NO. COA02-802
Appeal by defendant from judgment entered 27 February 2002 by
Judge Ernest B. Fullwood in New Hanover County Superior Court.
Heard in the Court of Appeals 12 May 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Anne G. Kirby, for the State.
Lynne Rupp for defendant-appellant.
TIMMONS-GOODSON, Judge.
Anwar Idrissa Hall (“defendant”) pled guilty to felony larceny
in New Hanover County Superior Court on 1 August 2001. The trial
court suspended defendant's active term of a minimum term of
imprisonment of eleven months and a maximum of fourteen months'
imprisonment, and placed defendant on supervised probation for
thirty-six months. On or about 4 January 2002, defendant's
probation officer filed a probation violation report alleging that
defendant had violated the following terms and conditions of
probation: (1) that defendant was $165.00 in arrears on his
monetary obligation of $1,875.00; (2) that defendant failed to
make his whereabouts known to his probation officer; and (3) thatdefendant failed to obtain a substance abuse assessment as ordered
in the 1 August 2001 probationary judgment.
A probation revocation hearing was held on 27 February 2002.
Defendant waived his right to counsel and represented himself
during the hearing. At the outset, defendant admitted to violating
the terms and conditions of probation as alleged in the violation
report. The State called as its witness Derrick DelCastihlo
(“DelCastihlo”), defendant's probation officer. DelCastihlo
testified that he discussed with defendant the need to obtain a
substance abuse assessment under the terms and conditions of his
probation as early as their first meeting in October 2001. When
defendant failed to get an assessment, on 12 December 2001,
DelCastihlo allowed defendant thirty days to obtain the assessment.
DelCastihlo further testified that defendant made one payment in
the amount of $55.00 on the monetary condition of his probation.
Therefore, defendant was $165.00 in arrears on the $1,875.00
restitution he had been ordered to pay via monthly installments of
$55.00 beginning on 1 August 2001. Further testimony from
DelCastihlo revealed that he met with defendant on 12 December 2001
and informed him that there was an outstanding habitual felon
warrant for his arrest. According to DelCastihlo, when he further
informed defendant that police had been notified and were coming to
serve the warrant, defendant fled. Defendant absconded supervision
until he was arrested on the habitual felon warrant in January
2002.
Defendant testified in his own behalf, stating that he fledfrom DelCastihlo's office on 12 December 2001 and thereafter
absconded supervision because he “knew [he] had [a] habitual felon
warrant and I was not going to sit there and just let them lock me
up.” As for his failure to get a substance abuse assessment,
defendant protested that he did not “see how that should have been
forced on [him] . . . to get [him] violated that quick.” With
respect to the arrearage on his monetary obligation, defendant
explained that he “was [not] working or nothing at that time,
because . . . [he] was waiting for [his] position to come back at
[his] job, so [he] did [not] have . . . money at that time to pay.”
Significantly, defendant admitted to having been able to make other
payments while he was working. Defendant further testified that
“the pressure that was on [him] made [him] leave [his] job and
[his] place of residence[.]”
After hearing the evidence and the arguments of the respective
parties, the trial court found that defendant had willfully and
without lawful excuse violated the terms and conditions of his
probation, as detailed in the violation report. The trial court,
therefore, revoked defendant's probation and activated defendant's
suspended sentence. Defendant appeals.
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On appeal, defendant argues that the trial court abused its
discretion in finding that he willfully violated the terms of his
probation as alleged in the 4 January 2002 probation violation
report. Specifically, defendant contends that the trial court's
findings show that the court failed to consider the evidence hepresented. We disagree.
It is well settled that “'probation or suspension of sentence
comes as an act of grace to one convicted of, or pleading guilty
to, a crime.'”
State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d
807, 808 (2000) (quoting
State v. Duncan, 270 N.C. 241, 245, 154
S.E.2d 53, 57 (1967)). Our Supreme Court has determined that in a
hearing regarding probation violations
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 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. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967).
The defendant bears the burden of presenting competent evidence of
his inability to comply with a probation condition, and if he fails
to meet his burden, evidence of his failure to comply may justify
a finding that the failure to comply was willful or without lawful
excuse.
State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253
(1987). The trial judge, as the finder of fact, may reject any or
all of defendant's evidence as untrue.
State v. Williamson, 61
N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983).
In the instant case, the State presented the testimony of
defendant's probation officer, DelCastihlo, regarding defendant's
failure to comply with certain terms and conditions of his
probation. Moreover, at the beginning of the hearing, defendant
admitted to having violated those terms and conditions of
probation. Defendant, however, subsequently offered testimony inexcuse of those violations. Defendant testified that he absconded
supervision because police officers were searching for him in order
to serve him with an outstanding felony warrant. As to his failure
to obtain a substance abuse assessment, defendant testified that he
did not think it was appropriate to require him to seek an
assessment shortly after being placed on probation. Defendant
submitted that he should have had until February 2002, the end of
his intensive probation, to obtain the substance abuse assessment.
Moreover, defendant acknowledged being in arrears on his monetary
obligation, despite having been employed and able to make payments
for a portion of his probationary term. Defendant maintained that
he was “forced” into violating the terms and conditions of his
probation.
Contrary to defendant's contentions, the record does indeed
show that the trial court considered his evidence.
See Williamson,
61 N.C. App. at 535, 301 S.E.2d at 426 (rejecting the defendant's
argument where the judgment failed to contain detailed findings
regarding the trial court's evaluation of his evidence). Here, as
in
Williamson, the record shows that the trial court heard and
evaluated the probation officer's testimony as to defendant's
failure to comply with the terms and conditions of his probation,
as well as defendant's testimony regarding his inability to comply
with those terms and conditions. The trial court then rejected, as
it may, defendant's explanation for his failure to comply with the
terms and conditions of his probation.
See id. We conclude that
there was competent evidence to support the trial court's findingthat defendant willfully and without lawful excuse, violated
certain terms and conditions of his probation. Accordingly, the
trial court properly revoked defendant's probation and activated
his suspended sentence.
Having so concluded, the judgment of the trial court is
affirmed.
Affirmed.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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