1. Probation and Parole--probation violation--lawful
excuse rule
Under the “lawful excuse rule,” a defendant's probation
may not be revoked if he can demonstrate a lawful excuse for
violating his probationary conditions.
2. Probation and Parole--probation violation--lawful
excuse--consideration of evidence--findings
A trial court must consider and evaluate evidence
brought forth by a probationer in a probation revocation
proceeding which demonstrates a lawful excuse for his
violation; moreover, the trial court must make findings of
fact which clearly show that it considered and evaluated
such evidence.
3. Probation and Parole--probation revocation--lawful
excuse evidence--absence of findings
The trial court erred in revoking defendant's probation
for failure to comply with restitution and community service
conditions of his probation where the court refused to
consider and evaluate evidence offered by defendant's
attorney, consisting of medical reports and doctors'
statements, that defendant's health problems prevented him
from both providing restitution and completing his community
service requirements, and the court failed to find as a fact
that defendant did not have a lawful excuse for his
violation. Appeal by defendant Charles Ray Hill from judgment
entered 1 December 1997 by Judge Dennis Winner in Mitchell
County Superior Court. Heard in the Court of Appeals 7
January 1999.
Watson & Hunt, P.A., by Charlie A. Hunt, Jr., for
defendant-appellant.
Michael F. Easley, Attorney General, by David L.
Elliott, Associate Attorney General, for the
State.
WYNN, Judge.
On 14 November 1996, Charles Ray Hill pled guilty to
four counts of obtaining property by false pretense and was
placed on supervised probation under a suspended sentence.
As part of the conditions of probation, the trial court
ordered Hill to make monetary restitution in excess of
$27,000 and to perform community service.
On 29 May 1997, Hill's probation officer filed a
violation report alleging arrearage in the monetary
conditions of Hill's probation. Thereafter, at a hearing
before Superior Court Judge Dennis Winner, Hill admitted his
failure to comply with the restitution and community service
conditions placed upon his probation. Hill, however,
testified that he was unable to work because of back,
arthritis, and vision problems. Hill further testified thathe had no regular income and had a disability claim pending
with the Social Security Administration. Based on this
testimony, Judge Winner continued prayer for judgment until
1 December 1997 to see if Hill's Social Security Disability
benefits would be granted, and if so, whether Hill applied
them to the outstanding arrearage. Judge Winner, however,
conditioned this continuance on the specific condition that
Hill complete his community service.
At the 1 December 1997 hearing, Hill's probation
officer informed the court that Hill: (1) completed only
twenty-seven of his one hundred hours of community service;
(2) failed to comply with any of the restitution order; and
(3) had been classified as disabled by the Social Security
Administration and had begun receiving payments therefrom.
In response, Hill's attorney informed the court that
although Hill had received a $2,000 lump-sum payment and was
to receive $427 a month, this money was needed by Hill to
pay his rent and other expenses. Hill's attorney then
informed the court that Hill was assigned to work as an
attendant at the Mitchell County Solid Waste Department and
had to discontinue his employment after three or four days
due to health problems. To support this contention, Hill's
attorney offered the court pertinent medical reports anddoctors' statements. The court, however, summarily revoked
Hill's probation without looking at the proffered reports
and statements.
Before reaching the pertinent issue on appeal, we note
that defendant has violated rule 28(b)(5) of the North
Carolina Rules of Appellate Procedure by failing to refer to
the assignments of error and identify their numbers and the
pages at which they appear on the record. When a party or
attorney fails to comply with the appellate rules, rule
25(b) permits an appellate court to impose sanctions of the
type and manner prescribed by rule 34 for frivolous appeals.
Prior to imposing such sanctions, however, rule 34 mandates
that the appellate “court shall order the person subject to
sanction to show cause in writing or in oral argument or
both why a sanction should not be imposed.” Neither action
is necessary in this case because we choose not to impose
sanctions; instead, we will utilize our discretion under
rule 2 to reach the merits of this appeal.
The sole issue on appeal is whether the trial court
committed reversible error by failing to consider
defendant's disability evidence prior to revoking his
probation. We begin by noting that “[p]robation is an actof grace by the State to one convicted of a crime.” State
v. Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, 725,
disc. rev. denied, 301 N.C. 99, 273 S.E.2d 304 (1980).
Further, a proceeding to revoke probation is not bound by
strict rules of evidence and an alleged violation of a
probationary condition need not be proven beyond a
reasonable doubt. See State v. Duncan, 270 N.C. 241, 245,
154 S.E.2d 53, 57 (1967). Rather, “all that is required . .
. is that the evidence be such as to reasonably satisfy the
judge in the exercise of his sound discretion that the
defendant has violated a valid condition upon which the
sentence was suspended.” State v. Robinson, 248 N.C. 282,
285-86, 103 S.E.2d 376, 379 (1958); Freeman, 47 N.C. App. at
175, 266 S.E.2d at 725.
[1]Although the aforementioned rules provide the trial
court with substantial latitude in probation revocation
proceedings, the trial court is nonetheless bound by certain
parameters. Of particular import to the case sub judice are
those parameters associated with the “lawful excuse” rule.
The “lawful excuse” rule, which has its genesis in State v.
Robinson, 248 N.C. 282, 103 S.E.2d 376 (1958), provides that
a probationer's sentence may not be revoked if he can
demonstrate a lawful excuse for violating his probationaryconditions. See Duncan, 270 N.C. at 245, 154 S.E.2d at 57
(stating that probation can be revoked if the evidence
demonstrates that the defendant has violated, without lawful
excuse, a valid condition of his probation); Robinson, 248
N.C. at 287, 103 S.E.2d at 380 (same). The policy behind
this rule is simple: the judicial discretion afforded judges
in probation revocation proceedings “implies conscientious
judgment, not arbitrary or willful action. It takes account
of the law and the particular circumstances of the case, and
is 'directed by the reason and conscience of the judge as to
a just result'.” Duncan, 270 N.C. at 245, 154 S.E.2d at 57
(quoting Langnes v. Green, 282 U.S. 531, 541, 75 L. Ed. 520,
526 (1931).). Accordingly, fairness dictates that in some
instances a defendant's probation should not be revoked
because of circumstances beyond his control.
In applying the “lawful excuse” rule, a trial court is
mandated to consider facts brought forth by the defendant
which demonstrate that he has a lawful excuse for his
probation violation. State v. Smith, 43 N.C. App. 727, 259
S.E.2d 805 (1979). For example, in Smith, this Court
vacated an order revoking probation after determining that
the trial court failed to consider and evaluate evidence
brought forth by the defendant demonstrating a lawful excusefor violating a probationary condition. Id. Indeed, we
stated that “the defendant is entitled to have the trial
judge make findings of fact which clearly show that he has
considered and evaluated [evidence that the defendant's
violation was not willful].” Id. at 732, 259 S.E.2d at 808.
This conclusion is supported by United States Supreme
Court jurisprudence. In Black v. Romano, 471 U.S. 606, 612,
85 L. Ed. 636, 641 (1985), for example, the United States
Supreme Court stated that a “parolee or probationer is
entitled to an opportunity to show not only that he did not
violate the conditions, but also that there was a
justifiable excuse for any violation or that revocation is
not the appropriate disposition.” In another case, the
Court stated that “where the probationer has made all
reasonable efforts to pay the fine or restitution, yet
cannot do so through no fault of his own, it is
fundamentally unfair to revoke probation automatically
without considering whether adequate alternative methods of
punishing the defendant are available.” Bearden v. Georgia,
461 U.S. 660, 668-69, 76 L. Ed. 2d 221, 228 (1983). The
Court continued: “in revocation proceedings for failure to
pay a fine or restitution, a sentencing court must inquireinto the reasons for the failure to pay.” Id. at 669, 76 L.
Ed. 2d at 228.
[2]In summation, both North Carolina and United States
Supreme Court jurisprudence hold that a trial court must
consider and evaluate evidence brought forth by the
probationer which demonstrates a lawful excuse for his
violation. Moreover, the trial court is required to make
findings of fact which clearly show that it considered and
evaluated such evidence.
[3]In the case sub judice, the trial court failed in
both of the aforementioned respects. Indeed, Hill's
attorney offered to provide the trial court with evidence
demonstrating that Hill's health problems prevented him from
both providing restitution and completing his community
service requirements. The trial court, however, refused to
consider and evaluate this evidence. Further, the trial
court failed to find as fact that defendant did not have a
lawful excuse for his violation. Therefore, we hold that
the trial court erred and remand this matter so that the
trial court may make the proper inquiry and findings of
fact.
Vacated and Remanded.
Judges HORTON and EDMUNDS concur.
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