STATE OF NORTH CAROLINA
v. Northampton County
No. 00CRS0454
RICKY GRAY
Attorney General Roy Cooper, by Assistant Attorney General
Claud R. Whitener, III, for the State.
Louie Wilson, III for defendant-appellant.
BIGGS, Judge.
On 10 April 2000, Ricky Gray (defendant) pled guilty to
possession of marijuana, a Class 3 misdemeanor, and placed on
probation. On or about 29 January 2001, a district court judge
found defendant to be in violation of certain terms and conditions
of probation, and modified the terms of his probation. In
addition, the court ordered defendant to pay a fine and serve an
active term of five days in jail commencing Monday, 29 January 2001
at 10:20 a.m. While in jail, defendant drafted a notice of appeal
and gave said notice to a jailer at the county jail. The jailer
placed the notice of appeal in the jail files, and the notice was
never timely filed in the Clerk of Court's office. Defendantsubsequently completed his five-day sentence, paid the requisite
fine, and was released from jail on 3 February 2001.
On or about 3 May 2001, defendant's probation officer filed
another violation report alleging that defendant had violated
certain of the modified terms and conditions of probation. The
district court found that defendant had violated the terms and
conditions of probation, as alleged in the violation report, and
activated defendant's suspended sentence on or about 31 May 2001.
Defendant appealed to the superior court, and this matter was heard
on 9 July 2001. Defendant, appearing pro se, admitted to having
violated the terms and conditions of probation as alleged in the
violation report, but contended that he should not be held
accountable for those conditions since he had intended to appeal
from the judgment imposing those modified terms and conditions, but
was prevented from doing so by a jailer's failure to properly
handle his notice of appeal. The superior court judge found
defendant in violation of his probation and activated his suspended
sentence. Again, defendant appeals.
On appeal, defendant recapitulates the argument made before
the superior court: that his probation was improperly revoked,
since he had been deprived of his due process rights when his
appeal from the judgment modifying the terms and conditions of his
probation was not timely delivered to the Clerk of Court by the
jailer. We disagree.
Defendant's attack on the validity of the underlying 29
January 2001 judgment modifying the terms and conditions of hisprobation in this appeal from the judgment finding and concluding
that he had violated those terms and conditions and activating his
suspended sentence, is “an impermissible collateral attack.” State
v. Noles, 12 N.C. App. 676, 678, 184 S.E.2d 409, 410 (1971)
(holding that the defendant's questioning of validity of original
judgment in which his sentence was suspended, on appeal from an
order activating the sentence, was an “impermissible collateral
attack”). As the Court explained in Noles, “The proper procedure
which provides the defendant adequate opportunity for adjudication
of claimed deprivations of constitutional rights is under the Post-
Conviction Hearing Act.” Noles, 12 N.C. App. at 678, 184 S.E.2d at
410.
Even if a collateral attack on the underlying 29 January 2001
judgment were permissible, defendant is unable to show that he was
prejudiced by the jailer's failure to timely file his notice of
appeal. It was in response to defendant's missing scheduled
appointments with his probation officer and his testing positive
for marijuana and cocaine use that the district court modified the
terms of defendant's probation to extend his probation for an
additional twelve months and require that he “attend N.A. and A.A.
meetings not less than three (3) times per week and provide written
proof to the probation officer.” Had defendant's notice of appeal
been properly delivered to the Clerk enabling him to appeal from
the 29 January 2001 judgment modifying the terms and conditions of
probation, his only argument on the record is that he “didn't have
no [sic] transportation at the time. And didn't have no way [toget to the required N.A. and A.A. meetings].” Such an excuse would
not have entitled defendant to any relief on appeal from the 29
January 2001 judgment modifying the terms and conditions of his
probation, which was entered upon a finding that defendant had
violated probation by testing positive for marijuana and cocaine
use and by failing to attend scheduled meetings with his probation
officer. See State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d
250, 253 (1987) (providing that once the State presents evidence
that defendant willfully or without lawful excuse violated a valid
condition of probation, “[t]he burden is on defendant to present
competent evidence of his inability to comply with the conditions
of probation.”) Therefore, defendant's argument in this regard
fails.
We conclude that the evidence before the superior court was
sufficient to support its finding that defendant willfully and
without lawful excuse violated certain terms and conditions of his
probation, and those findings support the court's conclusion that
defendant's suspended sentence should be activated. Accordingly,
the judgment revoking defendant's probation and activating his
suspended sentence is affirmed.
Affirmed.
Judges WALKER and THOMAS concur.
Report per Rule 30(e).
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