Summary
The Supreme Court of North Dakota affirmed the revocation of Roger McAvoy's probation and his resentencing to five years in the custody of the North Dakota Department of Corrections. The court held that the district court properly proceeded with the revocation hearing despite pending criminal charges, and that the evidence supported finding a probation violation under the preponderance-of-the-evidence standard.
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Practice areas
Questions Presented
- Whether the district court abused its discretion by proceeding with the probation-revocation hearing while related criminal charges were pending.
- Whether the evidence was sufficient to establish that McAvoy violated the conditions of probation by changing his address, failing to report the change, and spending nights away from his registered address without permission.
- Whether the district court's factual finding of a probation violation was clearly erroneous and whether revocation and incarceration constituted an abuse of discretion.
Holdings
- The district court did not abuse its discretion by proceeding with the probation-revocation hearing despite pending criminal proceedings arising from the same conduct.
- Hearsay evidence is admissible at a probation-revocation hearing.
- The State proved a probation violation by a preponderance of the evidence, and the district court's finding was not clearly erroneous.
- The district court did not abuse its discretion by revoking McAvoy's probation and ordering five years of incarceration.
Key quotations
“On reviewing an appeal of a probation revocation, we apply a two-step analysis.” (¶ 6)
“According to Jacobsen, the "State need show only a single violation to sustain revocation of probation."” (¶ 13)
Factual background
McAvoy pleaded guilty to failing to register as a sex offender and was placed on probation with conditions requiring compliance with state law, notification of address changes, and permission before spending the night away from his registered address. Witnesses testified that he left his registered Bismarck residence, was in the Fort Yates area, failed to notify his probation officer of the change, and spent at least one night away without permission. The district court found that he violated probation and revoked probation.
Procedural history
McAvoy pleaded guilty to failure to register as a sex offender, a class C felony, and received a sentence of 90 days in jail and five years of probation. After his probation officer petitioned for revocation based on alleged violations of registration, address-reporting, and overnight-residence conditions, the district court denied McAvoy's request to postpone the revocation hearing until resolution of related criminal charges. Following the hearing, the court found a probation violation, revoked probation, and resentenced McAvoy. The North Dakota Supreme Court affirmed.