October 22, 1992
Subject:
G.S. § 15A-1341, Probation; G.S. § 15A-1343(b1), Additional Special Conditions of Probation.
Requested By:
Thomas Thornburg, Legal Counsel
N. C. Department of Correction
Question:
May a probation officer turn a probationer over to a jail’s custody based upon the special condition of probation that the "Probation Officer has up to 30 days of incarceration if deemed necessary for minor infractions or technical violations"?
Conclusion:
No.
In Gagnon vs. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L. Ed. 2d 656 (1973), the United States Supreme Court held that probation revocation, like parole revocation, does not call for the full panoply of rights due a defendant in a criminal proceeding; however, the probationer’s liberty interest does involve significant Fourteenth Amendment due process rights and termination of that liberty requires an informal hearing to insure that the probation violation finding is based on verified facts. In Gagnon, supra, the Supreme Court adopted the same due process procedures for preliminary and final probation revocation hearings mandated in Morrisey vs. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L. Ed. 2d 484 (1972) for parole revocation. The minimum requirements of due process include: (1) written notice of the claimed violations of probation or parole; (2) disclosure to the probationer or parolee of evidence against him; (3) opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross examine adverse witnesses; (5) a neutral and detached hearing body; and (6) a written statement by the fact finder as to the evidence relied on and reasons for revoking probation or parole.
Probation revocation in North Carolina is controlled by the provisions of G.S. § 15A-1345(e) which reads as follows:
(e) Revocation Hearing – Before revoking or extending probation, the court must, unless the probationer waives the hearing, hold a hearing to determine whether to revoke or extend probation and must make findings to support the decision and a summary record of the proceedings. The State must give the probationer notice of the hearing and its purpose, including a statement of the violations alleged. The notice, unless waived by the probationer, must be given at least twenty-four (24) hours before the hearing. At the hearing, evidence against the probationer must be disclosed to him, and the probationer may appear and speak in his own behalf, may present relevant information, and may confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation. The probationer is entitled to be represented by counsel at the hearing and, if indigent, to have counsel appointed. . . .
In State v. Hunter, 315 N.C. 371, 377, 338 S.E.2d 99, 104 (1986), Chief Justice Branch stated for the Court that:
Section 15A-1345 of the North Carolina General Statutes guarantees notice, bail, a preliminary hearing and a revocation hearing with counsel present. At the revocation hearing, the trial judge must make findings to support his decision on whether to revoke or extend probation. He must also make a summary record of the proceedings. Thus, it appears that a defendant is given the election between imprisonment and probation in the first instance; and once he chooses probation, the statute guarantees full due process before there can be a revocation of probation and a resulting prison sentence.
Even before the adoption of Chapter 15A and Gagnon vs. Scarpelli, supra, Chief Justice Parker stated for the Court in State vs. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 479 (1967), that "The courts of this state recognize the principle that a defendant on probation or a defendant under a suspended sentence, before any sentence of imprisonment is put into effect and activated, shall be given notice in writing of the hearing in apt time and an opportunity to be heard." See also State vs. Butcher, 10 N.C. App. 93, 177 S.E.2d 924 (1970). Accord, State v. Coltrane, 307
N.C. 511, 299 S.E.2d 199 (1983).
Based on the foregoing, I am of the opinion that the special condition set out above is invalid and that the Division of Adult Probation and Parole must instruct its probation officers not to attempt to utilize such authority in lieu of following the procedure outlined for revocation in G.S. § 15A1345(e).
LACY H. THORNBURG, ATTORNEY GENERAL
Jacob L. Safron Special Deputy Attorney General