An unpublished opinion of the North Carolina Court of Appeals does not constitute 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.

NO. COA14-245

NORTH CAROLINA COURT OF APPEALS

Filed: 19 August 2014

STATE OF NORTH CAROLINA

v. Guilford County

No. 11CRS081948

SY LUCAS,

Defendant.

Appeal by defendant from judgment entered 10 October 2013 

by Judge James M. Webb in Guilford County Superior Court. Heard 

in the Court of Appeals 11 August 2014.

Attorney General Roy A. Cooper III, by Assistant Attorney 

General Letitia C. Echols, for the State.

Willis Johnson & Nelson, PLLC, by Drew Nelson for 

defendant-appellant.

STROUD, Judge.

Defendant Sy Edward Lucas appeals from judgment entered 

upon revocation of his probation. For the reasons discussed 

herein, we reverse the judgment and remand for further 

proceedings.

On 3 February 2012, pursuant to a plea agreement, defendant 

entered an Alford plea to one count of accessory after the fact 
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to discharge of a weapon into occupied property. In accordance 

with the plea agreement, the trial court sentenced defendant to 

thirteen to sixteen months imprisonment. The trial court 

suspended the sentence and placed defendant on supervised 

probation for thirty-six months.

On 20 July 2012, defendant’s probation officer filed a 

violation report alleging defendant violated the conditions of 

his probation in that he failed to pay court costs and probation 

supervision fees, admitted to recently using an illegal drug,

and was convicted of attempted larceny. In response to the 

criminal conviction the trial court modified defendant’s 

probation at the 30 October 2012 violation hearing so that he 

was required to serve two days at Guilford County Farm, undergo 

a TASC substance abuse assessment and complete the One Step 

Further program.

Defendant’s probation officer filed an additional violation 

report on 26 July 2013 alleging that defendant tested positive 

for marijuana twice, failed to pay court costs and probation 

supervision fees, was discharged from TASC and the One Step 

Further program for non-compliance, attempted to falsify a drug 

screen, and admitted to using marijuana on two separate 

occasions.
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On 6 September 2013, defendant’s probation officer filed a 

violation report alleging defendant failed to appear in superior 

court for his violation hearing on 20 August 2013, and failed to 

report to his probation officer on 20 August 2013 and 3 

September 2013. An order for arrest was issued and defendant 

was arrested on 11 September 2013.

The matter came on for a probation violation hearing on 30 

September 2013. The defendant admitted and the trial court 

found that he violated the conditions of his probation willfully 

and without lawful excuse. The trial court revoked defendant’s 

probation and activated his suspended sentence. Defendant 

timely gave oral notice of appeal.

Defendant’s argument on appeal is that the trial court 

erred in revoking his probation because: (1) defendant’s 

underlying offense was committed prior to 1 December 2011, (2) 

he did not abscond, (3) the court’s oral judgment was based on 

the 6 September 2013 violation report which did not document a

new criminal offense, and (4) he had not previously received two 

periods of confinement in response to a violation. We agree 

that the trial court erred in revoking defendant’s probation, 

and the State concedes that the judgment should be reversed.
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We are unable to distinguish the present case from our 

recent decision in State v. Nolen, ___ N.C. App. ___, 743 S.E.2d 

729 (2013). In Nolen, the defendant argued the trial court 

lacked statutory authority to revoke her probation based upon 

the violations alleged by her probation officer. The defendant 

contended that her violations occurred after the effective date 

of the Justice Reinvestment Act (“JRA”), which limited the trial 

court’s authority to revoke probation for violations occurring 

on or after 1 December 2011. Nolen, ___ N.C. App. at ___, 743 

S.E.2d at 730.

[F]or probation violations occurring on or 

after 1 December 2011, the JRA limited trial 

courts’ authority to revoke probation to 

those circumstances in which the 

probationer: (1) commits a new crime in 

violation of N.C. Gen. Stat. § 15A1343(b)(1); (2) absconds supervision in 

violation of N.C. Gen. Stat. § 15A1343(b)(3a); or (3) violates any condition 

of probation after serving two prior periods 

of CRV [confinement in response to 

violation] under N.C. Gen. Stat. § 15A1344(d2).

Id. (citing N.C. Gen. Stat. § 15A-1344(a)). This Court found

that the trial court erred in finding her in violation of the 

new absconding condition set forth in N.C. Gen. Stat. § 15A1343(b)(3a) because it was not in existence at the time she 

committed her offenses. Id. at ___, 743 S.E.2d at 731. Under 
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the JRA, “the new absconding condition [is] applicable only to 

offenses committed on or after 1 December 2011, while the 

limited revoking authority remained effective for probation 

violations occurring on or after 1 December 2011.” State v. 

Hunnicutt, ___ N.C. App. ___, ___, 740 S.E.2d 906, 911 (2013). 

In the present case, although the probation officer told 

the trial court that defendant absconded and the trial court 

found that defendant had absconded, the absconding condition was 

not applicable to defendant. As noted above, the absconding 

condition only applies to offenses committed on or after 1 

December 2011, and defendant’s underlying offense was committed

on 13 July 2011. Accordingly, the trial court erred in revoking 

defendant’s probation based on an inapplicable finding of 

absconding supervision under N.C. Gen. Stat. § 15A1343(b)(3a)(2013).

Here, the oral rendering of judgment was based only on the 

allegations in the 6 September 2013 violation report, which did 

not include any criminal law violations. The trial court solely

found that defendant had:

unlawfully, willfully, and without legal 

justification violated the terms and conditions 

of his probation as is alleged in the violation 

report file-stamped September 6, 2013, and 

incorporates those allegations herein and 
-6-

specifically finds that the respondent has 

absconded supervision. 

The sentence heretofore suspended is to be 

activated[.]

Defendant’s positive tests for marijuana from the 17 July 2013

violation report were not convicted crimes nor was the report 

presented to or before the trial court when it rendered

judgment. Defendant’s criminal conviction for attempted larceny 

from the 20 July 2012 violation report was already addressed 

through probation modification, and that report was not 

presented to or before the trial court when it rendered 

judgment. Therefore, neither violation report could be 

considered by the trial court or used as additional grounds for 

probation revocation in the written judgment.

1

In summary, the absconding supervision condition of N.C. 

Gen. Stat. § 15A-1343(b)(3a) is not applicable; there was no 

evidence at the hearing that defendant had committed a new crime 

in violation of N.C. Gen. Stat. § 15A-1343(b)(1); and defendant 

had not served two prior periods of confinement in response to 

violation under N.C. Gen. Stat. § 15A-1344(d2). See N.C. Gen. 

Stat. § 15A-1344(a) (2013); Nolen, ___ N.C. App. at ___, 743 

 

1 While the written judgment cites a violation report dated 

“7/7/13” it is referring to the violation report dated 7/17/13.
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S.E.2d at 730. Therefore, we conclude the trial court erred in 

revoking defendant’s probation. As a result, we do not address 

defendant’s remaining arguments. We reverse the judgment and 

remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

Judges BRYANT and HUNTER, JR., Robert N. concur.

Report per Rule 30(e).