Depending on the county, probation violation hearings can be somewhat informal and probation cases on trial court dockets can move rather quickly through trial court. This goes for felony and misdemeanor probation cases. However, the consequences of a court finding a willful violation of the terms and conditions of probation can have significant consequences. State of North Carolina v. Tia Allen (COA24-1010) is a published opinion of the North Carolina Court of Appeals from September of 2026 that gives valuable insight into two often encountered aspects of probation violation hearings: an inability to pay court order monies and incarceration as a special condition of probation. This case evaluates each issues on direct appeal of the former and through a Motion for Appropriate Relief (MAR) on the latter.
Ms. Allen was placed on probation by the Durham County Superior Court in April of 2022. The probation arose out of her guilty plea to habitual larceny, felony fleeing to elude arrest, larceny from a merchant, felony larceny, carrying a concealed weapon, and contributing to the delinquency of a juvenile. Ms. Allen received a consolidated sentence of 11 months minimum to 23 months maximum and that sentence was suspended for 24 months of supervised probation. The Court ordered Ms. Allen to pay a total of $6,345.07 in restitution, court costs, and other fees as a monetary condition. The Court also imposed other special conditions not pertaining to any additional monetary obligations to the court or any additional incarceration. Ms. Allen’s probationary period was to begin upon her release from incarceration on other offenses.
Ms. Allen’s probation officer filed violation reports in February of 2024 which were heard in Durham County Superior Court in March of 2024. The alleged violations were failure to make any payments, failing to report to the probation officer as directed, and being charged with new criminal offenses. Through her attorney, Ms. Allen admitted to the existence of new criminal offenses and she admitted to failing to pay money. Ms. Allen, again through her attorney, informed the trial court that she had been incarcerated since July of 2023. The probation officer recommended that Ms. Allen’s probation be extended for another twelve months and Ms. Allen’s attorney requested the trial court to terminate the probation. The trial court ordered that Ms. Allen’s probation be extended for an additional 24 months and ordered her to serve a period of five months in the custody of the North Carolina Department of Adult Corrections as a special condition of probation. Ms. Allen gave timely notice of appeal in April of 2024 and filed a MAR with the North Carolina Court of Appeals in December of 2024. The appellate Court found that it had jurisdiction over both matters.
On appeal, Ms. Allen argued that the trial court abused its discretion by finding that she willfully violated the terms and conditions of her probation. She argued that the State had presented insufficient evidence that she committed new offenses and that she failed to report to her probation officer. Ms. Allen also argued that the trial court abused its discretion by determining that she willfully failed to pay the court ordered monetary obligations because the court made no findings of fact regarding her inability to pay. The appellate Court vacated the trial court’s findings of the violations regarding committing new offenses and failing to report; however, the Court took a different position concerning the willful failure to pay the court order monetary obligations.
Ms. Allen argued that she provided the trial court with evidence of her inability to pay during the hearing and that the trial court should have made findings of fact that showed the evidence that was considered and evaluated by the trial court in the course of making its decision. Where failure to pay is at issue in a probation hearing, it is the burden of the defendant to offer evidence of an inability to pay. Absent that evidence, the evidence which establishes that the defendant has failed to pay is sufficient to justify that allegation. Ms. Allen did not deny this probation violation. Following her admission, through her attorney, she informed the trial court that she had been incarcerated since July of 2023. The appellate Court pointed out that statements of counsel do not qualify as competent evidence with respect to an inability to comply with the terms and conditions of probation. Additionally, the appellate Court found that Ms. Allen’s probation officer informed the court that Ms. Allen still owed the money, however, the probation officer did not make any representations regarding Ms. Allen’s inability to pay. The appellate Court determined that the trial court did not abuse its discretion in finding that Ms. Allen had willfully violated this condition of her probation.
In her MAR, Ms. Allen alleged that the five month active sentence that the trial court imposed aa a special condition was illegal under N.C.G.S. §15A-1351(a) which provides that “no confinement other than an activated suspended sentence may be required beyond two years of conviction.” In addition to the statutory reference, Ms. Allen also cited case law to support her position. However, the appellate Court determined that another statute was applicable in Ms. Allen’s case. Upon her initial sentencing, Ms. Allen’s probation was set to expire in April of 2024. However, prior to expiration, in March of 2024, the trial court extended her probation for another 24 months and imposed a five month active sentence as a special condition of probation pursuant to N.C.G.S. §15A-1344(d). Because Ms. Allen admitted the willful violation of failing to the pay the court ordered money, the trial court had the authority to impose a special condition under N.C.G.S. §15A-1344(e). Under this statutory provision, the trial court has the authority to “require that the defendant submit to a period or periods of imprisonment, either continuous or noncontinuous, at whatever time or intervals within the period of probation the court determines.” Ms. Allen’s probation is set to expire in April of 2026, and her period of confinement is not beyond her period of probation nor is it beyond two years from the time the special condition of probation was imposed. Therefore, the appellate Court concluded that the special condition of probation imposed by the trial court was lawful.
The Court of Appeals noted the distinction that N.C.G.S. §15A-1351 is applicable at the original sentencing. However, N.C.G.S. §15A-1344 applies when a defendant violates a condition of their probation. The plain language of N.C.G.S. §15A-1344 requires its application in Ms. Allen’s case as provided in N.C.G.S. §15A-1344(e), “When a defendant has violated a condition of probation, the court may modify the probation to place the defendant on special probation as provided in this subsection.” The appellate Court was reluctant to allow a defendant who failed to comply with a condition of probation at the end of the probationary period initially imposed to then avoid lawful special probation conditions.
For practitioners, this case illustrates the importance of presenting evidence, particularly witness testimony, when there is a disagreement with a probation officer regarding the recommended disposition of the alleged violation. Here we see that arguments by counsel to the court are not deemed competent evidence. Also, defense counsel has no control over the actual recommendations and statements that the probation officer will make to the court. So, under circumstances similar to this, where the willfulness of complying with a condition of probation is at issue, questioning the probation officer on cross examination about their opinion of a defendant’s ability to comply with that condition of probation may be something that should be considered. Because we can never be certain when our work at the trial court level will be reviewed by an appellate Court, it is always prudent to make every effort to make as comprehensive a record as possible.
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