STATE OF NORTH CAROLINA
v. Davidson County
No. 01 CRS 8315
EDDIE ROSS DUNLAP
Attorney General Roy Cooper, by Assistant Attorney General
Kimberly E. Gunter, for the State.
Kay S. Murray for defendant-appellant.
McGEE, Judge.
Defendant Eddie Ross Dunlap pled guilty to taking indecent
liberties with a child and was sentenced to a term of thirteen to
sixteen months imprisonment on 27 July 1999. Defendant's sentence
was suspended and he was placed on supervised probation for thirty-
six months. As a condition of his probation, defendant was ordered
to pay probation supervision fees, fines and court costs.
Additionally, defendant was to obtain a mental health assessment
specifically for inappropriate sexual contact with children and
follow treatment recommendations.
A probation violation report was filed on 26 June 2001
alleging that defendant had violated his probation because he wasin arrears on the monetary conditions of his probation and had been
discharged from sex offender treatment due to lack of participation
and attendance failure.
A probation violation hearing was held on 1 October 2001.
Defendant admitted violating his probation. However, defendant
testified that he failed to attend one meeting because his car had
broken down, and that he did not participate in the classes because
he did not understand them and that they were "over my head."
Defendant did not testify as to why he was in arrears on the
monetary conditions of his probation, but his attorney argued that
defendant was disabled, was of low intelligence, and could not get
a job. The trial court found that defendant had willfully violated
the terms of his probation, revoked his probation, and activated
his suspended sentences. Defendant appeals.
Defendant first argues that he received ineffective assistance
of counsel. Defendant asserts that his counsel admitted the
allegations in the probation violation report, yet failed to
produce any evidence that would show to the trial court that the
violations were not willful. Defendant further contends that his
counsel did not prepare for the hearing. Specifically, defendant
argues that counsel stated at the hearing that he had only glanced
at documents which formed the basis of the probation officer's
violation report. Accordingly, defendant contends that the record
shows that trial counsel did nothing to defend him against the
allegations in the probation violation report.
Our Supreme Court stated in State v. Fair, 354 N.C. 131, 166,557 S.E.2d 500, 524 (2001), that a defendant's ineffective
assistance of counsel claims "brought on direct review will be
decided on the merits when the cold record reveals that no further
investigation is required, i.e., claims that may be developed and
argued without such ancillary procedures as the appointment of
investigators or an evidentiary hearing." However, a motion for
appropriate relief may be preferable to a direct appeal because in
order to
defend against ineffective assistance of
counsel allegations, the State must rely on
information provided by defendant to trial
counsel, as well as defendant's thoughts,
concerns, and demeanor. "[O]nly when all
aspects of the relationship are explored can
it be determined whether counsel was
reasonably likely to render effective
assistance." Thus, superior courts should
assess the allegations in light of all the
circumstances known to counsel at the time of
representation.
State v. Buckner, 351 N.C. 401, 412, 527 S.E.2d 307, 314 (2000)
(citations omitted).
The Supreme Court also directed in Fair that "should the
reviewing court determine that IAC claims have been prematurely
asserted on direct appeal, it shall dismiss those claims without
prejudice to the defendant's right to reassert them during a
subsequent [motion for appropriate relief] proceeding." Fair, 354
N.C. at 167, 557 S.E.2d at 525. A review of the record in the case
before us shows that evidentiary issues may need development for
defendant to adequately raise his IAC claim. We therefore dismiss
this assignment of error without prejudice to defendant's right to
file a motion for appropriate relief. We next consider whether the trial court erred in revoking
defendant's probation because there was insufficient evidence and
findings of fact that his failure to comply was willful. Defendant
argues that he presented sufficient evidence concerning his
disability which prevented him from complying with the monetary
conditions of his probation, and his limited intellect prevented
him from participating as ordered in the counseling program.
Furthermore, defendant contends that the trial court's findings
fail to clearly state which of the allegations defendant willfully
violated.
After careful review of the record, briefs and contentions of
the parties, we find no error. This Court has stated:
Any violation of a valid condition of
probation is sufficient to revoke defendant's
probation. All that is required to revoke
probation is evidence satisfying the trial
court in its discretion that the defendant
violated a valid condition of probation
without lawful excuse. The burden is on
defendant to present competent evidence of his
inability to comply with the conditions of
probation; and that 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)
(citations omitted). In the case before us, defendant violated the
condition of his probation that he attend sex offender treatment.
Defendant admitted that he failed to attend on at least two or
three occasions, and while he presented evidence that he failed to
attend on one occasion because his car "broke down," defendant
failed to offer any evidence to account for his other absences. His admission that he did not regularly attend the treatment
program, without offering any evidence to justify the absences, was
sufficient in itself to sustain the trial court's finding that his
failure to comply was without lawful excuse. See State v. Alston,
139 N.C. App. 787, 794-95, 534 S.E.2d 666, 671 (2000).
Accordingly, we conclude it was within the trial court's discretion
to revoke defendant's probation.
No error.
Judges WYNN and CAMPBELL concur.
Report per Rule 30(e).
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