STATE OF NORTH CAROLINA
v. Warren County
Nos. 99-CRS-2669
CLIFTON SHARPER 00-CRS-1214-15
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Donald R. Teeter, for the State.
Teresa Gibson for defendant-appellant.
HUNTER, Judge.
On 24 January 2000, Clifton Sharper (“defendant”) pled guilty
to possession with intent to sell and deliver cocaine and was
sentenced to six to eight months' imprisonment in case number 99-
CRS-2669. The trial court suspended the sentence and placed
defendant on thirty-six months' supervised probation. On 25
September 2000, defendant pled guilty to two counts of the sale of
cocaine in cases numbered 00-CRS-1214 and 1215. The trial court
sentenced defendant to two terms of fifteen to eighteen months,
suspended the sentences, and placed defendant on twenty-four
months' supervised probation for each count. In March of 2000,defendant's probation cases were transferred from Warren County to
Vance County, where he resided.
On 6 June 2001, defendant's probation officer filed violation
reports in each of the above cases alleging: (1) in paragraph one,
defendant was in arrears of his monetary condition of probation;
(2) in paragraph four, defendant failed to be at his residence
numerous times between the hours of 7:00 p.m. to 6:00 a.m.; and (3)
in paragraph five, that defendant had only completed thirty-three
and one half hours of his fifty hours of community service
requirement.
When the case was called for hearing the next day, defendant's
attorney moved to continue the case because of the “newness of the
case.” The trial court denied the motion. At the beginning of the
hearing, defendant denied willful violation of the terms of his
probation. Thomas H. McCaffity, supervisor of defendant's
intensive probation, testified that defendant failed to comply with
his curfew on the 26th and 29th of March 2000, the 2nd, 9th, 18th, 24th,
26th, 27th, and 30th of April 2000, and the 1st, 6th, 7th, 9th, 10th,
14th, 15th, 17th, 20th, and 21st of May 2000. McCaffity also testified
that defendant had only completed thirty-three and one half hours
of community service with the Afton-Elberon Fire Department.
Furthermore, the individual with the Afton-Elberon Fire Department
responsible for monitoring defendant's community service wrote a
non-compliance letter on defendant on 14 March 2001 and defendant
was “cited back for community service.” McCaffity stated thatdefendant told him he did not complete the community service hours
because “he reported to the fire department and no one was there.”
Defendant testified that he missed curfew because he was
working in Raleigh. He further testified that he told his Vance
County probation officer that he had to work. Defendant also
admitted he had completed thirty-three and one half hours of the
fifty hours of community service. He testified that the reason he
did not complete his community service hours was that he “was in
between jobs, I had switched jobs in Raleigh from Cochrane and some
of the times they just didn't have nothing else for me to do.” At
the conclusion of the hearing, the trial court concluded that
defendant had willfully violated the terms of his probation without
lawful excuse. In cases numbered 99-CRS-2669 and 00-CRS-1215, the
trial court found defendant violated paragraphs one, four and five.
In case number 00-CRS-1214, the trial court found defendant
violated paragraph five. The trial court revoked defendant's
probation and activated his original sentences.
Defendant contends the trial court erred by denying his motion
to continue. He argues he was denied a fair probation hearing
because his counsel was not adequately prepared.
No set length of time is guaranteed to defendant for
investigating, preparing and presenting a defense. State v. Allen,
112 N.C. App. 419, 425, 435 S.E.2d 802, 806 (1993). Whether
defendant is denied due process must be determined in light of the
circumstances of each case. Id. “[A] motion for continuance is
ordinarily left to the sound discretion of the trial court 'whoseruling thereon is not subject to review absent an abuse of such
discretion.'” State v. Bunch, 106 N.C. App. 128, 131, 415 S.E.2d
375, 377 (quoting State v. Branch, 306 N.C. 101, 104, 291 S.E.2d
653, 656 (1982)), disc. review denied, 332 N.C. 149, 419 S.E.2d 575
(1992). Even where the motion raises a constitutional issue, its
denial results in a new trial only when the defendant shows “'that
the denial was erroneous and also that his case was prejudiced as
a result of the error.'” Id. at 131-32, 415 S.E.2d at 377 (quoting
Branch, 306 N.C. at 104, 291 S.E.2d at 656).
In this case, defendant's counsel moved to continue based on
the “newness of the case,” and not because he was unprepared.
Indeed, upon reading the transcript of the hearing, defendant's
counsel represented defendant zealously and vigorously cross-
examined defendant's probation supervisor. Even if the trial
court's denial of the motion to continue was erroneous, defendant
cannot show that his case was prejudiced as a result of the error.
All that is needed to support the judgment revoking
defendant's probation is evidence which “'reasonably satisf[ies]
the judge in the exercise of his sound discretion that the
defendant has willfully violated a valid condition of probation or
that the defendant has violated without lawful excuse a valid
condition upon which the sentence was suspended.'” State v. Lucas,
58 N.C. App. 141, 145, 292 S.E.2d 747, 750 (quoting State v.
Hewitt, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967)), disc.
review denied, 306 N.C. 390, 293 S.E.2d 593 (1982). It is
sufficient grounds to revoke the probation if only one condition isnot satisfied. See State v. Braswell, 283 N.C. 332, 337, 196
S.E.2d 185, 188 (1973). Once the State meets its burden, the
burden then shifts to defendant to “present competent evidence of
his inability to comply with the conditions of probation; . . .
otherwise, evidence of defendant's failure to comply may justify a
finding that defendant's failure to comply was wilful or without
lawful excuse.” State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d
250, 253 (1987). After a defendant presents evidence showing his
inability to meet the condition of probation, he is “'entitled to
have the trial judge make findings of fact which will clearly show
that he has considered and evaluated [the defendant's] evidence.'”
State v. Sellars, 61 N.C. App. 558, 561, 301 S.E.2d 105, 107 (1983)
(quoting State v. Smith, 43 N.C. App. 727, 732, 259 S.E.2d 805, 808
(1979)).
Here, McCaffity testified that defendant had only completed
thirty-three and one half hours of community service and the
individual with the Afton-Elberon Fire Department responsible for
monitoring defendant's community service wrote a non-compliance
letter on defendant. Defendant admitted on direct-examination that
he failed to complete the fifty hours of community service. The
evidence offered supports the court's finding that defendant failed
to complete his fifty hours of community service, as set out in
paragraph five of the probation violation reports.
Affirmed.
Judges MARTIN and BRYANT concur.
Report per Rule 30(e).
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