Appeal by defendant from judgment dated 29 November 2001 by
Judge Michael E. Helms in Buncombe County Superior Court. Heard in
the Court of Appeals 4 March 2003.
Attorney General Roy Cooper, by Assistant Attorney General J.
Bruce McKinney, for the State.
Jon W. Myers for defendant appellant.
BRYANT, Judge.
Carlos Devito Payne (defendant) appeals from a judgment and
commitment upon revocation of probation dated 29 November 2001.
Defendant pled guilty on 25 May 2001 to felony death by motor
vehicle and felonious hit and run. The trial court consolidated
the convictions and imposed a minimum prison term of sixteen months
and a maximum term of twenty months. The trial court suspended the
sentence and placed defendant on supervised probation for thirty-
six months. As a special condition of probation, the trial court
ordered defendant to serve an active term of ninety days in the
Buncombe County Detention Facility. The judgment also provided as
a regular condition of probation that, “[i]f the defendant is to
serve an active sentence as a condition of special probation, the
defendant shall also . . . [o]bey the rules and regulations of theDepartment of Correction governing the conduct of inmates while
imprisoned.”
On 3 August 2001, a violation report was filed alleging
defendant had violated the regular condition of his probation while
serving the active 90-day term in the Buncombe County Detention
Facility. Following a hearing, the trial court activated
defendant's sentence after finding defendant had willfully and
without lawful excuse committed the alleged violations. The
evidence presented at the hearing that is pertinent to this appeal
is set out below.
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The issues are whether: (I) “the rules and regulations of the
Department of Correction governing the conduct of inmates while
imprisoned” applied to defendant; (II) defendant's conduct was
willful; and (III) defendant may argue on appeal that N.C. Gen.
Stat. §§ 15A-1343(b) and 15A-1351 are unconstitutional.
I
Defendant argues that since he was not housed in a Department
of Correction (DOC) facility, the rules and regulations of the DOC
did not apply to him. Stated another way, defendant contends the
trial court's judgment placing him on probation fails to address
conduct in a local jail.
The regular condition of probation quoted above is based upon
the provisions of N.C. Gen. Stat. §§ 15A-1351(a) and 15A-
1343(b)(11). Specifically, section 15A-1351(a) provides:
Under a sentence of special probation, the
court may suspend the term of imprisonment andplace the defendant on probation as provided
in Article 82, Probation, and in addition
require that the defendant submit to a period
or periods of imprisonment in the custody of
the Department of Correction
or a designated
local confinement or treatment
facility at
whatever time or intervals within the period
of probation, consecutive or nonconsecutive,
the court determines. In addition to any
other conditions of probation which the court
may impose, the court
shall impose, when
imposing a period or periods of imprisonment
as a condition of special probation,
the
condition that the defendant obey the Rules
and Regulations of the Department of
Correction governing conduct of inmates, and
this condition shall apply to the defendant
whether or not the court imposes it as a part
of the written order. If
imprisonment is for
continuous periods, the confinement may be in
the custody of either the Department of
Correction or a
local confinement facility.
N.C.G.S. § 15A-1351(a) (2001) (emphasis added). Consistent with
this section, the statute listing regular conditions of probation
provides, in part:
In addition to these regular conditions
of probation, a defendant required to serve an
active term of imprisonment as a condition of
special probation pursuant to G.S. 15A-1344(e)
or
G.S. 15A-1351(a) shall, as additional
regular conditions of probation, obey the
rules and regulations of the Department of
Correction governing the conduct of inmates
while
imprisoned . . . .
N.C.G.S. § 15A-1343(b)(11) (2001) (emphasis added). These statutes
clearly show that a defendant who is serving an active sentence in
a local confinement facility, such as a county jail, is also
subject to the rules and regulations of the DOC even if the
defendant is not housed in a DOC facility. Consequently, defendant
was bound by the DOC rules and regulations.
II
Defendant also claims he was not informed of DOC rules and
regulations while housed in the Buncombe County Detention Facility,
and therefore, his DOC rule violation was not willful.
To revoke probation, the evidence must only “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). In this case, the State
presented evidence tending to show that when defendant became an
inmate of the Buncombe County Detention Facility, he was shown a
videotape advising him of the facility's rules and regulations and
provided a copy of these rules and regulations in their entirety.
Part of the rules and regulations is a prohibition against
threatening or using abusive language toward staff members of the
detention facility. The DOC rules and regulations contain a
similar prohibition against the usage of threatening or abusive
language.
On 26 June 2001, defendant told an officer of the Buncombe
County Detention Facility who had reprimanded him about the misuse
of an emergency call box that “he had killed a man and only
received 90 days, and it would be easy to do it again.” Defendant
also told the officer, “I'll see you on the street and take care of
your problem in a hurry.” One month later, defendant screamed at
another officer at the facility, “You don't tell me what to do
. . . . If you come in here and put your f[------] hands on me,
I'll f[------] kill you.” We conclude this evidence is sufficientto support the trial court's finding that defendant willfully and
without lawful excuse violated the condition of probation.
Accordingly, we find no abuse of discretion.
III
Finally, defendant contends that sections 15A-1343(b) and 15A-
1351 are unconstitutional because they violate due process and
equal protection. This contention is not based on an assignment of
error in the record and therefore is not properly presented.
See
N.C.R. App. P. 10(a) (“the scope of review on appeal is confined to
a consideration of those assignments of error set out in the record
on appeal”). Moreover, defendant failed to challenge the
constitutionality of these statutes in the trial court. As
constitutional issues not raised in the trial court will not be
considered for the first time on appeal,
State v. Benson, 323 N.C.
318, 322, 372 S.E.2d 517, 519 (1988), we do not address this issue.
No error.
Judges HUNTER and ELMORE concur.
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