charges, had been arrested,
or was in jail.
At the close of the State's evidence, defendant moved to
dismiss the matter for lack of jurisdiction. Defendant argued that
the State failed to satisfy N.C. Gen. Stat. § 15A-1344(f), which
sets out the circumstances under which the State may seek to revoke
an individual's probation after the designated expiration date of
the probationary term. After hearing argument from both sides, thecourt denied the motion to dismiss based upon the following oral
findings of fact:
The Court finds that in this case, before
the expiration of the period of probation, the
State had filed a written motion with the
clerk indicating its intent to conduct a
. . . .
. . . And the Court finds as a fact that
after _ that the probation officer attempted
to serve this particular defendant with the
probation report and the second one was
because he had failed to come in to serve his
Subsequent to that he absconded. He
disappeared from view. That is, the case was
turned over to a surveillance officer who from
time to time checked to see if there was any
record of his arrest, that he may be in the
And the Court finds that under the
circumstances those are reasonable efforts.
The trial court further found that defendant had violated his
probation by absconding and that the violation was a sufficient
basis upon which the court should revoke probation and activate the
suspended sentence. Based on that violation, the court revoked
defendant's probation and activated his sentence of 29 to 44 months
imprisonment. Defendant gave timely notice of appeal.
Defendant argues that the trial court erred in concluding that
the State made "reasonable efforts" as required by N.C. Gen. Stat.
§ 15A-1344(f) and that, based on this erroneous conclusion, the
court improperly denied his motion to dismiss for lack of
jurisdiction. N.C. Gen. Stat. § 15A-1344(f) provides: The court may revoke probation after the
expiration of the period of probation if:
(1) Before the expiration of the period
of probation the State has filed a
written motion with the clerk
indicating its intent to conduct a
revocation hearing; and
(2) The court finds that the State has
made reasonable effort to notify the
probationer and to conduct the
This Court has held that "[t]o satisfy G.S. 15A-1344(f), three
conditions must be met: the probationer must have committed a
violation during his probation, the State must file a motion
indicating its intent to conduct a revocation hearing, and the
State must have made a reasonable effort to notify the probationer
and conduct the hearing sooner." State v. Cannady
, 59 N.C. App.
212, 214, 296 S.E.2d 327, 328 (1982).
If the requirements of § 15A-1344(f) are not met, a trial
court lacks jurisdiction to revoke a defendant's probation after
the expiration of the probationary term. State v. Burns
, 171 N.C.
App. 759, 760, 615 S.E.2d 347, 348 (2005). Further, if the trial
court fails to make the "reasonable effort" finding mandated by §
15A-1344(f)(2), "the trial court's jurisdiction to revoke probation
after expiration of the probationary period is not preserved."
State v. Bryant
, 361 N.C. 100, 103, 637 S.E.2d 532, 534 (2006).
The sole question before the trial court was whether the State
had made the "reasonable effort" required by § 15A-1344(f)(2). The
trial court made the necessary findings of fact on that issue.
Although defendant assigned error to those findings, including thefinding that defendant absconded from supervision, he did not bring
those assignments forward in his brief. Those findings are,
therefore, binding on appeal. N.C.R. App. P. 28(b)(6)
("Assignments of error not set out in the appellant's brief . . .
will be taken as abandoned."); State v. Pendleton
, 339 N.C. 379,
389, 451 S.E.2d 274, 280 (1994) (holding that appellate courts are
bound by uncontested findings of superior court), cert. denied
U.S. 1121, 132 L. Ed. 2d 280, 115 S. Ct. 2276 (1995).
Consequently, our task is to consider whether those findings
support the court's conclusion that the State met its obligations
under § 15A-1344(f). State v. Rhyne
, 124 N.C. App. 84, 89, 478
S.E.2d 789, 791 (1996).
In State v. Camp
, 299 N.C. 524, 263 S.E.2d 592 (1980), the
Supreme Court addressed the circumstances under which a trial court
maintains jurisdiction pursuant to N.C. Gen. Stat. § 15A-1344(f).
In holding that the trial court in that case "was without authority
to conduct a probation revocation hearing and activate the
suspended sentences after the period of probation and suspension
had expired," id.
at 528, 263 S.E.2d at 594-95, the Court
This is true because the failure of the court
to enter a revocation judgment within the
five-year period prescribed by the original
judgment is not chargeable to the conduct of
defendant. He never absconded. He never
concealed himself to delay or avoid a
. He was never charged with
the commission of another crime during the
probationary period which might toll the
running of the probationary period.
, 263 S.E.2d at 595 (emphasis added).
(See footnote 1)
In this case, however, on the question of the reasonableness
of the State's efforts to notify defendant, the trial court found
that defendant had absconded and that the probation officer then
turned the case over to a surveillance officer who, from time to
time, checked to see if there was any record of defendant's arrest
or whether defendant was in jail. Under Camp
, the failure of the
trial court to enter a revocation judgment within the probationary
period was chargeable to the conduct of defendant.
Defendant, however, points to Burns
as being indistinguishable
from the facts in this case. In Burns
, unlike this case, the trial
court never made the "reasonableness" finding as required by § 15A-
1344(f)(2), and we held that "its failure to do so was error." 171
N.C. App. at 761, 615 S.E.2d at 349. This Court then declined to
remand to the trial court for the necessary finding of reasonable
efforts because the Court concluded that there was "no evidence in
the record to support such a finding in this case." Id.
615 S.E.2d at 349.
The Court explained:
At the revocation hearing, defendant's
probation officer testified she only made one
attempt to locate defendant in 2001 at the
address he had listed, which was prior to the
filing of the probation violation report and
issuance of the arrest warrant. She turned
the file over to a surveillance officerfollowing the issuance of the arrest warrant.
No attempt was made to serve the order for
arrest until March 2004.
Although the State in Burns
pointed to the fact that there was
a notation on the order for arrest that defendant was an
"absconder," this Court observed that (1) the violation report did
not list "absconding" as one of the violations; (2) "[t]he
information contained in an arrest warrant is an allegation, not a
conclusive fact"; and (3) "[t]he mere notation of 'absconder' on
the order for arrest did not relieve the State of its duty to make
reasonable efforts to notify defendant under N.C. Gen. Stat. § 15A-
, 615 S.E.2d at 349-50.
The situation in this case is markedly different. Defendant's
probation officer filed a violation report that specifically stated
that defendant absconded _ a statement that in itself is competent
evidence that he violated his probation by absconding. Defendant's
suggestion that a statement in a probation violation report is
nothing more than an allegation, like the notation on the arrest
warrant, is contrary to established law. See State v. Gamble
N.C. App. 658, 661, 274 S.E.2d 874, 876 (1981) ("Defendant's
allegation that the State presented no evidence is erroneous,
because introduction of the sworn probation violation report
constituted competent evidence sufficient to support the order
revoking his probation."). Based on the evidence, the trial court
then found that defendant had in fact absconded. Accordingly, we
have in this case what we found lacking in Burns
_ a conclusive
finding that the defendant absconded. Further, after determining that defendant did in fact abscond,
the trial court found "that under those circumstances" the State's
subsequent use of the surveillance officer was a "reasonable
effort." We hold that these findings of fact distinguish this case
and are sufficient to support the trial court's
conclusion that it had jurisdiction under N.C. Gen. Stat. § 15A-
1344(f). Since defendant presents no other argument on appeal, we
affirm the judgment revoking defendant's probation and activating
Judges TYSON and ELMORE concur.