Return to nccourts.org
Return to the Opinions Page
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
1. Appeal and Error_findings to which no error assigned_reviewed as a
conclusion
Findings of fact which are essentially conclusions of law will be treated as such
on appeal, and a finding which was actually a conclusion was reviewed even though error was
not assigned to the finding.
2. Constitutional Law_double jeopardy_post-release revocation_sex offender's
failure to register change of address
Prosecution of a defendant under N.C.G.S. § 14-208.11 (failure to register a
change of address as a sex offender) and revocation of his post-release supervision for sexual
offenses does not violate double jeopardy principles. A post-release revocation hearing is not a
criminal prosecution; moreover, revocation and reinstatement of the original sentence results
from the original felony convictions rather than the conduct which triggered the revocation
(absconding from the post-release officer).
Appeal pursuant to N.C.G.S. § 7A-30(2) from the
decision of a divided panel of the Court of Appeals, 182 N.C.
App. 45, 641 S.E.2d 339 (2007), reversing an order entered 24
October 2005 by Judge Timothy L. Patti in Superior Court, Catawba
County. Heard in the Supreme Court 10 September 2007.
Roy Cooper, Attorney General, by
Ashby T. Ray,
Assistant Attorney General, for the State.
Richard E. Jester for defendant-appellant.
HUDSON, Justice.
Here we review a decision of the Court of Appeals
reversing the trial court's order granting, on double jeopardy
grounds, defendant's motion to dismiss the criminal charge of
failing to register his change of address with the county sheriff
as required by N.C.G.S. § 14-208.9. The majority in the Court of
Appeals determined that the constitutional protections of double
jeopardy do not apply to a post-release supervision and parolerevocation hearing
(See footnote 1)
(hereinafter, “post-release revocation
hearing”) and that the revocation of post-release supervision
(hereinafter, “post-release”) and reinstatement of the time
remaining on the original sentence do not constitute new or
additional punishment. Hence, the Court of Appeals concluded
that double jeopardy did not bar the State from pursuing a
criminal charge against defendant for failing to register as a
sex offender. We affirm.
I. BACKGROUND
On 29 November 1999, defendant Adam Edward Sparks, Jr.
pleaded guilty to sexual activity by a substitute parent,
indecent liberties with a child, and crime against nature,
offenses classified respectively as Class E, Class F, and Class I
felonies. N.C.G.S. §§ 14-27.7(a), -202.1, -177 (2005).
Defendant was sentenced to an active term of twenty-five to
thirty-nine months for sexual activity by a substitute parent,
plus a consecutive sixteen to twenty month term for the otherconvictions. In addition, N.C.G.S. § 14-208.7 required defendant
to register as a sex offender.
On 24 February 2003, after defendant had served thirty-
nine months in prison, he was granted early release and placed on
post-release. On the same date, defendant registered as a sex
offender in Catawba County in accordance with section 14-208.7.
On 4 December 2003, defendant's post-release
supervising officer completed a Post-Release Supervision and
Parole Commission violation report, which alleged that defendant
had violated conditions of his post-release by: (1) leaving his
residence without notifying his post-release officer and failing
to make his whereabouts known, rendering himself “an absconder”;
(2) failing to pay the monthly supervision fee set by law; and
(3) not complying with his mandatory sex offender treatment
program (over five unexcused absences and an outstanding balance
of $480.00 in costs for such treatment).
On 1 July 2004, the North Carolina Department of
Correction's Post-Release Supervision and Parole Commission
(“Commission”) revoked defendant's post-release status, which it
called “parole,” after “having found that this parolee [was] not
adjusting satisfactorily or [had] violated conditions of parole,”
pursuant to “[N.C.G.S. §]
15A-1373
.”
(See footnote 2)
The Commission activatedthe remainder of defendant's original sentence, which defendant
served from 5 June 2004 through 20 December 2004, the date of his
final, unconditional release.
On 2 August 2004, while defendant was serving out his
time, a grand jury indicted him for failing to comply with sex
offender registration as required by N.C.G.S. § 14-208.9 and in
violation of N.C.G.S. § 14-208.11, which is a Class F felony.
Specifically, the indictment alleged that on or about 13 December
2003, defendant
fail[ed] to register with the Sheriff's
office in the County where the defendant did
in fact reside and fail[ed] to provide
written notice of his change of address no
later than the 10th day after his change in
address to the Sheriff's office in the County
of Catawba with whom the individual was last
registered.
Defendant moved to dismiss the charge, alleging that
the State could not both revoke his post-release for absconding
and prosecute him for failing to notify the sheriff about his
change of address without violating constitutional prohibitions
against double jeopardy. On 19 September 2005, defendant
testified that a hearing officer informed him at his June 2004
post-release revocation hearing that “he found me guilty of
absconding, and that was the only thing he found me guilty of.”
On 24 October 2005, the trial court allowed defendant's motion
and dismissed the charge, concluding that “to prosecute theDefendant for the offense alleged . . . would place the Defendant
in jeopardy twice for the same behavior.”
The State appealed. In the Court of Appeals, the State
argued that double jeopardy protection did not apply here and the
trial court erred by allowing defendant's motion to dismiss. The
State asserted, inter alia, that as with probation revocation
hearings, double jeopardy does not apply to these post-release
proceedings. Specifically, the State contended that like a
probation revocation hearing, a post-release revocation hearing
is not a criminal prosecution and revoking post-release and
activating the remaining sentence does not constitute new or
additional punishment. The State maintained that such hearings
merely involve an administrative determination of whether the
supervisee violated one or more conditions of release, and if so,
whether to revoke his post-release and impose consequences.
Defendant contended that a post-release revocation
hearing is more like a criminal contempt proceeding and
consequently is a criminal prosecution. He asserted that since
the indictment contained the same “elements” as the conduct for
which his post-release was revoked, allowing the State to
prosecute him for the indictment would violate the Blockburger or
“same elements” test for double jeopardy. Blockburger v. United
States, 284 U.S. 299, 304, 76 L. Ed. 306, 309 (1932). The Court
of Appeals majority agreed with the State and reversed the trial
court's order. State v. Sparks, 182 N.C. App. 45, 49, 641 S.E.2d
339, 342 (2007). The dissenter would have affirmed the trial court and
concluded that defendant would be placed in double jeopardy if
the State were permitted to indict and prosecute him for failing
to register as a sex offender. Id. at 51-52, 641 S.E.2d at 343
(Tyson, J., dissenting). The dissenting judge reasoned that
because the State failed to object to two of the trial court's
findings of fact, these “unchallenged findings of fact [which]
state [that] this indictment would place defendant in 'jeopardy
twice'” were binding on appeal. Id. at 50-51, 641 S.E.2d at 343.
These “findings of fact” are:
10. That the actions of the defendant,
of allegedly leaving his residence at 780 3rd
Ave. Place SE, Hickory, North Carolina, and
not making his whereabouts known are the
basis for the pending criminal charges in
Catawba County file # 04-CRS-11042 and were
also part of the basis for the violation
report which was drafted by the Defendant's
probation officer to terminate his post-
release supervision.
. . . .
13. That the parole document which
terminated/revoked the Defendant's post-
release supervision is non-specific as to the
reason the Defendant's post-release
supervision was terminated/revoked. The
Court further finds that one of the
allegations for the hearing was that the
Defendant had moved from his residence, and
that to prosecute the Defendant for moving
from his residence without notifying the
sheriff in 04-CRS-11042 would place the
Defendant in jeopardy twice for the same
behavior.
*** Converted from WordPerfect ***
The dissent went on to note that the “trial court's order
conclusively states [that] defendant's actions of (1) 'leaving
his residence' and (2) 'not making his whereabouts known' [were]
the basis for both defendant's revocation of his post-releasesupervision and re-incarceration and his subsequent criminal
indictment.” Id. at 50, 641 S.E.2d at 343. As a result, “[t]he
trial court properly concluded that 'to prosecute the Defendant
for the offense alleged in the [indictment] would place the
Defendant in jeopardy twice for the same behavior.'” Id. at 51,
641 S.E.2d at 343 (brackets added by court).
Here, the trial court's statement in finding of fact number
13 “[t]hat to prosecute the Defendant for moving from his
residence without notifying the sheriff . . . would place the
Defendant in jeopardy twice for the same behavior” is actually a
conclusion of law because a determination of double jeopardy
requires the exercise of judgment and the application of legal
principles. Conclusions of law are fully reviewable on appeal.
See, e.g., State v. Smith, 346 N.C. 794, 797, 488 S.E.2d 210, 212
(1997). The State did assign error to the trial court's
conclusion of law that a double jeopardy violation occurred in
the instant case. Hence, we review de novo whether the State's
prosecution of defendant for failing to register his change of
address violates double jeopardy.
Next, we address the Court of Appeals majority's conclusion
that “the constitutional protections of double jeopardy are
inapplicable” here. Sparks, 182 N.C. App. at 47, 641 S.E.2d at
340-41 (majority). The constitutional prohibition against double
jeopardy protects a defendant from “additional punishment and
successive prosecution” for the same criminal offense. United
States v. Dixon, 509 U.S. 688, 696, 125 L. Ed. 2d 556, 568
(1993). “The [Double Jeopardy] [C]lause protects against three
distinct abuses: a second prosecution for the same offense after
acquittal, a second prosecution for the same offense after
conviction, and multiple punishments for the same offense.” State v. Thompson, 349 N.C. 483, 495, 508 S.E.2d 277, 284 (1998)
(citing North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d
656, 664-65 (1969), limited by Alabama v. Smith, 490 U.S. 794,
104 L. Ed. 2d 865 (1989)). North Carolina's “'law of the land'
clause incorporates similar protections under the North Carolina
Constitution.” State v. Ballenger, 123 N.C. App. 179, 180, 472
S.E.2d 572, 573 (1996) (citing N.C. Const. art. I, § 19), aff'd
per curiam, 345 N.C. 626, 481 S.E.2d 84 (1997), cert. denied, 522
U.S. 817, 139 L. Ed. 2d 29 (1997).
Based on the above law and the record indicating that the
hearing officer found that defendant absconded from his post-
release supervising officer in violation of his conditional
release, we must determine: (1) whether this post-release
revocation hearing was a criminal prosecution, and (2) whether
the criminal prosecution of defendant pursuant to section 14-
208.11 for failing to notify the sheriff of his change of address
in accordance with section 14-208.9 and the revocation of his
post-release constitute multiple punishments for the same
offense. Our answer to both questions is no. We hold that
double jeopardy does not bar the State from prosecuting defendant
under section 14-208.11 for his alleged failure to register his
change of address with the sheriff as required by section 14-
208.9.
The inquiry of the court at such a hearing is
not directed to the probationer's guilt or
innocence [as in a criminal prosecution], but
to the truth of the accusation of a violation
of probation. The crucial question is: Has
the probationer abused the privilege of grace
extended to him by the court?
Hewett, 270 N.C. at 352, 154 S.E.2d at 479.
This Court reasoned further that a decision to revoke
probation affects “conditional” and not absolute liberty and
“[t]he rights of an offender in a proceeding to revoke his
conditional liberty . . . are not coextensive with the . . .
constitutional rights of one on trial in a criminal prosecution.”
Id. at 351, 154 S.E.2d at 478 (citations omitted). Hence, while
an individual facing the possibility of probation revocation is
entitled to certain procedural protections such as the right to
appear before a judge, no formal trial is required and strict
rules of evidence do not apply. Id. at 353, 154 S.E.2d at 479-80; see also N.C.G.S. § 15A-1345 (2005). Unlike in a criminal
prosecution, “the alleged violation of a valid condition of
probation need not be proven beyond a reasonable doubt.” Hewett,
270 N.C. at 353, 154 S.E.2d at 480 (citations omitted).
Numerous similarities between a post-release revocation
hearing and a probation revocation hearing support the State's
contention and the conclusion that such a hearing is not a
criminal prosecution, but rather
an informal, summary proceeding.
As with probation, “[t]he purpose of the revocation hearing is to
determine whether the parolee or the [post-release] supervisee
committed violations of conditions of [his conditional release]
and, if so, whether parole or [post-release] should be revoked.”
Clarke, Sentencing 189
. Next, regardless of whether the decision
is to revoke a defendant's parole or his post-release both entail
the revocation of a defendant's “conditional” liberty. N.C.G.S.
§§ 15A-1373(a) (parole)
, -1368.3(a) (post-release).
Furthermore,
as in the probation context, the defendant is not afforded the
same procedural protections as when facing criminal prosecution.
For example, formal rules of evidence do not apply and violations
need not be proved beyond a reasonable doubt. N.C.G.S. §§ 15A-
1376 (parole), -1368.6 (post-release).
In addition to these similarities, the fact that both parole
and post-release supervision have always been functions of the
executive and not the judicial branch supports the conclusion
that these hearings are not criminal prosecutions.
Jernigan v.
State, 10 N.C. App. 562, 565-66, 179 S.E.2d 788, 791 (“[T]he
power to grant and to revoke paroles developed originally as afunction of the executive branch of government” and “has never
been considered to be a judicial function.”)
, aff'd, 279 N.C.
556, 184 S.E.2d 259 (1971)
; see Act of July 24, 1993, ch. 538,
1993 N.C. Sess. Laws 2298, 2329-70
(codified as amended at
N.C.G.S. ch. 15A, arts. 84A and 85, and ch. 143B, art. 6, pt. 3
(2005)) (creating post-release supervision and entrusting
administration of post release and parole programs to the
Commission).
Further, we note that the majority of federal courts that
have considered the issue, including the United States Supreme
Court, have determined that probation, parole, and federal
supervised release
(See footnote 3)
revocation hearings are not criminal
prosecutions.
Gagnon v. Scarpelli, 411 U.S. 778, 782, 36 L. Ed.
2d 656, 661-62 (1973) (probation); Morrissey v. Brewer, 408 U.S.
471, 480, 33 L. Ed. 2d 484, 494 (1972) (“[R]evocation of parole
is not part of a criminal prosecution and thus the full panoply
of rights due a defendant in such a proceeding does not apply to
parole revocations.”);
see Johnson v. United States, 529 U.S.
694, 700-01, 146 L. Ed. 2d 727, 736 (2000) (supervised release)
.
In addition to this federal jurisprudence, appellate courts
of other states that have considered the issue have uniformly
reached the same conclusion. E.g., Billings v. State, 53 Ark.
App. 219, 224, 921 S.W.2d 607, 610 (1996) (“Neither parole
revocation nor suspended sentence revocation is a stage of a
criminal prosecution.”) (citations omitted);
People v. Gallegos,
914 P.2d 449, 451 (Colo. Ct. App. 1995) (“
[A] criminal contempt
proceeding is distinguishable from a parole revocation
proceeding, which is not a criminal prosecution.”); Smith v.
State, 171 Ga. App. 279, 282-83, 319 S.E.2d 113, 117 (1984) (“A
probation hearing is not a part of the criminal prosecution and
is not a second sentencing, or second imposition of punishment
for the same offense.”);
McQueen v. State, 862 N.E.2d 1237, 1243
(Ind. Ct. App. 2007) (“[D]ouble jeopardy protection applies only
to criminal proceedings and probation revocation proceedings are
not criminal proceedings.”).
Accordingly, we conclude that a post-release revocation
hearing is not a criminal prosecution.
In reaching this
conclusion, we note that the extensive authority cited above,
both from this state and from other jurisdictions, fails to
support defendant's argument that such a hearing is analogous to
a nonsummary criminal contempt proceeding. See Dixon, 509 U.S.
at 696, 125 L. Ed. 2d at 567-68
(stating that “criminal contempt
. . . enforced through nonsummary proceedings[] is 'a crime in
the ordinary sense'” and the constitutional protections of double
jeopardy apply (citations omitted))
.
While we have not previously addressed this issue as we do
here, the overwhelming majority of courts that have considered
the issue have determined that the government may revoke a
defendant's probation, parole, or supervised release and impose
accompanying sanctions without violating double jeopardy. See,
e.g., United States v. Woodrup, 86 F.3d 359, 361-62 (4th Cir.)
(“[A] sentence imposed upon the revocation of probation or parole
is not punishment for the conduct prompting the revocation, but,
rather, a modification of the original sentence for which the
probation or parole was authorized . . . . We believe that the
same must be true in the context of revocations of supervised
release.” (internal citations omitted)), cert. denied, 519 U.S.
944, 136 L. Ed. 2d 245 (1996); United States v. Brown, 59 F.3d
102, 104-05 (9th Cir. 1995) (per curiam) (“Revocation of paroleor probation is regarded as reinstatement of the sentence for the
underlying crime, not as punishment for the conduct leading to
the revocation. Parole and probation are part of the original
sentence.” (internal citation omitted)). In addition, in Johnson
v. United States, a case involving supervised release, the United
States Supreme Court noted a potential pitfall in not attributing
revocation and post-revocation penalties to the original offense.
There, the Court stated:
Where the acts of violation are criminal in
their own right, they may be the basis for
separate prosecution, which would raise an
issue of double jeopardy if the revocation .
. . were also punishment for the same
offense. Treating postrevocation sanctions
as part of the penalty for the initial
offense, however (as most courts have done),
avoids these difficulties.
529 U.S. at 700-01, 146 L. Ed. 2d at 736 (citations omitted).
The Court in Johnson concluded, “We therefore attribute
postrevocation penalties to the original conviction.” Id. at
701, 146 L. Ed. 2d at 736.
We also attribute revocation of a defendant's post-release
and post-revocation penalties to the original conviction(s) and
not to the revocation proceeding or to the condition(s) the
defendant violated. Therefore, w
e conclude that revocation of
defendant's post-release and reinstatement of the time remaining
on his original sentence result from defendant's original felony
convictions and not from his conduct which triggered the
revocation, absconding from his post-release officer. As such,
while the State's successful criminal prosecution of defendantfor violating N.C.G.S. § 14-208.11 would result in punishment, it
does not constitute new or additional punishment for the same
offense in violation of double jeopardy principles.
In addition, we note that federal circuit courts have
previously determined that “double jeopardy does not preclude
criminal prosecution for conduct which also serves as the basis
for a parole or probation revocation.” See United States v.
Soto-Olivas, 44 F.3d 788, 789 (9th Cir.) (citations omitted),
cert. denied, 515 U.S. 1127, 132 L. Ed. 2d 290 (1995). In United
States v. Woodrup, the Fourth Circuit noted that considerable
caselaw to this effect exists in the probation and parole
contexts:
In the analogous contexts of probation
and parole, the [federal] courts of appeals,
reasoning from the like fact that a sentence
imposed upon the revocation of probation or
parole is not punishment for the conduct
prompting the revocation, but, rather, a
modification of the original sentence for
which the probation or parole was authorized,
have consistently held that the subsequent
criminal prosecution and punishment for
conduct which previously served as the basis
for a revocation of probation or parole does
not offend the Double Jeopardy Clause of the
Fifth Amendment.
86 F.3d at 361-62 (citations and footnote omitted). Federal
circuit courts have reached the same conclusion in the context of
supervised release. Id. at 363 (“[T]he Double Jeopardy Clause
does not prohibit the government from criminally prosecuting and
punishing an offense which has formed the basis for revocation of
a term of supervised release.” (citations omitted)).
AFFIRMED.
Footnote: 1 We are aware that the statutory requirements dealing with
revocation proceedings are located in separate sections depending
upon whether a defendant is on post-release supervision or on
parole. Nevertheless, the respective provisions which govern
both forms of conditional release are virtually identical.
Compare N.C.G.S. § 15A-1368.6 (2005) (post-release supervision)
with N.C.G.S. § 15A-1376 (2005) (parole). In addition, in
practice, the Post-Release Supervision and Parole
Commission, the
agency charged by our legislature to “adopt rules governing the
hearing[s]” utilizes the same procedure regardless. Id. §§ 15A-
1368.6, -1376; see also Stevens
H. Clarke, Law of Sentencing,
Probation, and Parole in North Carolina 189 (Inst. of Gov't,
Chapel Hill, N.C., 2d ed. 1997) [hereinafter, Clarke,
Sentencing].
As such, we refer to such proceedings in general
terms as “post-release revocation proceedings.”
Footnote: 2 We note that the documentation from the Commission which
is included in the record states that defendant's “parole” was
revoked. Defendant was on post-release supervision and not
parole, and post-release supervision is not perfectly synonymous
with parole under our statutory scheme. Compare N.C.G.S. ch.
15A, art. 84A (2005) with N.C.G.S. ch. 15A, art. 85 (2005).
Further, the documentation incorrectly states that defendant's
“parole” was revoked by the “authority of section 15A-1373 of the
General Statutes of North Carolina.” Under our statutorystructure, the Commission's authority to revoke a defendant's
parole based upon his violation of a parole condition is
authorized by section 15A-1373, but its authority to revoke a
defendant's post-release is derived from section 15A-1368.3.
N.C.G.S. §. 15A-1368.3, -1373 (2005).
Footnote: 3 Approximately ten years before our legislature enacted
Structured Sentencing, Congress enacted the Sentencing Reform Act
of 1984, which eliminated most forms of parole for federal crimes
and created supervised release. Sentencing Reform Act, Pub. L.
No. 98-473, 98 Stat. 1987 (codified as amended at 18 U.S.C. §§
3551-3586 (2000)); see Gozlon-Peretz v. United States, 498 U.S.
395, 397, 112 L. Ed. 2d 919, 925 (1991). Like parole and post-
release supervision, federal supervised release allows a
defendant to serve part of his sentence outside prison walls
subject to his compliance with certain prescribed conditions. 18
U.S.C. § 3583 (2000).