STATE OF NORTH CAROLINA
v. Wilkes County
Nos. 05 CRS 53741,
ROGER KEVIN WALSH 54174-6
Attorney General Roy Cooper, by Assistant Attorney General Ann
Stone, for the State.
Mercedes O. Chut for defendant appellant.
McCULLOUGH, Judge.
Defendant Roger Kevin Walsh appeals from an order modifying
his probation to impose a new, special condition. In the brief for
defendant, defense counsel represents that she has been unable to
identify any issues that, in her opinion, have sufficient merit to
support an argument and, consequently, submits the brief pursuant
to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, reh'g
denied, 388 U.S. 924, 18 L. Ed. 2d 1377 (1967), and State v. Kinch,
314 N.C. 99, 331 S.E.2d 665 (1985).
By letter dated 22 September 2006, defense counsel informed
defendant that, in her opinion, she was unable to find error in his
trial and that he could file his own arguments with this Court, if
he so desired. Copies of the transcript, record, and the brieffiled by counsel were sent to defendant. Accordingly, we hold that
defendant's counsel has substantially complied with the holdings in
Anders and Kinch. Defendant has filed no arguments in this Court.
Pursuant to Anders and Kinch, we normally must determine from
a full examination of all the proceedings whether the appeal is
wholly frivolous. However, in defendant's brief, defense counsel
asserts as a preliminary matter that this appeal is moot and may be
subject to dismissal. We agree.
On 9 November 2005, defendant pled guilty to charges of
violation of a domestic violence protective order; making a
harassing telephone call; assault on a female; felony breaking and
entering; possession of burglary tools; and simple possession of a
schedule IV controlled substance. These convictions were contained
in four separate orders for which defendant received the following
sentences: six to eight months for No. 05 CRS 54175; eight to ten
months for No. 05 CRS 54174; seventy-five days for No. 05 CRS
54176; and seventy-five days for No. 05 CRS 53741. While each of
these sentences were to run consecutively, the trial court
suspended Mr. Walsh's sentence and imposed sixty months of
supervised probation.
On 16 December 2005, after a hearing on a probation violation
report, the trial court modified the terms of defendant's probation
to include the special condition of electronic house arrest for
twelve months. Defendant gave oral notice of appeal for this
probation modification order, resulting in the appeal sub judice. After defendant gave notice of appeal for the probation
modification order, defendant was found to be in violation of his
probation again. As a result of this second violation, the trial
court activated defendant's sentence. While defendant also gave
notice of appeal for this revocation order, he withdrew this appeal
on 6 April 2006.
A case becomes moot when a legal controversy either “ceases to
exist,” In re A.K., 360 N.C. 449, 452, 628 S.E.2d 753, 755 (2006),
or “a determination is sought on a matter which, when rendered,
cannot have any practical effect on the existing controversy."
Roberts v. Madison County Realtors Ass'n, 344 N.C. 394, 398-99, 474
S.E.2d 783, 787 (1996). Here, the revocation of defendant's
probation and resulting incarceration, which he is not challenging,
renders his challenge to the special probation condition of
electronic house arrest no longer justiciable. Any error committed
by the trial court in entering the order modifying the terms and
conditions of his probation is rendered moot by the revocation of
his probation. Accordingly, defendant's appeal will be dismissed.
See Dickerson Carolina, Inc. v. Harrelson, 114 N.C. App. 693, 443
S.E.2d 127, appeal dismissed, disc. review denied, 337 N.C. 691,
448 S.E.2d 520 (1994) (holding that an appeal which presents a moot
question should be dismissed).
Dismissed.
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).
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