An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-892


Filed: 18 March 2003


    v.                            Sampson County
                                Nos. 01 CRS 51864-65,
McCLINTON THOMAS MATTHEWS                50992

    Appeal by defendant from judgment dated 20 March 2002 by Judge Ernest B. Fullwood in Sampson County Superior Court. Heard in the Court of Appeals 4 March 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Jay L. Osborne, for the State.

    Leslie G. Fritscher for defendant appellant.

    BRYANT, Judge.

    McClinton Thomas Matthews (defendant) appeals a judgment upon revocation of probation dated 20 March 2002.
    On 13 November 2001, defendant was convicted on charges of selling heroin, selling cocaine, and possessing stolen goods. Defendant received a suspended sentence of twelve to fifteen months imprisonment and was placed on supervised probation for thirty-six months. As a special condition of his probation, defendant was ordered to participate in the TROSA program (“Triangle Residential Options for Substance Abusers”). Defendant was tentatively accepted into the program pending a medical examination.
    On 25 January 2002, a probation violation report was filedalleging defendant had violated his probation by twice failing to report for the medical examination required for admission into the TROSA program. A probation violation hearing was held in Sampson County Superior Court on 18 March 2002. Defendant admitted violating his probation but argued he did not do so willfully. The trial court found defendant had willfully violated the terms of his probation as alleged in the report. The trial court then revoked defendant's probation and activated the suspended sentence. The evidence introduced at the hearing that is pertinent to this appeal is discussed below.


    The issues are whether: (I) there was insufficient evidence defendant had violated the terms of his probation and (II) the trial court abused its discretion by failing to consider whether defendant's probation should be continued or modified.

    Defendant contends he was incarcerated at the time both medical exams were scheduled and thus under the “complete control and custody” of the Department of Correction. Defendant further argues he was not aware of the scheduled examinations. In addition, defendant claims he requested a medical evaluation while imprisoned, but his efforts were to no avail. Thus, defendant argues he was unable to comply with the terms of his probation. Defendant also notes that the trial court failed to make any findings of fact on the judgment and commitment form.
    After careful review of the record, briefs, and contentions ofthe parties, we find no error. This Court has stated:
            Any violation of a valid condition of probation is sufficient to revoke [the] 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 [the] defendant to present competent evidence of his inability to comply with the conditions of probation; and that otherwise, evidence of [the] defendant's failure to comply may justify a finding that [the] defendant's failure to comply was wil[l]ful or without lawful excuse.

State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987) (citations omitted).
    In this case, it was alleged defendant had violated his probation by failing to report for scheduled medical examinations. The examination was required before he could be accepted into the TROSA program, a condition of his probation. Lee Coble (Coble), defendant's probation officer, testified at the probation revocation hearing that he had twice arranged for defendant to be examined, once while defendant was incarcerated at Robeson County Correctional Center and again when defendant was at Durham Correctional Center. Coble further testified defendant was informed of the examination, that completion of the examination was mandatory before he could enter the TROSA program, and that he would go to jail if he did not comply with this requirement. According to Coble, defendant refused to have the examination.
    Based on this evidence, the trial court found defendant had violated a condition of his probation as set forth in the violationreport. We conclude there was sufficient evidence to support the trial court's finding. As such, it was within the trial court's discretion to revoke defendant's probation. We also note that the absence of findings on the judgment and commitment form appears to be a clerical error. Based on the transcript, it is apparent the trial court made findings of fact and concluded defendant was in willful violation of his probation. To correct this clerical error, we remand this matter to the trial court for correction.

    Defendant next argues the trial court abused its discretion by failing to consider whether his probation should be continued or modified. Defendant contends the trial court should have considered alternatives to activating his suspended sentence. We disagree. As noted above, the trial court found defendant had willfully violated the terms of his probation. “[T]he trial court was [therefore] not required to consider alternate means of punishment other than incarceration.” State v. Jones, 78 N.C. App. 507, 510, 337 S.E.2d 195, 198 (1985). Accordingly, this assignment of error is overruled.
    No error; remanded for correction of clerical error in the judgment.
    Judges HUNTER and ELMORE concur.
    Report per Rule 30(e).

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